Com. v. Moorer, E., Jr.

• Court: Superior Court of Pennsylvania
• Decided: December 3, 2024
• Docket: 709 MDA 2024
• Status: Unpublished

Opinion

J-S42034-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ELIJAH MOORER, JR. : : Appellant : No. 709 MDA 2024

Appeal from the Order Entered May 3, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000532-2013

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

MEMORANDUM BY BENDER, P.J.E.: FILED: DECEMBER 3, 2024

Appellant, Elijah Moorer, Jr., appeals pro se from the trial court’s May

3, 2024 order denying his pro se “Motion to Modify Sentence Nunc Pro Tunc

Reduction of Sentence.” After careful review, we affirm.

The facts underlying Appellant’s convictions are not germane to our

disposition of his instant appeal. Procedurally, we note that on December 9,

2013, Appellant pled guilty to multiple drug and firearm offenses. On March

31, 2015, the court sentenced Appellant to an aggregate term of 36 to 72

years’ incarceration. We affirmed his judgment of sentence on February 10,

2016, and he did not seek review with our Supreme Court. See

Commonwealth v. Moorer, 141 A.3d 591 (Pa. Super. 2016) (unpublished

memorandum).

Appellant thereafter filed several petitions under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, all of which were denied. Most J-S42034-24

recently, this Court affirmed the denial of a petition filed by Appellant on

February 27, 2023, concluding that it was untimely. See Commonwealth v.

Moorer, 311 A.3d 597 (Pa. Super. 2023) (unpublished memorandum).

On February 16, 2024, Appellant filed another pro se PCRA petition.

Therein, he claimed that “his conviction was void ab initio” because a

mandatory minimum sentence imposed in his case is illegal under Alleyne v.

United States, 570 U.S. 99, 106 (2013) (holding that “facts that increase

mandatory minimum sentences must be submitted to the jury” and found

beyond a reasonable doubt), and Apprendi v. New Jersey, 530 U.S. 466,

490 (2000) (holding that, “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt”). PCRA Petition, 2/16/24, at 1 (unnumbered); id. at 3-4

(unnumbered). Appellant insisted that this alleged “miscarriage of justice

should meet the [t]ime-[b]ar [e]xception” of the PCRA. Id. at 1

(unnumbered; emphasis omitted). On March 28, 2024, the PCRA court issued

a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without

a hearing, and directed that Appellant had 20 days to respond.

On April 25, 2024, Appellant filed the pro se “Motion to Modify Sentence

Nunc Pro Tunc Reduction of Sentence” underlying his instant appeal. Nowhere

in that document did Appellant indicate that he intended his motion to

constitute a response to the court’s Rule 907 notice pertaining to his February

16, 2024 PCRA petition, and he did not address the PCRA court’s conclusion

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that his claims raised in the PCRA petition were untimely. Instead, Appellant

raised a completely new and unrelated claim that he should be resentenced

under the newly-adopted 8th Edition of the Sentencing Guidelines.

On May 3, 2024, the court issued an order stating it was denying

Appellant’s motion to modify his sentence. The court noted that, according to

204 Pa. Code § 303a.2(a)(3), “[t]he [S]entencing [G]uidelines shall apply to

all offenses committed on or after the effective date of the guidelines. Editions

or amendments to the [S]entencing [G]uidelines shall apply to all offenses

committed on or after the effective date of the edition or amendment to the

guidelines.” Order, 5/2/24, at 1 (unnumbered). Because the 8 th Edition to

the Sentencing Guidelines became effective on January 1, 2024, the court

concluded that it did not apply to Appellant, who was sentenced in December

of 2013. Id. at 1-2 (unnumbered).

On May 17, 2024, Appellant filed a pro se notice of appeal, stating that

he “is appealing the [o]rder denying [his ‘]Motion to Modify Sentence Nunc

Pro Tunc Reduction of Sentence[’]….” Notice of Appeal, 5/17/24, at 1 (single

page). The court ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, and he timely complied. In his

8-page concise statement, however, Appellant reasserted the claims he raised

in his February 16, 2024 pro se PCRA petition, i.e., that his sentence is illegal

under Alleyne, and that his petition should be considered timely under a

‘miscarriage of justice’ exception. See Rule 1925(b) Statement, 6/20/24, at

2-3. On June 25, 2024, the PCRA court filed a 2-page opinion, reiterating that

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it denied Appellant’s “Motion to Modify Sentence Nunc Pro Tunc Reduction of

Sentence” because the 8th Edition Sentencing Guidelines became effective in

January of 2024 and, thus, they do not apply to Appellant’s 2013 sentence.

See Trial Court Opinion, 6/25/24, at 1-2. The court did not address any of

Appellant’s other claims.

Now, on appeal, Appellant contends that his convictions and sentences

are unconstitutional and illegal under Apprendi, Alleyne, and their progeny.

He insists that illegality-of-sentence claims are non-waivable and, therefore,

he may assert them in the instant petition, despite its facial untimeliness.

These are the claims Appellant raised in his pro se PCRA petition filed on

February 16, 2024. However, the order from which he appeals ruled only on

his “Motion to Modify Sentence Nunc Pro Tunc Reduction of Sentence,” which

raised a new claim distinct from anything asserted in Appellant’s PCRA

petition. Appellant develops no argument on appeal that the court erred in

denying the Sentencing Guideline claim raised in that motion; thus, he has

waived any such issue for our review. See Commonwealth v. Hardy, 918

A.2d 766, 771 (Pa. Super. 2007) (“When briefing the various issues that have

been preserved, it is an appellant’s duty to present arguments that are

sufficiently developed for our review. The brief must support the claims with

pertinent discussion, with references to the record and with citations to legal

authorities. … [W]hen defects in a brief impede our ability to conduct

meaningful appellate review, we may dismiss the appeal entirely or find

certain issues to be waived.”). Accordingly, we affirm the court’s May 3, 2024

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order denying Appellant’s “Motion to Modify Sentence Nunc Pro Tunc

Reduction of Sentence.”

We recognize that the PCRA court arguably should have treated

Appellant’s “Motion to Modify Sentence Nunc Pro Tunc Reduction of Sentence”

as a response to its Rule 907 notice, or as an attempt to file an amended PCRA

petition, although Appellant did not clearly indicate his intent for it to be

considered as such. However, the court acted on Appellant’s motion as if it

were a wholly separate filing unrelated to his February 16, 2024 PCRA petition,

and the court has yet to grant or deny that petition. Thus, the arguments

Appellant raises herein regarding his PCRA petition are premature, and

Appellant must wait until the court rules on that pending petition to assert

them.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/03/2024

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