Com. v. Shrum, E.

• Court: Superior Court of Pennsylvania
• Decided: April 18, 2018
• Docket: 1032 WDA 2017
• Status: Unpublished

Opinion

J-S13020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC ROBERT SHRUM : : Appellant : No. 1032 WDA 2017 :

Appeal from the PCRA Order June 21, 2017 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0002320-2010

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 18, 2018

Appellant, Eric Robert Shrum, appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. We affirm.

On February 23, 2011, Appellant pled guilty to four counts each of rape

of a child, involuntary deviate sexual intercourse, aggravated indecent

assault, statutory sexual assault, incest, indecent assault, and endangering

the welfare of a child,1, 2. Guilty Plea, 2/23/11. Appellant filed a counseled

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1 18 Pa.C.S. §§ 3121(c), 3123(a)(7), 3125(a)(8), 3133.1, 4302, 3126(a)(8), and 4304(a)(1), respectively.

2 The facts of the underlying convictions are not relevant to our disposition. Moreover, we note that the record certified to us on appeal does not contain any notes of testimony. J-S13020-18

petition to withdraw his guilty plea (“Petition 1”) on March 7, 2011. On March

30, 2011, Appellant filed a counseled petition requesting withdrawal of his

petition to withdraw his plea (“Petition 2”). The trial court granted Petition 2

on March 31, 2011, stating that Appellant’s “plea of guilt shall remain in

[effect].” Order, 3/31/11.

By order dated June 8, 2011, and docketed July 14, 2011, the trial court

sentenced Appellant to an aggregate term of imprisonment of fifty-three to

106 years. Order, 6/8/11, at 2–4. The trial court then ordered the 337

remaining charges to be nol prossed. Memorandum and Notice of Dismissal,

5/3/17, at 5. Appellant did not file a motion to modify or reconsider his

sentence or a direct appeal.3

On March 29, 2016, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended PCRA petition on August 29,

2016. On September 29, 2016, the PCRA court directed the Commonwealth

to file an answer by November 1, 2016. Order, 9/29/16. When an answer

was not forthcoming, the PCRA court filed a rule to show cause why the PCRA

3 On August 9, 2011, Appellant attempted to file a pro se notice of appeal, which this Court returned to the Washington County Clerk of Courts due to defects. The Superior Court Prothonotary instructed the Washington County Clerk of Courts to return the appeal to this Court “[w]hen [A]ppellant amends his appeal to include” the required information. Letter, 9/16/11. The defects were never remedied, and thus, an appeal was never perfected. There are no further docket entries in the lower court until the filing of the instant PCRA petition.

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petition should not be granted. Rule to Show Cause, 11/9/16. The

Commonwealth filed a response and brief on November 16, 2016.4

On May 1, 2017, PCRA counsel filed a petition to withdraw as counsel

and a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)

(en banc). The PCRA court agreed with counsel that the PCRA petition was

untimely and no exceptions applied, issued a notice of intent to dismiss the

petition without a hearing, and granted counsel’s request to withdraw. Order,

5/1/17; order, 5/3/17. The PCRA court dismissed the PCRA petition on June

21, 2017.

Appellant, pro se, filed a notice of appeal on July 12, 2017. On July 18,

2017, the PCRA court directed Appellant to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925 within twenty-one days.

Order, 7/18/17. Appellant failed to file a Rule 1925(b) statement, and the

PCRA court indicated it would not file a Rule 1925(a) opinion.5

On appeal, Appellant asserts that the PCRA court erred in denying his

PCRA petition and “accepting [PCRA] counsel[’s] ‘No Merit’ letter.” Appellant’s

4 Despite the fact that he had counsel, Appellant, pro se, filed a reply to the Commonwealth’s response on January 10, 2017. It is well settled that hybrid representation is not permitted, and pro se filings submitted by a represented party are legal nullities. See Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010) (explaining that hybrid representation is not permitted).

5 We note our displeasure that the Commonwealth failed to file an appellee’s brief.

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Brief at v. Appellant suggests he overcame the PCRA’s jurisdictional time bar

by satisfying 42 Pa.C.S. § 9545(b)(1)(iii), one of the three statutory

exceptions. Id.; Amended PCRA Petition, 8/29/16, at 1. Appellant further

asserts plea counsel’s ineffectiveness for failing to raise a claim in a direct

appeal that Appellant’s sentence was beyond the Sentencing Guidelines.

Appellant’s Brief at 6.

When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)). This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016). The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

Initially, we must address the consequences of Appellant’s failure to file

the court-ordered Rule 1925(b) statement. Rule 1925(b)(4)(vii) directs that

“[i]ssues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(vii).

In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), our Supreme Court

established the bright-line rule that “in order to preserve their claims for

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appellate review, [a]ppellants must comply whenever the trial court orders

them to file a Statement of Matters Complained of on Appeal pursuant to Rule

1925. Any issues not raised in a 1925(b) statement will be deemed waived.”

Id. at 309; see also Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)

(Pa.R.A.P. 1925 “obligates an appellant to file and serve a Rule 1925(b)

statement, when so ordered.”).

In 2007, our Supreme Court amended Rule 1925 and added subsection

(c)(3), which directs us to remand for the filing of a statement nunc pro tunc

if we are convinced that counsel has been per se ineffective. Pursuant to this

provision, this Court remands where a counseled appellant in a criminal case

fails to file a Rule 1925(b) statement or an untimely statement that amounts

to per se ineffectiveness. See Commonwealth v. Scott, 952 A.2d 1190 (Pa.

Super. 2008) (holding that counsel’s failure to file Rule 1925(b) statement

constitutes per se ineffectiveness requiring a remand).

This rule providing for a remand pursuant to Pa.R.A.P. 1925(c)(3) is not

applicable herein. Because he is pro se, Appellant cannot assert his own

ineffectiveness. See Commonwealth v. Fletcher, 986 A.2d 759, 773 (Pa.

2009) (“The law prohibits a defendant who chooses to represent himself from

alleging his own ineffectiveness”) (citing Faretta v. California, 422 U.S. 806,

834 n.46 (1975)). Indeed, our Supreme Court has stated that a pro se

defendant “may not rely upon his own lack of expertise as a ground for relief.”

Commonwealth v. Bryant, 855 A.2d 726, 737 (Pa. 2004). Accordingly,

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Appellant’s failure to file a Rule 1925(b) statement waives all claims.

Pa.R.A.P. 1925 (b)(4)(vii) (Issues not included in the Rule 1925(b) statement

or not raised in accordance with the provisions of this paragraph (b)(4) are

waived); Cf. Commonwealth v. Oliver, 128 A.3d 1275, 1279 (Pa. Super.

2015) (PCRA petitioner’s failure to file Rule 1925(b) statement, where PCRA

counsel was permitted to withdraw in PCRA court, permitted Superior Court

to find that the petitioner waived all issues; however, due to irregularities in

the substance and timing of the PCRA court’s treatment of counsel’s

Turner/Finley letter and lack of notice to the petitioner, Superior Court

declined to apply waiver “in the very limited and narrow circumstances of [the]

case.”).

Furthermore and significantly, even if Appellant had filed a timely Rule

1925(b) statement, the PCRA court did not have jurisdiction to review the

merits of Appellant’s issues because Appellant did not satisfy the timeliness

requirements of the PCRA. The timeliness of a PCRA petition is a jurisdictional

threshold that may not be disregarded in order to reach the merits of the

claims raised in a PCRA petition that is untimely. Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing Commonwealth v. Murray,

753 A.2d 201, 203 (Pa. 2000)). As noted supra, the trial court imposed the

judgment of sentence on June 8, 2011. Appellant did not perfect a direct

appeal. Thus, his judgment of sentence became final thirty days later on July

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8, 2011.6 Therefore, Appellant had until July 8, 2012, to file a timely PCRA

petition. See 42 Pa.C.S. § 9545(b)(3) (stating that, for purposes of

calculating the timeliness of a petition, a “judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review”). Appellant filed his PCRA petition

on March 29, 2016, over four years after his judgment of sentence became

final. Hence, the petition is facially untimely.

6 As noted supra, although Appellant was sentenced on June 8, 2011, the sentencing order was docketed on July 14, 2011. We reiterated in Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007), that the date of imposition of sentence is the date the trial court pronounces the sentence in open court, not the date that the order imposing the judgment of sentence is docketed, if those dates are different. Id. at 498 (emphasis added) (citing Commonwealth v. Green, 862 A.2d at 618–619 (Pa. Super. 2004)).

Both the Commonwealth and the PCRA court erroneously relied on Appellant’s ineffective pro se attempt to file a direct appeal and this Court’s return of the document to the Washington County Clerk of Courts in determining the date Appellant’s judgment of sentence became final, suggesting it became final “[a]t the latest” on October 20, 2011. Commonwealth’s Brief in Opposition to [Appellant’s] Amended [PCRA] Petition, 11/16/16, at 4. The trial court, relying on the Commonwealth’s explanation, nevertheless noted that the “date of final conviction” arguably was an earlier date than October 20, 2011. Memorandum and Notice of Dismissal, 5/3/17, at 6.

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The jurisdictional time bar can be overcome only by satisfaction of one

of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).7

Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). The PCRA

petitioner bears the burden of proving the applicability of one of the

exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).

While inartfully stated, it appears that Appellant is claiming that his

sentence is illegal due to “New United States Constitution Law,” and therefore,

the PCRA court should should not have permitted PCRA counsel to withdraw

pursuant to Turner and Finley. Appellant’s Brief at viii. This claim by

Appellant, apparently in reliance on 42 Pa.C.S. § 9545(b)(1)(iii), is based on

his assertion that his sentence is illegal in light of Alleyne v. United States,

133 S.Ct. 2151 (2013), which he contends should have been applied

7 The exceptions to the timeliness requirement are:

(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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).

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retroactively pursuant to Montgomery v. Louisianna, 136 S.Ct. 718 (2016).

Appellant’s Brief at 1–2.

Although a challenge based on Alleyne does implicate the legality of a

sentence, “a legality of sentence claim may nevertheless be lost should it be

raised . . . in an untimely PCRA petition for which no time-bar exception

applies.” Commonwealth v. Miller, 102 A.3d 988, 995–996 (Pa. Super.

2014). In Alleyne, the United States Supreme Court held that any facts that

increase a mandatory minimum sentence must be submitted to the jury and

found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2155, 2163.

However, the Pennsylvania Supreme Court held that Alleyne does not apply

retroactively to collateral attacks on a petitioner’s mandatory minimum

sentence. Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

Furthermore, there is no indication in the record that Appellant was sentenced

pursuant to a mandatory minimum term of incarceration,8 and therefore,

Alleyne is inapplicable. Moreover, while Montgomery states that Miller v.

Alabama, 132 S.Ct. 2455 (2012), applies retroactively to cases on collateral

8 In addition to the silence of the certified record concerning application of a mandatory minimum sentence, a court commitment form, form DC-300B, accompanying the written sentencing order, has the “No” box checked under the heading, “Mandatory Sentence.” We acknowledge this form is not part of the sentencing order. See Commonwealth v. Motley, 177 A.3d 960, 962 (Pa. Super. 2018) (Form DC-300B is a document generated by the Common Pleas Criminal Court Case Management System that is provided to the Department of Corrections upon an inmate’s commitment and “does not constitute part of the trial court’s sentencing order.”).

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review, Miller is inapplicable because Appellant was not sentenced to a

mandatory term of life without the possibility of parole. Finally, Appellant was

not a juvenile at the time he committed his crimes. Complaint, 10/22/10, at

1.

In Appellant’s second issue, he baldly claims plea counsel was ineffective

for failing to raise, in a direct appeal, a claim that the imposition of sentence

was beyond the Sentencing Guidelines. A claim of ineffective assistance of

counsel, however, does not save an otherwise untimely petition for review on

the merits. Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa. Super.

2008).

The PCRA petition was untimely and no exceptions apply. Therefore,

the PCRA court lacked jurisdiction to address the claims presented. See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack

the authority to address the merits of any substantive claims raised in the

PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007) (“[J]urisdictional time limits go to a court’s right or competency to

adjudicate a controversy.”). Thus, even if the issues were not waived by

Appellant’s failure to file a Pa.R.A.P. 1925(b) statement, the PCRA court lacked

jurisdiction to address the claims and grant relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/18/2018

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