Com. v. Bilger, D.

• Court: Superior Court of Pennsylvania
• Decided: February 18, 2022
• Docket: 998 MDA 2021
• Status: Unpublished

Opinion

J-S34018-21, J-S34019-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DERRICK CHARLES BILGER : : Appellant : No. 998 MDA 2021

Appeal from the Order Entered March 8, 2021 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000237-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DERRICK CHARLES BILGER : : Appellant : No. 999 MDA 2021

Appeal from the Judgment of Sentence Entered March 4, 2021 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000411-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DERRICK CHARLES BILGER : : Appellant : No. 1000 MDA 2021

Appeal from the Judgment of Sentence Entered March 4, 2021 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000413-2020

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J. J-S34018-21, J-S34019-21

MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 18, 2022

Derrick Charles Bilger appeals from the judgment of sentence entered

following his convictions for two counts of possession with intent to deliver

(“PWID”).1 He also appeals from an order that dismissed charges against him.

We affirm the judgment of sentence and quash the appeal from the order

dismissing charges.

The Commonwealth charged Bilger with several crimes at the three trial

court dockets listed above. Bilger pled guilty on March 4, 2021, to two counts

of PWID, at docket numbers CP-31-CR-0000411-2020 and CP-31-CR-

0000413-2020 (respectively, “Docket 411” and “Docket 413”). The trial court

dismissed the charges at docket number CP-31-CR-0000237-2020 (“Docket

237”). See Order, filed 3/8/21; 1925(a) Op., filed 8/2/21, at 3. The court that

same day imposed a negotiated sentence of a total of four to nine years’

incarceration. See N.T., Guilty Plea Hearing, 3/4/21, at 1-5.

Bilger submitted a pro se letter, dated March 10, 2021, and docketed

March 15, 2021, asking for an appeal in “all 3 of my cases[.]” See Pro Se

Letter, dated 3/10/21. The letter also stated that he had new evidence and

his plea offer “was not fair.” Id. The court docketed the letter as a notice of

appeal at all three trial court dockets.

On March 22, Bilger filed a pro se Post Conviction Relief Act (“PCRA”)

petition, asking to withdraw his guilty plea. See PCRA Petition, filed 3/22/21;

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1 35 P.S. § 780-113(a)(30).

-2- J-S34018-21, J-S34019-21

42 Pa.C.S.A. §§ 9541-9546. Bilger had counsel at the time of the filing. The

trial court held a hearing, on May 21, and counsel informed the court that

Bilger had asked about withdrawing his plea after the time to file a post-

sentence motion had expired. See N.T., 5/21/21, at 2. Counsel stated that he

had advised Bilger “since it was beyond the time period[,] to file a PCRA.” Id..

Bilger testified that he wanted to withdraw his guilty plea because it was

made under duress. He said he only pleaded guilty so that he could get out of

“the hole” in the prison facility where he was housed. Id. at 6. The court

treated both filings as a “timely post-sentence motion,” which it denied. Id.

at 7. An additional appeal followed.

As to the appeal from the order dismissing charges, at Docket 237, we

quash the appeal because Bilger lacks standing to appeal. Only an aggrieved

party may appeal. See Pa.R.A.P. 501. An “aggrieved” party is one whom the

order or judgment at issue has affected adversely. See Ratti v. Wheeling

Pittsburgh Steel Corp., 758 A.2d 695, 700 (Pa.Super. 2000). No adverse

consequences ordinarily occur to the party that wins below, and such a party

lacks standing to appeal. See In re J.G., 984 A.2d 541, 546 (Pa.Super. 2009).

Since the order at issue dismissed all charges at this docket, it did not

adversely affect Bilger and he is not an aggrieved party.

Regarding the judgments of sentence at Dockets 411 and 413, Bilger

raises a single issue: “The [t]rial [c]ourt erred in denying [Bilger’s] post-

sentence motion to withdraw his plea, as he contends that he was under

-3- J-S34018-21, J-S34019-21

duress at the time he entered his plea, and believed he had no choice, but to

enter his plea.” Bilger’s Br. at 4.

The lower court treated Bilger’s PCRA petition as a post-sentence motion

and denied it. Regardless of whether we consider it a post-sentence motion or

PCRA petition, the court properly denied it for two reasons. First, Bilger was

represented by counsel when he filed it and was improperly engaging in hybrid

representation. See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010)

(stating pro se filings by represented party are legal nullities). Second, Bilger

filed his PCRA petition while his direct appeal was pending. Such a PCRA

petition is premature and the court of common pleas lacks jurisdiction to

entertain it. See Commonwealth v. Smith, 244 A.3d 13, 16-17 (Pa.Super.

2020).

Appeal at 998 MDA 2021 quashed. Judgments of sentence at 999 MDA

2021 and 1000 MDA 2021 affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/18/2022

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