Com. v. Adams, T.

• Court: Superior Court of Pennsylvania
• Decided: January 30, 2023
• Docket: 562 MDA 2022
• Status: Unpublished

Opinion

J-S35029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIMOTHY JAY ADAMS : : Appellant : No. 562 MDA 2022

Appeal from the Order Entered September 2, 2021 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000984-2013

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIMOTHY JAY ADAMS : : Appellant : No. 1684 MDA 2022

Appeal from the Order Entered April 12, 2022 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000984-2013

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 30, 2023

Timothy Adams appeals the orders entered by the Post Conviction Relief

Act (“PCRA”) court. 42 Pa.C.S.A. §§ 9541-9546. We affirm the order entered

at docket 1684 MDA 2022 and quash the appeal at docket 562 MDA 2022.

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S35029-22

The procedural history of this case, though complicated, is dispositive

of this appeal. On March 3, 2014, Adams pleaded guilty to unlawful contact

with a minor, obstructing administration of law or other government function,

and the failure to verify address.1 The court sentenced Adams to 63 to 132

months’ incarceration. Adams did not seek any appeal.

In March 2020, we affirmed the denial of Adams’ first PCRA petition.

See Commonwealth v. Adams, 2020 WL 1303725 (Pa.Super. filed March

18, 2020) (unpublished memorandum). Approximately three months later, in

June 2020, Adams, acting pro se, filed his second PCRA petition. The court

issued a Rule 907 notice of its intent to dismiss the second petition. However,

the corresponding docket entry erroneously states that the court denied the

petition.

Without the court having in fact disposed of the second PCRA petition,

Adams filed a third PCRA petition, again pro se, and a motion to appoint

counsel. Before the court had ruled on the first request for counsel, he filed a

second motion to appoint counsel. He also filed what he styled as a petition

for a writ of habeas corpus and a “Notice of Motion to Vacate Judgment.” The

court did not rule on these filings.

Four days later, on July 12, 2021, the PCRA court gave a Rule 907 notice

of its intent to dismiss the third PCRA petition.

AND NOW, this 12th day of July, 2021, the Court hereby gives notice pursuant to Rule 907(a) of the Pennsylvania ____________________________________________

1 18 Pa.C.S.A. §§ 6318, 5101, and 4915.1, respectively.

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Rules of Criminal Procedure that the Court is satisfied from review of the petition filed February 12, 2021, that there are no genuine issues concerning any material fact and that Defendant is not entitled to post conviction collateral relief, and no purpose would be served by any further proceedings. The matter will therefore be dismissed, because the Motion for Post-Conviction Collateral Relief is untimely; this is petitioner’s third Motion for post- conviction collateral relief and it was filed while his second motion was pending. The judgment of sentence after a guilty plea was entered March 3, 2014. A PCRA petition must be filed within one year of the date the petitioner’s judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(1). Thus, on April 3, 2015, the time to file a PCRA petition expired. Petitioner has not claimed any of the exceptions to the timeliness required such as newly discovered facts, interference by a government official or a newly-recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Under Rule 907(a) of the Pennsylvania Rules of Criminal Procedure, Defendant is entitled to respond to the proposed dismissal within twenty (20) days of the date of this notice.

Order, filed 7/12/21 (emphasis added).

The court simultaneously dismissed the second PCRA petition. Adams

did not appeal that dismissal. To date, the court has not ruled on the third

Adams’ second motion to appoint counsel came before a different judge

than the judge who had previously been presiding, and, on July 19, 2021, the

judge granted the motion. The court appointed counsel and directed counsel

to review Adams’ petition for habeas corpus and “Notice of Motion to Vacate

Judgment.” A week later, Adams filed a second habeas corpus petition and a

third motion to appoint counsel. In an order dated August 3, 2021, the court

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stated that considering Adams’ second Petition for Writ of Habeas Corpus and

a third Motion to Appoint Counsel and its order appointing counsel, “no further

action is required at this time.” Order, filed 8/3/21.

A few weeks later, on August 27, Adams filed a motion to change

appointed counsel to stand-by-counsel and for an “emergency” hearing. The

court responded by vacating the order appointing counsel. The order read:

AND NOW, this 1st day of September, 2021, the undersigned having not realized that the Honorable Maureen T. Beirne had issued a previous order dated July 12, 2021 disposing of Defendant’s requests for relief, which she noted was Defendant’s “third Motion for post-conviction collateral relief,” the Orders dated July 19, 2021 and August 3, 2021 improperly issued by the undersigned are null and void and hereby VACATED.

Order, filed 9/2/21.2

Adams then filed an “Amendment” asking the court to allow him to

amend his habeas corpus petition.3 Adams argued that Commonwealth v.

Neiman, 84 A.3d 603 (Pa. 2013), had barred the Commonwealth from

prosecuting anyone for failure to verify address. The court did not rule on the

amendment. After a few weeks of silence, on September 20, 2021, Adams

filed a Notice of “Intent” to appeal from the September order. See Notice of

2On October 6, 2021, PCRA counsel filed a petition to withdraw. On October 13, the court entered an order stating that due to the order of the court from September 1, no counsel represented Adams. See Order, 10/13/21.

3 The amendment is dated August 30, 2021.

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Intent, timestamped 9/20/21. The trial court docketed this “Notice” as an

appeal but never forwarded it to this Court.

In the fall of 2021, Adams sent the court a spate of petitions and

motions. These included petitions for writs of habeas corpus, a motion to

appoint counsel, and motions to vacate his sentence. By the end of 2021, the

court had not ruled on any of these filings.

Adams filed in April 2022 a “Motion to Reconsider Writ of Habeas Corpus

under Newly Discovered Evidence.” The court denied the fall 2021 petitions.

AND NOW, this 11th day of April, 2022, the Writ of Habeas Corpus/Correction of Sentence/Resentence filed November 29, 2021; the Petition to Litigate Legality of Sentence and the Jurisdiction of the Court filed October 15, 2021; the Petition to Clarify Record filed October 4, 2021; the Writ of Habeas Corpus filed September 27, 2021; the Motion to Reconsider Under new Standing Law filed September 29, 2021; the Motions to Vacate/Void Judgment filed September 27, 2021 and September 20, 2021; and the Petition filed September 17, 2021 are hereby denied.

Defendant having filed a Motion to Withdraw the PCRA filed on October 18, 2021, it is deemed withdrawn.

Order, filed 4/11/22.4 The next day, the court entered a separate order

denying Adams’ motion to reconsider the denial of his habeas corpus petition.

On the day the court dismissed the fall 2021 petitions, Adams filed a

document he styled as an “Appeal Nunc Pro Tunc” with this Court. We sent

the filing to Bradford County and explained that it was incorrectly filed directly ____________________________________________

4 The order references a motion to reconsider filed on September 29. This appears to be a typographical error by the court as Adams filed the motion on September 24.

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with this Court rather than the PCRA court. Upon receipt, the PCRA court

entered an order stating that it deemed the filing a “petition” to appeal nunc

pro tunc. The court directed Adams to file an amended petition and give

reasons for his request. Adams responded that he wanted to appeal nunc pro

tunc from the order vacating the order appointing counsel.

Inexplicably, Bradford County then returned the same document styled

as an “Appeal Nunc Pro Tunc” to this Court for filing. This time, our

prothonotary docketed it as an appeal, at 562 MDA 2022. We entered a Rule

to Show Cause stating that the appeal did not state the order from which

Adams appealed. Adams responded that he was appealing from the order

vacating the order appointing counsel.

We then issued a second Rule to Show Cause as to why the appeal

should not be quashed as untimely. Adams responded that he filed a notice of

appeal on September 19, which was within 30 days of the order’s entry, but

never received a response from the trial court. He attached a copy of a notice

of appeal, dated September 19. However, it is not in the certified record.

Adams also stated that he filed a notice of appeal on April 11 after the trial

court directed him to do so. He attached a copy of the document he filed and

it is titled, “Amended Writ of Habeas Corpus Appeal Nunc Pro Tunc,” and dated

April 25, 2022. The Court discharged the rule to show cause and notified this

panel of the issue, for disposition.

Adams also filed a Notice of Appeal in Bradford County from the order

denying the fall 2021 petitions. See Notice of Appeal, filed 4/20/22. Bradford

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County erroneously docketed the appeal as an appeal to the Commonwealth

Court. However, this Court never received a transferred appeal from

Commonwealth Court. We therefore entered an order on December 14, 2022,

directing the Clerk of Courts of Bradford County to strike the reference to

Commonwealth Court from the docket entry. We also directed this Court’s

prothonotary to docket the appeal and consolidate it with the original appeal

docketed at 562 MDA 2022. This is the appeal at 1684 MDA 2022.

We now turn to the issues Adams raises on appeal:

I. Whether the [PCRA] court erred:

a. In refusing to review the claims raised in [Adams’] habeas corpus petitions as allowed by Commonwealth v. Lacombe?

b. Treating [Adams’] habeas corpus as an untimely PCRA and refusing to review claims raised?

c. In vacating the July 19, 2021, court order that would have allowed [Adams] to address the claims raised in habeas corpus?

Adams’ Br. at 4 (answers of PCRA court omitted).

None of these issues relate to the order denying the fall 2021 petitions.

That is the order at issue in the appeal at 1684 MDA 2022. To the extent that

he wished to challenge that order, he has waived any such challenge by failing

to present any issue related to that order. We therefore affirm the order

appealed at docket 1684 MDA 2022.

As for the appeal at 562 MDA 2022, we quash it not as untimely, but

because it is from a non-final order. An appeal may be taken from a final

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order. See Pa.R.A.P. 341(a). “An order granting, denying, dismissing, or

otherwise finally disposing of a petition for post-conviction collateral relief shall

constitute a final order for purposes of appeal.” Id. at 341(f)(1). Here, Adams

challenges the order vacating previous orders. This order did not grant, deny,

dismiss, or otherwise finally dispose of a PCRA petition. See id.. Instead, it

vacated prior orders that also were not final. One order appointed counsel and

the other stated, “no further action is required at this time.” Order, filed

8/3/21. Thus, the September 2 order is not a final order. As such, this appeal

must be quashed.

Finally, a word about Adams’ first issue. Adams maintains that the court

erred in “preventing [Adams] from arguing the merits of his Amended Writ of

Habeas Corpus” that he filed on September 3. Adams’ Br. at 13. However, the

PCRA court never ruled on that filing. Therefore, an appeal addressing this

petition is premature, since no order has been entered. See Pa.R.A.P. 903(a)

(stating notice of appeal is filed from “the order from which the appeal is

taken”) (emphasis added).

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Appeal quashed at docket 562 MDA 2022. Order affirmed at docket 1684

MDA 2022. “Petition to Strike Judgment” denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/30/2023

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