Com. v. Armolt, J.

• Court: Superior Court of Pennsylvania
• Decided: July 23, 2015
• Docket: 125 MDA 2015
• Status: Unpublished

Opinion

J-S47013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JEFFREY LYNN ARMOLT,

Appellant No. 125 MDA 2015

Appeal from the PCRA Order entered January 8, 2015, in the Court of Common Pleas of Adams County, Criminal Division, at No: CP-01-CR-0000509-2002

BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.

JUDGMENT ORDER BY ALLEN, J.: FILED JULY 23, 2015

In this appeal, Jeffrey Lynn Armolt (“Appellant”) challenges the PCRA

court’s determination that his latest petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. sections 9541-46, is untimely,

and that he failed to meet his burden of proving an exception to the PCRA’s

time bar. Our review of the record refutes Appellant’s claim. Moreover, the

Honorable John D. Kuhn has prepared a forty-eight page opinion in which he

thoroughly and exhaustively reviews the prolonged procedural history of this

case and the prolix and, at times, nonsensical assertions made by Appellant

in support of his quest for post-conviction relief. We therefore adopt Judge

Kuhn’s January 8, 2015 opinion as our own in affirming the PCRA court’s

order denying Appellant’s latest PCRA petition.

Order affirmed.

*Retired Senior Judge assigned to the Superior Court. J-S47013-15

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/23/2015

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IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA , CRIMINAL ~ ~ (.j

COMMONWEAL TH CR-509-2006 :; f.1~1 r1 :to A -n v. I 0 r ""Tl CX) ,..., rn Cl JEFFREY L. ARMOL T 0 1J - <= ;::; MEMORANDUM OPINION UI w w Before the Court for disposition is a Post-Conviction Collateral Relief Act Petition

filed by Petitioner on August 26, 2014, along with a Supplemental Amendment filed

October 16, 2014 For reasons set forth herein, those petitions are denied without a

hearing.

This is Petitioner's third attempt to seek post-collateral relief in this case and

fourth attempt overall. Petitioner seems to believe that this jurist has improperly created

legal obstacles to his ability to litigate the merit of claims he believes will entitle him to

relief from his convictions and sentencing. Petitioner refuses to recognize that it is the

law, not the undersigned, which precludes him from having a hearing where he can air

his grievances It is not this Court, as Petitioner contends, that "refuses" to address the

merits of his claims but rather the Court's lack of authority to do so. Throughout a

substantial portion of the life of this case, Petitioner has challenged or rejected the

services of learned counsel. He has attempted to educate himself on the law after his

sentencing but. despite these somewhat commendable efforts, he unfortunately does

not fully comprehend. and sometimes mixes, facts and legal principles. Accordingly, the

undersigned will undertake an exhaustive analysis of this matter in the hope it is clear to

Petitioner that he has exhausted his legal remedy on all known issues and that he rs not

entitled to the relief he seeks. Circulated 07/14/2015 10:57 AM

BACKGROUND

On March 27. 2002, the Pennsylvania State Police filed a Criminal Complaint

charging Petitioner with Rape, Aggravated Indecent Assault and Indecent Assault' for

incidents allegedly occurring in Adams County between September 2001 and February

2002. Attached to the Complaint was an Affidavit of Probable Cause which alleged that

on February 24. 2002 a 12-year-old juvenile, K. S., gave birth to a premature baby at

Gettysburg Hospital. Hospital staff contacted the State Police. The trooper assigned to

the case interviewed K. S. who reported that Petitioner (DOB 5/1/1966) engaged in

vanous sexual acts with her, including 15-20 acts of sexual intercourse. The Affidavit

continued that the trooper obtained blood samples from K. S. and Petitioner, as well as a

swab from the baby. Testing was allegedly completed by Cellmark Diagnostics Lab

indicating that the "data are consistent with [Petitioner] being the biological father of the

baby." The baby died on March 6, 2002. Petitioner was arrested on the allegations the

same date the Complaint was filed.

On April 29, 2002, Petitioner appeared before Magisterial District Judge John C.

Zepp and, in the presence of counsel, Anthony (Tony) Miley, Esquire, of the Adams

County Public Defender's Office. waived his preliminary hearing. The following day,

Kevin Robinson, Esquire, entered his appearance on behalf of Petitioner and filed a

Petition to Remand to Preliminary Hearing.''

On May 30 2002, and again on June 26, 2002, formal Arraignment was

continued at request of Petitioner

'Rape at 18 Pa.CS A. §3121(a)(1) and 3121(a)(6); Aggravated Indecent Assault at 18 Pa. CS A §3125(1) and 3125(7); and Indecent Assault at 18 Pa. C.S.A. §3126(a)(1) and 3126(a)(7). 2 On the original petition, the Assistant District Attorney wrote "the victim is (sic) 12 years of age when the instant offense was committed, she became impregnated, had a miscarriage of that baby and a subsequent DNA test showed that defendant was the father. The defendant was represented by competent counsel. Anthony E. Miley, at the preliminary hearing and a decision to not have the hearing was made after counsel reviewed the expert DNA analysis."

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On August 1, 2002, a proceeding began before the undersigned at 12: 15 P.M ..

regarding Petitioner's request for the remand.' Petitioner was not present but counsel

indicated that Petitioner agreed his presence was not required. During discussion,

Assistant District Attorney Coffey stated that 1f the matter was remanded and the child

victim had to testify, the Commonwealth would pursue mandatory sentences but if she

was not required to testify, the prosecution would not be pursuing the mandatories.

Counsel was directed to review this position with his client. At 1 :54 P.M .. with Attorney

Robinson present, ADA Coffey reported that he had been mistaken and, because the

DNA evidence was so compelling, there was no offer to waive mandatory sentences

even if the child did not have to testify at a remanded preliminary hearing. The earlier

offer had not yet been reviewed with or accepted by Petitioner. The Court granted

Petitioner's request to remand the case for a preliminary hearing. On November 12,

2002, Petitioner again appeared before Magisterial District Judge Zepp and, with

counsel present, waived his preliminary hearing.

On December 30. 2002, Petitioner was formally arraigned and entered a not

guilty plea. The Information charged him with Rape as a felony of the first degree

(Counts 1-15), Aggravated Indecent Assault as a felony of the second degree (Counts

16-45). and Indecent Assault as a misdemeanor of the second degree (Counts 46-75).

On January 7, 2003, at the request of Petitioner, trial was continued through the

trial term beginning March 24, 2003.

On February 7, 2003, Petitioner filed a Motion for DNA Testing, alleging that the

first DNA test was invalid and requested that a second test be conducted. On March 17.

2003, the Court granted Petitioner's Motion For DNA Testing and authorized payment of

up to $950.00 for testing to be performed by BRT Laboratories in Baltimore, Maryland

3 For unknown reasons. the ongrnal mot,on was misplaced or lost. This problem was not discovered until on or about June 26, 2002, when a copy was substituted for the original and a hearmg scheduled

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On March 10, 2003 at the request of Petitioner, trial was continued through the

trial term beginning June 2. 2003. Subsequently, on May 19, 2003, at the request of

Petitioner's counsel trial was continued through the trral term beginning August 18,

2003, because it was reported that the DNA testing had not been completed. On August

18, 2003, it was revealed that for some unknown reason, the County had not paid the

lab for the DNA testing. The Court again directed the payment and also specifically

directed how the specimens were to be collected and forwarded to the lab. As a result,

Petitioner requested that trial be continued through the trial term beginning December 8,

On November 20, 2003, Petitioner's counsel reported that "the second DNA Just

came back positive" and that the parties were hoping to finalize details of a plea

agreement. At the same time, Petitioner waived his right to a jury trial.

On December 22, 2003, Petitioner appeared before the Court and entered a plea

of guilty to three counts of Rape, 18 Pa. C.S.A. §3121(a){6). Petitioner presented a

completed written plea colloquy form and indicated that he had no questions about the

information contained therein. The Commonwealth indicated that restitution being

requested totaled $70,473.62. The plea was offered with the understanding that

sentencing would not exceed an aggregate period of incarceration of 15-30 years and

that Petitioner could argue for a lesser sentence.

During the plea colloquy. the District Attorney reported that

"On February 24, 2002, KS, a 12 year old young lady gave birth to a premature baby boy at the Gettysburg Hospital. The Pennsylvania State Police ... were contacted by the staff ... regarding the incident . . The Trooper interviewed KS. . and she named [Petitioner] as the person who had been having sex with her and fathered the baby. According to her [Petitioner] was at that time the young lady's mother's paramour ... She said the behavior began in September of 2001 ... and continued .. up until February of 2002. Blood samples were obtained from the baby that the juvenile had given birth to. The blood samples were collected for paternity and they indicated that [Petitioner) was in fact the father of the young baby ... [Petitioner's] date of birth is May 1, 1966 "

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The Court then explained the elements of Rape to Petitioner and asked:

COURT: Do you understand what it is that you would be admitting on the particular charge?

DEFENDANT: I understand, Your Honor. Mr. Robinson explained this in detail for me

The Court explained the sentencing range to Petitioner:

COURT· Do you understand that this is considered, each of these are considered felonies of the first degree and they carry up to 20 years as a maximum penalty and $25,000 as a maximum fine.

DEFENDANT: Yes. sir.

COURT: There is no plea agreement. Technically the charges could be imposed consecutively which would generate a maximum of ... 60 years . . However, you would have a plea agreement that the maximum would not exceed 30 years. [The District Attorney] has indicated that and is correct in this that there rs a mandatory minimum sentence of five years on each of these offenses. If they were to run consecutively, they would be 15 in total and that's why the agreement is capped out at a maximum of 15 to 30 years. The understanding would be then it would be up to the Court to impose the sentence which could be anything up to that amount . . . Do you have any questions about those consequences?

DEFENDANT' No. sir.

The Court further explained the impact of Megan's Law:

COURT The other thing to mention to you is this is also subject to something which rs called Megan's law. Megan's Law is a requirement that before we can do sentencing, we have to have you evaluated by the Sexual Offenders Assessment Board which is basically a psychologist who would interview and examine you. That person would then provide a report to the District Attorney's Office If the report indicated that you were a sexually violent predator, the Commonwealth would then request a hearing be scheduled to determine 1f that could be established. You, of course. would have the right to oppose that designation and if it was deemed appropnate and you made the appropriate request. you could have an expert examine you for the purposes of contradicting the board's assessment. This is significant because under Megan's law when you are released there are requirements that deal with reporting your whereabouts on a regular basis. There are periodically forms which are sent to you that you have to fill out and return. If you were to go to another state. for example, you'd have to register with the police agencies in those states and because of the nature of the charge, the length of time that you would be doing this would be for the balance of your life. If you don't follow through with the requirements, that could bring about

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additional charges which are felony charges Do you have any questions about those consequences?

DEFENDANT· No. sir.

COURT: At the time of sentencing we would go over in greater detail each one of those Megan's Law requirements and you would then be given a form that you would be asked to sign acknowledging that these requirements were mentioned to you so you know what those requirements are. If you want greater detail on those at the present time, I can provide them to you. Do you need any additional information on the Megan's Law requirements?

DEFENDANT: Not at this time, Your Honor.

Petitioner then indicated that he had enough time to speak with counsel, that he

was satisfied with the advice and services received, that he was not being pressured,

that there were no other promises or understandings, and that he had enough time to

think about what he was doing. Petitioner then entered his plea:

COURT· Are you pleading guilty because in fact during the period September. 2001 through February, 2002 that on at least three occasions you had sexual intercourse with someone that was less than 13 years of age?

DEFENDANT: It would appear so, Your Honor.

COURT You may take the plea.

On April 12. 2004, Petitioner appeared for sentencing. Petitioner was given the

opportunity to speak on his own behalf but declined to do so. As noted, at the time of

the plea colloquy and as indicated in the Pre-sentence Investigation Report, the

Commonwealth was seeking restitution in excess of $70,000.00. When this was

mentioned Petitioner's counsel responded:

MR. ROBINSON You Honor, we received a breakdown of that. And we'll stipulate and we have no objection to that at all.

The Court also noted that the Sexual Offenders Assessment Board had concluded that

Petitioner was not a sexually violent predator Nevertheless. Petitioner was again

reminded that he would be subject to the provisions of Megan's Law. The Court

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sentenced Petitioner to a period of 5-1 O years on each count with each count to run

consecutively for an aggregate period of 15-30 years which was within the parameters of

the plea agreement.

On April 20, 2004, Petitioner filed a Motion For Modification of Sentence. At the

same time, Attorney Robinson moved to withdraw as Petitioner's counsel, and Petitioner

joined in that request. Three days later, Petitioner filed a pro-se Motion To Reconsider

Therein, he claimed Attorney Robinson had rendered ineffective assistance of counsel,

the DNA test reported the wrong blood type for him, and that the discovery material

raised several unanswered questions.

On May 10, 2004, Barbara Entwistle, Esquire, was appointed to represent

Petitioner. In the Order entered at that time, the Court noted that on April 23, 2004, it

had received Defendant's pro-se Motion To Reconsider. The Court stated that it would

take no action on the Motion but instead directed that Attorney Entwistle discuss the

concerns raised therein with Petitioner and to file an amended motion within 20 days

otherwise the issues raised therein would be waived.

On May 20, 2004, Petitioner filed a Motion To Withdraw Guilty Plea or

Alternatively Motion For Reconsideration of Sentence. Therein, Petitioner raised, inter

alia, the following averments:

a. That Petitioner insists he is not guilty;

b. That Petitioner's plea was not knowingly, intelligently and voluntarily entered;

c. That Petitioner understood that his sentence would be capped at 5-15 years;

d. That plea counsel was ineffective for failing to properly investigate the case,

not sufficiently meeting with and communicating with Petitioner,

misrepresenting the plea agreement, telling Petitioner it would be better to

plead guilty rather than nolo contendere, failing to adequately explain the

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written plea colloquy form submitted at the time of the plea, and pressuring

him to enter a plea by demanding a substantial fee to proceed to trial.

On July 20, 2004, Petitioner appeared before the Court pursuant to the motions

filed on May 20. Immediately, Petitioner indicated that he was withdrawing his Motion

To Withdraw Guilty Plea. The Court then focused on the Motion For Reconsideration of

Sentence and provided Petitioner with ample opportunity to present any information

favorable to that motion. Other than some character witnesses4 Petitioner offered, no

additional information not already considered at the time of the original sentencing. The

Court reviewed factors that were originally considered in imposing sentencing:

COURT: At the time of sentencing in April of this year I had the presentence investigation report which, of course, I had reviewed. The three charges called for mandatory minimums of 5 years ... We also know that a report indicated that he was not a sexually violent predator.

I'm not sure that this was attached to the Defendant's copy of the presentence report, but I did have as part of the confidential section a statement from Kelly Sheeley. 5 I also had a statement from Tammy Mummert6 and a victim impact statement from her as well. There was a victim impact statement from Wayne Bowers. 7 I guess that was pretty much the extent of it.

I should also indicate that I was somewhat familiar with the background of this and the impact on the young lady because she ended up in Juvenile Court and I presided over those matters relating to her dependency that arose through this whole experience.

During that discussion, Petitioner's counsel mentioned that Petitioner had

anticipated entering a nolo contendere plea until instructed by Attorney Robinson on

December 22, 2003 that he needed to change his plea to a guilty plea and his reluctance

4 The Court felt that the significance of the character letters was minimized because they were basedon the belief that Petitioner did not commit the offenses for Which he had entered his plea. Because he was not withdrawing those pleas, the letters were contraryto Petitioner's admissions and consideredof little value. 5 The victim. 6 The victim's mother. 7 The victim's father 8 Circulated 07/14/2015 10:57 AM

to do so was reflected tn hrs response to the Court's question whether he was pleading

guilty. At that point, the following discussion occurred:

COURT Just so everyone understands, I don't know that I had any specific conversations with Mr. Robinson but the Court made a policy some time ago that we were not accepting nolo contendere pleas on sex offense cases and it had a lot to do not so much with getting a plea done but the problems that they have when there is a conviction and then the alleged perpetrator is going to treatment and they say, well, I didn't do anything and they kick them out of treatment and nothing is accomplished. So we made a policy decision we were not going to accept nolo pleas on sex offenses. If somebody says I didn't do it. let's go to trial and have it out. Is that his position then, that's why he didn't say anything?

DEFENDANT: Basically, Your Honor, Mr. Robinson told me at the time the dollar amount it would take to go to trial and told me that my best chance was to take the plea.

COURT: That didn't exactly answer my question but I understand wha1 you're saying. Is it your position that these events did not occur?

DEFENDANT: Basically, yes Your Honor. I don't want to be - Your Honor, what I'm asking for is I'm asking for the Court to take into consideration all factors ...

As the Court was trying to ascertain what information Petitioner wanted considered, the

District Attorney interjected:

DISTRICT ATTORNEY: There were two separate independent DNA tests in this matter, Your Honor, and each of those tests were -

MS. ENTWISTLE: Your Honor, I believe the first test was not a DNA test. The first test was some other type of test. There was, however, at least one DNA test.

DISTRICT ATTORNEY: There two separate DNA tests performed in this matter by two separate independent labs and both of those tests are conclusive that this Defendant is the father of the child that died and at this point if this Defendant wishes to withdraw his guilty plea, we will allow him to withdraw his guilty plea and the Commonwealth is prepared to go to trial in this matter, Your Honor. If he's indicating that he pied guilty and he was forced to plead guilty and he did not commit these crimes, then we feel it's in his best interest that he withdraw his guilty plea and we're prepared to go forward with trial in this matter

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Petitioner's counsel asked for a moment to speak to her client after which Petitioner

clearly rejected the opportunity to withdraw his plea:

DEFENDANT: Sir, when this started the first words Miss Entwistle said was we did not, and I emphasize not, want to withdraw the guilty plea ... Later. the Court returned to this same subject:

COURT: Did Mr. Armolt wish to consider any further the Commonwealth's offer?

MS. ENTWISTLE: Withdrawing the guilty plea. Do you wish?

DEFENDANT: No. Your Honor.

The Motion For Modification of Sentence was denied. Petitioner did not file a

direct appeal of sentencing.

Thirty months later, on January 16, 2007, Petitioner filed a Motion For Post-

Conviction Collateral Relief. By letter dated February 2, 2007. the Court advised

Petitioner of its intent to dismiss his PCRA motion because the issues raised therein

were untimely and/or meritless. Because this was Petitioner's first such motion and

because he was raising numerous issues, the Court appointed Thomas Nell, Esquire, to

represent him. On February 18, 2007, Petitioner filed a pro-se Appeal To Dismissal of

the PCRA. On March 22, 2007, at the request of Petitioner and Attorney Nell, counsel

was relieved from representing Petitioner.

On April 17, 2007, the Court conducted a conference on Petitioner's PCRA

motion. Petitioner appeared by video from prison. Petitioner was asked to identify the

issues he wished to be addressed and identified the following:

a. There was a breach of his plea agreement made on November 20, 2003,

which called for a sentence of 5-15 years' incarceration.

b. The court's "policy" of declining nolo contendere pleas in sex offenses

interfered with the plea bargaining process;

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c. The Court improperly reviewed information in the confidential section of the

pre-sentence report;

d The Court should not have presided over this matter and a Juvenile Court

matter involving the minor victim;

e Failure of Petitioner's blood type to appear on the DNA report.8

All issues appeared to be time-barred Nevertheless, Petitioner was granted until June

2, 2007 to provide further reason why his motion should not be dismissed.

On August 17, 2007, the Court wrote to Petitioner granting him additional time

until September 28, 2007, to provide reasons why his motion should not be dismissed.

On September 11, 2007, Petitioner filed a Supplemental Brief in Support of

PCRA Petition. Therein, he raised judicial and prosecutorial misconduct. Specifically, it

appeared that he alleged the undersigned had impounded a May 11, 2004 custody

proceeding. He further claimed that even though the undersigned was aware that there

was a blood type error and that the DNA testing was fraudulent, this Court improperly

precluded him from introducing other "testimonial evidence." Petitioner argued that the

undersigned should recuse himself from further involvement in this case. Finally, he

raised ineffective assistance of prior counsel. On November 7, 2007, Petitioner

supplemented his bnef further.

On January 28, 2008, the Court dismissed Petitioner's Motion For Post-

Conviction Relief without a hearing. The reasoning was set forth in an accompanying

Opinion and was based upon certain issues being time-barred (primarily because the

information forming the basis of the claim was known to Petitioner long before the time

8 The transcript noted that the DNA report was never part of the criminal court record. Furthermore, Petitioner stated that he spoke to AttorneyRobinson about the allegedblood type issue on April 12, 2004. the day of sentencing

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9 when the issue could be raised in a PCRA proceeding) and others not having merit.

The issues discussed and the basis for dismissal are outlined below:

1 . Petitioner claimed there was an original plea agreement for him to waive

his second preliminary hearing in exchange for the Commonwealth not

pursuing mandatory sentences. - The record is clear that when the

remand was discussed on August 1, 2002, Petitioner was not present.

Before the offer could be transmitted to him, it was withdrawn. If

Petitioner was not aware of the offer he did not waive his hearing in

reliance upon that offer. If he knew of the offer, as he was claiming, he

was well aware of this issue when he entered his plea on December 22.

2003.

2. Petitioner claimed the DNA testing was based upon his incorrect blood

type. - Petitioner acknowledged that he was aware of this alleged

discrepancy on April 23, 2004, when he filed his pro se Motion to

Reconsider.

3. Petitioner claimed that discovery information was withheld indicating that

John Hauf had entered a plea of guilty to Indecent Assault on May 3.

2003, involving the same victim as in Petitioner's case. - In Petitioner's

Motion to Reconsider filed May 11, 2004, he referred to discovery

information provided by the Commonwealth that reported allegations

made by K. S. against Mr. Hauf. In the Motion, Petitioner averred that he

and Rebecca McGlaughlin-Wright were called to the hospital where he

was advised that Mr. Hauf had assaulted K. S. Ms. McGlaughlin-Wright's

9The PCRA law will be discussed in greater detail later in this Opinion. However. the statute provides that a court does not have Jurisdiction to address the merits of a claim unless the motion was filed within one year of the date the judgment in the case became final. Here the motion needed to be filed no later than August 19, 2005 and Petitioner's Motion was filed more than 16 months later

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letter attached to the motion confirmed that Petitioner knew of Mr. Hauf's

alleged involvement in February 2002. A letter from Mary Ochs, attached

to the Motion, confirmed Petitioner's knowledge of the accusations as

well. Mr. Haufs case was a matter of public record. Furthermore,

Petitioner's PCRA motion contained a copy of a letter dated July 9, 2004,

from Attorney Entwistle to Petitioner outlining Mr. Hauf s plea and

sentence.

4. Petitioner claimed that on April 12, 2004, the Court intentionally withheld

information from him that was part of the confidential section of the pre-

sentence investigation report. - On July 20, 2004, in the presence of

Petitioner, that information concerning the victim impact statements was

revealed on the record.

5. Petitioner claimed that the Court used information against him which the

judge obtained in a separate proceeding. - Petitioner was referring to the

fact that the undersigned was the Juvenile Court Judge when the victim in

this matter was adjudicated dependent. As a result, I was aware of the

allegations and the impact of the sexual abuse upon the victim at the time

of sentencing. During the July 20, 2004 proceeding, I mentioned this

prior involvement on the record before Petitioner was offered the

opportunity to withdraw his guilty plea.

6. Petitioner claimed that the Court improperly imposed a policy not to

accept nolo contendere pleas in sex offense cases and thereby coerced

him into pleading guilty. - Petitioner acknowledged that he was aware of

the Court's philosophy at the time he entered his plea. Even if it was

unclear to him at that time, the "policy" was discussed on the record on

July 20, 2004.

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7 Petitioner claimed that Attorney Robinson failed to appear in court on

several occasions. - To the extent Petitioner was present in court without

counsel, he was well aware of that absence as it occurred.

8. Petitioner claimed that ex-parte communications occurred on November

20, 2003. - The record reflects that Petitioner and Attorney Robinson

appeared in court on that day. Clearly, Petitioner was aware of

statements made on the record at that time and they were obviously not

ex-parte.

9. Petitioner claimed that on July 31, 2002, the Court engaged in an ex-

parte communication with Assistant District Attorney Coffey. - On that

day. Petitioner was scheduled for formal arraignment. Because Attorney

Robinson was not present, the proceeding was continued to the call of

either party. A hearing was already scheduled for the next day on

Petitioner's motion to remand the matter for a second preliminary hearing.

Clearly, nothing of substance was discussed and Petitioner was not

prejudiced by any conversation involving the continuance. Simply not

being present under such circumstances did not entitle Petitioner to post-

conviction relief.

10. Petitioner claimed that he should not have been represented by the

Public Defender's Office when it was alleged that someone within that

office was also representing Mr. Hauf. - Petitioner was represented by

Attorney Miley of the Public Defender's Office through the first preliminary

hearing on April 29, 2002, at most a period of one month. The following

day, Attorney Robinson entered an appearance to represent Petitioner.

Even if someone within the Public Defender's Office represented Mr. Hauf

in entering his plea for a separate incident. that fact would not entitle

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Petitioner to post-conviction relief.'? Defendant claimed that such

representation provided information to "an opposing party." The opposing

party would have been the Commonwealth. Petitioner did not aver any

specific confidential information made that the Commonwealth received

about him from the Public Defender's Office.

11. Petitioner claimed that the undersigned violated his rights because 1 was

the fact finder after he had waived his right to a jury trial. - Petitioner

never proceeded to a jury or a non-jury trial so the undersigned was

never placed in a position of being a fact finder in determining his guilt.

Guilt was established based upon Petitioner's admissions during his plea

colloquy on December 22, 2003.

12. Petitioner claimed that the Court impounded "a Domestic

proceeding/custody hearing on May 11. 2004" after he submitted a

motion for reconsideration. - The undersigned participated in no domestic

or custody proceeding in 2004. All Family Court matters in Adams

County were handled at that time by Honorable Robert G. Bigham. The

undersigned was acting as the Juvenile Court Judge at that time but took

no steps to secure any juvenile proceeding involving K. S. from Petitioner.

Juvenile proceedings are, for the most part, denied public access under

provisions of the Juvenile Act. Nevertheless, this jurist had developed a

standard order allowing criminal defendants access to statements

contained in Children & Youth files when the agency was involved with

10 It was also possible that Attorney Miley had to withdraw because another member of the Public Defender's Office represented all juveniles in dependency proceedlngs. Even if that were the case, no prejudice existed. Petitioner was clearly represented by Independent counsel throughout the great majonty of the case up to sentencing. The juvenile victim never testified against Petitioner because he entered a plea. No information was revealed at the time of the plea that was inconsistent with averments in the Affidavit of Probable Cause attached to the Criminal Complaint.

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sexual assault victims. In this case, no request for such information was

ever made to the undersigned by anyone on behalf of Petitioner up to and

through sentencing.

13. Petitioner claimed that Attorney Entwistle was ineffective for not raising

the ineffectiveness of Attorney Robinson. - The Court felt this claim was

without merit for several reasons. First, allegations of ineffectiveness of

Attorney Robinson were based upon alleged actions or inactions, outlined

above, which were either time-barred or without merit. If Petitioner could

not legally establish that Attorney Robinson was ineffective, Attorney

Entwistle could not be deemed ineffective for failing to raise that claim.

Second, Attorney Entwistle did allege Attorney Robinson's ineffectiveness

in the Motion filed on May 20, 2004. If established, valid claims of

ineffectiveness. at most. would have only entitled Petitioner to withdraw

his plea. However, because Petitioner was not willing to withdraw his

guilty plea, any ineffectiveness claim became moot at that point.

14. Petitioner claimed that a proceeding was held on August 1, 2002, without

him being present. - August 1, 2002, was the day that Petitioner's

request for a remand was to be considered by the Court. Petitioner

contended that Attorney Miley was subpoenaed by the Commonwealth

and that because Petitioner was not present, ex-parte information was

divulged to the District Attorney's Office. Neither the record nor the

Court's recollection revealed whether Attorney Miley actually appeared

that date but the record rs clear that he presented no information on the

record. It is likely that he was called to outline the background

surrounding the waiver of the first preliminary hearing. Petitioner's

absence was not explained except to note that "some issue arose at the

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prison." The fact that Petitioner was not present did not prejudice him

because the Court granted his request for a remand without the need for

a hearing

15. Petitioner claimed that some proceeding occurred on November 20,

2002, during which a plea agreement was entered. -A search of the

record clearly revealed that no proceeding was scheduled or took place

on the date.

16. Petitioner claimed that Judge Bigham was the issuing authority but the

undersigned divested him of his authority. - The record showed that the

issuing authority was Magisterial District Judge John C. Zepp. On April

30, 2002, Attorney Miley filed a Motion for Reduction of Bail that was set

for hearing on May 10, 2002. On that day, the undersigned continued the

hearing to June 21, 2002, upon a motion filed by Attorney Robinson. Also

scheduled for that same day was the request for remand. Judge Bigham,

at Petitioner's request. entered an Order on May 10, 2002, also

continuing that hearing to June 21. The issue was considered

nonsensical.

17. Petitioner claimed that he was sentenced for violating Section 3121(a){6)

of the Crimes Code, however, that section had been repealed on

December 9, 2002 prior to his formal arraignment. - The Criminal

Complaint alleged conduct occurring between September 2001 and

February 2002. Included were 15 counts alleging Rape under then

Section 3121 ( a)(6). That section provided,

(a) Offense defined. A person commits a felony of the first degree when he or she engages in sexual intercourse with a complainant:

17 Circulated 07/14/2015 10:57 AM

(6) who is less than 13 years of age. This section was deleted by Act 162 of 2002, enacted December 9, 2002,

and effective February 7, 2003. Section 3121 was then amended by Act

226 of 2002, effective February 14, 2003, to provide,

(C) Rape of child - A person commits the offense of rape of a child, a felony of the first degree, when the person engages in sexual intercourse with a complainant who is less than 13 years of age.

The repealer did not, as Petitioner argued, relieve him from criminal

responsibility under §3121 for the offenses he committed more than one

year prior to February 7, 2003.

18. Petitioner claimed that in various documents it was alleged that the

sexual abuse began in Waynesboro, Franklin County. - Petitioner

misinterpreted the charging documents. The Commonwealth was not

alleging conduct that occurred in Franklin County. The Affidavit of

Probable Cause stated that the alleged "behavior began during the month

of September 2001 while at the mother's former address in Waynesboro,

Pa. The sexual acts continued when [Petitioner} moved to Adams County

(ldaville-York Springs Rd., Huntington Twp.) during the latter part of

September, 2001." In turn, the Criminal Complaint averred that the abuse

occurred at "71 ldaville-York Springs Rd., Huntingdon Twp. In Adams

County." The Information also averred that the conduct being charged

occurred in Adams County. It was clear that the Commonwealth was only

pursuing the conduct alleged to have occurred in Adams County and only

made reference to Franklin County in the Affidavit of Probable Cause by

way of historical background.

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On February 7, 2008, Petitioner appealed the dismissal of his first PCRA motion.

On January 2, 2009, Superior Court affirmed the dismissal. Petitioner attempted to have

the Pennsylvania Supreme Court review his claims but his request was denied by that

court on August 19, 2009.

Nearly three years later, on July 30, 2012, Petitioner filed a second Post

Conviction Collateral Relief Act Petition. The Petition was quite extensive and for the

first time included some documents previously discussed on the record but never made

a part of the record. These included 1) a letter from the District Attorney to Attorney

Robinson dated October 24, 2003, which contained a copy of the March 25, 2002 Report

of Laboratory Examination from Cellmark Diagnostics; 2) a letter from the District

Attorney to Attorney Robinson dated November 6, 2003, responding to counsel's

discovery request and attached was a report dated October 14, 2003, from BRT

Laboratories, Inc.; and 3) a copy of a letter from Attorney Robinson to Petitioner dated

November 12, 2003, wherein he wrote "[elnclosed please find a copy of the results from

your recent DNA test. Unfortunately, once again the DNA test is positive. Under the

terms of our agreement with the District Attorney's office, it calls for us to enter a plea of

guilty and to have an open plea so that the Judge will decide the appropriate sentence in

your case." After carefully reviewing the Petition, the undersigned wrote to Petitioner on

September 25, 2012, outlining why the Court believed that all issues were time-barred

and, therefore, there was a lack of jurisdiction to consider the merits of the petition. The

Court identified the following issues which seemed to be raised by Petitioner:

1. Prosecutorial misconduct related to re-filing of charges.

2. Judicial misconduct for:

a. Being involved in juvenile court proceedings involving the victim;

b. Refusing to accept a nolo contendere plea:

c. Having access to the victim impact statement at sentencing;

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d. Having some impact upon the assessment by the Sexual

Offenders Assessment Board;

3. Ineffective assistance of counsel by Attorney Robinson for:

a. Not pursuing speedy trial rights;

b. Not challenging venue;

c. Not challenging the timeliness of the sentence;

d. Not challenging the restitution imposed;

e. Not pursuing the terms of a plea agreement with the

Commonwealth;

f. Failing to assert Petitioner's reluctance to enter a plea;

g. Failing to question the DNA results.

4. Ineffective assistance of counsel by Attorney Entwistle for withdrawing as

Petitioner's attorney.

5 Ineffective assistance of counsel by Attorney Nell for not raising the

ineffectiveness of prior counsel.

6. Ineffective assistance of counsel for not making the results of DNA testing

part of the record.

7. Errors by the trial court for:

a. Disregarding the SOAB assessment;

b. Breaching a plea agreement.

8. Imposition of an improper sentence because:

a. The counts should have merged;

b. The sentence involved matters which occurred in Franklin County,

c. There was no statutory authority to impose the sentence.

9. Petitioner improperly waived a preliminary hearing in exchange for a plea

agreement that was not accepted

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10. Charges were improperly re-filed on December 30, 2002.

The Court granted Petitioner until October 28, 2012 to respond with additional reasons

not to dismiss the petition.

On October 5, 2012, Petitioner filed a "Notice of Non-compliance" wherein he

expressly stated that he would not respond to the Court's correspondence dated

September 25, 2012. Therein, he reasoned that the "Affidavit of Prejudice" filed with his

Petition on July 30 2012, was sufficient to disqualify the undersigned from further

involvement in the proceeding. The undersigned concluded that the accusations

contained in that Affidavit were frivolous and that there was no valid basis for recusal

from disposing of the Petition. Therefore, on October 28, 2012, that Petition was

dismissed without a hearing and Petitioner was advised of his right to file an appeal. No

direct appeal was filed.

On February 1, 2013, Petitioner filed a civil action against the superintendent of

the state correctional institution where he is imprisoned, the District Attorney of Adams

County, the undersigned, and the Attorney General of Pennsylvania, seeking habeas

corpus relief. 11 By Order dated February 15, 2013, Adams County President Michael A

George noted that all Adams County judges had recused themselves from this matter

and the case was assigned to the Honorable Edward E. Guido of Cumberland County.

On April 1. 2013, Judge Guido dismissed the Petition with prejudice as to the

undersigned. That decision was affirmed by the Supreme Court on June 27, 2013.

On March 10, 2014, Judge Guido dismissed the entire civil action. He wrote that

it appeared Petitioner was attacking the propriety of his conviction and sentence in the

criminal case and, therefore. all issues should be addressed in the context of a

proceeding under the Post-Conviction Relief Act. Judge Guido felt Petitioner's issues

11 Jeffrey L. Armolt v John Kerestes, Superintendent; Shawn Wagner, District Attorney of Adams County: Judge John Kuhn, Kathleen Kane, Attorney General. No. 2013-SU-125.

11 Circulated 07/14/2015 10:57 AM

were previously addressed in this Court's Opinion dated January 28, 2008 and letter

dated September 25, 2012.

This decision was affirmed by Superior Court on July 23, 2014. Superior Court

identified five issues Petitioner stated he was attempting to raise.

1. Whether the writ of habeas corpus is a matter where relief is sought in the

context of a separate case record; the beglnning of an independent civil

action/inquiry which, is not subject to criminal appellate review or jurisdiction;

2. Whether when challenges to jurisdiction arise, is the burden of proof upon the

government a matter that must be decided;

3. Whether pursuant to the habeas corpus act and present-day law there is a

condition precedent that entitled the applicant to specific practices and

procedures from the court;

4. Whether the no answer letters submitted either personally or on behalf of the

respondents render a form of confessed judgment warranting plaintiff's relief;

and

5. Whether plaintiff's privilege/right to the writ of habeas corpus was unlawfully

suspended through constructive deprivations by the specific acts, omissions

or conduct of the specially presiding court Uudge).

In its written opinion, Superior Court noted that although Petitioner's allegations were

"confusing" it was able to discern that his argument was that the Adams County Court of

Common Pleas lacked jurisdiction over his criminal matter. The Court concluded,

without much discussion, that a claim alleging that a conviction or sentencing resulted

from a proceeding in a tribunal without jurisdiction is cognizable under the PCRA.

Having so concluded, the court then noted that under the PCRA all petitions must be

filed within one year of when a defendant's judgment becomes final. Noting that

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Petitioner invoked none of the time-bar exceptions, it concluded that the instant action

was facially untimely and affirmed the dismissal of the action.

CURRENT PCRA

The current Petition was filed on August 26, 2014. Therein, it appears that

Petitioner is raising the following issues:

1. Where challenges to jurisdiction arise, the burden of proof is upon the

Commonwealth and the Court. - Specifically, Petition contends that there

were improper re-filings of criminal charges in this matter and, as a result, the

Court proceeded without jurisdiction.

2. The regularity of the proceedings can be called into question where the

Commonwealth and the Court exceeded jurisdiction through misrepresented

evidence. - Specifically, Petitioner contends that the Commonwealth

misrepresented the DNA evidence and that his counsel was ineffective for not

making the test results part of the record. He stresses that this evidence

could not have supported a guilty verdict. Finally, he questions why the Court

did not make the test results part of the record.

3. The regularity of the proceedings can be called into question where the court

exceeded jurisdiction by implementation of a court-made policy and blatant

disregard of fact-finding by the Pennsylvania Sexual Offenders Assessment

Board. - Specifically, the Petitioner claims the Court exceeded its authority by

having a policy not to accept nolo condentere pleas in sexual offenses. He

argues that this interferes with plea negotiations and violates his right against

self-incrimination. Petitioner further claims that the court exceeded its

authority by subjecting htm to registration requirements under Megan's Law

even though the Sexual Offenders Assessment Board found that he was not

a sexually violent predator.

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4. The regularity of the proceedings can be called into question where Petitioner

was permitted to enter multiple guilty pleas and the sentencing court exceeds

its jurisdiction when imposing sentence under mandatory sentencing

guidelines without proof of prior conviction. - Specifically, Petitioner claims

that the Court improperly imposed mandatory sentencing upon him even

though he had no prior criminal convictions.

Petitioner stated that he was seeking the following relief:

1. For the Court to establish for the record exactly what statute(s) authorized the

Court to impose the sentences on April 12, 2004;

2. For the Court to establish for the record exactly what statute(s) authorized the

Court to impose any and all sentencing terms, conditions, or stipulations to go

along with the sentences imposed on April 12, 2004;

3. For the Court to establish for the record exactly what statute(s) specific to

Petitioner's claims by law that serve as a bar to the Court defining the exact

contours of the underlying constitutional rights;

4. The regularity of the proceeding can be called into question where Petitioner

was permitted to enter multiple guilty pleas and the sentencing court

exceeded its jurisdiction when imposing sentences under mandatory

sentencing guidelines without proof of prior conviction;

5. For the Court to establish for the record exactly what statutes permitted the

Commonwealth and the Court to exercise power and authority beyond its

jurisdiction: and

6. Any other relief this Court deems appropriate.

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On October 8, 2014, after review of the Petition,12 the Court issued an Order

indicating that Petitioner's claims were time-barred but granted him 30 days to submit

additional reasons to avoid the Jurisdictional time bar. On October 29, 2014, Petitioner

filed his Response to this Order.

Meanwhile. on October 16, 2014, Petitioner filed a Supplemental Amendment to

Post-Conviction Collateral Relief Act Petition wherein he challenged the legality of his

sentence as ,t related to the imposition of the restitution. On October 29, 2014. the

Court issued an Order outlining why this claim was also time-barred but granted

Petitioner 30 days to submit additional reasons to avoid that outcome. On November

12, 2014, Petitioner filed his Response.

DISCUSSION

In Pennsylvania. every person convicted of a crime has a right to file a direct

appeal from the sentencing 42 Pa. C.S.A. §9781; Pa. R. Crim. 720. Once the defendant

has exhausted his direct appeal rights. or has waived his right to do so, he may seek

collateral relief from a conviction for a crime he did not commit or from an illegal

sentence under provisions of the Post Conviction Relief Act. 42 Pa. C.S.A §9541, et.

seq. The purpose of the PCRA is to prevent fundamentally unfair convictions.

Commonwealth v. Carbone, 707 A.2d 1145, 1148 (Pa. Super. 1998).

Petitions under the PCRA are to be filed in the court of common pleas. §9545(a);

Pa. R. Cnm. P 901 (B) In order to be eligible for relief under the PCRA, the petitioner

must plead and prove, 13 inter alia, that

12 Pa.R Cnm P 907 requiresthe court to promptly review the petition and if the Judge is satisfied that there is no genuineissue concerningany materialfact, that the defendantis not entitledto post-conviction collateralrelief and that no purposewould be served by further proceedings, the judge must give notice to the partiesof us intentionto dismissthe petition, the reasons for the dismissal, and an opportunityfor the defendantto respond to the proposed dismissal within 20 days 13 §9543.

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1. He has been convicted of a crime and is currently serving the sentence for

that crime;

2 The conviction resulted from one or more of the following:

a. A violation of the constitution of either the United States or

Pennsylvania which, under the circumstances, so undermined the

truth determining process that no reliable adjudication of guilt or

innocence could have taken place.

b. Ineffective assistance of counsel which, under the circumstances, so

undermined the truth determining process that no reliable adjudication

of guilt or innocence could have taken place;

c. A plea of guilty unlawfully induced where the circumstances make it

likely that the inducement caused the petitioner to plead guilty and the

petitioner is innocent;

d. The improper obstruction by government officials of the petitioner's

righ1 to appeal where a meritorious appealable issue existed and was

properly preserved in the trial court;

e. The unavailability at the time of exculpatory evidence that has

subsequen11ybecome available and would have changed the

outcome of the trial if it had been introduced;

f. The imposition of a sentence greater than the lawful maximum; or

g. A proceeding in a tribunal without jurisdiction; and

3. The allegation of error had not been previously litigated or waived. An issue

has been previously litigated if the highest appellate court in which the

petitioner could have had review as a matter of right has ruled on the merits

of the issue or it has been previously raised and decided in a proceeding

collaterally attacking the conviction or sentence. As issue is waived if the

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petitioner could have raised it but failed to do so before trial, at trial, during

unitary review. or on appeal or in a prior post-conviction proceeding.14

Clearly, at the time the instant Petition was filed, Petitioner was still (and

continues to be) serving his sentence. He claims he is eligible for relief because of

constitutional violations. a sentence greater than the lawful maximum, and a proceeding

in a tribunal without jurisdiction. §9545(a)(2)(i). (vii) and (viii). 15 Facially, Petitioner has

raised some issues which arguably might render his claims eligible for a hearing on the

merits.

However, initial or subsequent PCRA petitions must be filed within one year of

the date the judgment becomes final. §9545(b)(i). A judgment becomes final, at the

conclusion of direct review or at the expiration of the time for seeking review.

§9545(b)(3)_ The one-year statutory time restriction is to be strictly construed.

Commonwealth v. Stokes, 959 A.2d 306, 309 (Pa. 2008). It is both mandatory and

jurisdictional in nature and may not be altered or ignored in order to reach the merits of

the claims raised in the petition. Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa.

2012); Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). A petitioner is

not automatically entiUed to an evidentiary hearing, Commonwealth v. Miller, 102 A.3d

988, 992 (Pa. Super. 2014), and a hearing cannot be used as a fishing expedition. If the

14 §9544 15 Petitioner also claims that he is eligible for relief under §9545(b)(5) of the PCRA which he contends was enacted pursuant to "The Act of June 17. 2011, Senate Bill No. 1153, Printers No. 1367, Session of 2011 (effective in (60) days)" which allegedly reads (5) Notwithstanding any other provision of law, any petition filed under this subchapter alleging a miscarriage of justice that lead (sic) to the convictton of a person who was factually innocent of the crime for which the person was convicted, m light of all the credible evidence available at and subsequent to trial, may be filed at any time It rs the concept of an alleged "miscarriage of justice" the Petitioner uses as the basic premise upon which he contends he is entitled to a hearing and relief more than 1 O years after his sentencing. Unfortunately for Petitioner, he cannot rely on this passage to support his eligibility for reltef because this provision was never enacted by the Legislature and is not part of the PCRA.

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petition is not filed timely, the court has no jurisdiction to consider the claims raised

therein. Id. Jurisdiction 16 relates to the competency of a court to hear and decide the

type of controversy presented. Commonwealth v. Concordia, 97 A.3d 366, 371 (Pa.

Super. 2014). Thus, if the petition is not filed timely, the court is not competent to

consider it.

In the instant case, Petitioner was sentenced on April 12, 2004, but filed a timely

motion for modification of sentence. That motion was denied on July 20, 2004. At the

latest. Petitioner had until August 19, 2004 to file an appeal to Superior Court. Pa. R.

Crim. P. 720(A)(2)(b) No direct appeal was filed. Accordingly, Petitioner had until

August 19, 2005 to file his current Petition but did not do so until August 26, 2014. more

than nine years later. For that reason, the petition could be dismissed unless Petitioner

is able to satisfy exceptions to the one-year time bar.

There are statutory exceptions to this one-year filing requirement if the petitioner

pleads and proves that 1} the failure to file timely was the result of interference by

governmental officials with the presentation of the claim; 2) the f-acts upon which the

claim is based were unknown to the petitioner and could not have been ascertained by

the exercise of due diligence, or 3) the right asserted is a constitutional right recognized

by the Supreme Court of the United States or Pennsylvania after the time for filing and

that court ruled it can be applied retroactively. §9545(b)(i-iii). If the petitioner raises one

of these exceptions, the petition must be filed within 60 days of the date the claim could

have been presented. §9545(b)(2)

These timeliness requirements apply to all PCRA petitions, regardless of the

nature of the individual claims raised therein. Commonwealth v. Jones, supra., 54

A.3d at 17, including whether the sentence is illegal. Commonwealth v. Taylor, 65

16 As opposed to the power of the court which refers to the ability of a court to effect a certain result

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A.3d 462, 468 (Pa. Super. 2013); Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.

Super. 2007)

Furthermore, a second or subsequent PCRA will not be entertained unless the

petitioner presents a strong prima facie showing that a miscarriage of justice may have

occurred. Commonwealth v. Stokes, suprs., 959 A.2d at 309; Commonwealth v.

Hawkins, 953 A.2d 1248, 1251 (Pa Super. 2006).

Here, Petitioner's fundamental barrier to a consideration of the merits of his

petition lies with the fact that all issues raised are time-barred, waived or previously

litigated. As noted above. if Petitioner cannot get past the jurisdictional time-bar, this

Court has no jurisdiction or authority to consider his claims, is not permitted to conduct a

hearing on the merits, and cannot grant him any relief. Nevertheless, he attempts to

circumvent this impediment by alleging that government officials interfered with his

presentation of the claim, §9545(b)(1 )(i). and by arguing that he can challenge the

legality of his sentence at any time pursuant to 42 Pa. C.S.A. §9781 (a).

Below the undersigned will discuss why each issue is time-barred, waived or

previously litigated and will. for the sake of argument (and in an effort to bring closure to

Petitioner's repetitious pleadings), also offer some explanation why the issue might lack

merit.

The Court can quickly dispatch Petitioner's argument that 42 Pa. C.S.A. §9781

entitles him to challenge the legality of his sentence at any time. In pertinent part. that

section reads

(a) Right to Appeal - The defendant or the Commonwealth may appeal as of right the legality of a sentence.

This provision, however, only applies to direct appeals from sentencing. At the time of

Petitioner's sentencing in 2004, the Court was required to advise a defendant of his right

to file a direct appeal from the sentence within 30 days after the sentence or disposition

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following any post-sentencing motions. Pa. R. Cnm. P. 704(C)(3)(a); 720. Part of the

plea colloquy documents submitted by Petitioner included a Statement of Post-

Sentencing Rights which set forth this information. Petitioner indicated his review and

understanding of the information by placing his initials next to the paragraph discussing

the Rule. In addition, these requirements were discussed at sentencing on April 12,

2004. Petitioner did not file a direct appeal.

Instantly, Petitioner is not "appealing" his sentence. Instead, he is attempting to

initiate post-conviction collateral relief from his sentence. There is a fundamental

difference between filing an appeal and seeking collateral relief even though the end

result could be similar. As will be discussed later in this Opinion, there is a general rule

that a challenge to the legality of a sentence may be raised at any time. However, it

must be raised in the proper proceeding and before a court having jurisdiction to correct

the sentence. Our appellate courts have held that any petition filed after the judgment of

sentence becomes final will be treated as a PCRA petition. Commonwealth v.

Jackson, 30 A.3d 516, 522 (Pa. Super. 2011). The plain language of the PCRA

provides for an action by which a person serving an illegal sentence may obtain

collateral relief and it is intended as the sole means of obtaining such relief. Id.

However, one is not permitted to challenge the legality of his sentence in a PCRA

proceeding if his petition is not timely filed. Id. Commonwealth v. Taylor, supra. Thus,

§9781 does not provide a basis to proceed with the instant PCRA petition.

Petitioner also claims that he is not time-barred from proceeding on the merits of

his petition because he has alleged an exception to the one-year requirement under

§954S(b)(1)(i) which applies when the failure to raise the claim within one year after

judgment became final resulted from interference by governmental officials with the

presentation of the claims. In that regard, Petitioner alleges the following governmental

obstructions:

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1. The Court failed to question the Commonwealth's re-starts/re-filing of the

criminal informations;

2 That there was an improper delay from the filing of the motion for remand of

the preliminary hearing on April 30, 2002 until that hearing was held on

November 12, 2002;

3. The Court permitted the re-filing of a criminal information on December 30,

2002 without regard to whether the charges were properly withdrawn;

4. The Court permitted Petitioner to remain incarcerated from his second

preliminary hearing on November 19, 2002 until November 12, 2003 while

awaiting results of a second DNA test;

5. The Court previously denied Petitioner a PCRA hearing to develop a record

regarding discussions about re-filing of criminal informations. waivers of

preliminary hearings and the DNA testing;

6. Petitioner was denied transcripts of the preliminary hearings;

7. The Court fails to acknowledge a proceeding taking place on November 19 or

20, 2002;

8. The Court limited Petitioner's access to transcripts;

9. Judge Guido "converted" Petitioner's 2013 habeas corpus action to a PCRA

proceeding;

10. The Petitioner and his counsel were misled that the DNA evidence was not

part of the record 17 Without commenting on the merits of any of these alleged obstructions they

clearly do not allow Petitioner to avoid the jurisdictional time bar. The governmental

17 However, 1t is obvious that none of these claims constitute interference by a government official that prevented Petitoner from raising those claims in a PCRA proceeding prior to August 19, 2005. To the extent he did raise claims previously, which were either not appealed or rejected on appeal. a court decision denying him a hearing because of untimeliness is not government

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interference exception allowed in §9545(b)(1)(i) must be raised in a petition filed within

60 days after information supporting the claim became known to the petitioner.

§9545(b)(2). Here, the current Petition was filed on August 26, 2014. The background

Petitioner is using to support all of his claims was known to him long before that 60-day

period could have commenced on June 28, 2014. Therefore, he is precluded from

raising this exception to the jurisdictional time bar.

Petitioner alleges that there were improper "re-starts" of his legal proceedings

and the "re-filing" of criminal informations. Specifically, he claims that there was 1) a

2001 criminal information. 2) a criminal information dated March 27, 2002, 3) a criminal

information dated April 30, 2002. and 4) a criminal information filed in open court on

December 30, 2002. He contends that these documents demonstrate a withdrawing and

re-filing of charges in violation of the Rules of Criminal Procedure which, in turn,

deprived the Court of jurisdiction to sentence him.

Petitioner directs the Court to documents attached to his 2012 PCRA where he

raised this issue and his 2013 habeas corpus action to support his claim. To the extent

Petitioner raises an issue cognizable under the PCRA, his reference to documents in his

possession before filing his 2013 action, demonstrates that the issue was known to him

more than 60 days before he filed the instant Petition. 'Accordingly, this issue is

untimely. Furthermore, because this issue was raised previously and not overturned on

appeal, it has been previously litigated and is not eligible for consideration at this time.

Even if the issue was not time-barred, the record clearly shows that there was no

re-filing of criminal charges and the claim is meritless. Petitioner points to a computer-

generated docket sheet produced on some unknown date which seems to refer to a

disposition on Rape, Aggravated Indecent Assault and Indecent Assault charges in the

interference as contemplated by §9545. Even 1f rt did constitute interference, it does not explain why the current petition was not filed within 60 days after learning of the information supporting the claim

32 Circulated 07/14/2015 10:57 AM

above matter on "10/1/01". The entry is an obvious error not supported by the record

documents and likely related to a migration error occurring during the transition to the

CPCMS docketing system in Adams County. The entry appears to suggest that on that

date, Petitioner entered a guilty plea to Rape and the other charges were withdrawn.

Obviously, Petitioner knows he did not enter a guilty plea on that date. Furthermore, the

State Police were not summoned to investigate this case until February 24, 2002.

Therefore. nothing could have occurred procedurally four months earlier. Petitioner's

allegations are an attempt to create an issue where none exists.

A review of the file supports the background outlined in the beginning of this

Opinion. Documents show the following:

03/27/2002 - Criminal Complaint filed with the MDJ charging Rape,

Aggravated Indecent Assault and Indecent Assault and case given MDJ

docket number CR-103-02 and OTN H-472454-3:

04/29/2002 - Petitioner waived his preliminary hearing and was given

notice that his formal arraignment would be held on May 30, 2002;

04/30/2002 - MDJ docket transcript for MDJ Case No. CR-103-02; OTN

H-472454-3; printed that date at 11 :44 A.M. is filed with the Clerk of

Courts and the case receives a Common Pleas docket number of CR-

509-02. The MDJ docket does not show any charges being added or

withdrawn;

04/30/2002 - Attorney Robinson files Petition For Remand;

08/01 /2002 - Petition For Remand granted by the Court;

08/22/2002 - Clerk of Courts returned the file to the MDJ;

11 /12/2002 - Petitioner waives his preliminary hearing in MDJ Docket No.

CR-103-02; OTN H-472454-3. The MDJ docket does not show any

charges being added or withdrawn;

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11 /12/2002 - MDJ docket transcript for MDJ Case No. CR 103-02, OTN

H-472454-3. filed with Clerk of Courts in the Common Pleas docket

number of CR-509-02;

12/30/2002 - Petitioner formally arraigned and the Criminal Information,

filed in open court, charging him with Rape under §3121-6 (Counts 1-15);

Aggravated Indecent Assault under §3125(1) (Counts 16-30); Aggravated

Indecent Assault under §3125-7 (Counts 31-45); Indecent Assault under

§3126(a}(1) (Counts 46-60), and Indecent Assault under §3126(a)(7)

(Counts 61-75) was time stamped by the Clerk of Courts;

12/22/2003 - Petitioner signs his name on the aforementioned Criminal

Information indicating that he is pleading guilty to Counts 1, 2 and 3 and

the Clerk of Courts places its time stamp thereon.

The record documents show that the charges were originally filed on March 27,

2002 and up to the time of Petitioner's guilty plea were not withdrawn or amended.

Therefore, there was no improper violation of the procedural rules or any reason to

question the Court's jurisdiction to sentence Petitioner.

Petitioner's second claim rs that the "Commonwealth and Court exceeded

jurisdiction through misrepresented evidence." Petitioner seems to claim that throughout

this case the District Attorney "misrepresented" that the two DNA test results indicated

his guilt and that those tests were never made part of the record to prove otherwise.

This issue was known to Petitioner well before the time allowed for the filing of the

instant petition.

The Affidavit of Probable Cause filed with the Criminal Complaint on March 27,

2002 made Petitioner aware that testing was done by Cellmark which identified him as

father of the baby. Claiming that test was invalid, Petitioner filed a Motion on February

7, 2003 for a second test that was granted On November 20, 2003, Attorney Robinson

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11 /12/2002 - MDJ docket transcript for MDJ Case No. CR 103-02, OTN

H-472454-3, filed with Clerk of Courts in the Common Pleas docket

number of CR-509-02:

12/30/2002 - Petitioner formally arraigned and the Criminal Information,

filed in open court, charging him with Rape under §3121-6 (Counts 1-15);

Aggravated Indecent Assault under §3125(1) (Counts 16-30); Aggravated

Indecent Assault under §3125-7 (Counts 31-45); Indecent Assault under

§3126(a)(1) (Counts 46-60); and Indecent Assault under §3126(a)(7)

12/22/2003 - Petitioner signs his name on the aforementioned Criminal

Information indicating that he is pleading guilty to Counts 1, 2 and 3 and

The record documents show that the charges were originally filed on March 27,

2002 and up to the time of Petitioner's guilty plea were not withdrawn or amended.

Therefore, there was no improper violation of the procedural rules or any reason to

question the Court's jurisdiction to sentence Petitioner.

Petitioner's second claim is that the "Commonwealth and Court exceeded

jurisdiction through misrepresented evidence '' Petitioner seems to claim that throughout

this case the District Attorney "misrepresented" that the two DNA test results indicated

his guilt and that those tests were never made part of the record to prove otherwise.

This issue was known to Petitioner well before the time allowed for the filing of the

The Affidavit of Probable Cause filed with the Criminal Complaint on March 27,

2002 made Petitioner aware that testing was done by Cellmark which identified him as

father of the baby. Claiming that test was invalid, Petitioner filed a Motion on February

7. 2003 for a second test that was granted. On November 20, 2003, Attorney Robinson

reported in court that the second test came back positive. At hearing on July 20, 2004.

the District Attorney referred to the two tests as supporting Petitioner's guilt. During a

video conference on April 17, 2007. held in response to Petitioner's first PCRA petition,

he identified as an issue the failure of his blood type to appear on the DNA report.

Petitioner admitted discussing this concern with Attorney Robinson on April 12, 2004,

the date of sentencing, and that he was aware of this issue when he filed his Motion to

Reconsider Finally, in his second PCRA petition filed July 30, 2012, Petitioner attached

a letter dated October 24, 2003. from the District Attorney to Attorney Robinson that

included a copy of the March 25, 2002 Cellmark report, a letter dated November 6, 2003

from the District Attorney to Attorney Robinson that included a copy of the October 14,

2003 BRT lab report, and a letter dated November 12, 2003, from Attorney Robinson to

him which enclosed a copy of that second report.

The fact that the DNA test results were not made part of the record prior to the

filing of the 2012 PCRA petition is of no import. There was no reason to submit those

test results as evidence because the case never went to trial. Petitioner's guilty plea

was based upon his admission to three separate acts of sexual intercourse with a

juvenile; not because a witness. expert or otherwise, testified as to the chain of

evidence, the DNA testing procedure, or the results of the DNA testing. Clearly, he was

aware of those tests prior to his plea, as evidenced by the November 12, 2003 letter

mentioned above.

Even if the issue was timely filed, it lacks merit. The copies of the reports

submitted by Petitioner in 2012 support the fact that the District Attorney did not

misrepresent the test results. The Cellmark report makes no mention of blood type but

does state ''The data are consistent with [Petitioner] being the biotogical father of Kevin

Sheeley " likewise. the BRT report makes no mention of blood type but does state "On

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the basis of all systems tested, ((Petiitioner]) cannot be excluded as the father of (Frozen

Tissue Sample)". That report listed the Paternity Probability as 99.99%.

Third, Petitioner claims that the Court exceeded its jurisdiction by implementing a

court-made policy of not accepting nolo contendere pleas in sexual offenses. He claims

that the court rejected his nolo contendere and, by doing so, interfered in the plea

bargaining process, violated Pa. R. Crim. P. 105 and violated his right against self-

incrimination. This issue has also been well known to Petitioner for years. The Court

discussed this "policy" on the record on July 20, 2004. Petitioner raised this issue in his

2007 PCRA. Superior Court affirmed this Court's ruling that the issue was untimely. He

again raised the same issue in his 2012 PCRA. The issue was again rejected as

untimely but Petitioner did not appeal that decision. Thus, not only is the claim untimely

but has been previously litigated.

Even if filed timely, the "policy" issue would not grant Petitioner relief. First, the

record clearly shows that Petitioner never appeared before the Court and tendered a

nolo contendere plea. However, if he had done so, it is likely that it would have been

rejected for the reasons set forth by the undersigned on July 20, 2004. That being said,

the use of the term "policy" was probably a misnomer because, in reality, it was not a

policy adopted by the s1st Judicial District nor a policy binding upon any other judge in

the county. Instead, it was a personal judicial philosophy arising from years of

experience with sex offenders.18

18 The Court certainly understands that a person facing multiple counts of Rape based upon substantial evidence may want to enter into a plea agreement that limits his exposure to punishment even if he is not willing to admit guilt. However, sex offenders are normally directed to sex offender treatment where acknowledgment of the facts supporting the crime rs related to successful therapeutic treatment. Those not willing to admit guilt in court often do not admit guilt in treatment. When treatment fails. the rehabilitative goals of sentencing are jeopardized. Accordingly, for purposes of community safety, at that time, I believed nolo contendere pleas should be rejected in such cases In this case, Petitioner was not pressured into pleading guilty or forfeiting his nght to trial. This court's concern was discussed, to some degree, by Judge Klein's dissenting opinion in Commonwealth v. Snavely, 982 A.2d 1244 (Pa. Super. 2009)

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This philosophy did not violate Rule 105.19 Rule 590 expressly provides that

criminal pleas are to be taken in open court where "a defendant may plead not guilty,

guilty, or with the consent of the judge, nolo contendere." (emphasis added). Thus, the

court has discretion whether to accept or reject a plea of nolo contendere.

It is important to note that, in the context of a PCRA proceeding, there is nothing

regarding the nature of this issue that meets the eligibility criteria under §9543. There is

no constitutional violation at play nor claim of ineffective assistance of counsel that so

undermined the truth determining process that no reliable adjudication of guilt or

innocence could have taken place. A guilty plea unlawfully induced is not at issue.

There is no governmental obstruction of the accused's right to appeal a meritorious

issue. The issue does not involve the discovery of exculpatory evidence, an unlawful

sentence or court jurisdiction. Furthermore, Petitioner could have raised the issue on

appeal after sentencing but, by failing to do so. has waived any merit that might possibly

exist.

More importantly, Petitioner has shown no prejudice. A plea of nolo contendere

is a plea by which a defendant does not expressly admit his guilt but he nevertheless

waives his right to trial and exposes himself to sentencing as if he were guilty.

Commonwealth v. V.G., 9 A.3d 222, 226 (Pa. Super. 2010). Petitioner suggests that

he initially intended to plead nolo contendere. If he had done so, he would have been

exposed to the same plea agreement and ultimate sentence. He was given the option to

withdraw his plea of guilty and vehemently rejected that opportunity. He was sentenced

the same whether he had pleaded guilty or nolo contendere.

where he suggested the solution to sex offenders violating treatment by not admitting guilt is to not offer them nolo contendere pleas. That is exactly what my philosophy encompassed. 19 That Rule provides that local rules cannot be inconsistent with general rules of the Pennsylvania Supreme Court nor statute. Local rules include policy or custom adopted or enforced by a court of common pleas to govern criminal practice and procedure which requires a party or an attorney to do or refrain from doing something.

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Finally, Petitioner's claim that by rejecting a plea of nolo contendere the Court

violated his right against self-incrimination is totally meritless. That 5th Amendment right

basically guarantees that a person cannot be compelled to testify in a criminal

proceeding in a manner that will incriminate himself. The Court did not compel Petitioner

to plead guilty. That choice was made by Petitioner with the assistance of counsel and

after an extensive written and verbal colloquy. Petitioner was made aware that he was

presumed to be innocent. that he had a right to trial, with or without a jury, where the

prosecution would be required to present evidence that must convince the fact finder

beyond a reasonable doubt of his guilt, and that he was not required to present any

evidence or to testify. Petitioner was well aware of the accusations against him, that

K.S. would likely testify as to the sexual encounters, and that the Commonwealth would

present testimony as to the results of the DNA testing on the child born to K. S. Instead

of proceeding to trial, Petitioner gave up the aforementioned rights and admitted guilt.

During the plea colloquy he acknowledged that no one was pressuring him to plead

guilty. Additionally. despite this background, months later he was given the option to

withdraw his plea and declined to do so. It is clear beyond reproach that Petitioner

selected a course of action that he believed would be in his best interest at the time and

was not forced to admit guilt.

Fourth, Petitioner claims that the Court "exceeded its jurisdiction regarding a fact-

finding determination by the Pennsylvania Sexual Offenders Assessment Board" (SOAB)

in regard to whether he should be designated a sexually violent predator. He suggests

that the SOAB's determination that he did not meet the criteria for a sexually violent

predator "serves as an acquittal." Petitioner further argues that the Court violated

Apprendi v. New Jersey, 530 U.S. 466 (2000) by imposing a mandatory lifetime

registration requirement upon him. For several reasons, this claim must be dismissed.

The undersigned does not recall this issue being previously raised but it is, nevertheless,

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untimely because it was not filed by August 19, 2005. nor does any of the timeliness

exceptions apply In addition, the issue was not appealed after sentencing and was,

therefore, waived. Finally, the issue is not cognizable under the PCRA.

On October 24. 1995, the Pennsylvania Legislature amended the Sentencing

Code and enacted Title 42, Sections 9791 - 9799.6, subchapter H, entitled Registration

of Sexual Offenders, 42 Pa. C.S.A. §9791 - 9799.6, commonly known as Pennsylvania's

Megan's Law (Megan's Law 1).20 Megan's Law I established a procedure for

adjudicating persons convicted of certain offenses as sexually violent predators. The

sexually violent predator provisions of Megan's Law I were struck down by the

Pennsylvania Supreme Court in Commonwealth v. Williams (Williams/), 733 A.2d

593 (Pa. 1999)., cert. den. Pennsylvania v. Williams, 120 S. Ct. 792 (2000). In

response, Megan's Law I was amended on May 10, 2000, and became Megan's Law 11,

effective July 9, 2000.21 The amendment provided that after conviction of an

enumerated offense the defendant could be subject to a separate adjudicatory process

to determine whether he satisfies the criteria to be designated a sexually violent

predator. It was this version that was in effect at the time of Petitioner's plea and

Megan's Law II required that after conviction for certain offenses, but before

sentencing, the court was required to order a person to be assessed by the SOAB. One

of those offenses was Rape, 18 Pa. C.S.A. §3121. Once the assessment was

completed, the SOAB would send its report to the district attorney.22 At the request of

the district attorney, the court would schedule a hearing to determine whether the person

20 Act No. 1995-24 (SSI). 21 Act No 2000-18. 22 The assessment report sets forth the opinion of the evaluator It does not become a finding that the defendant rs a sexually violent predator unless. and until, it is found to be credible by a court after a hearing at which the defendant is represented by counsel and entitled to his own expert

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is a sexually violent predator §9795.4. At sentencing, the court was required to notify

the offender of his duty to register certain information with the police on a periodic basis.

§9795.3. The statute provided that a person convicted of Rape was required to register

for his lifetime regardless of whether he was determined to be a sexually violent

predator. §9795.1 (b}(2). Registration is not a sanction imposed upon a defendant by

the court but rather a statutory consequence that flows from the conviction. The court is

simply required to notify the defendant of those consequences.

In the instant case, Petitioner was advised of the requirements of Megan's Law at

the time of his plea. Sentencing was deferred to allow the SOAB to complete its

assessment. The District Attorney did not request a hearing to determine whether

Petitioner fit the criteria for a sexually violent predator because the assessment did not

support that finding.23 Accordingly, the case proceeded to sentencing where Petitioner

was again advised of the requirements of Megan's law. Contrary to Petitioner's

assertion, the Court made no findings regarding him being a sexually violent predator

although the sentencing order noted that he was advised that he was subject to the

provisions of Megan's Law. He was subject to Megan's Law because of his conviction

not because of his sentence.

PCRA petitions only allow a person to collaterally challenge a conviction or

sentence. Commonwealth v. Masker, 34 A.3d 841, 843 (Pa. Super. 2011). Our

Supreme Court has held that the provisions of Megan's Law are not punitive in nature

and are not part of one's sentence even though the ramifications of the law are

discussed at the time of sentencing. Instead, Megan's Law registration requirements are

collateral consequences of one's conviction Commonwealth v. Williams, 977 A.2d

23Such a finding does not, as Petitioner contends, constitute an acquittal. As noted above, the report merely expresses the opinion of the evaluator.

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1174, 1176 (Pa. Super. 2009). Accordingly, the Megan's Law process discussed above

cannot be challenged in a PCRA proceeding.

Likewise, Apprendi rs not applicable in this proceeding. That case stands for the

proposition that any finding of fact that increases the maximum penalty to be imposed

upon a criminal conviction must be determined by a jury beyond a reasonable doubt.

Because Megan's Law requirements are not part of one's sentence and therefore do not

increase the maximum penalty, a jury is not involved in determining its applicability in a

particular case.

Fifth, Petitioner contends that the Court violated its jurisdiction in the imposition

of a mandatory sentence. Specifically, it appears that he argues the Court improperly

subjected him to mandatory sentencing under Pa. C.S.A. §9714 without evidence of a

prior criminal conviction. This claim does not warrant PCRA scrutiny because 1) it is an

issue that could have been raised on direct appeal and therefore is waived, 2) it was not

filed prior to August 19, 2005 and therefore is untimely, 3) no exception to the

jurisdictional time-bar has been averred, and 4) the claim does not meet any of the

eligibility criteria under the PCRA.

Even if the Court could consider this issue, Petitioner incorrectly asserts that he

was sentenced under §9714. That section addresses legislative concerns over

recidivism by violent criminals and dictates sentences for second and subsequent

convictions for crimes of violence. As such, it does require a prior criminal conviction

before a mandatory sentence can be imposed. However, in 2004, Petitioner was

sentenced under a different statutory provision.

Petitioner admitted to three separate rapes upon the same 12-year-old victim. At

that time, 42 Pa. C.S.A. §971824 provided that if a person was convicted of raping a

2" In 1995, §9718 was amended to provide that "A person convicted of the following offenses when the vrchrn rs under 16 years of age shall be sentenced to a mandatory term of imprisonment

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victim under the age of 16 years a mandatory minimum period of incarceration of not

less than 5 years was to be imposed. Rape, as a felony of the first degree, exposed

Petitioner to a maximum term of imprisonment of 20 years. The plea agreement called

for Petitioner to be sentenced to a period of incarceration on each count of 5-1 O years

with the possibility of each count being served consecutively. Petitioner reserved the

right to argue for any of the counts to be served concurrently. Thus. he was facing an

aggregate sentence that could range from a minimum of 5-10 years up to a maximum of

15-30 years of incarceration. The Court determined for each count to be served

consecutively.

Petitioner is not entitled to relief under the PCRA on this issue because the

sentence imposed on each count did not exceed the lawful maximum. Furthermore,

because each rape was considered a separate criminal event, the Court had the legal

authority to impose consecutive sentences on each count. The mandatory nature of the

sentence and the imposition of the consecutive sentences were not dependent upon

whether Petitioner had a prior criminal history.

Sixth, Petitioner claims that the restitution imposed upon him was illegal.

Specifically, he argues 1) that the restitution ordered was not for the benefit of the victim,

and. 2} that he was denied due process of law regarding his ability to pay restitution.

When Petitioner entered his plea on December 22, 2003, he was advised that

the Commonwealth was seeking $70,473.62 in restitution. In fact, his written plea

colloquy form recognized that request as follows:

The Defendant agrees to pay restitution on all charges to which pleas of guilty . . are entered ... as follows·

as follows· 18 Pa. C.S. §3121(1), (2). (3), (4). (5) and (6) (relating to rape)-not less than five years" Act 10 Section 17 (Special Session). As notedearlier in this Opinion, the Crimes Code was amended by Act 226 of 2002, effective February 14, 2003 to redefinethe crime of Rape of a victim less than 13 years of age under §3121(c} Finally, Act 178 of 2006 amended §9718 to its current requirement of a 10-year mandatory minimumterm of imprisonment for Rape under §3121(c) 42 Circulated 07/14/2015 10:57 AM

($70,473.62) 694.00 to Wetzel Funeral Home; $2,200 to Victims Comp; 67,473.62 to Blue Cross

After the plea was completed, the Court entered an Order which included, inter alta,

Restitution has been presented to the Court in the amount of $70,473.62. The Defendant is reserving the right to request a restitution hearing at or about the time of sentencing after he has had sufficient time to review documentation presented by the Commonwealth in support of those restitution figures.

The presentence investigation report noted that $75.00 was also being requested

for the Gettysburg Fire Department and $31. 00 was being requested for Gettysburg

Diagnostic Imaging. At the time of sentencing, Petitioner did not request a hearing on

restitution but instead, through counsel, indicated "we'll stipulate and we have no

objection" to the amount requested.

At the time of sentencing in this matter, the Crimes Code mandated that

restitution be imposed where "the victim suffered personal injury directly resulting from

the crime." 18 Pa. C.S.A. §1106(a).25 Here, Petitioner contends that this section26

requires payment to be made to reimburse the victim for her loss and that payment

should only be made to the Victim Compensation Fund or an insurance carrier if the

compensation from the fund or the carrier was paid directly to compensate the victim.

He suggests that payment was not made by those entities to reimburse K. S. directly but

rather is being directed to reimburse third parties.

Any claim that implicates the fundamental authority of the court to impose a

particular sentence constitutes a challenge to the legality of the sentence. If no statutory

authority exists for the particular sentence, if the sentence rs outside the legal

25 The version of Section 1106 in effect at that time was first enacted in 1976, and amended in 1978 (PL. 202. No. 53, §7(5), effective June 27. 1978), 1995 (P.L. 999, No. 12 (Spec. Sess. No. 1), §1, effective in 60 days). and 1998 (Act 121 of 1998, §1, effective December 3, 1998). 2 Petitioner also correctly mentions that 42 Pa. C.S.A. §9721, Sentencing Generally, also directs that the court at sentencing "shall order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained." §9721(c)

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parameters prescribed by the applicable statute, Commonwealth v. Infante, 63 A.3d

358, 363 (Pa. Super. 2013), or if a restitution order is unsupported by the record,

Commonwealth v. Stradley, 50 A.3d 769, 771-2 (Pa. Super. 2012), the sentence is

illegal. It is well settled that the PCRA is intended to be the sole means of achieving

post-conviction relief The PCRA is intended to provide relief to persons serving illegal

sentences. §9542. Thus, one claiming that his sentence is illegal can only achieve

post-conviction collateral relief under the PCRA. However, in order for the PCRA court

to have jurisdiction to correct an illegal sentence, the petition must comply with the time

requirements of §9545. Commonwealth v. Jackson, supre., 30 A.3d at 521-2. Here,

the petition was patently untimely, therefore, this Court does not have jurisdiction to

consider Petitioner's claim. See Commonwealth v. Taylor, supra.

Petitioner also argues that the right to pursue relief from an illegal sentence

cannot be waived and cites Commonwealth v. Jones, 932 A.2d 179 (Pa. Super. 2007).

Petitioner is correct that Jones stands for the proposition that the PCRA waiver

definition in §9544(b) does not preclude one from challenging an illegal sentence even if

that issue was not properly preserved on direct appeal. However, that case also made

clear that the challenge had to be filed timely or the court could not grant relief. That

court expressly stated,

When a petitioner files an untimely PCRA petition raising a legality-of- sentence claim, the claim is not waived, but the jurisdictional limits of the PCRA itself render the claim incapable of review. (emphasis added).

Id. at 182 Thus. even though challenges to the legality of a sentence are not technically

warvable, such claims may be lost unless they are presented to a court having

jurisdiction to address the challenge. Commonwealth v. Miller, supra., 102 A.3d at

995 In the context of a PCRA proceeding, the court does not have jurisdiction to

address an alleged illegal sentence if the PCRA petition was not filed timely. Id.

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Petitioner's claim that he was denied due process to challenge the

appropriateness of the restitution or his ability to pay restitution cannot be addressed for

the reasons outlines above. Even if that claim could be addressed, it lacks merit. The

concept of due process encompasses the right to a hearing where the Commonwealth

has the burden of establishing the appropriateness of the restitution requested.

Commonwealth v. Atansio, 997 A.2d 1181, 1183-4 (Pa. Super. 2010). (It is the

Commonwealth's burden of proving its entitlement to restitution and it is necessary that

the amount be determined under an adversarial system with consideration of due

process.) Here. Petitioner had the right to a hearing but waived that right when his

counsel, in his presence, indicated that he had no objection to the restitution and

stipulated to the amount. Furthermore. restitution under §1106 is mandatory and is not

dependent upon the defendant's ability to pay.27 The defendant's ability to pay only

becomes relevant if he fails to make payment and appears for a contempt proceeding.

Petitioner also tailors his due process argument around a challenge to Act 84 of

1998. Specifically. he relies upon the recent decision in Montanez v. Secretary

Pennsylvania Department of Corrections, 2014 WL 5155040, _ F.3d _ (3rd Cir.

August 15, 2014).28

By way of background, Act 84 amended provisions of the Sentencing Code to

allow the Pennsylvania Department of Corrections (DOC) to make monetary deductions

from an inmate's account for the purpose of collecting restitution and court costs. 42 Pa.

C.S.A. §9728(b)(5). The Act directed the DOC to develop guidelines related to that

collection process. The DOC did develop a policy that allowed deduction of 20% from

the inmate's account for purposes of such payment.

27 §1106(c)(1 )(i) requires the court to order full restitution "[rJegardless of the current financial resources of the defendant. so as to provide the victim with the fullest compensatfon for the loss . " 28 That court issued an Opinion on August 14, 2014, but the following day issued an Amended Opinion

45 Circulated 07/14/2015 10:57 AM

Over the years, there have been a number of challenges to Act 84. For example,

in Commonwealth v. Danysh, 833 A.2d 151 (Pa. Super. 2003) a state inmate filed a

motion with the sentencing court to stop the deductions being made from his account

pursuant to Act 84. Superior Court held that the request was an attempt to stop the

DOC from taking money out of his inmate account and, therefore, was an action against

the Commonwealth. As such, the court ruled that jurisdiction is vested with the

Commonwealth Court and not the court of common pleas. In Buck v. Bear, 879 A.2d

157 (Pa. 2005) an inmate asserted that the DOC's action of deducting funds from his

account pursuant to Act 84 violated his due process rights. He argued that the trial court

should hold a hearing to determine his ability to afford the deductions. Our Supreme

Court, while acknowledging that a prisoner has a property interest in his inmate account,

nevertheless rejected Buck's claim. Instead, the Court held that the sentencing hearing

process provided the defendant with adequate pre-deprivation due process. The same

result was reached in Richardson v. Pennsylvania Department of Corrections, 991

A.2d 394 (Pa. Comwlth Ct. 2010).

Several months ago, the Third Circuit issued its opinion involving a pre-

deprivation due process claim regarding Act 84 deductions in Montanez. There, an

inmate29 brought a §1983 actlorr'" challenging the DOC's automatic deduction of funds

from his inmate account to cover restitution and court costs. The court noted that the

inmate was not suggesting that any additional process be given by the Pennsylvania

courts. Rather, his challenge was limited to whether the inmate must be provided with

notice under the DOC Policy regarding the deductions and an opportunity to be heard

regarding application of the Policy prior to the first deduction. The court agreed with the

inmate. It stated that it agreed with Buck v. Beard that Pennsylvania did not need to

29 The action involvedinmatesMontanezand Hale. Montanez'claim was dismissed based upon the statuteof ltmitations 30 42 U.S.C. §1983.

46 Circulated 07/14/2015 10:57 AM

provide any additional judicial hearing for an inmate to determine his ability to pay before

making deductions from his account. However, it did conclude that

At a minimum, federal due process requires inmates to be informed of the terms of the DOC Policy and the amount of their total monetary liability to the Commonwealth ... In particular, the DOC must disclose to each inmate before the first deduction: the total amount the DOC understands the inmate to owe pursuant to the inmate's sentence; the rate at which funds will be deducted from the inmate's account; and which funds are subject to deduction. Further, inmates must have a meaningful opportunity to object to the application of the DOC Policy to their inmate accounts before the first deductions commence ...

To be clear, we do not suggest that the DOC must provide each inmate with a formal, judicial-like hearing before the onset of deductions. Moreover, we find nothing substantively unreasonable about the DOC's refusal to provide exceptions to its across-the-board 20% rate of deduction, in light of the fact that the DOC will not make deductions when an inmate's account falls below a certain minimum. Because we find the deduction rate to be reasonable, the DOC need not entertain a challenge to the rate of deduction. though it must provide an opportunity for inmates to object to potential errors in the deduction process.

We also do not mean to suggest that inmates must have an opportunity to be heard prior to each deduction. Rather, after providing the required initial notice the DOC could provide inmates with an informal opportunity to supply written objections to prison administrators prior to the first deduction ...

(citations omitted).

As this Court understands Petitioner's current claim, he believes Montanez

means he is entitled to a hearing before this Court to determine his ability to afford the

deductions from his account. As is obvious from the above discussion, Montanez does

not provide him with a due process argument outside the walls of the DOC. If he has a

concern regarding deductions from his account, he should direct his attention to those

officials. Furthermore, a claim challenging whether deductions can be made from one's

account does not challenge the legality of a sentence and, therefore, is not cognizable

under the PCRA Even if this issue somehow implicates the legality of Petitioner's

sentence. the claim is set forth in a petition that is patently untimely. In either

circumstance, this Court has no jurisdiction to address this claim.

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Based upon past history, the undersigned suspects that Petitioner will not agree

with the reasoning nor the decision made herein. He is invited to share his arguments

with an appellate court 1f he is convinced that this jurist's conclusions are erroneous.

Accordingly, the attached Order is entered

~-- JOHN,.KUHN Jucfge

Dated: January Y . 2015

COPIES

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