J-S17026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
BRANDON CLAUSEN,
Appellant No. 1024 WDA 2014
Appeal from the PCRA Order Entered May 14, 2014 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001281-2011, CP-25-CR-0002229- 2011
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015
Appellant, Brandon Clausen, appeals pro se from the May 14, 2014
order that denied his petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We quash.
A prior panel of this Court set forth the relevant facts and procedural
history of this case as follows:
The Commonwealth charged Appellant with one count each of rape of a child, sexual assault, involuntary deviate sexual intercourse with a child, corruption of minors, and three counts of indecent assault. The charges stemmed from contact between Appellant and the victim, M.P., over a period of time when she was ten to 12 years old. See Criminal Information, 9/23/11. M.P. was a friend of Appellant’s sister. N.T., 4/23/12, at 8. On January 9, 2012, Appellant pled guilty to one count of rape of a child and the Commonwealth nolle prossed the remaining ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S17026-15
charges. On April 23, 2012, the trial court held a hearing to determine whether Appellant met the criteria for being a SVP. At the conclusion of said hearing, the trial court found that Appellant met the SVP criteria and imposed an aggregate judgment of sentence of 15 to 40 years’ imprisonment. On May 2, 2012, Appellant filed a timely post-sentence motion which was denied by the trial court on May 3, 2012.
Commonwealth v. Clausen, 752 WDA 2012, 69 A.3d 1300 (Pa. Super.
Filed March 22, 2013) (unpublished memorandum) (footnotes omitted).
The Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on February 27, 2014, Commonwealth v. Clausen, 87
A.3d 318 (Pa. 2014). Appellant filed a timely pro se PCRA petition on March
13, 2014. Counsel was appointed and on April 9, 2014, counsel filed a no-
merit letter and petition to withdraw in the PCRA court. On April 17, 2014,
the PCRA court notified Appellant of its intent to dismiss his PCRA petition
pursuant to Pa.R.Crim. 907, and on April 21, 2014, the PCRA court granted
counsel’s petition to withdraw. Subsequently, on May 14, 2014, the PCRA
court filed an order denying Appellant’s PCRA petition. Thereafter, Appellant
filed the instant appeal.
Prior to any discussion concerning the claims Appellant purports to
raise on appeal, we must address whether the appeal was filed in a timely
manner. It is well settled that the “[t]imeliness of an appeal is a
jurisdictional question.” Commonwealth v. Pena, 31 A.3d 704, 707 (Pa.
Super. 2011). “When a statute fixes the time within which an appeal may
be taken, the time may not be extended as a matter of indulgence or grace.”
Id. (citation omitted). As noted above, the order denying Appellant’s PCRA
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petition was filed on May 14, 2014. Therefore, Appellant had thirty days to
file a timely appeal. Pa.R.A.P. 903(a). The thirtieth day fell on Friday, June
13, 2014. However, the record reflects that Appellant’s notice of appeal was
not filed in this Court until ten days later on June 23, 2014. On July 29,
2014, this Court issued a rule to show cause as to why this appeal should
not be quashed as untimely, and we directed Appellant to respond within ten
days. Appellant’s response was received in this Court on August 7, 2014.
On August 26, 2014, we filed an order discharging the rule to show cause
and informing Appellant that the timeliness issue may be addressed by the
panel assigned to address the merits of his appeal. We shall now conduct
that review.
While Appellant’s notice of appeal was filed in this Court ten days late,
we are cognizant that Appellant was incarcerated at the time of said filing.
The “prisoner mailbox rule” provides a limited exception to the time
requirements for filings in the courts of this Commonwealth.
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). The
prisoner mailbox rule allows a pro se document to be deemed filed on the
date it is placed in the hands of prison authorities for mailing. Id.
In his response to the rule to show cause, Appellant claimed that when
he first mailed his notice of appeal, he errantly labeled the envelope with the
incorrect address, and the documents were returned to sender seven days
later. Appellant’s Response to Rule to Show Cause, 8/7/14, at 2
(unnumbered page). Appellant avers that he then mailed the notice of
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appeal to the correct address where it was docketed on June 23, 2014. Id.
We are constrained to conclude that Appellant’s response does not save his
appeal from being untimely.
While Appellant attached to his response to the rule to show cause two
envelopes allegedly containing his initial notice of appeal and Pa.R.A.P.
1925(b) statement1 that were allegedly sent to the wrong address, we have
no way of knowing what was in those envelopes when they were mailed.
Thus, these envelopes do not establish that the notice of appeal was placed
in the hands of the prison authorities for mailing on or before June 13, 2014.
Moreover, and what we deem fatal to Appellant’s attempt to employ the
prisoner mailbox rule is that the handwritten notice of appeal contains an
affidavit of service bearing the date June 14, 2014. Certified Record, at
docket entry 18. Thus, the notice of appeal itself was dated one day late,
and we cannot construe it as having been placed in the prison mail a day
before it was written. Accordingly, as Appellant’s appeal was untimely, we
quash the appeal.
Assuming for the sake of argument, however, that the appeal had
been timely, Appellant would be entitled to no relief. In his appeal,
Appellant avers in his argument that his sentence was excessive and that his
____________________________________________
1 While the PCRA court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Appellant filed said statement of his own accord.
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mandatory minimum sentence was illegal under Commonwealth v.
Munday, 78 A.3d 661 (Pa. Super. 2013) (applying Alleyne v. United
States, ___ U.S. ___, 133 S.Ct. 2151 (2013)).2 Appellant’s Brief at 11-12.
Appellant’s arguments would fail.
First, his claim regarding the duration of his sentence was previously
litigated and disposed of on direct appeal.3 Clausen, supra. Secondly,
Appellant was not sentenced to the mandatory minimum sentence, and
therefore, because the mandatory minimum was not applied, Munday and
the mandate from Alleyne and its progeny are not implicated. See
Commonwealth v. Samuel, 102 A.3d 1001, 1008 (Pa. Super. 2014)
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J-S17026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
BRANDON CLAUSEN,
Appellant No. 1024 WDA 2014
Appeal from the PCRA Order Entered May 14, 2014 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001281-2011, CP-25-CR-0002229- 2011
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015
Appellant, Brandon Clausen, appeals pro se from the May 14, 2014
order that denied his petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We quash.
A prior panel of this Court set forth the relevant facts and procedural
history of this case as follows:
The Commonwealth charged Appellant with one count each of rape of a child, sexual assault, involuntary deviate sexual intercourse with a child, corruption of minors, and three counts of indecent assault. The charges stemmed from contact between Appellant and the victim, M.P., over a period of time when she was ten to 12 years old. See Criminal Information, 9/23/11. M.P. was a friend of Appellant’s sister. N.T., 4/23/12, at 8. On January 9, 2012, Appellant pled guilty to one count of rape of a child and the Commonwealth nolle prossed the remaining ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S17026-15
charges. On April 23, 2012, the trial court held a hearing to determine whether Appellant met the criteria for being a SVP. At the conclusion of said hearing, the trial court found that Appellant met the SVP criteria and imposed an aggregate judgment of sentence of 15 to 40 years’ imprisonment. On May 2, 2012, Appellant filed a timely post-sentence motion which was denied by the trial court on May 3, 2012.
Commonwealth v. Clausen, 752 WDA 2012, 69 A.3d 1300 (Pa. Super.
Filed March 22, 2013) (unpublished memorandum) (footnotes omitted).
The Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on February 27, 2014, Commonwealth v. Clausen, 87
A.3d 318 (Pa. 2014). Appellant filed a timely pro se PCRA petition on March
13, 2014. Counsel was appointed and on April 9, 2014, counsel filed a no-
merit letter and petition to withdraw in the PCRA court. On April 17, 2014,
the PCRA court notified Appellant of its intent to dismiss his PCRA petition
pursuant to Pa.R.Crim. 907, and on April 21, 2014, the PCRA court granted
counsel’s petition to withdraw. Subsequently, on May 14, 2014, the PCRA
court filed an order denying Appellant’s PCRA petition. Thereafter, Appellant
filed the instant appeal.
Prior to any discussion concerning the claims Appellant purports to
raise on appeal, we must address whether the appeal was filed in a timely
manner. It is well settled that the “[t]imeliness of an appeal is a
jurisdictional question.” Commonwealth v. Pena, 31 A.3d 704, 707 (Pa.
Super. 2011). “When a statute fixes the time within which an appeal may
be taken, the time may not be extended as a matter of indulgence or grace.”
Id. (citation omitted). As noted above, the order denying Appellant’s PCRA
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petition was filed on May 14, 2014. Therefore, Appellant had thirty days to
file a timely appeal. Pa.R.A.P. 903(a). The thirtieth day fell on Friday, June
13, 2014. However, the record reflects that Appellant’s notice of appeal was
not filed in this Court until ten days later on June 23, 2014. On July 29,
2014, this Court issued a rule to show cause as to why this appeal should
not be quashed as untimely, and we directed Appellant to respond within ten
days. Appellant’s response was received in this Court on August 7, 2014.
On August 26, 2014, we filed an order discharging the rule to show cause
and informing Appellant that the timeliness issue may be addressed by the
panel assigned to address the merits of his appeal. We shall now conduct
that review.
While Appellant’s notice of appeal was filed in this Court ten days late,
we are cognizant that Appellant was incarcerated at the time of said filing.
The “prisoner mailbox rule” provides a limited exception to the time
requirements for filings in the courts of this Commonwealth.
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). The
prisoner mailbox rule allows a pro se document to be deemed filed on the
date it is placed in the hands of prison authorities for mailing. Id.
In his response to the rule to show cause, Appellant claimed that when
he first mailed his notice of appeal, he errantly labeled the envelope with the
incorrect address, and the documents were returned to sender seven days
later. Appellant’s Response to Rule to Show Cause, 8/7/14, at 2
(unnumbered page). Appellant avers that he then mailed the notice of
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appeal to the correct address where it was docketed on June 23, 2014. Id.
We are constrained to conclude that Appellant’s response does not save his
appeal from being untimely.
While Appellant attached to his response to the rule to show cause two
envelopes allegedly containing his initial notice of appeal and Pa.R.A.P.
1925(b) statement1 that were allegedly sent to the wrong address, we have
no way of knowing what was in those envelopes when they were mailed.
Thus, these envelopes do not establish that the notice of appeal was placed
in the hands of the prison authorities for mailing on or before June 13, 2014.
Moreover, and what we deem fatal to Appellant’s attempt to employ the
prisoner mailbox rule is that the handwritten notice of appeal contains an
affidavit of service bearing the date June 14, 2014. Certified Record, at
docket entry 18. Thus, the notice of appeal itself was dated one day late,
and we cannot construe it as having been placed in the prison mail a day
before it was written. Accordingly, as Appellant’s appeal was untimely, we
quash the appeal.
Assuming for the sake of argument, however, that the appeal had
been timely, Appellant would be entitled to no relief. In his appeal,
Appellant avers in his argument that his sentence was excessive and that his
____________________________________________
1 While the PCRA court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Appellant filed said statement of his own accord.
-4- J-S17026-15
mandatory minimum sentence was illegal under Commonwealth v.
Munday, 78 A.3d 661 (Pa. Super. 2013) (applying Alleyne v. United
States, ___ U.S. ___, 133 S.Ct. 2151 (2013)).2 Appellant’s Brief at 11-12.
Appellant’s arguments would fail.
First, his claim regarding the duration of his sentence was previously
litigated and disposed of on direct appeal.3 Clausen, supra. Secondly,
Appellant was not sentenced to the mandatory minimum sentence, and
therefore, because the mandatory minimum was not applied, Munday and
the mandate from Alleyne and its progeny are not implicated. See
Commonwealth v. Samuel, 102 A.3d 1001, 1008 (Pa. Super. 2014)
(discussing a scenario where the trial court technically violated
Alleyne/Munday by making a determination as to how much contraband
the defendant possessed, but concluding that because the trial court did not
sentence the defendant to the prescribed mandatory minimum sentence or
2 In Alleyne, the United States Supreme Court held that any fact that increases a mandatory minimum sentence must be submitted to the jury and be found beyond a reasonable doubt. 3 In order to be entitled to PCRA relief, one of the requirements of the PCRA is that the appellant must establish by a preponderance of the evidence that his claims have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue is previously litigated if the highest appellate court in which the appellant could have had review as a matter of right has ruled on the merits of the issue. 42 Pa.C.S. § 9544(a). “An issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b).
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impose any enhancement that required a factual predicate before
application, the trial court’s technical violation of Alleyne/Munday was
irrelevant because Alleyne/Munday did not apply where the mandatory
minimum was not imposed). Therefore, were we to reach the merits of
Appellant’s issues on appeal, we would conclude that he is entitled to no
relief.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/10/2015
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