J-S41012-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN STRUBLE : : Appellant : No. 1213 EDA 2024
Appeal from the PCRA Order Entered March 21, 2024 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0002640-2022
BEFORE: MURRAY, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 05, 2024
John Struble (Appellant) appeals, pro se, from the order dismissing his
first petition for relief under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We dismiss the appeal.
The facts underlying Appellant’s conviction are not relevant to this
appeal. On March 27, 2023, Appellant pled guilty to one count of unauthorized
use of a motor vehicle.1 At the time, Appellant was serving a sentence in
Northampton County.2 During the plea hearing, the Commonwealth indicated,
“The plea agreement would be an open plea, but the [sentence] would run
____________________________________________
1 18 Pa.C.S.A. § 3928(a).
2 During the plea hearing, Appellant’s counsel explained that Appellant had received a one- to two-year sentence in “a very similar case in Northampton County.” N.T., 3/27/23, at 12. J-S41012-24
concurrent with [Appellant’s] case in Northampton County.” N.T., 3/27/23,
at 2. Appellant’s counsel indicated, “In addition to the Northampton County
case, [Appellant] is also facing a state [parole] violation.” Id.; see also id.
at 12 (Appellant’s counsel explaining Appellant was on state parole for a
separate 2018 case).
Appellant completed a written guilty plea colloquy, and the trial court
conducted an extensive oral colloquy, which included the following exchange:
THE COURT: Question 42 [of the written guilty plea colloquy asked] are you presently on probation or parole; you checked, “Yes,” is that correct?
[Appellant]: Yes, Your Honor.
THE COURT: And as I was told, you are under state parole or probation, is that correct?
THE COURT: Okay. Do you understand that by entering your plea in this matter, [Appellant], you may be subjecting yourself to further punishment in any case for which you’re currently on probation or parole?
THE COURT: And with all this in mind, do you still wish to plead guilty?
Id. at 7-8 (emphasis added); see also Written Guilty Plea Colloquy, 3/27/23,
¶ 43 (Appellant’s acknowledgment that his “plea of guilty will trigger a
violation of [his] probation or parole and [he] could be sentenced to prison as
a result of that violation caused by [his] guilty plea today”).
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After accepting Appellant’s plea as knowingly, intelligently, and
voluntarily entered, the trial court imposed a sentence of 9 to 24 months’
imprisonment. In accordance with the plea agreement, the trial court
indicated the sentence “shall run concurrently with any other sentence
[Appellant] is currently serving.” Sentencing Order, 3/27/23. No post-
sentence motion or direct appeal followed.
Appellant’s conviction in the instant case apparently resulted in a parole
violation in the 2018 case.3 On November 7, 2023, Appellant filed the instant,
timely pro se PCRA petition. Appellant alleged his plea agreement called for
a “concurrent sentence” with “no extra time served on [Appellant’s] old
sentence.” PCRA Petition, 11/7/23, at 4. However, Appellant alleged, the
Parole Board “made the new sentence consecutive.” Id.; see also id. at 3
(alleging the Parole Board did not uphold Appellant’s plea agreement).
3 Neither Appellant’s brief nor the record below makes clear the circumstances
of Appellant’s prior sentence (or sentences), his parole violation, or the consequences of his violation. Appellant attached to his PCRA petition an August 15, 2023, Order to Recommit issued by the Pennsylvania Board of Probation and Parole (Parole Board or the Board). The order appears to identify unexpired sentences in two Northampton County cases and a previous Lehigh County case, each with a minimum sentence date of September 2, 2021. See Order to Recommit, 8/15/23. The order indicates Appellant had been paroled on December 22, 2021. Id. The order states Appellant “was conditionally released on parole by” the Parole Board and “has been found by the Board to have violated the conditions of parole.” Id. The order does not identify the grounds for the violation, but states that “the Board … orders [Appellant] recommitted for further imprisonment for the remainder of the unexpired maximum term, or until otherwise discharged according to law.” Id. As a result of the violation, the Parole Board recomputed Appellant’s maximum sentence date from August 1, 2026, to February 26, 2028. Id.
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Appellant alleged he “was made a false promise” and “entered into an illegal
agreement.” Id. at 4. He asserted claims of ineffective assistance of plea
counsel and violation of his due process rights. Id. at 3. Appellant requested
correction of his sentence to give him the “[b]enefit of the bargain.” Id. at 6.
The PCRA court appointed new counsel (PCRA counsel) to represent
Appellant. On December 14, 2023, PCRA counsel filed a motion to withdraw
and a Turner/Finley4 “No Merit” letter. The motion averred PCRA counsel
“has undertaken a thorough review of the case file” and “determined that
there [are] no meritorious issues to raise.” Motion to Withdraw, 12/14/23, ¶¶
4-5. In the letter, PCRA counsel advised Appellant his plea agreement did not
“include anything about [Appellant’s] state parole violation,” and that
Appellant was in fact “sentenced in accordance with” his plea agreement. Id.,
Attachment at 3 (unpaginated). PCRA counsel further advised that the PCRA
court “does not have jurisdiction to hear objections to Parole Board decisions,”
and if Appellant “would like to appeal the Parole Board decision” he must “do
so through the Commonwealth Court.” Id. PCRA counsel informed Appellant
that if the PCRA court granted counsel’s motion to withdraw, Appellant had
the option of representing himself or hiring counsel of his choosing. Id.
On February 29, 2024, the PCRA court held a hearing on PCRA counsel’s
motion to withdraw. On March 12, 2024, the PCRA court granted the motion
4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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to withdraw and issued Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s PCRA petition without a hearing. The PCRA court determined, inter
alia:
As a matter of law, [Appellant’s] claim must fail. “[I]t is well settled that the [Parole Board] has exclusive authority to determine parole when the offender is sentenced to a maximum term of imprisonment of two or more years[.]” Commonwealth v. Camps, 772 A.2d 70, 74 [(Pa. Super. 2000)]. Because of this, “a PCRA petition is not the proper avenue for challenging [a] determination of the Parole Board.” Id. at 75.
Rule 907 Notice, 3/12/24, at 1 n.1.
On March 21, 2024, Appellant filed a pro se response to the Rule 907
Notice. On the same date, the PCRA court entered a final order dismissing
Appellant’s petition. Appellant filed a timely notice of appeal. Appellant and
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J-S41012-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN STRUBLE : : Appellant : No. 1213 EDA 2024
Appeal from the PCRA Order Entered March 21, 2024 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0002640-2022
BEFORE: MURRAY, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 05, 2024
John Struble (Appellant) appeals, pro se, from the order dismissing his
first petition for relief under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We dismiss the appeal.
The facts underlying Appellant’s conviction are not relevant to this
appeal. On March 27, 2023, Appellant pled guilty to one count of unauthorized
use of a motor vehicle.1 At the time, Appellant was serving a sentence in
Northampton County.2 During the plea hearing, the Commonwealth indicated,
“The plea agreement would be an open plea, but the [sentence] would run
____________________________________________
1 18 Pa.C.S.A. § 3928(a).
2 During the plea hearing, Appellant’s counsel explained that Appellant had received a one- to two-year sentence in “a very similar case in Northampton County.” N.T., 3/27/23, at 12. J-S41012-24
concurrent with [Appellant’s] case in Northampton County.” N.T., 3/27/23,
at 2. Appellant’s counsel indicated, “In addition to the Northampton County
case, [Appellant] is also facing a state [parole] violation.” Id.; see also id.
at 12 (Appellant’s counsel explaining Appellant was on state parole for a
separate 2018 case).
Appellant completed a written guilty plea colloquy, and the trial court
conducted an extensive oral colloquy, which included the following exchange:
THE COURT: Question 42 [of the written guilty plea colloquy asked] are you presently on probation or parole; you checked, “Yes,” is that correct?
[Appellant]: Yes, Your Honor.
THE COURT: And as I was told, you are under state parole or probation, is that correct?
THE COURT: Okay. Do you understand that by entering your plea in this matter, [Appellant], you may be subjecting yourself to further punishment in any case for which you’re currently on probation or parole?
THE COURT: And with all this in mind, do you still wish to plead guilty?
Id. at 7-8 (emphasis added); see also Written Guilty Plea Colloquy, 3/27/23,
¶ 43 (Appellant’s acknowledgment that his “plea of guilty will trigger a
violation of [his] probation or parole and [he] could be sentenced to prison as
a result of that violation caused by [his] guilty plea today”).
-2- J-S41012-24
After accepting Appellant’s plea as knowingly, intelligently, and
voluntarily entered, the trial court imposed a sentence of 9 to 24 months’
imprisonment. In accordance with the plea agreement, the trial court
indicated the sentence “shall run concurrently with any other sentence
[Appellant] is currently serving.” Sentencing Order, 3/27/23. No post-
sentence motion or direct appeal followed.
Appellant’s conviction in the instant case apparently resulted in a parole
violation in the 2018 case.3 On November 7, 2023, Appellant filed the instant,
timely pro se PCRA petition. Appellant alleged his plea agreement called for
a “concurrent sentence” with “no extra time served on [Appellant’s] old
sentence.” PCRA Petition, 11/7/23, at 4. However, Appellant alleged, the
Parole Board “made the new sentence consecutive.” Id.; see also id. at 3
(alleging the Parole Board did not uphold Appellant’s plea agreement).
3 Neither Appellant’s brief nor the record below makes clear the circumstances
of Appellant’s prior sentence (or sentences), his parole violation, or the consequences of his violation. Appellant attached to his PCRA petition an August 15, 2023, Order to Recommit issued by the Pennsylvania Board of Probation and Parole (Parole Board or the Board). The order appears to identify unexpired sentences in two Northampton County cases and a previous Lehigh County case, each with a minimum sentence date of September 2, 2021. See Order to Recommit, 8/15/23. The order indicates Appellant had been paroled on December 22, 2021. Id. The order states Appellant “was conditionally released on parole by” the Parole Board and “has been found by the Board to have violated the conditions of parole.” Id. The order does not identify the grounds for the violation, but states that “the Board … orders [Appellant] recommitted for further imprisonment for the remainder of the unexpired maximum term, or until otherwise discharged according to law.” Id. As a result of the violation, the Parole Board recomputed Appellant’s maximum sentence date from August 1, 2026, to February 26, 2028. Id.
-3- J-S41012-24
Appellant alleged he “was made a false promise” and “entered into an illegal
agreement.” Id. at 4. He asserted claims of ineffective assistance of plea
counsel and violation of his due process rights. Id. at 3. Appellant requested
correction of his sentence to give him the “[b]enefit of the bargain.” Id. at 6.
The PCRA court appointed new counsel (PCRA counsel) to represent
Appellant. On December 14, 2023, PCRA counsel filed a motion to withdraw
and a Turner/Finley4 “No Merit” letter. The motion averred PCRA counsel
“has undertaken a thorough review of the case file” and “determined that
there [are] no meritorious issues to raise.” Motion to Withdraw, 12/14/23, ¶¶
4-5. In the letter, PCRA counsel advised Appellant his plea agreement did not
“include anything about [Appellant’s] state parole violation,” and that
Appellant was in fact “sentenced in accordance with” his plea agreement. Id.,
Attachment at 3 (unpaginated). PCRA counsel further advised that the PCRA
court “does not have jurisdiction to hear objections to Parole Board decisions,”
and if Appellant “would like to appeal the Parole Board decision” he must “do
so through the Commonwealth Court.” Id. PCRA counsel informed Appellant
that if the PCRA court granted counsel’s motion to withdraw, Appellant had
the option of representing himself or hiring counsel of his choosing. Id.
On February 29, 2024, the PCRA court held a hearing on PCRA counsel’s
motion to withdraw. On March 12, 2024, the PCRA court granted the motion
4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-4- J-S41012-24
to withdraw and issued Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s PCRA petition without a hearing. The PCRA court determined, inter
alia:
As a matter of law, [Appellant’s] claim must fail. “[I]t is well settled that the [Parole Board] has exclusive authority to determine parole when the offender is sentenced to a maximum term of imprisonment of two or more years[.]” Commonwealth v. Camps, 772 A.2d 70, 74 [(Pa. Super. 2000)]. Because of this, “a PCRA petition is not the proper avenue for challenging [a] determination of the Parole Board.” Id. at 75.
Rule 907 Notice, 3/12/24, at 1 n.1.
On March 21, 2024, Appellant filed a pro se response to the Rule 907
Notice. On the same date, the PCRA court entered a final order dismissing
Appellant’s petition. Appellant filed a timely notice of appeal. Appellant and
the PCRA court have complied with Pa.R.A.P. 1925.
We review the dismissal of a PCRA petition to determine “whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our 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 party who prevailed in the PCRA court proceeding.” Id.
We observe that “[a]lthough this Court is willing to construe liberally
materials filed by a pro se litigant, a pro se appellant enjoys no special
benefit.” Commonwealth v. Westlake, 295 A.3d 1281, 1286 n.8 (Pa.
Super. 2023) (citation omitted). “To the contrary, any person choosing to
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represent himself in a legal proceeding must, to a reasonable extent, assume
that his lack of expertise and legal training will be his undoing.”
Commonwealth v. Vurimindi, 200 A.3d 1031, 1037 (Pa. Super. 2018)
(citation omitted). “This Court will not act as counsel and will not develop
arguments on behalf of an appellant.” Commonwealth v. Tchirkow, 160
A.3d 798, 804 (Pa. Super. 2017) (citation omitted).
Pro se litigants “must comply with the procedural rules set forth in the
Pennsylvania Rules of Court; if there are considerable defects [in an
appellant’s brief], we will be unable to perform appellate review.” Vurimindi,
200 A.3d at 1038 (citation omitted). “Briefs … shall conform in all material
respects with the requirements of” the Pennsylvania Rules of Appellate
Procedure “as nearly as the circumstances of the particular case will admit.”
Pa.R.A.P. 2101. If the defects in an appellant’s brief “are substantial, the
appeal … may be quashed or dismissed.” Id.
Instantly, we observe that Appellant’s three-page, handwritten brief is
substantially defective. Appellant sets forth two garbled questions presented
which, to the extent we can discern their meaning, do not clearly correspond
any of the thirteen issues raised in Appellant’s Pa.R.A.P. 1925(b) concise
statement. See Appellant’s Brief at 1-2; Concise Statement, 4/26/24, at 1-3
(unpaginated). “It is well-established that any issue not raised in a Rule
1925(b) statement will be deemed waived for appellate review.”
Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020); see
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also Pa.R.A.P. 1925(b)(4)(vii) (stating issues not included in the concise
statement are waived).
Moreover, Appellant’s brief lacks most of the sections which our
appellate rules require an appellant’s brief to include. See Pa.R.A.P. 2111(a)
(requiring an appellant’s brief to include, inter alia, a statement of jurisdiction,
order in question, statement of both the scope and standard of review,
summary of argument, and argument). Notably, Appellant’s brief contains no
distinct argument section, but rather advances its only discernible argument
in its one-page statement of the case. See Appellant’s Brief at 2.5 There,
Appellant includes two purported citations to authorities, but his citations are
erroneous and do not correspond to any actual authorities. Id. “[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority[,] or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.” Commonwealth v.
Bertothy, 307 A.3d 776, 780 n.2 (Pa. Super. 2023) (citation omitted); see
5 To the extent Appellant claims his plea agreement in this case provided that
he would suffer no additional punishment for his parole violation, his claim is belied by the record. At his plea hearing, Appellant confirmed his understanding that “by entering [his] plea in this matter, … [he] may be subjecting [him]self to further punishment in any case for which [he is] currently on probation or parole[.]” N.T., 3/27/23, at 7-8. Additionally, our review of the transcripts confirms the parties discussed their agreement to concurrent sentencing only on the Northampton County case. Appellant’s counsel referred to the parole violation as a separate matter. See id. at 2, 12.
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also Pa.R.A.P. 2119(a) (requiring discussion and citation of pertinent
authorities).
Appellant’s substantially defective brief hampers our ability to conduct
meaningful appellate review. Accordingly, we dismiss the appeal. See
Pa.R.A.P. 2101.
Appeal dismissed.
Date: 12/5/2024
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