Com. v. Davis, J. ( 2017 )

J-S64026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JAMES A. DAVIS,
Appellant No. 528 MDA 2017
Appeal from the PCRA Order February 27, 2017
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001537-2015, CP-35-CR-0001543-
2015, CP-35-CR-0001890-2014, CP-35-CR-0002227-2015
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 22, 2017
Appellant, James A. Davis, pro se, has filed an appeal at four separate
docket numbers: CP-35-CR-0001537-2015 (“15-CR-1537”), CP-35-CR-
0001543-2015 (“15-CR-1543”), CP-35-CR-0001890-2014 (“14-CR-1890”),
and CP-35-CR-0002227-2015 (“15-CR-2227”).1 After careful review, we
affirm in part, and vacate and remand in part.
The trial court summarized the procedural history of the case at docket
number 14-CR-1890 as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 In 14-CR-1890, Appellant appears to appeal from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546.
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On November 9, 2015, [Appellant] pled guilty in case no.
14-CR-1890 to one count of conspiracy to commit theft, and in
exchange the other charges pending against [Appellant] were
nolle prossed. The charges arose on August 12, 2014, when
[Appellant] and Joseph Carter stole 300 railroad plates from the
Canadian Pacific Railroad. On February 3, 2016, [Appellant] was
sentenced in case no. 14-CR-1890, and also in case nos. 15-CR-
1537, 1543 and 2227. He was sentenced in case no. 14-CR-1890
to one year of special probation consecutive to the sentences
imposed in the other three cases.
On August 9, 2016, [Appellant] filed a Motion for Correction
of Illegal Sentence and/or to Construe under the Post Conviction
Relief Act in case no. 14-CR-1890 which this court deemed a
Petition for Post Conviction Relief. Kurt Lynott, Esq. was
appointed to represent [Appellant]. On September 23, 2016, the
Commonwealth filed an Answer and Motion to Dismiss. On
December 29, 2016, Mr. Lynott filed a Motion to Withdraw as
Counsel Pursuant to a Turner-Finley[2] Letter.
Memorandum and Notice of Intent to Dismiss, 1/31/17, at 1-2.
On January 6, 2017, the PCRA court granted Mr. Lynott’s motion to
withdraw. On January 24, 2017, Appellant filed a pro se pleading titled, “Pro
Se Objection to Notice of Intent to Dismiss” at all four docket numbers. In
this filing, Appellant presented multiple challenges to his sentences at all four
docket numbers and requested a hearing on the matters. Pro Se Objection to
Notice of Intent to Dismiss, 1/24/17, at 1.
On January 31, 2017, the PCRA court issued a Memorandum and Notice
of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907 to the PCRA petition filed in
____________________________________________
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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14-CR-1890. Appellant filed an objection on February 15, 2017.3 Objection
to Notice of Intent to Dismiss, 2/15/17, 1-4. The PCRA court dismissed
Appellant’s petition on February 27, 2017. Order and Notice of Right to
Appeal, 2/27/17, at 1. Appellant filed a notice of appeal on March 22, 2017,
at all four docket numbers. Notice of Appeal, 3/22/17, at 1. The notice of
appeal provides, verbatim, as follows:
Notice is hereby given to the herein Court, that Petitioner,
James Davis - ,,pro-se named in the above capitation is appealing
the lower court’s decision in this matter,to the Superior Courrt,
where petitioner was not granted relief on any of his constitutional
claims,under Pennsylvania Rules of Criminal Procedure.
Notice of Appeal, 3/22/17, at 1. Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review, which we have
reproduced verbatim:
1. Whether the Judge erred when he imposed sentence’s with
reguard to 2nd, 3rd, 4th DUI without a Drug/Alcohol Assessment
that is a maditory component prior to sentencing pursuant to 75,
PA. C.S. §3814 and ordering this Assessment Post-Sentence.
2. Whether the Judge erred when he imposed an Illegal sentence on
Retail Theft (S).
3. Whether the Judge erred when he signed multiple backdated
orders that contradict the first orders, stating on February 3 rd,
2016, is when the sentences were imposed, constituting fraud and
perjury.
____________________________________________
3 Appellant’s objection filed February 15, 2017, apparently in response to the
PCRA court’s January 31, 2017 notice of intent to dismiss, also included all
four docket numbers.
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4. Whether the Court lacked jurisdiction over the sentence of
Criminal Conspiracy to Commit Theft, to alter/modify the sentence
long after the 30-days allowed pursuant to 42 PA. C.S.A. § 5505.
5. Whether the judge erred when he Altered/Modified the sentence
of Criminal Conspiracy to Commit Theft after 30-days, by
changing a concurrent sentence to a consecutive sentence
increasing defendants punishment on this charge in violation of
the Double Jeopardy Clause.
6. Whether the court violated the defendants Constitutional Rights
by not holding a direct proceeding with the defendant present to
modify the order, and failing to state on the record it’s reasons for
the increased punishment pursuant to PA. R. CRIM. P. 704 (c) (2).
7. Whether the Court acted with Prejudice and abused it’s discretion
by violating the law pertaining to an illegal modification of a
sentence, violating Procedural and Substantive Due Process and
Double Jeopardy protections.
8. Whether all Counsel of record were Constitutionally ineffective,
based on record claims.
Suggested Answer for all issues: Yes
Is Appellant’s appeal frivolous?
Appellant’s Brief at 5-6.
Before addressing Appellant’s issues, we must determine whether the
appeals at all four docket numbers are properly before us. As noted, Appellant
was sentenced at all four above-referenced docket numbers on February 3,
2016. Appellant did not file a timely direct appeal from any of those
sentences. Appellant had filed, however, a petition that the court of common
pleas deemed a PCRA petition on August 9, 2016, at docket number 14-CR-
1890 only. Furthermore, Appellant filed a notice of appeal on March 22, 2017,
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as to all four docket numbers. Because docket number 14-CR-1890 has a
different procedural posture, we address that docket separately.4
Docket Number 14-CR-1890
The record reflects that on August 9, 2016, Appellant filed a pleading in
docket number 14-CR-1890, which the court of common pleas treated as a
PCRA petition. PCRA Petition, 8/9/16, at 1-2. As noted above, counsel was
appointed and was later permitted to withdraw on January 6, 2017. On
January 31, 2017, the PCRA court issued a Memorandum and Notice of Intent
to Dismiss Pursuant to Pa.R.Crim.P. 907, and Appellant filed an objection on
February 15, 2017. The PCRA petition was ultimately dismissed on February
27, 2017, and Appellant filed a timely appeal in this docket on March 22,
2017.5
A review of the issues raised on appeal by Appellant reflects that only
issues three through eight pertain to docket number 14-CR-1890. Thus, we
will address those claims here.
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4 We note that this appeal consists of four separate docket numbers and
related certified records. There is no indication in the record that these cases
were consolidated for purposes of this appeal.
5 Appellant’s notice of appeal did not identify the order from which the appeal
is taken. However, given the timeline, we conclude that the appeal was from
the order denying his PCRA petition. See Commonwealth v. Williams, 106
A.3d 583, 587 (Pa. 2014) (“A timely notice of appeal triggers the jurisdiction
of the appellate court, notwithstanding whether the notice of appeal is
otherwise defective.”); see also Pa.R.A.P. 902 (holding that “[f]ailure of an
appellant to take any step other than the timely filing of a notice of appeal
does not affect the validity of the appeal”).
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In his third issue, Appellant maintains that the trial judge erred when
he “signed multiple backdated Orders that contradict the first orders, stating
on February 3rd, 2016 is when the sentences were imposed, constituting fraud
and perjury.” Appellant’s Brief at 17-18. In support of this claim, Appellant
makes the following argument:
Judge Geroulo signed the Written Sentencing Orders and the
original Sentencing Orders which correspond with eachother [sic]
and were certified from the record on April 7th,2016 [sic] along
with the Court Commitment Orders. He then signed the Corrected
Sentencing Orders between April 7th and April 15th, 2016[,] stating
that on February 3rd, 2016 is when he imposed the sentences
which constitutes perjury. He knowingly signed new orders
between the 7th and 15th of April that were untrue. A person who
swearing under oath or affirmation to what is untrue constitutes
perjury. The court used administrative back channels to change
these sentencing orders and committed fraud by certifying these
fraudulent documents.
Appellant’s Brief at 18. Attached to Appellant’s Brief is an Order from the
Court of Common Pleas of Lackawanna County, dated February 3, 2016.
Appellant’s Brief at 34. On the bottom of this order is a stamp that reflects
“Certified from the Record April 7, 2016.” Id. That order states that Appellant
was sentenced to confinement for a minimum period of 90 days and a
maximum of 5 years. Id. Also attached to Appellant’s Brief, is an order with
“Corrected” hand-written above the heading “Order”, also dated February 3,
2016. Appellant’s Brief at 45. However, this order indicates that Appellant
was sentenced to one year of probation, with special conditions, and includes
a stamp reflecting the following: “Certified from the Record April 18, 2016.”
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“[F]or a trial court to exercise its inherent authority and enter an order
correcting a defendant’s written sentence to conform with the terms of the
sentencing hearing, the trial court’s intention to impose a certain sentence
must be obvious on the face of the sentencing transcript.” Commonwealth
v. Borrin, 12 A.3d 466, 473 (Pa. Super. 2011). “If, on the other hand, a trial
court’s stated intentions during the sentencing hearing are ambiguous, then
the terms of the sentence in the sentencing order control, and the trial court
cannot correct its perceived mistake.” Id.“It is well-settled in Pennsylvania that a trial court has the inherent,
common-law authority to correct ‘clear clerical errors’ in its orders. A trial
court maintains this authority even after the expiration of the 30 day time
limitation set forth in 42 Pa.C.S.A. § 5505 for the modification of orders.
Borrin, 12 A.3d at 471 (internal citations omitted).
Here, the certified record reflects that at the February 3, 2016
sentencing hearing Appellant was sentenced for criminal conspiracy to commit
theft at docket number 14-CR-1890 to special probation for a period of one
year, to “be consecutive to the sentences imposed on the 3 DUI’s” at the other
docket numbers. N.T., 2/3/16, at 7. The court’s imposition of this sentence
was obvious on the face of the transcript. Id. Moreover, the certified record
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includes a sentencing order, docketed February 3, 2016, reflecting this
sentence. Order, 2/3/16, at 1.6
Thus, there is no indication in the certified record that the sentence
imposed for criminal conspiracy to commit theft was subsequently changed.
Additionally, in addressing this claim as raised in Appellant’s PCRA petition,
the PCRA court provided the following explanation:
[Appellant] alleges that on February 3, 2016, the court imposed a
sentence in this case of 90 days to 5 years with the DUI
convictions, but then changed this sentence to a one year of
probation sentence in April 2016. As Mr. Lynott states in his
Turney-Finley letter, this assertion is incorrect. On February 3,
2016, [Appellant] was sentenced in this case to one year of special
probation consecutive to the sentences imposed in the other three
cases. Transcript of February 3, 2016 Sentencing at 7. The April
18, 2016 Commitment Order also state[s] that the sentence is one
year of special probation consecutive to the sentences in his other
cases. Thus, contrary to his assertions, this court did not amend
his sentence.
Memorandum and Notice of Intent to Dismiss, 1/31/17, at 2-3. To the extent
that any order was issued contrary to that sentence, as suggested by the order
attached to Appellant’s Brief, such would constitute a “clear clerical error” that
____________________________________________
6 We note that this order indicates that it is a “Corrected Order”, but there is
no previous sentencing order included in the certified record. Order, 2/3/16,
at 1. The order attached to Appellant’s Brief that indicates he was sentenced
to confinement for a minimum period of 90 days and a maximum of 5 years,
is not included in the certified record. “[A]n appellate court is limited to
considering only the materials in the certified record when resolving an issue.”
Commonwealth v. McBride, 957 A.2d 752, 757 (Pa. Super. 2008).
“Materials that have only been included in briefs, but are not part of the record
cannot be considered.” Id. at 757-758.
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the trial court has authority to correct at any time. Borrin, 12 A.3d at 471.
Thus, we conclude that Appellant’s claim lacks merit.
In his fourth, fifth, sixth, and seventh issues, Appellant asserts that the
trial court erred, abused its discretion and violated his constitutional rights by
modifying his sentence at this docket number. Appellant’s Brief at 18-22.
Because we have concluded that Appellant’s sentence at this docket number
had not been modified, these claims lack merit.
Finally, Appellant argues that trial and PCRA counsel were
“constitutionally ineffective.” Appellant’s Brief at 6, 22-23. Appellant asserts
that trial counsel was ineffective for not advising the court that Appellant had
a drug problem, for advising Appellant to plead guilty despite a Pa.R.Crim.P.
600 violation, and for failing to discover the above-referenced errors. Id. at
22-23. Furthermore, Appellant alleges that PCRA counsel was ineffective for
failing to raise trial counsel’s ineffectiveness. Id. at 23.
A review of Appellant’s PCRA petition reflects that Appellant did not raise
claims of ineffective assistance in his PCRA petition. “[I]ssues not raised in a
PCRA petition cannot be considered on appeal.” Commonwealth v. Lauro,
819 A.2d 100, 103 (Pa. Super. 2003). Accordingly, these claims are not
preserved for our review.
Remaining Docket Numbers: 15-CR-1537, 15-CR-1543,
and 15-CR-2227
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Arguably, the notices of appeal as to the remaining docket numbers are
untimely. As noted, the notice of appeal filed in all four docket numbers was
vague and did not identify the order from which the appeal was taken.
Because the only orders entered in these three docket numbers were
sentencing orders, we conclude that in those cases, Appellant was appealing
the judgments of sentences.7 Because Appellant was sentenced on February
3, 2016, and he did not file his notice of appeal until March 22, 2017, these
direct appeals were untimely. See Pa.R.A.P. 903 (A notice of appeal must be
filed within thirty days after the entry of the order from which the appeal is
taken).
Review of the records in this case, however, reflects that on January 24,
2017, Appellant filed a pro se pleading titled, “Pro Se Objection to Notice of
Intent to Dismiss” at all four docket numbers. This filing provides as follows:
Objection to Notice of Intent to Dismiss
1. The court lacked jurisdiction over the sentence of Criminal
Conspiracy CR-1890-2014 to modify the sentence after 30
days. The sentence was 90 – Days to 5 years concurrent with
3 counts of DUI, to a new sentence of 1 year special probation.
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7 We do not quash Appellant’s appeals at the remaining three docket numbers
on the basis of his failure to comply with Pa.R.A.P. 904, which outlines the
elements to be included in the notice of appeal, but rather on the basis that
they are untimely. Williams, 106 A.3d at 587 (“A timely notice of appeal
triggers the jurisdiction of the appellate court, notwithstanding whether the
notice of appeal is otherwise defective.”); see also Pa.R.A.P. 902 (holding
that “[f]ailure of an appellant to take any step other than the timely filing of
a notice of appeal does not affect the validity of the appeal”).
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2. The court only had jurisdiction over the illegal sentence on CR-
2227-2015 ct./2 Retail Theft. The original sentence of 1 year
probation exceed the guidelines, therefore the court only had
jurisdiction to correct that sentence which was corrected for
45-90 days concurrent to 3 counts of DUI.
3. The [Appellant’s] presence at sentencing is a deeply rooted
procedural protection and the sentence was changed after the
30 days allowed without [Appellant] being present.
4. The court modified the sentence of Criminal Conspiracy which
increased [Appellant’s] punishment therefore it is double
jeopardy.
5. In reguards [sic] to CR1537-2015 (DUI) CR-1543-2015 (DUI)
and CR-2227 ct/1 2015 (DUI) the sentences were ran [sic]
concurrent. The PENNDOT records indicate the driver’s license
suspension penelties [sic] were ran [sic] consecutive not
concurrent.
I Ask that the court grant a hearing on the above mentioned
matters.
Objection to Notice of Intent to Dismiss, 1/24/17, at 1.
This Court has established that an untimely post-sentence motion may
be considered a petition for relief under the PCRA regardless of how the
petition is titled. Commonwealth v. Evans, 866 A.2d 442, 443–444 (Pa.
Super. 2005) (citation omitted). As the PCRA is the sole means for obtaining
collateral review and relief, this Court has provided that “any collateral petition
raising issues with respect to remedies offered under the PCRA will be
considered a PCRA petition.” Commonwealth v. Deaner, 779 A.2d 578, 580
(Pa. Super. 2001); 42 Pa.C.S. § 9542.
Although a petition seeks an available remedy under the PCRA, the
petition must also meet the PCRA’s timeliness requirements which are
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“jurisdictional in nature and must be strictly construed.” Commonwealth v.
Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011) (citations omitted). Our
“courts may not address the merits of the issues raised in a [PCRA] petition if
it is not timely filed.” Id.As outlined, in his January 24, 2017 filing, Appellant presented multiple
challenges to his sentences at all four docket numbers, and requested a
hearing on the matters. Pro Se Objection to Notice of Intent to Dismiss,
1/24/17, at 1. These challenges included claims of the trial court’s lack of
jurisdiction and illegal sentences, which are cognizable under the PCRA. See
42 Pa.C.S. § 9543(a)(2)(viii) (the eligibility criteria in Section 9543 of the
PCRA include claims asserting that the proceeding was held in a tribunal
without jurisdiction); see also Commonwealth v. Hughes, 865 A.2d 761,
776 (Pa. 2004) (petitioner’s challenge to criminal court’s refusal to transfer
murder case to juvenile court was facially cognizable under the PCRA as the
propriety of whether the charges should be prosecuted in the juvenile court
or adult court system implicated jurisdictional concerns); 42 Pa.C.S. § 9542
(“The PCRA specifically ‘provides for an action by which ... persons serving
illegal sentences may obtain collateral relief.’”).
Moreover, this document was filed one week prior to the filing of the
PCRA court’s notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 in docket
number 14-CR-1890, and therefore cannot be deemed a response to the PCRA
court’s notice of intent to dismiss in that docket. Thus, this pleading should
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have been interpreted as an amended PCRA petition as to docket number 14-
CR-1890,8 and a first PCRA petition at the remaining three dockets.
Furthermore, we need not discuss whether Appellant’s petition was
timely because Appellant was never appointed counsel to assist him with the
preparation of his first PCRA petition in these three docket numbers. This
Court has held that an indigent petitioner filing his first PCRA petition may not
be denied PCRA relief unless the petitioner was afforded the assistance of
counsel. See Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super.
2011) (stating that “where an indigent, first-time PCRA petitioner was denied
his right to counsel—or failed to properly waive that right—this Court is
required to raise this error sua sponte and remand for the PCRA court to
correct that mistake.”). Thus, because this filing constitutes a first PCRA
petition at these docket numbers, Appellant was entitled to counsel.
Accordingly, we remand this matter for appointment of counsel regarding the
filing of the first PCRA petition at docket numbers 15-CR-1537, 15-CR-1543,
and 15-CR-2227.
Order at docket number 14-CR-1890 affirmed. Orders at docket
numbers 15-CR-1537, 15-CR-1543, and 15-CR-2227 vacated and case
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8 With regard to an amended PCRA petition at docket number 14-CR-1890,
Appellant does not raise any new issues and had the benefit of counsel in filing
his first PCRA in that case.
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remanded for proceedings consistent with this Memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2017
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