Com. v. Fantauzzi, R.
Pa. Super. Ct.
J-S02008-22
2022 PA Super 75
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
REINALDO FANTAUZZI : No. 502 EDA 2021
Appeal from the Judgment of Sentence Entered November 9, 2020
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003898-2005
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REINALDO FANTAUZZI :
:
Appellant : No. 503 EDA 2021
Appeal from the Judgment of Sentence Entered November 9, 2020
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003898-2005
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
OPINION BY OLSON, J.: FILED APRIL 27, 2022
These cases are before us on consolidated cross-appeals.1 At
502 EDA 2021, the Commonwealth of Pennsylvania appeals from the
____________________________________________
1 The appeals filed by the Commonwealth (502 EDA 2021) and Reinaldo
Fantauzzi (503 EDA 2021) were consolidated upon stipulation of the parties
filed with this Court on July 6, 2021. See Stipulation for Consolidation,
7/6/21; see also Pa.R.A.P. 513 (stating that, “[w]here there is more than one
appeal from the same order, or where the same question is involved in two or
J-S02008-22
judgment of sentence entered on November 9, 2020.2 In its appeal, the
Commonwealth argues that the trial court lacked jurisdiction to resentence
Reinaldo Fantauzzi (Fantauzzi) on November 9, 2020, because there was no
subject matter jurisdiction for the PCRA3 court to entertain a petition for
collateral relief filed by Fantauzzi in July 2014. See Commonwealth’s Brief
(502 EDA 2021) at 10-19. Because the PCRA court lacked jurisdiction over
the July 2014 petition, the Commonwealth reasons that its order granting
relief in the form of resentencing, and all subsequent judicial orders
addressing Fantauzzi’s then-newly imposed sentence, are legal nullities and
void ab initio.4 Id. At 503 EDA 2021, Fantauzzi raises a discretionary
sentencing challenge and further claims that due process warranted the
dismissal of an attempted homicide charge because deficiencies in the criminal
information failed to place Fantauzzi on notice that the Commonwealth
____________________________________________
more appeals in different cases, . . . [a]ppeals may be consolidated by
stipulation of the parties to the several appeals”).
2 Pennsylvania Rule of Criminal Procedure 721 permits the Commonwealth to
challenge a judgment of sentence by, inter alia, filing a motion to modify the
judgment of sentence followed by a notice of appeal, upon the trial court’s
denial of the motion to modify the judgment of sentence. Pa.R.Crim.P.
721(A)(1) and (B)(1)(b).
3The acronym “PCRA” refers to the Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541-9546.
4 In the alternative, the Commonwealth asserts that the resentencing court
misconstrued our instructions in a prior dispositional order remanding this
matter for further proceedings. See Commonwealth’s Brief (502 EDA 2021)
at 20-28.
-2-
J-S02008-22
intended to prosecute him for attempted homicide with serious bodily injury.
See Fantauzzi’s Brief (503 EDA 2021) at 14-24.
After careful review and consideration, we conclude that the
Commonwealth’s jurisdictional argument is dispositive of all issues raised
within the context of this appeal. Accordingly, we vacate the judgment of
sentence entered on November 9, 2020, and remand this matter for
re-imposition of the original sentence imposed by the trial court on September
14, 2006, and affirmed by this Court on August 15, 2007.
The record demonstrates that, on July 12, 2006, a jury convicted
Fantauzzi of criminal attempt to commit homicide (2 counts), aggravated
assault (4 counts), recklessly endangering another person (4 counts), persons
not to possess firearms (1 count), and firearms not to be carried without a
license (1 count).5 The charges arose from the following event:
[Fantauzzi’s convictions arose from an incident in which he shot]
at four people in a drive-by incident. One person was sitting in a
car; three were on a porch of a nearby house. One of the
individuals on the porch, who was already wheelchair bound, was
struck [by a bullet] in the leg, thereby constituting serious bodily
injury.
Commonwealth v. Fantauzzi, 2016 WL 1567073, at *1 (Pa. Super. Filed
April 18, 2016) (unpublished memorandum).
____________________________________________
5 18 Pa.C.S.A. §§ 901, 2501, 2702(a)(1), 2705, 6105(a)(1), and 6106(a)(1),
respectively. The jury found Fantauzzi not guilty on two counts of criminal
attempt to commit homicide. See Verdict Slip, 7/12/06.
-3-
J-S02008-22
The trial court imposed an aggregate sentence of 28 to 56 years’
incarceration on September 14, 2006. This Court affirmed Fantauzzi’s
judgment of sentence on August 15, 2007, and our Supreme Court
subsequently denied Fantauzzi’s petition for allowance of appeal.
Commonwealth v. Fantauzzi, 935 A.2d 10(Pa. Super. Filed August 15, 2007) (unpublished memorandum), appeal denied,940 A.2d 362
(Pa. 2007).
On February 13, 2008, Fantauzzi filed pro se a petition pursuant to the
PCRA. The PCRA court denied Fantauzzi’s petition on December 1, 2008. This
Court affirmed the order denying Fantauzzi’s PCRA petition on January 13,
2010. Commonwealth v. Fantauzzi, 991 A.2d 356 (Pa. Super. Filed
January 13, 2010) (unpublished memorandum).6
On July 3, 2014, Fantauzzi filed pro se a petition for writ of habeas
corpus.7 As our resolution of the issues raised in these appeals turns on the
____________________________________________
6On June 4, 2010, Fantauzzi filed a petition for writ of habeas corpus with the
United States District Court for the Eastern District of Pennsylvania, which was
subsequently denied on December 5, 2011. See Fantauzzi v. Britton, 2011
WL 6019328(E.D.Pa Filed December 5, 2011) (unpublished order). 7 Although Fantauzzi’s petition for writ of habeas corpus appears on the list of documents comprising the certified record, the petition was not transmitted to this Court in the certified record. Notwithstanding, a reproduced record filed with this Court by the Commonwealth includes a time-stamped copy of the petition for writ of habeas corpus reflecting that the document was filed with the PCRA court on July 3, 2014. Because the accuracy of the reproduction has not been disputed, we will consider the copy of the petition found in the reproduced record. Pa.R.A.P. 1921 at Note; see also Commonwealth v. Brown,52 A.3d 1139
, 1145 n.4 (Pa. 2012).
-4-
J-S02008-22
legal implications of Fantauzzi’s July 3, 2014 filing, we recount the procedural
developments surrounding that submission in some detail.
Upon its filing, the PCRA court treated Fantauzzi’s petition for writ of
habeas corpus as a PCRA petition.8 See PCRA Court Order, 8/7/14 (stating,
“[t]his petition is construed as a motion for post-conviction collateral relief”
(extraneous capitalization omitted)). The PCRA court subsequently appointed
____________________________________________
8 As discussed more fully infra, in his pro se petition for writ of habeas corpus,
Fantauzzi set forth a legality of sentence claim based upon the United States
Supreme Court’s then-recent decision announced in Alleyne v. United
States, 570 U.S. 99 (2013). See Fantauzzi’s Pro Se Petition for Writ of
Habeas Corpus, 7/3/14, at ¶4 (raising a claim for “[a] violation of due process
of law by [the] imposition of a sentence that has been subsequently declared
unconstitutional[] by decisions of the Supreme Court of the United States and
[this Court], and [which] must be applied retroactively”). Recognizing that
the decision announced in Alleyne, supra, did not retroactively apply to his
judgment of sentence, which became final prior to the announcement of
Alleyne, supra, and that the Alleyne decision did not satisfy the new
constitutional right exception to the PCRA jurisdictional time-bar, Fantauzzi
asserted that his filing should be considered “through the vehicle of habeas
corpus” rather than as an untimely PCRA petition without exception. See
Fantauzzi’s Pro Se Brief in Support, 7/3/14 (stating that the friction between
the PCRA jurisdiction time-bar and application of the decision announced in
Alleyne, supra, “can only be reconciled by permitting [Fantauzzi] to proceed
through the vehicle of habeas corpus, because the clear language of the PCRA
prohibits the retroactive[e] analysis that is afforded by law”). Nonetheless,
despite Fantauzzi’s assertions and despite the PCRA court viewing his
submission as a PCRA petition, the PCRA court did not undertake an
assessment of whether it had jurisdiction to address the merits of Fantauzzi’s
illegal sentence claim and to grant the relief requested.
-5-
J-S02008-22
PCRA counsel to represent Fantauzzi.9 On November 5, 2014, the PCRA court
ordered the following:
[Fantauzzi] shall have 30 days to file a petition nunc pro tunc for
reconsideration of sentence and a brief in support thereof. The
Commonwealth shall have 30 days thereafter to file a responsive
brief. Upon receipt of the Commonwealth’s brief, the parties shall
list this matter for a miscellaneous hearing list for argument.
PCRA Court Order, 11/5/14 (paragraph format omitted). On November 12,
2014, Fantauzzi filed a motion to correct illegal sentence and nunc pro tunc
motion to modify sentence (“motion to correct illegal sentence”) asserting,
inter alia, that Fantauzzi’s sentence was illegal because the trial court imposed
mandatory minimum sentences pursuant to 42 Pa.C.S.A. § 9712, which was
subsequently declared unconstitutional.10 That same day, Fantauzzi’s counsel
____________________________________________
9 On September 22, 2014, the PCRA court vacated its order appointing counsel
to represent Fantauzzi because Fantauzzi retained private counsel. See PCRA
Court Order, 9/22/14.
10 Section 9712 of the Pennsylvania Sentencing Code states as follows:
Except as provided under section 9716 (relating to two or more
mandatory minimum sentences applicable), any person who is
convicted in any court of this Commonwealth of a crime of violence
as defined in section 9714(g) (relating to sentences for second
and subsequent offenses), shall, if the person visibly possessed a
firearm or a replica of a firearm, whether or not the firearm or
replica was loaded or functional, that placed the victim in
reasonable fear of death or serious bodily injury, during the
commission of the offense, be sentenced to a minimum sentence
of at least five years of total confinement notwithstanding any
other provision of this title or other statute to the contrary.
-6-
J-S02008-22
and the Commonwealth jointly filed a “stipulation of the parties” that read, in
part, as follows: “[Fantauzzi’s] counsel would like to list this [motion to correct
illegal sentence] as a motion to modify sentence rather than a PCRA hearing.”
See Stipulation of Parties, 11/12/14, at ¶2 (extraneous capitalization
omitted). On January 30, 2015, the PCRA court conducted a status conference
on Fantauzzi’s motion to correct illegal sentence. At the conclusion of the
status conference, the PCRA court, upon being presented with a petition for
writ of habeas corpus ad prosequendum by the Commonwealth, entered a
decree that Fantauzzi be present for a hearing on February 20, 2015.11 See
PCRA Decree, 1/30/15.
At the February 20, 2015 hearing, the PCRA court stated,
____________________________________________
42 Pa.C.S.A. § 9712(a). This Court in Commonwealth v. Valentine, 101
A.3d 801(Pa. Super. 2014) held that the mandatory minimum sentence set forth in Section 9712(a) was unconstitutional pursuant to the United States Supreme Court decision in Alleyne v. United States,570 U.S. 99
(2013). Valentine,101 A.3d at 812
.
11 In its petition for writ of habeas corpus ad prosequendum, the
Commonwealth indicated that the purpose of the February 20, 2015 hearing
was for Fantauzzi’s re-sentencing. See also PCRA Court Order, 2/5/15
(stating that, the “re-sentencing in this matter is scheduled on February 20,
2015”).
Although the PCRA court initially treated Fantauzzi’s July 3, 2014 petition for
writ of habeas corpus as a PCRA petition, in the wake of the stipulation by
counsel, the PCRA court granted relief without undertaking an assessment of
whether the filing met the timeliness requirements of the PCRA and whether
the PCRA court possessed jurisdiction to entertain the submission or grant
relief, as more fully discussed infra.
-7-
J-S02008-22
[Fantauzzi] has pursued petitions for post[-]conviction [collateral]
relief which have been exhausted. He filed the instant motion to
correct illegal sentence and nunc pro tunc motion to modify
sentence on [] November 12, 2014. We are here for the hearing
on that matter.
N.T., 2/20/15, at 3. The PCRA court stated that it understood that “there
[was] an agreement of counsel in light of the [motion to correct illegal
sentence] and proceed with a new sentence hearing that does not consider
the [mandatory minimum sentence] provisions of 42 [Pa.C.S.A. § ]9712.”
N.T., 2/20/15, at 3. The Commonwealth replied, “there’s no agreement on
the part of the Commonwealth, and I think counsel would agree that the
sentence as it stands is actually illegal. It’s just an attempt that in the offering
if that were to occur[,] we would remedy that situation.” Id. at 4. Fantauzzi’s
counsel responded as follows:
I have interpreted [Alleyne, supra,] and not only [its] progeny
but also the cases that came before it[ regarding] Pennsylvania
mandatory minimum sentences. [W]e believe that there was an
issue with regard to the sentencing. However, the strength of that
legal issue by agreement of what we’re doing here today is not
being contested. [T]his is part of the agreement that I believe we
had with the Commonwealth. The [trial c]ourt is not being asked
to pass on whether or not our motion [to correct illegal sentence]
is correct or not. It is simply an agreement by the Commonwealth
and [Fantauzzi] to allow the [trial c]ourt to re-evaluate or to
evaluate not only the sentence that was given but also any new
information that [the trial c]ourt might have in terms of imposing
sentence.
Id. at 7-8 (paragraph formatting omitted). Thereupon, the PCRA court
vacated the September 14, 2006 judgment of sentence and granted Fantauzzi
relief in the form of a re-sentencing hearing. Id. at 9.
-8-
J-S02008-22
At the conclusion of the re-sentencing hearing, the trial court imposed
an aggregate sentence of 28 to 56 years’ incarceration.12 Trial Court Order,
2/20/15 (noting that Fantauzzi’s sentence was to run consecutively to all other
sentences, and he was to be given credit for time served). On February 27,
2015, Fantauzzi filed a post-sentence motion requesting the trial court
reconsider its judgment of sentence. The trial court subsequently denied
Fantauzzi’s post-sentence motion on March 2, 2015.
On appeal, this Court affirmed Fantauzzi’s February 20, 2015 judgment
of sentence.13 Fantauzzi, 2016 WL 1567073, at *1. Fantauzzi did not seek discretionary review by our Supreme Court. ____________________________________________ 12 A PCRA court’s order granting a new sentencing proceeding ends the collateral proceedings, and the new sentencing proceeding is a trial court function not a function of the collateral proceedings. Commonwealth v. Grove,170 A.3d 1127
, 1137 (Pa. Super. 2017). 13 Fantauzzi proceeded pro se on appeal after counsel was permitted to withdraw from representation and the trial court conducted a hearing pursuant to Commonwealth v. Grazier,713 A.2d 81
(Pa. 1998). In affirming Fantauzzi’s February 20, 2015 judgment of sentence, we note that this Court did not undertake an assessment of whether the PCRA court had jurisdiction to consider Fantauzzi’s July 3, 2014 petition for writ of habeas corpus (PCRA petition) and to award Fantauzzi relief in the form of resentencing as a matter of PCRA law. See Fantauzzi,2016 WL 1567073
, at *1 n.1 (stating, “Fantauzzi was resentenced because his original sentence, imposed in 2006, was illegal due to application of a mandatory minimum pursuant to 42 Pa.C.S.[A.] § 9712, which has been declared unconstitutional. See Alleyne[, supra,]; Commonwealth v. Newman,99 A.3d 86
(Pa. Super. 2014) (en banc)”).
-9-
J-S02008-22
On May 4, 2017, Fantauzzi filed pro se a PCRA petition asserting, inter
alia, a claim of ineffective assistance of trial counsel and a claim asserting the
imposition of a sentence greater than the lawful maximum. Fantauzzi’s Pro
Se PCRA Petition, 5/4/17, at ¶12; see also 42 Pa.C.S.A. § 9543(a)(2)(ii) and
(vii). That same day, Fantauzzi also filed pro se a memorandum in support of
his PCRA petition. The PCRA court appointed counsel to represent Fantauzzi.
See PCRA Court Order, 5/16/17. Thereafter, Fantauzzi filed a petition
requesting that he be permitted to proceed pro se in seeking collateral relief,
which the PCRA subsequently granted after conducting a Grazier hearing.
See Fantauzzi’s Petition to Proceed Pro Se, 6/12/17; see also N.T., 8/4/17,
at 9.
On September 11, 2017, Fantauzzi filed pro se an amended PCRA
petition asserting numerous claims of ineffective assistance of counsel. See
Fantauzzi’s Pro Se Amended PCRA Petition, 9/11/17, at 6. On November 8,
2017, the PCRA court denied Fantauzzi’s petition.14 On appeal, Fantauzzi
raised claims of ineffective assistance of re-sentencing counsel for (1) failure
to object to the trial court’s reliance on an incorrect prior record score when it
re-sentenced Fantauzzi, and (2) for failure to object to Fantauzzi being
____________________________________________
14In denying Fantauzzi’s request for collateral relief, the PCRA court did not
consider the timeliness of the PCRA petition because, as may be inferred from
the PCRA court’s recitation of the procedural history of the case as of
November 2017, Fantauzzi filed his pro se PCRA petition on May 4, 2017,
within one year of his judgment of sentence becoming final upon this Court’s
decision, dated April 18, 2016, affirming the February 20, 2015 judgment of
sentence. See PCRA Court Opinion, 11/8/17, at 1-4.
- 10 -
J-S02008-22
re-sentenced for criminal attempt to commit homicide that involved serious
bodily injury in violation of Fantauzzi’s constitutional rights. Commonwealth
v. Fantauzzi, 2019 WL 2226115, at *3 (Pa. Super. Filed May 22, 2019)
(unpublished memorandum). This Court found that the PCRA court erred as
a matter of law when it “incorrectly reasoned Fantauzzi had either waived his
ineffectiveness claims or previously litigated them in earlier proceedings.” Id.
at *5. Upon review, this Court found that,
the Commonwealth charged [Fantauzzi] with [criminal attempt to
commit homicide] generally and did not include in the criminal
complaint or information the element of serious bodily injury in
relation to [this charge]. The Commonwealth also failed to put
[Fantauzzi] on notice that the Commonwealth intended to
prosecute and prove [criminal attempt to commit homicide
involving serious bodily injury] at trial. The Commonwealth did
not prosecute [Fantauzzi] for [criminal attempt to commit
homicide involving serious bodily injury].
Id. at *7. As such, this Court concluded that Fantauzzi’s sentence of 15 to 30
years’ incarceration for one count of criminal attempt to commit
homicide – serious bodily injury constituted an illegal sentence because the
re-sentencing court was not permitted to impose an enhanced sentence under
18 Pa.C.S.A. § 1102(c), absent a finding by a jury of serious bodily injury
resulting from the criminal attempt to commit homicide, which the jury did
not find at the conclusion of Fantauzzi’s trial.15 Fantauzzi, 2019 WL 2226115,
____________________________________________
15 Section 1102(c) of the Pennsylvania Crimes Code states,
- 11 -
J-S02008-22
at *7. In determining that Fantauzzi’s ineffective assistance of counsel claim
on this issue merited relief, this Court held that,
[Fantauzzi's] lack of notice and resultant inability to defend is
apparent on the face of the record, and resentencing counsel
should have brought this illegal sentence to the attention of the
resentencing court [and] objected when the resentencing court
re-imposed the enhanced sentence of 15 to 30 years'
incarceration for attempted murder. Resentencing counsel had no
rational basis for failing to raise a challenge to the illegal sentence,
given the lack of notice. Further, resentencing counsel's failure to
object at [the] resentencing [hearing] prejudiced [Fantauzzi],
because it left [Fantauzzi] exposed to an enhanced maximum
sentence for that offense, which he received in violation of
[Apprendi v. New Jersey, 530 U.S. 466 (2000)], instead of the
20-year maximum for attempted murder generally. Thus, we
conclude resentencing counsel was ineffective for failing to protect
[Fantauzzi] from the illegal sentence enhancement he received for
[criminal attempt to commit homicide involving] serious bodily
injury.
Id. This Court vacated Fantauzzi’s February 20, 2015 judgment of sentence
and remanded the case so the trial court could re-sentence Fantauzzi without
the criminal attempt to commit homicide enhancement pursuant to Section
1102(c). Id. at *8. Our Supreme Court denied Fantauzzi’s petition for
____________________________________________
Notwithstanding section 1103(1) (relating to sentence of
imprisonment for felony), a person who has been convicted of
attempt, solicitation[,] or conspiracy to commit murder, murder
of an unborn child[,] or murder of a law enforcement officer where
serious bodily injury results may be sentenced to a term of
imprisonment which shall be fixed by the [trial] court at not more
than 40 years. Where serious bodily injury does not result, the
person may be sentenced to a term of imprisonment which shall
be fixed by the [trial] court at not more than 20 years.
18 Pa.C.S.A. § 1102(c).
- 12 -
J-S02008-22
allowance of appeal on February 2, 2020. Commonwealth v. Fantauzzi,
223 A.3d 1286 (Pa. 2020).
On November 9, 2020, the trial court re-sentenced Fantauzzi to an
aggregate 23 to 46 years’ incarceration. Trial Court Order, 11/9/20 (ordering
that Fantauzzi receive credit for time served and that his newly-imposed
sentence was to run consecutively to any other sentence he was serving). On
November 19, 2020, Fantauzzi filed a post-sentence motion to modify his
sentence. That same day, the Commonwealth filed a motion to modify
Fantauzzi’s sentence pursuant to Pa.R.Crim.P. 721 asserting that the trial
court lacked jurisdiction to re-sentence Fantauzzi in February 2015 and,
therefore, all subsequent matters in this case were null and void. See
Commonwealth’s Motion to Modify Sentence, 11/19/20, at ¶10. Alternatively,
the Commonwealth asserted that the trial court “misinterpreted the directions
of [this Court upon remand] by only adjusting the sentence for one of the
counts” so the sentence no longer included an upward enhancement for
serious bodily injury under Section 1102(c). Id. at ¶11. On January 28, 2021,
the trial court denied Fantauzzi’s post-sentence motion and denied the
Commonwealth’s motion to modify the sentence.
On March 1, 2021, both the Commonwealth and Fantauzzi appealed
from the November 9, 2020 judgment of sentence as made final by the
January 28, 2021 order denying their respective motions. The trial court
ordered both the Commonwealth and Fantauzzi to file concise statements of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Fantauzzi filed
- 13 -
J-S02008-22
his Rule 1925(b) statement on March 15, 2021. The Commonwealth filed its
Rule 1925(b) statement on March 18, 2021. On April 5, 2021, the trial court
filed its Rule 1925(a) opinion relying on its January 28, 2021 opinion and
order, which denied Fantauzzi’s post-sentence motion and denied the
Commonwealth’s motion to modify Fantauzzi’s sentence.
The Commonwealth raises the following issues for our review:
1. Did the [trial] court err in finding that it had jurisdiction to
resentence [Fantauzzi]?
2. In the alternative, did the [trial] court err by misconstruing
the remand directive from [this] Court?
Commonwealth’s Brief (502 EDA 2021) at 4.
Fantauzzi raises the following issues for our review:
[1.] Whether the trial court committed an abuse of discretion in
imposing an aggregate sentence which was clearly
unreasonable in light of the nature and circumstances of the
offense?
[2.] Whether the trial court erred in denying the motion for
extraordinary relief?
Fantauzzi’s Brief (503 EDA 2021) at 4 (extraneous capitalization omitted).
The Commonwealth’s first issue - that the trial court lacked subject
matter jurisdiction to re-sentence Fantauzzi on February 20, 2015, and
November 9, 2020 - raises a pure question of law and is not waivable.
Commonwealth v. Salley, 957 A.2d 320, 322 (Pa. Super. 2008) (stating
that, a challenge to a trial court’s lack of subject matter jurisdiction to
resentence a defendant raises a question of law). When examining a question
- 14 -
J-S02008-22
of law, our scope of review is de novo, and our standard of review is plenary.
Commonwealth v. Hemingway, 13 A.3d 491, 496 (Pa. Super. 2011)
(stating that, “[t]he existence of subject matter jurisdiction goes to the heart
of a court's ability to act in a particular case” and a challenge to subject matter
jurisdiction “is not waivable, even by consent, and may be raised by any party
or by the court, sua sponte, at any stage of the proceeding”).
Here, the Commonwealth asserts that the genesis of Fantauzzi’s
November 9, 2020 judgment of sentence was Fantauzzi’s petition for writ of
habeas corpus filed on July 3, 2014, that resulted in a series of judicial events
as follows: (1) the grant of collateral relief in the form of a new sentencing
proceeding and Fantauzzi’s February 20, 2015 judgment of sentence; (2) the
subsequent filing of a PCRA petition raising an ineffective assistance of
re-sentencing counsel claim; (3) the November 8, 2017 order denying
Fantauzzi collateral relief; (4) this Court’s May 22, 2019 decision remanding
the matter to the trial court for a new sentencing proceeding; (5) the
November 9, 2020 judgment of sentence; and (6) the instant appeal.
Commonwealth’s Brief (502 EDA 2021) at 13. The Commonwealth contends
that the PCRA court properly treated Fantauzzi’s July 3, 2014 petition for writ
of habeas corpus as a PCRA petition, initially, but failed to recognize that, as
a PCRA petition, it was untimely and without an exception to the jurisdictional
time-bar. Id. at 13-17. As such, the Commonwealth argues that the PCRA
court lacked jurisdiction over the untimely PCRA petition and was unable to
grant relief in the form of a new sentencing proceeding. Id. at 17. The
- 15 -
J-S02008-22
Commonwealth asserts that because the PCRA court lacked jurisdiction over
the untimely PCRA petition, the subsequent February 20, 2015 judgment of
sentence, and all matters which followed, including the November 9, 2020
judgment of sentence, were null and void ab initio. Id. at 19.
The Commonwealth’s jurisdictional argument pertaining to the
untimeliness of a PCRA petition that is not the basis of the instant appeal but,
rather, appears in the procedural history of the case appears to be an issue of
first impression. It is well-established that the timeliness of a PCRA petition
is jurisdictional and that if the petition is untimely, courts lack jurisdiction over
the petition and cannot grant relief. Commonwealth v. Wharton, 886 A.2d
1120, 1124 (Pa. 2005); see also Commonwealth v. Callahan,101 A.3d 118
, 121 (Pa. Super. 2014) (holding, courts do not have jurisdiction over an untimely PCRA petition). “[T]he PCRA is intended to be the sole means of achieving post-conviction [collateral] relief.” Commonwealth v. Taylor,65 A.3d 462
, 465 (Pa. Super. 2013). If an issue is cognizable under the PCRA, the issue must be raised in a timely PCRA petition and cannot be raised in a petition for writ of habeas corpus.Id. at 465-466
(stating that, “[u]nless the PCRA could not provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus” (citation omitted)). In other words, “a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus.”Id. at 466
. Moreover, regardless of how a petition is titled,
courts are to treat a petition filed after a judgment of sentence becomes final
as a PCRA petition if it requests relief contemplated by the PCRA.
- 16 -
J-S02008-22
Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007); see also Commonwealth v. Torres,223 A.3d 715
, 716 (Pa. Super. 2019) (stating, “so long as a pleading falls within the ambit of the PCRA, the court should treat any pleading filed after the judgment of sentence is final as a PCRA petition” (citation omitted)); Commonwealth v. Hromek,232 A.3d 881
, 884 (Pa. Super. 2020) (affirming the Wrecks’ holding that regardless of how a filing is titled, a petition should be treated as filed under the PCRA if it is filed after the judgment of sentence becomes final and seeks relief provided under the PCRA). This Court in Taylor,supra,
held that a petition challenging the legality of sentence on the grounds the sentence exceeded the statutory limit was “undoubtedly cognizable under the PCRA” and, therefore, any such petition regardless of its title was to be treated as a PCRA petition. Taylor,65 A.3d at 467
; see also 42 Pa.C.S.A. § 9543(a)(2)(vii) (stating that, to be
eligible for relief under the PCRA, the petitioner must plead and prove by a
preponderance of the evidence that the sentence resulted from the “imposition
of a sentence greater than the lawful maximum”).
Here, the record demonstrates that the trial court imposed an aggregate
sentence of 28 to 56 years’ incarceration on September 14, 2006. This Court
affirmed Fantauzzi’s judgment of sentence on August 15, 2007, and our
Supreme Court denied Fantauzzi’s petition for allowance of appeal on
December 24, 2007. See Fantauzzi, 935 A.2d at 10; see also Fantauzzi,
940 A.2d at 362. Fantauzzi did not seek discretionary review before the
Supreme Court of the United States. Consequently, Fantauzzi’s judgment of
- 17 -
J-S02008-22
sentence became final on March 24, 2008, 90 days after the expiration of the
time in which to seek discretionary review with the Supreme Court of the
United States.16 U.S. Sup. Ct. R 13(1) (stating, “A petition for a writ of
certiorari seeking review of a judgment of a lower state court that is subject
to discretionary review by the state court of last resort is timely when it is
filed with the Clerk within 90 days after entry of the order denying
discretionary review.”); see also 42 Pa.C.S.A. § 9545(b)(3) (stating, “a
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review”).
Here, a review of Fantauzzi’s July 3, 2014 petition for writ of habeas
corpus demonstrates that Fantauzzi asserted his sentence was illegal because
the trial court imposed mandatory minimum sentences pursuant to 42
Pa.C.S.A. § 9712, which was subsequently declared unconstitutional by
Alleyne, supra, and Valentine, supra. See Fantauzzi’s Pro Se Petition for
Writ of Habeas Corpus, 7/3/14, at ¶¶4-5; see also Fantauzzi’s Pro Se Brief in
Support, 7/3/14, at 2 (stating, Fantauzzi’s “claim concerns an unlawful
____________________________________________
16 We observe that the 90th day upon which to file an appeal fell on Sunday,
March 23, 2008. Therefore, Fantauzzi had until Monday, March 24, 2008, to
seek discretionary review with the Supreme Court of the United States. 1
Pa.C.S.A. § 1908 (stating that, when the last day of a period of time referred
to in a statute falls on a Saturday or Sunday, such day shall be omitted from
the computation).
- 18 -
J-S02008-22
mandatory minimum sentence[] and a new constitutional rule”).17 In his brief,
Fantauzzi acknowledged that Alleyne, supra, does not apply retroactively to
requests for post-conviction collateral relief, and he argued that, as such, he
should be permitted to proceed with his petition for writ of habeas corpus.
Fantauzzi’s Pro Se Brief in Support, 7/3/14, at 3. After appointment of
counsel, Fantauzzi’s counsel filed a motion to correct Fantauzzi’s illegal
sentence and a nunc pro tunc motion to modify sentence asserting a claim
that mirrored the claim asserted in Fantauzzi’s pro se petition for writ of
habeas corpus, namely that the trial court imposed mandatory minimum
sentences pursuant to 42 Pa.C.S.A. § 9712, which was subsequently declared
unconstitutional. See Fantauzzi’s Motion to Correct Illegal Sentence and Nunc
Pro Tunc Motion to Modify Sentence, 11/12/14.
Fantauzzi’s July 3, 2014 petition for writ of habeas corpus sets forth a
claim that his aggregate sentence of 28 to 56 years’ incarceration resulted
from the imposition of a sentence greater than the lawful maximum because
the trial court imposed mandatory minimum sentences under Section 9712.
Therefore, because Fantauzzi’s claim of an illegal sentence, and the relief
requested, are contemplated under the PCRA, the PCRA was the sole means
of relief in this instance. Taylor, 65 A.3d at 465-466. As such, the PCRA
court was required to treat Fantauzzi’s petition for writ of habeas corpus as a
____________________________________________
17For ease of identification, we have numbered Fantauzzi’s unpaginated pro
se brief in support of his pro se petition for writ of habeas corpus.
- 19 -
J-S02008-22
PCRA petition. Wrecks, 934 A.2d at 1289. Counsel’s subsequent filing of a motion to correct the illegal sentence, which raised a claim of an illegal sentence and requested relief contemplated under the PCRA, was also required to be treated as a PCRA petition, and, specifically, in the case sub judice, treated as an amended PCRA petition.Id.
Fantauzzi’s judgment of sentence became final on March 24, 2008.
Therefore, Fantauzzi’s petition for writ of habeas corpus (PCRA petition) filed
on July 3, 2014, more than six years after his judgment of sentence became
final, was patently untimely.
If a PCRA petition is untimely filed, the jurisdictional time-bar can only
be overcome if the petitioner alleges and proves one of the three statutory
exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions to the one-year time-bar are as follows: “(1) interference by government officials in the presentation of the claim; (2) newly[-]discovered facts; and (3) an after-recognized constitutional right.” Commonwealth v. Brandon,51 A.3d 231
, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
A petition invoking an exception to the jurisdictional time-bar must be filed
within 60 days of the date that the claim could have been presented.18 42
____________________________________________
18 We note that effective December 24, 2018, the time-period in which to file
a petition invoking one of the three exceptions was extended from 60 days to
one year. 42 Pa.C.S.A. § 9545(b)(2). This amendment applies to claims
arising one year prior to the effective date of the amendment, that is to say,
- 20 -
J-S02008-22
Pa.C.S.A. § 9545(b)(2) (effective November 17, 1995, to December 24,
2018). If a petitioner fails to invoke a valid exception to the PCRA time-bar,
courts are without jurisdiction to review the petition and provide relief. Spotz,
171 A.3d at 676.
Here, Fantauzzi, relying on Alleyne, supra, and its progeny, purported
to invoke the after-recognized constitutional right that any fact that increases
the mandatory minimum sentence of a crime is an element of that crime and
must be submitted to the fact-finder and found beyond a reasonable doubt.
See Fantauzzi’s Pro Se Brief in Support, 7/3/14, at 1 (stating, “[Fantauzzi’s]
claims are that he is entitled to relief from a new constitutional rule of law”);
see also Fantauzzi’s Pro Se Petition for Writ of Habeas Corpus, 7/3/14;
Fantauzzi’s Motion to Correct Illegal Sentence and Nunc Pro Tunc Motion to
Modify Sentence, 11/12/14. It is well-established, however, that the decision
announced in Alleyne, supra, does not apply retroactively on collateral
review where the judgment of sentence became final prior to the
announcement of the Alleyne decision on June 17, 2013. Commonwealth
v. Ramos, 241 A.3d 445, at *5 (Pa. Super. Filed October 19, 2020) (slip opinion), relying on, Commonwealth v. Washington,142 A.3d 810
(Pa. 2016), appeal denied,252 A.3d 1090
(Pa. 2021); see also Commonwealth v. DiMatteo,177 A.3d 182
, 192 (Pa. 2018) (stating that, “Alleyne does not
____________________________________________
arising December 24, 2017, or later. Act. 2018, Oct. 24, P.L. 894, No. 146,
§ 3. Because Fantauzzi filed what must be viewed as a PCRA petition on July
3, 2014, this amendment does not apply.
- 21 -
J-S02008-22
apply to cases where the judgment of sentence was final prior to Alleyne”).
Moreover, because the decision announced in Alleyne, supra, does not apply
retroactively on collateral review, a petitioner cannot rely on Alleyne to
invoke the after-recognized constitutional right exception to the PCRA
jurisdictional time-bar.19 Ramos, 241 A.3d at *5. Therefore, Fantauzzi, in
the case sub judice, may not rely on Alleyne, and its progeny, to invoke an
exception to the jurisdictional time-bar because his judgment of sentence was
made final prior to the decision announced in Alleyne, supra, and Alleyne
does not apply retroactively. Consequently, in requesting collateral relief via
his July 13, 2014 submission, Fantauzzi failed to invoke a valid exception to
the PCRA jurisdictional time-bar pursuant to 42 Pa.C.S.A. § 9545(b)(1)(iii).
Because Fantauzzi’s July 3 2014 PCRA petition, as amended, was
untimely and without exception, the PCRA court did not have jurisdiction to
grant Fantauzzi collateral relief in the form of a new sentencing proceeding
that, ultimately, resulted in Fantauzzi’s February 20 2015 judgment of
sentence.20 Therefore, the PCRA court’s order granting Fantauzzi a new
____________________________________________
19 We are cognizant that our Supreme Court in DiMatteo, supra, recognized
that if a petitioner’s judgment of sentence were not final when the decision in
Alleyne, supra, was announced, then Alleyne may be invoked on collateral
review because “its application is not truly ‘retroactive.’” DiMatteo, 177 A.3d
at 192.
20 To reiterate, the issue of subject matter jurisdiction cannot be waived and
can be raised at any time by a court, sua sponte, or any party, and cannot be
circumvented by agreement or collusion. Hemingway, 13 A.3d at 496.
Therefore, the trial court erred as a matter of law in finding that the
- 22 -
J-S02008-22
sentencing proceeding and Fantauzzi’s subsequent February 20, 2015
judgment of sentence were null and void ab initio because the PCRA court did
not have jurisdiction to grant relief. It follows that Fantauzzi’s February 20,
2015 judgment of sentence was a legal nullity and Fantauzzi could not appeal
from that determination. Moreover, the judicial decisions and orders granting,
or denying, subsequent relief that flowed from the February 20, 2015
judgment of sentence are also null and void ab initio.21 As such, the trial court
was without jurisdiction to resentence Fantauzzi on November 9, 2020, and
Fantauzzi’s November 9, 2020 judgment of sentence is null and void ab initio.
Accordingly, we vacate the judgment of sentence entered on November 9,
2020, and remand this matter for re-imposition of the original sentence
imposed by the trial court on September 14, 2006, and affirmed by this Court
on August 15, 2007. See Commonwealth v. Ciccone, 152 A.3d 1004(Pa. Super. 2016) (en banc) (affirming an order denying collateral relief despite an underlying legality of sentence claim pursuant to Alleyne, supra, ____________________________________________ Commonwealth’s issue of subject matter jurisdiction was moot. Trial Court Opinion, 1/28/21 , at 11-13. 21 Our decision herein is not precluded by the coordinate jurisdiction rule because, as supported by the certified record, there was a clear misapplication of the law. See Commonwealth v. Starr,664 A.2d 1326
, 1332 (Pa. 1995)
(stating that, departure from the coordinate jurisdiction rule, which
encompasses the principle that “a court involved in the later phases of a
litigated matter should not reopen questions decided by another judge of that
same court or by a higher court in the earlier phases of the matter[,]” is
permitted where, inter alia, “the prior holding was clearly erroneous and would
create a manifest injustice if followed”).
- 23 -
J-S02008-22
where the judgment of sentence became final prior to the decision announced
in Alleyne, supra, and the PCRA petition was untimely and without
exception), appeal denied, 169 A.3d 564 (Pa. 2017).
Judgment of sentence vacated. Case remanded with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2022
- 24 -
Chat with this case using AI
Ask CiteLaw's AI Navigator anything about this case, check whether it is still good law, and see every case that cites it. Sign up for CiteLaw free today to get started.