Com. v. Shay, K.

• Court: Superior Court of Pennsylvania
• Decided: July 29, 2022
• Docket: 863 WDA 2021
• Status: Unpublished

Opinion

J-A08029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN R. SHAY : : Appellant : No. 863 WDA 2021

Appeal from the Order Entered July 7, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000290-2006

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN R. SHAY : : Appellant : No. 864 WDA 2021

Appeal from the Order Entered July 7, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000918-2007

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

MEMORANDUM BY LAZARUS, J.: FILED: JULY 29, 2022

Kevin R. Shay appeals, pro se, from the orders1 entered in the Court of

Common Pleas of Allegheny County, dismissing his most recent petition filed

____________________________________________

1 Shay has complied with the dictates of Commonwealth v. Walker, 185 (Footnote Continued Next Page) J-A08029-22

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

After careful review, we affirm.

This case has a long and somewhat convoluted procedural history,

which, in relevant part, is summarized below.

On December 7, 2005, at CP-02-CR-0000290-2006 (No. 290-2006),

Shay was charged with sexual abuse of children and related offenses. While

Shay was on bond for that case, he used a computer to disseminate images

of child pornography to an undercover detective. Accordingly, on November

29, 2006, at CP-02-CR-0000918-2007 (No. 918-2007), Shay was charged

with sexual abuse of children and related offenses.

On May 17, 2007, Shay appeared before the Honorable Donna Jo

McDaniel where he entered a general guilty plea at Nos. 290-2006 and 918-

2007 to all counts. The court sentenced Shay to six months’ house arrest and

a concurrent period of three years’ probation. Shay did not file a direct appeal

or post-sentence motions.

Shay subsequently violated the terms of his probation, and on March

30, 2010, Shay attended a probation violation hearing and the court

resentenced him to a new term of three years’ probation.

A.3d 969 (Pa. 2018), which requires the filing of “separate appeals from an order that resolves issues arising on more than one docket.” Id. at 977. Shay filed separate notices of appeal, at 836 WDA 2021 and 864 WDA 2021, on July 30, 2021. We have consolidated Shay’s appeals sua sponte. See Order, 7/30/21; see also Pa.R.A.P. 513.

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Shay again violated the terms of his probation, and on March 15, 2011,

Shay, represented by Attorney Lea Bickerton, Esquire, was resentenced to

eight to sixteen months’ imprisonment, with an additional term of two years’

probation. On March 25, 2011, Attorney Bickerton filed a motion to reconsider

sentence, which was denied. Shay did not file a direct appeal. On July 9,

2011, Judge McDaniel paroled Shay.

On October 25, 2011, Shay filed his first pro se PCRA petition. On

January 17, 2012, his court-appointed attorney, Scott Coffey, Esquire, filed

an amended PCRA petition, requesting reinstatement of his appellate rights

nunc pro tunc due to ineffective assistance of counsel. Attorney Coffey argued

that Attorney Bickerton was ineffective for failing to file a requested direct

appeal to this Court following the probation violation resentencing on March

15, 2011. On May 15, 2012, Judge McDaniel granted Shay’s PCRA petition

and reinstated his appellate rights, nunc pro tunc. On June 13, 2012, Shay

filed a nunc pro tunc notice of appeal. On February 26, 2013, this Court

affirmed Shay’s judgment of sentence. Commonwealth v. Shay, 925 WDA

2012 (Pa. Super. 2013) (unpublished memorandum opinion). On March 23,

2013, Shay filed a petition for allowance of appeal with the Supreme Court of

Pennsylvania. On May 26, 2013, the Supreme Court entered an order noting

that it had discontinued the appeal. Praecipe for Discontinuance, 5/26/13, at

1.

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On March 18, 2013, Shay filed another pro se PCRA petition. On June

5, 2013, Attorney Coffey subsequently filed a Turner/Finley2 no-merit letter

and petition to withdraw. On June 18, 2013, the Honorable Jill E. Rangos 3

dismissed Shay’s petition without a hearing, see Pa.R.Crim.P. 907, concluding

it was untimely. Shay did not appeal from this order.

On October 29, 2013, Shay attended a third probation violation hearing

for failing to register as a sex offender and other technical probation violations.

Judge Rangos revoked his probation and resentenced him to an aggregate

term of six to thirteen years’ imprisonment. On October 30, 2013, the Office

of the Public Defender of Allegheny County filed a motion to reconsider

sentence, which was denied on November 14, 2013. On November 26, 2013,

Assistant Public Defender John Ciroli, Esquire, filed a notice of appeal. On July

10, 2014, this Court issued a notice of discontinuance, acknowledging that the

appeal had been discontinued. Praecipe for Discontinuance, 7/10/14, at 1.

On November 14, 2013, Shay filed another pro se PCRA petition. On

March 12, 2014, Shay filed a motion to withdraw the petition, which Judge

Rangos granted on March 14, 2014.

2See Pennsylvania v. Finley, 481 U.S. 551 (1987); Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).

3 On December 3, 2012, Judge McDaniel recused, and the case was reassigned to Judge Rangos.

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On September 9, 2014, Shay filed yet another pro se PCRA petition,

challenging the legality of the six-to-thirteen-year sentence imposed at the

October 29, 2013 probation violation hearing. The PCRA court appointed

counsel, and, on December 18, 2014, counsel filed an amended PCRA petition

on behalf of Shay. Counsel argued that Shay was not awarded the proper

credit for time served, and, accordingly, his sentence was illegal because it

exceeded the statutory maximum. On March 16, 2015, Judge Rangos

awarded Shay an additional 185 days of credit for time served for the period

of October 2, 2009 to April 5, 2010.

On April 1, 2015, Shay filed a counseled appeal to this Court challenging

the legality of his sentence. In his Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal, Shay argued that he was entitled to more

than 185 days of time credit awarded by the trial court, and, thus, his sentence

was illegal. However, on June 1, 2015, counsel filed a notice of intent to file

an Anders4 brief on the time credit issue. On July 15, 2015, Judge Rangos

filed a Pa.R.A.P. 1925(a) opinion requesting this Court vacate the March 16,

2015 sentencing order and remand the case back to the trial court for a

resentencing hearing. On September 16, 2015, we vacated the March 16,

2015 judgment of sentence and remanded the case to the trial court for

resentencing. Order, 9/16/15, at 1. On December 11, 2015, Judge Rangos

4 See Anders v. California, 386 U.S. 738 (1967).

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vacated the sentence imposed on October 29, 2013, and resentenced Shay to

an aggregate term of six to twelve years’ imprisonment. Judge Rangos noted

that the March 16, 2015 order granting 185 days of time credit was still in

effect.

On February 24, 2016, Shay filed another pro se PCRA petition in the

form of a motion for time credit. On December 22, 2016, the PCRA court

appointed new counsel, who filed an amended petition. Attorney Santoriella

argued that Shay’s sentence was illegal and his former PCRA counsel was

ineffective for failing to raise that claim in a post-sentence motion. On May

24, 2017, Judge Rangos denied Shay’s PCRA petition as having been

previously litigated on December 11, 2015.

On September 1, 2017, Shay filed yet another pro se PCRA petition. On

July 11, 2018, Judge Rangos dismissed the petition as time-barred after

appointed counsel had filed a Turner/Finley no-merit letter. On September

25, 2018, Shay filed another pro se PCRA petition, which he titled as a motion

for correction of sentence. On January 9, 2019, Judge Rangos dismissed that

petition, noting that the petition was untimely, that no timeliness exception

applied, and that the “issue of time credit ha[d] been previously litigated.”

See Order Denying PCRA Petition, 1/9/19.

On August 14, 2019, the Commonwealth filed a motion for time credit,

acknowledging that Shay did not receive time credit for the period of time

between sentencing hearings from October 29, 2013 to December 11, 2015.

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On December 24, 2019, Shay filed a pro se motion for correction of sentence,

stating that the Department of Corrections (DOC) advised him that Judge

Rangos forwarded the original October 29, 2013 sentencing order that was

vacated and replaced by the December 11, 2015 sentencing order. Thus, the

DOC refused to credit the time. Shay requested that Judge Rangos send the

December 11, 2015 sentencing order that awarded time credit from

September 12, 2012 to October 29, 2013 to the DOC. On January 8, 2020,

Judge Rangos attached several previous orders addressing the issue of time

credit and directed that they be forwarded to the DOC.

On June 10, 2020, Shay filed a pro se motion for time served. On June

16, Shay filed a motion to revise the November 4, 2019 sentencing order. On

July 15, 2020, Judge Rangos issued a corrected sentencing order granting

time credit of 406 days for the period from September 19, 2012 to October

29, 2013.

From July 24, 2020 to August 21, 2020, Shay filed two more pro se

motions for time served and one to enforce such motions . On March 4, 2021,

Judge Rangos issued an order addressing the various motions, stating:

[Shay] filed a Motion for Time Served on 8/24/20, which this [c]ourt treated as [a] PCRA Petition, and granted it to the extent that this [c]ourt found as follows: that at [No.] 290-2006, [Shay] is entitled to time credit for the following time periods: 9/19/2012 – 12/11/2015, and 10/2/2009 – 3/30/2010, a total of 1380 days; and at [No.] 918-2007, [Shay] is entitled to time credit for the following time periods: 9/19/2012 – 12/11/2015, and 3/31/2010

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– 4/5/2010, a total of 1186 days. On November 6, 2020,[5] this [c]ourt entered orders correcting the 10/29/13 [o]rders of [c]ourt to include the time credits listed above. [Shay] is not entitled to any further time credit or further relief.

Order, 3/4/21. Shay filed a notice of appeal from this order, which this Court

quashed on April 21, 2021, for failure to file a Rule 1925(b) statement.6 See

Order, 4/21/21.

On July 1, 2021, Shay filed a pro se motion for time credit of 379 days,

which Judge Rangos denied on July 6, 2021. Judge Rangos treated this motion

as a serial PCRA petition, stating all time credit issues had been addressed

and disposed of in the March 4, 2021 order. Further, the court explained that

Shay had had multiple opportunities to fully litigate the issues and any such

further attempts were barred by res judicata.

On July 13, 2021, Shay filed a timely notice of appeal a notice from the

July 6, 2021 order. In his Rule 1925(b) statement, Shay claimed that the trial

court erred “in failing to grant additional time credit of 379 days.” Pa.R.A.P

1925(b) Statement, 7/30/21, at 2. On August 16, 2021, Judge Rangos filed

a Rule 1925(a) opinion wherein she explained that issues of time credit were

previously litigated and waived and barred from being raised under the

doctrine of res judicata. See 42 Pa.C.S. § 9544. Shay raises the following

5Although not necessary to our disposition, we are unable to locate the November 6, 2020 order in the record before us.

6 Shay also indicated his desire to discontinue the appeal.

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issue on appeal: “Did the [PCRA] court err[] when it failed to credit all time

spent in custody in the Allegheny County Jail for previous probation violations

[after] the revocation of his probation and imposing a state sentence?” Brief

for Appellant, 1/3/22, at 6.

Our standard and scope of review on appeal from a denial of PCRA relief

is limited to “whether the PCRA court’s findings of fact are supported by the

record, and whether its conclusions of law are free from legal error.” See

Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (citation

omitted). The “scope of review is limited to the findings of the PCRA court

and the evidence of record, viewed in the light most favorable to the prevailing

party at the PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121,

131 (Pa. 2012) (citation omitted). The PCRA court’s credibility determinations

that are supported by the record are binding. Commonwealth v. Spotz, 18

A.3d 244, 259 (Pa. 2011). Nevertheless, we “appl[y] a de novo standard of

review to the PCRA court’s legal conclusions.” Id. Further, there is no

absolute right to a PCRA hearing, and we review a dismissal “to determine

whether the PCRA court erred in concluding that there were no genuine issues

of material fact and in denying relief without an evidentiary hearing.”

Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015) (en

banc) (citation omitted).

Under the PCRA, all petitions “shall be filed within one year of the date

the judgment [of sentence] becomes final.” 42 Pa.C.S. § 9545(b)(1). A

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judgment of sentence becomes final “at the conclusion of direct review . . . or

at the expiration of time for seeking the review.” Id. at (b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature, and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

Here, Shay was resentenced on October 29, 2013, to six to thirteen

years’ imprisonment, following his third probation violation hearing. On

October 30, 2013, the Office of the Public Defender filed a motion to reconsider

the sentence, which was denied on November 14, 2013. On November 26,

2013, Shay filed a timely notice of appeal to this Court. However, this appeal

was discontinued on July 10, 2014. Since Shay discontinued his appeal, his

judgment of sentence became final on July 10, 2014. See Commonwealth

v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008); see also

Commonwealth v. Conway, 706 A.2d 1243 (Pa. Super. 1997) (judgment of

sentence final for PCRA purposes when appeal is discontinued voluntarily).

Accordingly, Shay had until July 10, 2015 to file any and all PCRA petitions.

Shay’s instant pleading, a motion for time credit, was filed on July 1,

2021, which Judge Rangos properly construed as a PCRA petition. See

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (“any

petition filed after the judgment of sentence becomes final will be treated as

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a PCRA petition”) (citation omitted).7 Accordingly, it was filed six years after

the deadline for filing a timely PCRA petition and, thus, is patently untimely.

See 42 Pa.C.S. § 9545(b)(3).

However, a PCRA petition may be filed beyond the one-year time period

if the petitioner pleads and proves one of the following three exceptions:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

Id. at § 9545(b)(1)(i-iii). Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.”8 Id. at § 9545(b)(2). The petitioner has the burden

of alleging and proving one of the three timeliness exceptions. Id.

7Additionally, a challenge to the legality of a trial court’s alleged failure to award credit for time served presents a cognizable claim in PCRA proceedings. Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014).

8 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days (i.e., December 24, 2018), extending the time for filing from 60 days of the date the claim could have been first presented, to one year. The amendment applies to claims arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L. 894, N. 146, § 3. Instantly, Shay’s claim originated, at the latest, in 2010, well before December 24, 2017, and therefore, the original 60-day time limit applies.

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Shay claims he is entitled to time credit for the following periods

of time served in the Allegheny County Jail.

1. December 10, 2005 – December 16, 2005 = 6 days 2. November 29, 2006 – May 25, 2007 = 178 days 3. October 28, 2008 – November 6, 2008 = 9 days 4. October 2, 2009 – April 5, 2010 = 186 days

Total = 379 days

Brief for Appellant, 1/3/22, at 9. However, Shay makes no attempt to

satisfy an exception to the time bar. Rather, Shay merely avers that

the Allegheny County Jail records will reflect that the mentioned dates

were served in this matter. Id.

As noted, Shay fails to plead and prove any of the exceptions to

the PCRA time-bar. See Commonwealth v. Fowler, 930 A.2d 586,

592 (Pa. Super. 2007) (“although legality of sentence is always subject

to review within the PCRA, claims must still first satisfy the PCRA’s time

limits or one of the exceptions thereto”) (emphasis added). Accordingly,

Shay’s petition is time-barred, and we affirm the PCRA court’s dismissal

of the petition.9 See Albrecht, supra.

9 Moreover, to the extent that Shay takes issue with the DOC’s computation of his time credit, his recourse is to file an action in the Commonwealth Court. See Heredia, 97 A.3d at 395 (appropriate vehicle to challenge DOC’s time credit computations is an original action in Commonwealth Court).

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Based on the foregoing, we affirm the PCRA court’s dismissal of

Shay’s PCRA petition.10

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/29/2022

10 In addition to the timeliness requirements of the PCRA, Shay must also be eligible for relief under the statute. See 42 Pa.C.S. § 9543(a)(3) (“To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence . . . [t]hat the allegation of error has not been previously litigated[.]”). A specific issue has been previously litigated if: “it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.” Id. at § 9544(a)(3). Here, Shay has previously litigated issues of time credit for 12/10/05 – 12/16/05, 11/29/06 – 5/25/07, 10/28/08 – 11/6/08, and 10/2/09 – 4/5/10, in prior post-conviction filings, so he is precluded from raising this claim for these time periods in the instant proceeding. Specifically, on December 18, 2014, Shay raised the issue of time credit for the above periods. On March 16, 2015, Judge Rangos awarded Shay 185 days of time credit for the period of 10/2/09 – 4/5/10. On June 10, 2020, Shay filed a motion for time served and again requested credit for these time periods in addition to a few other periods. Judge Rangos awarded time credit for some of the dates provided but explicitly denied credit for the time periods at issue in the instant pleading. Shay again raised the issue of time credit for these periods on July 24 and August 21, 2020, which Judge Rangos addressed in her opinion on March 4, 2021. Accordingly, the issue of time credit for the above periods has been litigated multiple times and cannot be raised again. Cf. Commonwealth v. Peterkin, 722 A.2d 638, 642-43 (Pa. 1998) (“At some point[,] litigation must come to an end. The purpose of law is not to provide convicted criminals with the means to escape well-deserved sanctions, but to provide a reasonable opportunity for those who have been wrongly convicted to demonstrate the injustice of their conviction.”).

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