J-S03010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

KEITH WILLIAMS

                        Appellant                  No. 372 WDA 2016


           Appeal from the Judgment of Sentence June 11, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0002534-2015

BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED JANUARY 30, 2017

      Appellant, Keith Williams, appeals from the judgment of sentence

entered on June 11, 2015, as made final by the denial of his post-sentence

motion on February 25, 2016. Although we affirm Appellant’s convictions,

we are constrained to vacate his judgment of sentence and remand for re-

sentencing.

      The factual background and procedural history of this case are as

follows.   On August 26, 2014, Appellant was apprehended while in

possession of heroin and marijuana. On April 13, 2015, the Commonwealth

charged Appellant via criminal information with possession of a controlled




* Retired Senior Judge assigned to the Superior Court
J-S03010-17


substance1 and possession of a small amount of marijuana.2       On June 11,

2015, Appellant pled guilty to both charges and was immediately sentenced

to an aggregate term of 30 days’ imprisonment. Thereafter, with the trial

court’s leave, Appellant filed a post-sentence motion nunc pro tunc.       On

February 25, 2016, Appellant’s post-sentence motion was denied via

operation of law. This timely appeal followed.3

        Appellant presents one issue for our review:

        Was trial counsel ineffective for failing to file a motion to
        suppress evidence seized from [Appellant] following a violation
        of the federal and state constitutional prohibitions against
        unreasonable warrantless searches and seizures?

Appellant’s Brief at 5.

        Our Supreme Court has explained that, except in very limited

circumstances, “claims of ineffective assistance of counsel are to be deferred

to PCRA review; trial courts should not entertain claims of ineffectiveness

upon post-[sentence] motions; and such claims should not be reviewed upon

direct appeal.” Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013).

One limited circumstance in which ineffectiveness claims can be reviewed on

direct appeal is when a defendant is serving a sentence so short that he or

she would likely be ineligible for PCRA relief.    See id. at 578.   For this

1
    35 P.S. § 780-113(a)(16).
2
    35 P.S. § 780-113(a)(31).
3
  Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.



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exception to apply, however, the trial court must determine that unitary

review is appropriate when ruling on the defendant’s post-sentence motion.

See id. In this case, Appellant’s post-sentence motion was denied via

operation of law which ipso facto means the trial court did not determine

that unitary review was appropriate in this case.             Moreover, although

Appellant executed a document waiving his right to seek PCRA relief, he did

not engage in an on-the-record waiver colloquy as required by Holmes.

See id. at 580.     As such, we may not consider the merits of Appellant’s

ineffectiveness claim.

      Next, we sua sponte consider the legality of Appellant’s sentence. See

Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa. Super. 2015)

(citation omitted).        It is well-settled that “flat sentences are generally

illegal[.]” Commonwealth v. Stultz, 114 A.3d 865, 885 (Pa. Super. 2015),

appeal denied, 125 A.3d 1201 (Pa. 2015).             A trial court must “impose a

minimum sentence of confinement which shall not exceed one-half of the

maximum sentence imposed.”            42 Pa.C.S.A. § 9756(b).       In this case, the

trial court sentenced Appellant to a flat sentence of 30 days’ imprisonment

instead   of   sentencing      him   to   a   minimum   and   maximum            term   of

imprisonment.         As    such,    Appellant’s   sentence   was     illegal.      See

Commonwealth v. Basinger, 982 A.2d 121, 127 (Pa. Super. 2009) (“A

‘flat’ sentence, which fails to specify the required minimum term for

purposes of parole eligibility, violates the[] requirements of the Sentencing



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Code and is therefore illegal.”).   Therefore, although we affirm Appellant’s

convictions, we are constrained to vacate his judgment of sentence and

remand for re-sentencing.

      Judgment of sentence affirmed in part and vacated in part.        Case

remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2017




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