J-S34039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL GENTHER
Appellant Nos. 1666 MDA 2014 AND 1667 MDA 2014
Appeal from the Order Entered September 3, 2014 In the Court of Common Pleas of Centre County Criminal Division at Nos: CP-14-CR-0001651-2007 and CP-14-CR-0000691- 2008
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 27, 2015
Appellant, Michael Genther, appeals from the September 3, 2014 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
At docket number 1651 of 2007, Appellant pled guilty to a single count
of stalking1 in connection with four threatening phone calls he made to his
estranged wife. On January 2, 2008, the trial court sentenced Appellant to
serve three and one-half to seven years of incarceration, the statutory
____________________________________________
1 18 Pa.C.S.A. § 2709.1(a)(2). J-S34039-15
maximum.2 On November 4, 2009 this Court affirmed the judgment of
sentence. Commonwealth v. Genther, 988 A.2d 719 (Pa. Super. 2009)
(table; 2020 MDA 2008). Appellant did not seek allowance of appeal in the
Pennsylvania Supreme Court.
At docket number 691 of 2008, the Commonwealth charged Appellant
with stalking and retaliating against a witness3 in connection with several
letters Appellant sent from prison in which he threatened to harm or kill his
wife. The trial court, sitting as finder of fact, found Appellant guilty of those
charges and on December 15, 2008 imposed concurrent three and one-half
to seven year sentences for stalking and retaliating against a witness. The
sentence at docket number 691 of 2008 was to run consecutively to the
sentence at number 1651 of 2007. This Court affirmed the judgment of
sentence on November 24, 2009. Commonwealth v. Genther, 988 A.2d
719 (Pa. Super. 2009) (table; 338 MDA 2009). Appellant did not seek
allowance of appeal in the Pennsylvania Supreme Court.
On May 21, 2010, Appellant filed a timely first PCRA petition
referencing both docket numbers. Appointed counsel filed an amended
petition on January 11, 2011. The petition alleged various counts of
2 The offense was graded as a third-degree felony under the circumstances of this case, per 18 Pa.C.S.A. § 2709.1(c)(2), and the maximum sentence for a third-degree felony is seven years, per 18 Pa.C.S.A. § 1103(3). 3 18 Pa.C.S.A. § 4958(b).
-2- J-S34039-15
ineffective assistance of counsel. On November 4, 2011, the PCRA court
entered an order granting partial relief on Appellant’s amended petition.
Specifically, the November 4, 2011 order reinstated Appellant’s right to seek
allowance of appeal in the Pennsylvania Supreme Court. The November 4,
2011 order referenced only docket number 691 of 2008. Despite the PCRA
court’s order, Appellant failed to file a petition for allowance of appeal.
Appellant took no further action in this case until February 20, 2013,
on which date he filed, through counsel, a petition to “reinstate” his prior
PCRA petition at number 691 of 2008. Appellant filed a similar petition at
number 1651 of 2007, even though that petition was still pending. 4 On July
10, 2013, the PCRA court conducted a hearing on Appellant’s petitions to
4 According to the PCRA court’s opinion in support of the order on appeal, it intended for the November 4, 2011 order to apply to both docket numbers. PCRA Court Opinion, 9/3/14, at 2 n.1. Regardless, the PCRA court docketed the order only at number 691 of 2008. The apparent error is of no moment, as Appellant’s sole assertion of error on direct appeal at number 1651 of 2007 was the trial court’s abuse of its sentencing discretion. This Court found the argument lacking in merit, and § 9781(f) of the Judicial Code forbids further appellate review. 42 Pa.C.S.A. § 9781(f) (“No appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.”); Commonwealth v. Rosario, 635 A.2d 109, 109-10 (Pa. 1993) (noting that § 9781(f) deprives the Supreme Court of jurisdiction to review the discretionary aspects of a sentence). The Supreme Court can review issues such as our application of the Sentencing Code (see Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa. 2002)), but Appellant has disavowed any intent to do so here. Thus, reinstatement of Appellant’s right to seek allowance of appeal at number 1651 of 2007 would have been futile.
-3- J-S34039-15
reinstate.5 At the conclusion of the hearing, the PCRA court granted relief,
purportedly reinstating Appellant’s prior PCRA petition at both docket
numbers. After several continuances, the PCRA court conducted a merits
hearing on June 6, 2014. On September 3, 2014, the Court entered an
order denying relief.
Appellant raises three issues for our review:
I. Did the lower court err in finding that Appellant’s prior counsel did not render ineffective assistance of counsel by failing to brief properly Appellant’s sentencing proportionality issue in Appellant’s direct appeal to the Superior Court which failure led directly to the denial of Appellant’s direct appeal?
II. Did the lower court err in finding that Appellant’s prior counsel did not render ineffective assistance of counsel by failing to pursue on direct appeal the issue of admissibility into evidence of letters allegedly written by Appellant which letters formed the basis of the Commonwealth’s prosecution?
III. Did the lower court err in finding that Appellant’s prior counsel did not render ineffective assistance of counsel by failing to file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court from the denial of Appellant’s direct appeal by the Pennsylvania Supreme Court?
Appellant’s Brief at 4.
5 The certified record does not contain a transcript of the July 10, 2013 hearing.
-4- J-S34039-15
All three of Appellant’s issues pertain to number 691 of 2008.6 Before
we consider the merits, we must discern whether jurisdiction lapsed at that
docket number. “[T]he PCRA time limitations implicate our jurisdiction and
may not be altered or disregarded in order to address the merits of a
petition.” Commonwealth v. Cristina, 114 A.3d 419, 421 (Pa. Super.
2015). The timeliness of a PCRA petition is a question of law for which our
standard of review is de novo. Commonwealth v. Fahy, 959 A.2d 312,
316 (Pa. 2008).
As we explained above, the PCRA court entered an order on November
4, 2011 reinstating Appellant’s right to file a petition for allowance of appeal
with the Pennsylvania Supreme Court at number 691 of 2008. Appellant
never did so. The Rules of Appellate procedure require a petition for
allowance of appeal to the Supreme Court to be filed within thirty days of
the entry of the order to be reviewed. Pa.R.A.P. 1113(a). Appellant
therefore had until December 5, 2011 to file his nunc pro tunc petition for
allowance of appeal (the thirtieth day fell on Sunday, December 4).
Pursuant to § 9545(b)(3), therefore Appellant’s judgment of sentence
became final as of that date.
Free access — add to your briefcase to read the full text and ask questions with AI
J-S34039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL GENTHER
Appellant Nos. 1666 MDA 2014 AND 1667 MDA 2014
Appeal from the Order Entered September 3, 2014 In the Court of Common Pleas of Centre County Criminal Division at Nos: CP-14-CR-0001651-2007 and CP-14-CR-0000691- 2008
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 27, 2015
Appellant, Michael Genther, appeals from the September 3, 2014 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
At docket number 1651 of 2007, Appellant pled guilty to a single count
of stalking1 in connection with four threatening phone calls he made to his
estranged wife. On January 2, 2008, the trial court sentenced Appellant to
serve three and one-half to seven years of incarceration, the statutory
____________________________________________
1 18 Pa.C.S.A. § 2709.1(a)(2). J-S34039-15
maximum.2 On November 4, 2009 this Court affirmed the judgment of
sentence. Commonwealth v. Genther, 988 A.2d 719 (Pa. Super. 2009)
(table; 2020 MDA 2008). Appellant did not seek allowance of appeal in the
Pennsylvania Supreme Court.
At docket number 691 of 2008, the Commonwealth charged Appellant
with stalking and retaliating against a witness3 in connection with several
letters Appellant sent from prison in which he threatened to harm or kill his
wife. The trial court, sitting as finder of fact, found Appellant guilty of those
charges and on December 15, 2008 imposed concurrent three and one-half
to seven year sentences for stalking and retaliating against a witness. The
sentence at docket number 691 of 2008 was to run consecutively to the
sentence at number 1651 of 2007. This Court affirmed the judgment of
sentence on November 24, 2009. Commonwealth v. Genther, 988 A.2d
719 (Pa. Super. 2009) (table; 338 MDA 2009). Appellant did not seek
allowance of appeal in the Pennsylvania Supreme Court.
On May 21, 2010, Appellant filed a timely first PCRA petition
referencing both docket numbers. Appointed counsel filed an amended
petition on January 11, 2011. The petition alleged various counts of
2 The offense was graded as a third-degree felony under the circumstances of this case, per 18 Pa.C.S.A. § 2709.1(c)(2), and the maximum sentence for a third-degree felony is seven years, per 18 Pa.C.S.A. § 1103(3). 3 18 Pa.C.S.A. § 4958(b).
-2- J-S34039-15
ineffective assistance of counsel. On November 4, 2011, the PCRA court
entered an order granting partial relief on Appellant’s amended petition.
Specifically, the November 4, 2011 order reinstated Appellant’s right to seek
allowance of appeal in the Pennsylvania Supreme Court. The November 4,
2011 order referenced only docket number 691 of 2008. Despite the PCRA
court’s order, Appellant failed to file a petition for allowance of appeal.
Appellant took no further action in this case until February 20, 2013,
on which date he filed, through counsel, a petition to “reinstate” his prior
PCRA petition at number 691 of 2008. Appellant filed a similar petition at
number 1651 of 2007, even though that petition was still pending. 4 On July
10, 2013, the PCRA court conducted a hearing on Appellant’s petitions to
4 According to the PCRA court’s opinion in support of the order on appeal, it intended for the November 4, 2011 order to apply to both docket numbers. PCRA Court Opinion, 9/3/14, at 2 n.1. Regardless, the PCRA court docketed the order only at number 691 of 2008. The apparent error is of no moment, as Appellant’s sole assertion of error on direct appeal at number 1651 of 2007 was the trial court’s abuse of its sentencing discretion. This Court found the argument lacking in merit, and § 9781(f) of the Judicial Code forbids further appellate review. 42 Pa.C.S.A. § 9781(f) (“No appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.”); Commonwealth v. Rosario, 635 A.2d 109, 109-10 (Pa. 1993) (noting that § 9781(f) deprives the Supreme Court of jurisdiction to review the discretionary aspects of a sentence). The Supreme Court can review issues such as our application of the Sentencing Code (see Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa. 2002)), but Appellant has disavowed any intent to do so here. Thus, reinstatement of Appellant’s right to seek allowance of appeal at number 1651 of 2007 would have been futile.
-3- J-S34039-15
reinstate.5 At the conclusion of the hearing, the PCRA court granted relief,
purportedly reinstating Appellant’s prior PCRA petition at both docket
numbers. After several continuances, the PCRA court conducted a merits
hearing on June 6, 2014. On September 3, 2014, the Court entered an
order denying relief.
Appellant raises three issues for our review:
I. Did the lower court err in finding that Appellant’s prior counsel did not render ineffective assistance of counsel by failing to brief properly Appellant’s sentencing proportionality issue in Appellant’s direct appeal to the Superior Court which failure led directly to the denial of Appellant’s direct appeal?
II. Did the lower court err in finding that Appellant’s prior counsel did not render ineffective assistance of counsel by failing to pursue on direct appeal the issue of admissibility into evidence of letters allegedly written by Appellant which letters formed the basis of the Commonwealth’s prosecution?
III. Did the lower court err in finding that Appellant’s prior counsel did not render ineffective assistance of counsel by failing to file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court from the denial of Appellant’s direct appeal by the Pennsylvania Supreme Court?
Appellant’s Brief at 4.
5 The certified record does not contain a transcript of the July 10, 2013 hearing.
-4- J-S34039-15
All three of Appellant’s issues pertain to number 691 of 2008.6 Before
we consider the merits, we must discern whether jurisdiction lapsed at that
docket number. “[T]he PCRA time limitations implicate our jurisdiction and
may not be altered or disregarded in order to address the merits of a
petition.” Commonwealth v. Cristina, 114 A.3d 419, 421 (Pa. Super.
2015). The timeliness of a PCRA petition is a question of law for which our
standard of review is de novo. Commonwealth v. Fahy, 959 A.2d 312,
316 (Pa. 2008).
As we explained above, the PCRA court entered an order on November
4, 2011 reinstating Appellant’s right to file a petition for allowance of appeal
with the Pennsylvania Supreme Court at number 691 of 2008. Appellant
never did so. The Rules of Appellate procedure require a petition for
allowance of appeal to the Supreme Court to be filed within thirty days of
the entry of the order to be reviewed. Pa.R.A.P. 1113(a). Appellant
therefore had until December 5, 2011 to file his nunc pro tunc petition for
allowance of appeal (the thirtieth day fell on Sunday, December 4).
Pursuant to § 9545(b)(3), therefore Appellant’s judgment of sentence
became final as of that date. Pursuant to § 9545(b)(1), Appellant had until
December 5, 2012 to file a PCRA petition at number 691 of 2008.
6 Appellant, in his argument in support of issue III, recognizes that a petition for allowance of appeal to the Supreme Court at number 1651 of 2007 would have been futile in this case. Appellant’s Brief at 25.
-5- J-S34039-15
The PCRA court therefore had no jurisdiction to entertain Appellant’s
February 20, 2013 petition to “reinstate.” The prior petition at number 691
of 2008 concluded with a final order reinstating Appellant’s direct appeal.
Any collateral issues Appellant wished to raise in that case were thus
deferred until the conclusion of Appellant’s nunc pro tunc appeal. See
Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009). The February 20,
2013 petition to “reinstate” was simply a new, untimely PCRA petition filed
more than one year after the conclusion of Appellant’s nunc pro tunc direct
appeal.
In summary, jurisdiction has lapsed at number 691 of 2008, and
Appellant does not present any issues with regard to the prosecution at 1651
of 2007. We therefore affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/27/2015
-6-