Com. v. Wetzel, D.

• Court: Superior Court of Pennsylvania
• Decided: December 18, 2018
• Docket: 1821 WDA 2017
• Status: Unpublished

Opinion

J-S73002-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DOUGLAS JAMES WETZEL : : Appellant : No. 1821 WDA 2017

Appeal from the PCRA Order September 14, 2016 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0000300-2013, CP-10-CR-0000317-2013, CP-10-CR-0000354-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 18, 2018

Appellant, Douglas James Wetzel, appeals pro se from the order entered

in the Butler County Court of Common Pleas, which denied his second petition

brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

The relevant facts and procedural history of this case are as follows. On

February 25, 2013, the Commonwealth charged Appellant on multiple dockets

with burglary, theft, and related offenses regarding a string of home and

business invasions. On April 29, 2015, Appellant entered an open guilty plea

to numerous offenses at multiple docket numbers, including those listed on

appeal. The court, on May 21, 2015, sentenced Appellant to an aggregate

term of 12 to 30 years’ imprisonment. Appellant did not file post-sentence

motions or pursue a direct appeal. J-S73002-18

On April 13, 2016, Appellant timely filed pro se his first PCRA petition.

The PCRA court appointed counsel on April 19, 2016. On July 18, 2016,

counsel filed a petition to withdraw and a Turner/Finley1 no-merit letter.

The PCRA court issued notice of intent to dismiss pursuant to Pa.R.Crim.P.

907 on August 19, 2016; Appellant did not respond. The PCRA court granted

counsel’s petition to withdraw and denied PCRA relief on September 14, 2016.

On October 15, 2017, Appellant filed pro se a motion for reconsideration

of sentence at all three docket numbers, which alleged the court erred by

failing to merge his sentences and give him credit for time served. On October

19, 2017, the PCRA court denied Appellant’s motion. Appellant timely filed

pro se notices of appeal at all three docket numbers on November 7, 2017.

On November 22, 2017, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);

Appellant did not comply. The Commonwealth, on August 30, 2017, filed in

this Court a motion to dismiss based on Appellant’s non-compliance with the

PCRA court’s Rule 1925(b) order; this Court denied the motion on October 12,

2018.

Appellant raises the following issues for our review:

DID THE [PCRA] COURT ERR[] BY NOT GRANTING…APPELLANT RELIEF FOR TIME CREDIT AND MERGER OF SENTENCES?

____________________________________________

1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

-2- J-S73002-18

WAS…APPELLANT ENTITLED TO TIME CREDIT PURSUANT TO 42 PA.C.S.A. § 9760; 42 PA.C.S.A. § 9737; COMMONWEALTH V. HOLLAWELL, 604 A.2D 723 [(PA.SUPER. 1992)]; AND COMMONWEALTH V. MANN, 957 A.2D 746 [(PA.SUPER. 2008)]?

DID PRIOR COUNSEL INEFFECTIVELY REPRESENT…APPELLANT, AS PROVIDED BY THE 6TH AMENDMENT AND ARTICLE 1, SECTION 8?

WILL…APPELLANT’S SENTENCE(S) BECOME UNLAWFUL AND UNCONSTITUTIONAL IF NOT PROPERLY RE- CALCULATED…?

(Appellant’s Brief at 2).2

Preliminarily, a petition for collateral relief will generally be considered

a PCRA petition if it raises issues cognizable under the PCRA. See

Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42

Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies for same

purpose). The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition

must be filed within one year of the date the underlying judgment becomes

final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is “final” at the conclusion of

direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. §

2 The failure to file a court-ordered Rule 1925(b) statement generally constitutes waiver of all issues. Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). Here, Appellant is proceeding pro se on appeal. The PCRA court ordered Appellant on November 22, 2017, to file a Rule 1925(b) statement. Appellant did not comply with the PCRA court’s order. Therefore, as a practical matter, Appellant waived his issues on appeal. See id.

-3- J-S73002-18

9545(b)(3). The exceptions to the PCRA time-bar allow for very limited

circumstances under which the late filing of a petition will be excused; a

petitioner asserting an exception must file a petition within 60 days of the date

the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).

Instantly, Appellant’s current claims on merger and credit for time

served implicate the legality of his sentence, which is cognizable under the

PCRA. See 42 Pa.C.S.A § 9543(a)(2)(vii); Commonwealth v. Ousley, 21

A.3d 1238 (Pa.Super. 2011), appeal denied, 612 Pa. 698, 30 A.3d 487 (2011)

(stating claim that sentences should have merged challenges legality of

sentence); Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super. 2009)

(stating claim that court did not credit time served challenges legality of

sentence); Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super. 2007),

appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (holding collateral attack

on legality of sentence must be raised in timely PCRA petition or first satisfy

one of statutory exceptions to PCRA time bar). Appellant’s judgment of

sentence became final on Monday, June 22, 2015, upon expiration of the time

for filing an appeal with this Court. See Pa.R.A.P. 903(a). Appellant filed the

current pro se petition on October 15, 2017, which is patently untimely. See

42 Pa.C.S.A. § 9545(b)(1). Appellant did not acknowledge the obvious

untimeliness of his current petition under the PCRA or attempt to invoke any

of its exceptions to the statutory time-bar. See Commonwealth v.

Liebensperger, 904 A.2d 40 (Pa.Super. 2006) (explaining petitioner must

-4- J-S73002-18

specifically plead timeliness exception to invoke jurisdiction over untimely

PCRA petition). Therefore, Appellant’s petition remains time-barred, and the

PCRA court lacked jurisdiction to review it.3 See Zeigler, supra. Accordingly,

we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/18/2018

3 Notice of the court’s intent to dismiss a PCRA petition without a hearing under Rule 907 is mandatory. Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super. 2000). Nevertheless, the failure to challenge on appeal the absence of Rule 907 notice constitutes waiver. Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013). Here, Appellant did not challenge on appeal the lack of Rule 907 notice, so any related concern is waived. See id.

-5-