Com. v. Merced-Castellano, J.

• Court: Superior Court of Pennsylvania
• Decided: April 27, 2023
• Docket: 453 WDA 2022
• Status: Unpublished

Opinion

J-S05012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOEL MERCED-CASTELLANO : : Appellant : No. 453 WDA 2022

Appeal from the PCRA Order Entered March 16, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008639-2015

BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 27, 2023

Appellant, Joel Merced-Castellano, appeals pro se from the post-

conviction court’s order denying his second petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,

we vacate the court’s order and remand for further proceedings.

In January of 2016, a jury convicted Appellant of various sexual offenses

committed against his stepdaughter. Appellant was sentenced on April 5,

2016, to an aggregate term of 23½ to 47 years’ incarceration. He filed a

timely direct appeal, and this Court affirmed his judgment of sentence. See

Commonwealth v. Merced-Castellano, 179 A.3d 563 (Pa. Super. 2017)

(unpublished memorandum). Appellant did not file a petition for allowance of

appeal with our Supreme Court.

Instead, on October 29, 2018, Appellant filed a timely, pro se PCRA

petition. Counsel was appointed and an amended petition was filed. After a J-S05012-23

PCRA hearing, the court denied relief in part, and granted relief in part,

resentencing Appellant to an aggregate term of 22 to 44 years’ incarceration.

Appellant filed a timely appeal, and this Court affirmed the PCRA court’s order.

See Commonwealth v. Merced-Castellano, 249 A.3d 1159 (Pa. Super.

2021) (unpublished memorandum). Appellant filed a petition for allowance of

appeal with our Supreme Court. On December 7, 2021, the Court denied that

petition. See Commonwealth v. Merced-Castellano, 268 A.3d 1077 (Pa.

2021).

On December 17, 2021, Appellant filed the pro se PCRA petition

underlying his present appeal. On March 16, 2022, the PCRA court issued an

order denying his petition on the basis that it was filed during the pendency

of his appeal from the denial of his first petition. See Order, 3/16/22, at 1

(single page). On April 19, 2022, Appellant filed a pro se notice of appeal.

On May 5, 2022, the PCRA court issued an order directing Appellant to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant did not respond to that order, and on June 1, 2022, the PCRA court

issued a Rule 1925(a) opinion deeming Appellant’s issue(s) waived. See PCRA

Court Opinion, 6/1/22, at 1.

Herein, Appellant presents one issue for our review:

1. Did the [PCRA] court err[] in dismissing … Appellant’s PCRA [petition], [in that] the [PCRA] court claimed that … Appellant was on [appeal when] … Appellant was not, [and] even if … Appellant was on [appeal,] the [PCRA] court ignored the ruling in Commonwealth v. Bradley[, 261 A.3d 381 (Pa. 2021),] stating that a PCRA [petition] can be submitted even while on appeal[?]

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Appellant’s Brief at 4.

Initially, we must address the timeliness of Appellant’s notice of appeal,

as it implicates our jurisdiction. See Commonwealth v. Williams, 106 A.3d

583, 587 (Pa. 2014) (“The timeliness of an appeal and compliance with the

statutory provisions granting the right to appeal implicate an appellate court’s

jurisdiction and its competency to act.”). Appellant’s notice of appeal was not

filed until 34 days after the order denying his petition and, therefore, it is

facially untimely. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by

this rule, the notice of appeal required by Rule 902 (manner of taking appeal)

shall be filed within 30 days after the entry of the order from which the appeal

is taken.”). However, Appellant, who is incarcerated, wrote a date of April 13,

2022, on his notice of appeal. He also claimed on his docketing statement

that he mailed the notice of appeal on April 14, 2022, and he attached a cash

slip from the Department of Corrections indicating that he mailed a document

to the Allegheny County Clerk of Courts on that date. While the cash slip does

not indicate what document Appellant mailed on April 14, 2022, we conclude

that he presented sufficient evidence to support that he mailed his pro se

notice of appeal on that date. Thus, under the prisoner mailbox rule, we

consider April 14, 2022, as the day on which Appellant ‘filed’ his notice of

appeal, thereby making it timely. See Commonwealth v. Cooper, 710 A.2d

76, 78 (Pa. Super. 1998) (stating that the prisoner mailbox rule means “that,

for prisoners proceeding pro se, a notice is deemed filed as of the date it is

deposited in the prison mail system”).

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Next, we must consider whether Appellant waived his claim for our

review by not complying with the PCRA court’s order to file a Rule 1925(b)

statement. In his brief, Appellant states that he did not receive the court’s

order for him to file the concise statement due to a “mail issue” that caused

the prison to return his “legal mail” to the court. Appellant’s Brief at 7-8. In

support, Appellant attached to his brief a prison form titled “Unacceptable

Correspondence Form” indicating that mail from the Allegheny County

Department of Court Records was returned to sender on May 10, 2022, due

to “incorrect coding.” Appellant’s Brief, Appendix B. Notably, the

Commonwealth essentially submits that we should disregard untimeliness of

Appellant’s Rule 1925(b) statement under the circumstances of this case. See

Commonwealth’s Brief at 11-12. As we are unable to confirm that Appellant

actually received the court’s order to file a Rule 1925(b) statement, and he

maintains that he did not, we decline to find waiver based on his failure to

comply with that order.

Moving on to the merits of the issue Appellant raises on appeal, he

contends that the PCRA court erred by denying his instant petition on the basis

that his appeal from the denial of his first petition was still pending before our

Supreme Court. Appellant stresses that the Supreme Court denied his petition

for allowance of appeal on December 7, 2021, and he filed his present petition

on December 17, 2021. Therefore, he maintains that the PCRA court’s

rationale for denying his present petition was erroneous, as his appeal from

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the denial of his first petition had concluded before he filed his instant PCRA

petition.

Initially, the PCRA court is correct that “when an appellant’s PCRA appeal

is pending before a court, a subsequent PCRA petition cannot be filed until the

resolution of review of the pending PCRA petition by the highest state court in

which review is sought, or upon the expiration of the time for seeking such

review.” Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), overruled

on other grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020).

However, here, the record confirms that our Supreme Court denied Appellant’s

petition for allowance of appeal on December 7, 2021, which was 10 days

before he filed his present, pro se petition. Thus, we agree with Appellant

that the PCRA court’s basis for denying his petition was incorrect.1

Accordingly, we vacate the court’s order and remand for it to consider

Appellant’s petition.

Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

____________________________________________

1 The Commonwealth also concedes that the PCRA court erred. See Commonwealth’s Brief at 10 (“[I]t appears that [A]ppellant’s petition for allocatur concerning the dismissal of his first PCRA petition was no longer pending at the time he filed his second PCRA petition on December 17, 2021. Accordingly, the Commonwealth acknowledges that … the PCRA court did not lack jurisdiction to rule on [A]ppellant’s second petition.”). We appreciate the Commonwealth’s candor.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/27/2023

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