Com. v. Armolt, J. ( 2015 )

J-S47013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY LYNN ARMOLT,
Appellant No. 125 MDA 2015
Appeal from the PCRA Order entered January 8, 2015,
in the Court of Common Pleas of Adams County,
Criminal Division, at No: CP-01-CR-0000509-2002
BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.
JUDGMENT ORDER BY ALLEN, J.: FILED JULY 23, 2015
In this appeal, Jeffrey Lynn Armolt (“Appellant”) challenges the PCRA
court’s determination that his latest petition filed pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. sections 9541-46, is untimely,
and that he failed to meet his burden of proving an exception to the PCRA’s
time bar. Our review of the record refutes Appellant’s claim. Moreover, the
Honorable John D. Kuhn has prepared a forty-eight page opinion in which he
thoroughly and exhaustively reviews the prolonged procedural history of this
case and the prolix and, at times, nonsensical assertions made by Appellant
in support of his quest for post-conviction relief. We therefore adopt Judge
Kuhn’s January 8, 2015 opinion as our own in affirming the PCRA court’s
order denying Appellant’s latest PCRA petition.
Order affirmed.
*Retired Senior Judge assigned to the Superior Court.
J-S47013-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/2015
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MEMORANDUM OPINION UI
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Before the Court for disposition is a Post-Conviction Collateral Relief Act Petition
filed by Petitioner on August 26, 2014, along with a Supplemental Amendment filed
October 16, 2014 For reasons set forth herein, those petitions are denied without a
hearing.
This is Petitioner's third attempt to seek post-collateral relief in this case and
fourth attempt overall. Petitioner seems to believe that this jurist has improperly created
legal obstacles to his ability to litigate the merit of claims he believes will entitle him to
relief from his convictions and sentencing. Petitioner refuses to recognize that it is the
law, not the undersigned, which precludes him from having a hearing where he can air
his grievances It is not this Court, as Petitioner contends, that "refuses" to address the
merits of his claims but rather the Court's lack of authority to do so. Throughout a
substantial portion of the life of this case, Petitioner has challenged or rejected the
services of learned counsel. He has attempted to educate himself on the law after his
sentencing but. despite these somewhat commendable efforts, he unfortunately does
not fully comprehend. and sometimes mixes, facts and legal principles. Accordingly, the
undersigned will undertake an exhaustive analysis of this matter in the hope it is clear to
Petitioner that he has exhausted his legal remedy on all known issues and that he rs not
entitled to the relief he seeks.
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BACKGROUND
On March 27. 2002, the Pennsylvania State Police filed a Criminal Complaint
charging Petitioner with Rape, Aggravated Indecent Assault and Indecent Assault' for
incidents allegedly occurring in Adams County between September 2001 and February
2002. Attached to the Complaint was an Affidavit of Probable Cause which alleged that
on February 24. 2002 a 12-year-old juvenile, K. S., gave birth to a premature baby at
Gettysburg Hospital. Hospital staff contacted the State Police. The trooper assigned to
the case interviewed K. S. who reported that Petitioner (DOB 5/1/1966) engaged in
vanous sexual acts with her, including 15-20 acts of sexual intercourse. The Affidavit
continued that the trooper obtained blood samples from K. S. and Petitioner, as well as a
swab from the baby. Testing was allegedly completed by Cellmark Diagnostics Lab
indicating that the "data are consistent with [Petitioner] being the biological father of the
baby." The baby died on March 6, 2002. Petitioner was arrested on the allegations the
same date the Complaint was filed.
On April 29, 2002, Petitioner appeared before Magisterial District Judge John C.
Zepp and, in the presence of counsel, Anthony (Tony) Miley, Esquire, of the Adams
County Public Defender's Office. waived his preliminary hearing. The following day,
Kevin Robinson, Esquire, entered his appearance on behalf of Petitioner and filed a
Petition to Remand to Preliminary Hearing.''
On May 30 2002, and again on June 26, 2002, formal Arraignment was
continued at request of Petitioner
'Rape at 18 Pa.CS A. §3121(a)(1) and 3121(a)(6); Aggravated Indecent Assault at 18 Pa.
CS A §3125(1) and 3125(7); and Indecent Assault at 18 Pa. C.S.A. §3126(a)(1) and 3126(a)(7).
2
On the original petition, the Assistant District Attorney wrote "the victim is (sic) 12 years of age
when the instant offense was committed, she became impregnated, had a miscarriage of that
baby and a subsequent DNA test showed that defendant was the father. The defendant was
represented by competent counsel. Anthony E. Miley, at the preliminary hearing and a decision to
not have the hearing was made after counsel reviewed the expert DNA analysis."
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On August 1, 2002, a proceeding began before the undersigned at 12: 15 P.M ..
regarding Petitioner's request for the remand.' Petitioner was not present but counsel
indicated that Petitioner agreed his presence was not required. During discussion,
Assistant District Attorney Coffey stated that 1f the matter was remanded and the child
victim had to testify, the Commonwealth would pursue mandatory sentences but if she
was not required to testify, the prosecution would not be pursuing the mandatories.
Counsel was directed to review this position with his client. At 1 :54 P.M .. with Attorney
Robinson present, ADA Coffey reported that he had been mistaken and, because the
DNA evidence was so compelling, there was no offer to waive mandatory sentences
even if the child did not have to testify at a remanded preliminary hearing. The earlier
offer had not yet been reviewed with or accepted by Petitioner. The Court granted
Petitioner's request to remand the case for a preliminary hearing. On November 12,
2002, Petitioner again appeared before Magisterial District Judge Zepp and, with
counsel present, waived his preliminary hearing.
On December 30. 2002, Petitioner was formally arraigned and entered a not
guilty plea. The Information charged him with Rape as a felony of the first degree
(Counts 1-15), Aggravated Indecent Assault as a felony of the second degree (Counts
16-45). and Indecent Assault as a misdemeanor of the second degree (Counts 46-75).
On January 7, 2003, at the request of Petitioner, trial was continued through the
trial term beginning March 24, 2003.
On February 7, 2003, Petitioner filed a Motion for DNA Testing, alleging that the
first DNA test was invalid and requested that a second test be conducted. On March 17.
2003, the Court granted Petitioner's Motion For DNA Testing and authorized payment of
up to $950.00 for testing to be performed by BRT Laboratories in Baltimore, Maryland
3
For unknown reasons. the ongrnal mot,on was misplaced or lost. This problem was not
discovered until on or about June 26, 2002, when a copy was substituted for the original and a
hearmg scheduled
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On March 10, 2003 at the request of Petitioner, trial was continued through the
trial term beginning June 2. 2003. Subsequently, on May 19, 2003, at the request of
Petitioner's counsel trial was continued through the trral term beginning August 18,
2003, because it was reported that the DNA testing had not been completed. On August
18, 2003, it was revealed that for some unknown reason, the County had not paid the
lab for the DNA testing. The Court again directed the payment and also specifically
directed how the specimens were to be collected and forwarded to the lab. As a result,
Petitioner requested that trial be continued through the trial term beginning December 8,
2003
On November 20, 2003, Petitioner's counsel reported that "the second DNA Just
came back positive" and that the parties were hoping to finalize details of a plea
agreement. At the same time, Petitioner waived his right to a jury trial.
On December 22, 2003, Petitioner appeared before the Court and entered a plea
of guilty to three counts of Rape, 18 Pa. C.S.A. §3121(a){6). Petitioner presented a
completed written plea colloquy form and indicated that he had no questions about the
information contained therein. The Commonwealth indicated that restitution being
requested totaled $70,473.62. The plea was offered with the understanding that
sentencing would not exceed an aggregate period of incarceration of 15-30 years and
that Petitioner could argue for a lesser sentence.
During the plea colloquy. the District Attorney reported that
"On February 24, 2002, KS, a 12 year old young lady gave birth to a
premature baby boy at the Gettysburg Hospital. The Pennsylvania State
Police ... were contacted by the staff ... regarding the incident . . The
Trooper interviewed KS. . and she named [Petitioner] as the person
who had been having sex with her and fathered the baby. According to
her [Petitioner] was at that time the young lady's mother's paramour ...
She said the behavior began in September of 2001 ... and continued ..
up until February of 2002. Blood samples were obtained from the baby
that the juvenile had given birth to. The blood samples were collected for
paternity and they indicated that [Petitioner) was in fact the father of the
young baby ... [Petitioner's] date of birth is May 1, 1966 "
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The Court then explained the elements of Rape to Petitioner and asked:
COURT: Do you understand what it is that you would be admitting on the
particular charge?
DEFENDANT: I understand, Your Honor. Mr. Robinson explained this in
detail for me
The Court explained the sentencing range to Petitioner:
COURT· Do you understand that this is considered, each of these are
considered felonies of the first degree and they carry up to 20 years as a
maximum penalty and $25,000 as a maximum fine.
DEFENDANT: Yes. sir.
COURT: There is no plea agreement. Technically the charges could be
imposed consecutively which would generate a maximum of ... 60 years
. . However, you would have a plea agreement that the maximum would
not exceed 30 years. [The District Attorney] has indicated that and is
correct in this that there rs a mandatory minimum sentence of five years
on each of these offenses. If they were to run consecutively, they would
be 15 in total and that's why the agreement is capped out at a maximum
of 15 to 30 years. The understanding would be then it would be up to the
Court to impose the sentence which could be anything up to that amount .
. . Do you have any questions about those consequences?
DEFENDANT' No. sir.
The Court further explained the impact of Megan's Law:
COURT The other thing to mention to you is this is also subject to
something which rs called Megan's law. Megan's Law is a requirement
that before we can do sentencing, we have to have you evaluated by the
Sexual Offenders Assessment Board which is basically a psychologist
who would interview and examine you. That person would then provide a
report to the District Attorney's Office If the report indicated that you
were a sexually violent predator, the Commonwealth would then request
a hearing be scheduled to determine 1f that could be established. You, of
course. would have the right to oppose that designation and if it was
deemed appropnate and you made the appropriate request. you could
have an expert examine you for the purposes of contradicting the board's
assessment. This is significant because under Megan's law when you
are released there are requirements that deal with reporting your
whereabouts on a regular basis. There are periodically forms which are
sent to you that you have to fill out and return. If you were to go to
another state. for example, you'd have to register with the police agencies
in those states and because of the nature of the charge, the length of time
that you would be doing this would be for the balance of your life. If you
don't follow through with the requirements, that could bring about
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additional charges which are felony charges Do you have any questions
about those consequences?
DEFENDANT· No. sir.
COURT: At the time of sentencing we would go over in greater detail
each one of those Megan's Law requirements and you would then be
given a form that you would be asked to sign acknowledging that these
requirements were mentioned to you so you know what those
requirements are. If you want greater detail on those at the present time,
I can provide them to you. Do you need any additional information on the
Megan's Law requirements?
DEFENDANT: Not at this time, Your Honor.
Petitioner then indicated that he had enough time to speak with counsel, that he
was satisfied with the advice and services received, that he was not being pressured,
that there were no other promises or understandings, and that he had enough time to
think about what he was doing. Petitioner then entered his plea:
COURT· Are you pleading guilty because in fact during the period
September. 2001 through February, 2002 that on at least three occasions
you had sexual intercourse with someone that was less than 13 years of
age?
DEFENDANT: It would appear so, Your Honor.
COURT You may take the plea.
On April 12. 2004, Petitioner appeared for sentencing. Petitioner was given the
opportunity to speak on his own behalf but declined to do so. As noted, at the time of
the plea colloquy and as indicated in the Pre-sentence Investigation Report, the
Commonwealth was seeking restitution in excess of $70,000.00. When this was
mentioned Petitioner's counsel responded:
MR. ROBINSON You Honor, we received a breakdown of that. And
we'll stipulate and we have no objection to that at all.
The Court also noted that the Sexual Offenders Assessment Board had concluded that
Petitioner was not a sexually violent predator Nevertheless. Petitioner was again
reminded that he would be subject to the provisions of Megan's Law. The Court
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sentenced Petitioner to a period of 5-1 O years on each count with each count to run
consecutively for an aggregate period of 15-30 years which was within the parameters of
the plea agreement.
On April 20, 2004, Petitioner filed a Motion For Modification of Sentence. At the
same time, Attorney Robinson moved to withdraw as Petitioner's counsel, and Petitioner
joined in that request. Three days later, Petitioner filed a pro-se Motion To Reconsider
Therein, he claimed Attorney Robinson had rendered ineffective assistance of counsel,
the DNA test reported the wrong blood type for him, and that the discovery material
raised several unanswered questions.
On May 10, 2004, Barbara Entwistle, Esquire, was appointed to represent
Petitioner. In the Order entered at that time, the Court noted that on April 23, 2004, it
had received Defendant's pro-se Motion To Reconsider. The Court stated that it would
take no action on the Motion but instead directed that Attorney Entwistle discuss the
concerns raised therein with Petitioner and to file an amended motion within 20 days
otherwise the issues raised therein would be waived.
On May 20, 2004, Petitioner filed a Motion To Withdraw Guilty Plea or
Alternatively Motion For Reconsideration of Sentence. Therein, Petitioner raised, inter
alia, the following averments:
a. That Petitioner insists he is not guilty;
b. That Petitioner's plea was not knowingly, intelligently and voluntarily entered;
c. That Petitioner understood that his sentence would be capped at 5-15 years;
d. That plea counsel was ineffective for failing to properly investigate the case,
not sufficiently meeting with and communicating with Petitioner,
misrepresenting the plea agreement, telling Petitioner it would be better to
plead guilty rather than nolo contendere, failing to adequately explain the
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written plea colloquy form submitted at the time of the plea, and pressuring
him to enter a plea by demanding a substantial fee to proceed to trial.
On July 20, 2004, Petitioner appeared before the Court pursuant to the motions
filed on May 20. Immediately, Petitioner indicated that he was withdrawing his Motion
To Withdraw Guilty Plea. The Court then focused on the Motion For Reconsideration of
Sentence and provided Petitioner with ample opportunity to present any information
favorable to that motion. Other than some character witnesses4 Petitioner offered, no
additional information not already considered at the time of the original sentencing. The
Court reviewed factors that were originally considered in imposing sentencing:
COURT: At the time of sentencing in April of this year I had the
presentence investigation report which, of course, I had reviewed. The
three charges called for mandatory minimums of 5 years ... We also
know that a report indicated that he was not a sexually violent predator.
I'm not sure that this was attached to the Defendant's copy of the
presentence report, but I did have as part of the confidential section a
statement from Kelly Sheeley. 5 I also had a statement from Tammy
Mummert6 and a victim impact statement from her as well. There was a
victim impact statement from Wayne Bowers. 7 I guess that was pretty
much the extent of it.
I should also indicate that I was somewhat familiar with the background of
this and the impact on the young lady because she ended up in Juvenile
Court and I presided over those matters relating to her dependency that
arose through this whole experience.
During that discussion, Petitioner's counsel mentioned that Petitioner had
anticipated entering a nolo contendere plea until instructed by Attorney Robinson on
December 22, 2003 that he needed to change his plea to a guilty plea and his reluctance
4 The Court felt that the significance of the character letters was minimized because they were
basedon the belief that Petitioner did not commit the offenses for Which he had entered his plea.
Because he was not withdrawing those pleas, the letters were contraryto Petitioner's admissions
and consideredof little value.
5
The victim.
6
The victim's mother.
7
The victim's father
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to do so was reflected tn hrs response to the Court's question whether he was pleading
guilty. At that point, the following discussion occurred:
COURT Just so everyone understands, I don't know that I had any
specific conversations with Mr. Robinson but the Court made a policy
some time ago that we were not accepting nolo contendere pleas on sex
offense cases and it had a lot to do not so much with getting a plea done
but the problems that they have when there is a conviction and then the
alleged perpetrator is going to treatment and they say, well, I didn't do
anything and they kick them out of treatment and nothing is
accomplished. So we made a policy decision we were not going to
accept nolo pleas on sex offenses. If somebody says I didn't do it. let's
go to trial and have it out. Is that his position then, that's why he didn't
say anything?
DEFENDANT: Basically, Your Honor, Mr. Robinson told me at the time
the dollar amount it would take to go to trial and told me that my best
chance was to take the plea.
COURT: That didn't exactly answer my question but I understand wha1
you're saying. Is it your position that these events did not occur?
DEFENDANT: Basically, yes Your Honor. I don't want to be - Your
Honor, what I'm asking for is I'm asking for the Court to take into
consideration all factors ...
As the Court was trying to ascertain what information Petitioner wanted considered, the
District Attorney interjected:
DISTRICT ATTORNEY: There were two separate independent DNA
tests in this matter, Your Honor, and each of those tests were -
MS. ENTWISTLE: Your Honor, I believe the first test was not a DNA test.
The first test was some other type of test. There was, however, at least
one DNA test.
DISTRICT ATTORNEY: There two separate DNA tests performed in this
matter by two separate independent labs and both of those tests are
conclusive that this Defendant is the father of the child that died and at
this point if this Defendant wishes to withdraw his guilty plea, we will allow
him to withdraw his guilty plea and the Commonwealth is prepared to go
to trial in this matter, Your Honor. If he's indicating that he pied guilty and
he was forced to plead guilty and he did not commit these crimes, then
we feel it's in his best interest that he withdraw his guilty plea and we're
prepared to go forward with trial in this matter
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Petitioner's counsel asked for a moment to speak to her client after which Petitioner
clearly rejected the opportunity to withdraw his plea:
DEFENDANT: Sir, when this started the first words Miss Entwistle said
was we did not, and I emphasize not, want to withdraw the guilty plea ...
Later. the Court returned to this same subject:
COURT: Did Mr. Armolt wish to consider any further the
Commonwealth's offer?
MS. ENTWISTLE: Withdrawing the guilty plea. Do you wish?
DEFENDANT: No. Your Honor.
The Motion For Modification of Sentence was denied. Petitioner did not file a
direct appeal of sentencing.
Thirty months later, on January 16, 2007, Petitioner filed a Motion For Post-
Conviction Collateral Relief. By letter dated February 2, 2007. the Court advised
Petitioner of its intent to dismiss his PCRA motion because the issues raised therein
were untimely and/or meritless. Because this was Petitioner's first such motion and
because he was raising numerous issues, the Court appointed Thomas Nell, Esquire, to
represent him. On February 18, 2007, Petitioner filed a pro-se Appeal To Dismissal of
the PCRA. On March 22, 2007, at the request of Petitioner and Attorney Nell, counsel
was relieved from representing Petitioner.
On April 17, 2007, the Court conducted a conference on Petitioner's PCRA
motion. Petitioner appeared by video from prison. Petitioner was asked to identify the
issues he wished to be addressed and identified the following:
a. There was a breach of his plea agreement made on November 20, 2003,
which called for a sentence of 5-15 years' incarceration.
b. The court's "policy" of declining nolo contendere pleas in sex offenses
interfered with the plea bargaining process;
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c. The Court improperly reviewed information in the confidential section of the
pre-sentence report;
d The Court should not have presided over this matter and a Juvenile Court
matter involving the minor victim;
e Failure of Petitioner's blood type to appear on the DNA report.8
All issues appeared to be time-barred Nevertheless, Petitioner was granted until June
2, 2007 to provide further reason why his motion should not be dismissed.
On August 17, 2007, the Court wrote to Petitioner granting him additional time
until September 28, 2007, to provide reasons why his motion should not be dismissed.
On September 11, 2007, Petitioner filed a Supplemental Brief in Support of
PCRA Petition. Therein, he raised judicial and prosecutorial misconduct. Specifically, it
appeared that he alleged the undersigned had impounded a May 11, 2004 custody
proceeding. He further claimed that even though the undersigned was aware that there
was a blood type error and that the DNA testing was fraudulent, this Court improperly
precluded him from introducing other "testimonial evidence." Petitioner argued that the
undersigned should recuse himself from further involvement in this case. Finally, he
raised ineffective assistance of prior counsel. On November 7, 2007, Petitioner
supplemented his bnef further.
On January 28, 2008, the Court dismissed Petitioner's Motion For Post-
Conviction Relief without a hearing. The reasoning was set forth in an accompanying
Opinion and was based upon certain issues being time-barred (primarily because the
information forming the basis of the claim was known to Petitioner long before the time
8
The transcript noted that the DNA report was never part of the criminal court record.
Furthermore, Petitioner stated that he spoke to AttorneyRobinson about the allegedblood type
issue on April 12, 2004. the day of sentencing
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9
when the issue could be raised in a PCRA proceeding) and others not having merit.
The issues discussed and the basis for dismissal are outlined below:
1 . Petitioner claimed there was an original plea agreement for him to waive
his second preliminary hearing in exchange for the Commonwealth not
pursuing mandatory sentences. - The record is clear that when the
remand was discussed on August 1, 2002, Petitioner was not present.
Before the offer could be transmitted to him, it was withdrawn. If
Petitioner was not aware of the offer he did not waive his hearing in
reliance upon that offer. If he knew of the offer, as he was claiming, he
was well aware of this issue when he entered his plea on December 22.
2003.
2. Petitioner claimed the DNA testing was based upon his incorrect blood
type. - Petitioner acknowledged that he was aware of this alleged
discrepancy on April 23, 2004, when he filed his pro se Motion to
Reconsider.
3. Petitioner claimed that discovery information was withheld indicating that
John Hauf had entered a plea of guilty to Indecent Assault on May 3.
2003, involving the same victim as in Petitioner's case. - In Petitioner's
Motion to Reconsider filed May 11, 2004, he referred to discovery
information provided by the Commonwealth that reported allegations
made by K. S. against Mr. Hauf. In the Motion, Petitioner averred that he
and Rebecca McGlaughlin-Wright were called to the hospital where he
was advised that Mr. Hauf had assaulted K. S. Ms. McGlaughlin-Wright's
9The PCRA law will be discussed in greater detail later in this Opinion. However. the statute
provides that a court does not have Jurisdiction to address the merits of a claim unless the motion
was filed within one year of the date the judgment in the case became final. Here the motion
needed to be filed no later than August 19, 2005 and Petitioner's Motion was filed more than 16
months later
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letter attached to the motion confirmed that Petitioner knew of Mr. Hauf's
alleged involvement in February 2002. A letter from Mary Ochs, attached
to the Motion, confirmed Petitioner's knowledge of the accusations as
well. Mr. Haufs case was a matter of public record. Furthermore,
Petitioner's PCRA motion contained a copy of a letter dated July 9, 2004,
from Attorney Entwistle to Petitioner outlining Mr. Hauf s plea and
sentence.
4. Petitioner claimed that on April 12, 2004, the Court intentionally withheld
information from him that was part of the confidential section of the pre-
sentence investigation report. - On July 20, 2004, in the presence of
Petitioner, that information concerning the victim impact statements was
revealed on the record.
5. Petitioner claimed that the Court used information against him which the
judge obtained in a separate proceeding. - Petitioner was referring to the
fact that the undersigned was the Juvenile Court Judge when the victim in
this matter was adjudicated dependent. As a result, I was aware of the
allegations and the impact of the sexual abuse upon the victim at the time
of sentencing. During the July 20, 2004 proceeding, I mentioned this
prior involvement on the record before Petitioner was offered the
opportunity to withdraw his guilty plea.
6. Petitioner claimed that the Court improperly imposed a policy not to
accept nolo contendere pleas in sex offense cases and thereby coerced
him into pleading guilty. - Petitioner acknowledged that he was aware of
the Court's philosophy at the time he entered his plea. Even if it was
unclear to him at that time, the "policy" was discussed on the record on
July 20, 2004.
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7 Petitioner claimed that Attorney Robinson failed to appear in court on
several occasions. - To the extent Petitioner was present in court without
counsel, he was well aware of that absence as it occurred.
8. Petitioner claimed that ex-parte communications occurred on November
20, 2003. - The record reflects that Petitioner and Attorney Robinson
appeared in court on that day. Clearly, Petitioner was aware of
statements made on the record at that time and they were obviously not
ex-parte.
9. Petitioner claimed that on July 31, 2002, the Court engaged in an ex-
parte communication with Assistant District Attorney Coffey. - On that
day. Petitioner was scheduled for formal arraignment. Because Attorney
Robinson was not present, the proceeding was continued to the call of
either party. A hearing was already scheduled for the next day on
Petitioner's motion to remand the matter for a second preliminary hearing.
Clearly, nothing of substance was discussed and Petitioner was not
prejudiced by any conversation involving the continuance. Simply not
being present under such circumstances did not entitle Petitioner to post-
conviction relief.
10. Petitioner claimed that he should not have been represented by the
Public Defender's Office when it was alleged that someone within that
office was also representing Mr. Hauf. - Petitioner was represented by
Attorney Miley of the Public Defender's Office through the first preliminary
hearing on April 29, 2002, at most a period of one month. The following
day, Attorney Robinson entered an appearance to represent Petitioner.
Even if someone within the Public Defender's Office represented Mr. Hauf
in entering his plea for a separate incident. that fact would not entitle
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Petitioner to post-conviction relief.'? Defendant claimed that such
representation provided information to "an opposing party." The opposing
party would have been the Commonwealth. Petitioner did not aver any
specific confidential information made that the Commonwealth received
about him from the Public Defender's Office.
11. Petitioner claimed that the undersigned violated his rights because 1 was
the fact finder after he had waived his right to a jury trial. - Petitioner
never proceeded to a jury or a non-jury trial so the undersigned was
never placed in a position of being a fact finder in determining his guilt.
Guilt was established based upon Petitioner's admissions during his plea
colloquy on December 22, 2003.
12. Petitioner claimed that the Court impounded "a Domestic
proceeding/custody hearing on May 11. 2004" after he submitted a
motion for reconsideration. - The undersigned participated in no domestic
or custody proceeding in 2004. All Family Court matters in Adams
County were handled at that time by Honorable Robert G. Bigham. The
undersigned was acting as the Juvenile Court Judge at that time but took
no steps to secure any juvenile proceeding involving K. S. from Petitioner.
Juvenile proceedings are, for the most part, denied public access under
provisions of the Juvenile Act. Nevertheless, this jurist had developed a
standard order allowing criminal defendants access to statements
contained in Children & Youth files when the agency was involved with
10
It was also possible that Attorney Miley had to withdraw because another member of the Public
Defender's Office represented all juveniles in dependency proceedlngs. Even if that were the
case, no prejudice existed. Petitioner was clearly represented by Independent counsel
throughout the great majonty of the case up to sentencing. The juvenile victim never testified
against Petitioner because he entered a plea. No information was revealed at the time of the
plea that was inconsistent with averments in the Affidavit of Probable Cause attached to the
Criminal Complaint.
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sexual assault victims. In this case, no request for such information was
ever made to the undersigned by anyone on behalf of Petitioner up to and
through sentencing.
13. Petitioner claimed that Attorney Entwistle was ineffective for not raising
the ineffectiveness of Attorney Robinson. - The Court felt this claim was
without merit for several reasons. First, allegations of ineffectiveness of
Attorney Robinson were based upon alleged actions or inactions, outlined
above, which were either time-barred or without merit. If Petitioner could
not legally establish that Attorney Robinson was ineffective, Attorney
Entwistle could not be deemed ineffective for failing to raise that claim.
Second, Attorney Entwistle did allege Attorney Robinson's ineffectiveness
in the Motion filed on May 20, 2004. If established, valid claims of
ineffectiveness. at most. would have only entitled Petitioner to withdraw
his plea. However, because Petitioner was not willing to withdraw his
guilty plea, any ineffectiveness claim became moot at that point.
14. Petitioner claimed that a proceeding was held on August 1, 2002, without
him being present. - August 1, 2002, was the day that Petitioner's
request for a remand was to be considered by the Court. Petitioner
contended that Attorney Miley was subpoenaed by the Commonwealth
and that because Petitioner was not present, ex-parte information was
divulged to the District Attorney's Office. Neither the record nor the
Court's recollection revealed whether Attorney Miley actually appeared
that date but the record rs clear that he presented no information on the
record. It is likely that he was called to outline the background
surrounding the waiver of the first preliminary hearing. Petitioner's
absence was not explained except to note that "some issue arose at the
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prison." The fact that Petitioner was not present did not prejudice him
because the Court granted his request for a remand without the need for
a hearing
15. Petitioner claimed that some proceeding occurred on November 20,
2002, during which a plea agreement was entered. -A search of the
record clearly revealed that no proceeding was scheduled or took place
on the date.
16. Petitioner claimed that Judge Bigham was the issuing authority but the
undersigned divested him of his authority. - The record showed that the
issuing authority was Magisterial District Judge John C. Zepp. On April
30, 2002, Attorney Miley filed a Motion for Reduction of Bail that was set
for hearing on May 10, 2002. On that day, the undersigned continued the
hearing to June 21, 2002, upon a motion filed by Attorney Robinson. Also
scheduled for that same day was the request for remand. Judge Bigham,
at Petitioner's request. entered an Order on May 10, 2002, also
continuing that hearing to June 21. The issue was considered
nonsensical.
17. Petitioner claimed that he was sentenced for violating Section 3121(a){6)
of the Crimes Code, however, that section had been repealed on
December 9, 2002 prior to his formal arraignment. - The Criminal
Complaint alleged conduct occurring between September 2001 and
February 2002. Included were 15 counts alleging Rape under then
Section 3121 ( a)(6). That section provided,
(a) Offense defined. A person commits a felony of the first
degree when he or she engages in sexual intercourse with
a complainant:
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(6) who is less than 13 years of age.
This section was deleted by Act 162 of 2002, enacted December 9, 2002,
and effective February 7, 2003. Section 3121 was then amended by Act
226 of 2002, effective February 14, 2003, to provide,
(C) Rape of child - A person commits the offense of rape
of a child, a felony of the first degree, when the person
engages in sexual intercourse with a complainant who is
less than 13 years of age.
The repealer did not, as Petitioner argued, relieve him from criminal
responsibility under §3121 for the offenses he committed more than one
year prior to February 7, 2003.
18. Petitioner claimed that in various documents it was alleged that the
sexual abuse began in Waynesboro, Franklin County. - Petitioner
misinterpreted the charging documents. The Commonwealth was not
alleging conduct that occurred in Franklin County. The Affidavit of
Probable Cause stated that the alleged "behavior began during the month
of September 2001 while at the mother's former address in Waynesboro,
Pa. The sexual acts continued when [Petitioner} moved to Adams County
(ldaville-York Springs Rd., Huntington Twp.) during the latter part of
September, 2001." In turn, the Criminal Complaint averred that the abuse
occurred at "71 ldaville-York Springs Rd., Huntingdon Twp. In Adams
County." The Information also averred that the conduct being charged
occurred in Adams County. It was clear that the Commonwealth was only
pursuing the conduct alleged to have occurred in Adams County and only
made reference to Franklin County in the Affidavit of Probable Cause by
way of historical background.
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On February 7, 2008, Petitioner appealed the dismissal of his first PCRA motion.
On January 2, 2009, Superior Court affirmed the dismissal. Petitioner attempted to have
the Pennsylvania Supreme Court review his claims but his request was denied by that
court on August 19, 2009.
Nearly three years later, on July 30, 2012, Petitioner filed a second Post
Conviction Collateral Relief Act Petition. The Petition was quite extensive and for the
first time included some documents previously discussed on the record but never made
a part of the record. These included 1) a letter from the District Attorney to Attorney
Robinson dated October 24, 2003, which contained a copy of the March 25, 2002 Report
of Laboratory Examination from Cellmark Diagnostics; 2) a letter from the District
Attorney to Attorney Robinson dated November 6, 2003, responding to counsel's
discovery request and attached was a report dated October 14, 2003, from BRT
Laboratories, Inc.; and 3) a copy of a letter from Attorney Robinson to Petitioner dated
November 12, 2003, wherein he wrote "[elnclosed please find a copy of the results from
your recent DNA test. Unfortunately, once again the DNA test is positive. Under the
terms of our agreement with the District Attorney's office, it calls for us to enter a plea of
guilty and to have an open plea so that the Judge will decide the appropriate sentence in
your case." After carefully reviewing the Petition, the undersigned wrote to Petitioner on
September 25, 2012, outlining why the Court believed that all issues were time-barred
and, therefore, there was a lack of jurisdiction to consider the merits of the petition. The
Court identified the following issues which seemed to be raised by Petitioner:
1. Prosecutorial misconduct related to re-filing of charges.
2. Judicial misconduct for:
a. Being involved in juvenile court proceedings involving the victim;
b. Refusing to accept a nolo contendere plea:
c. Having access to the victim impact statement at sentencing;
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d. Having some impact upon the assessment by the Sexual
Offenders Assessment Board;
3. Ineffective assistance of counsel by Attorney Robinson for:
a. Not pursuing speedy trial rights;
b. Not challenging venue;
c. Not challenging the timeliness of the sentence;
d. Not challenging the restitution imposed;
e. Not pursuing the terms of a plea agreement with the
Commonwealth;
f. Failing to assert Petitioner's reluctance to enter a plea;
g. Failing to question the DNA results.
4. Ineffective assistance of counsel by Attorney Entwistle for withdrawing as
Petitioner's attorney.
5 Ineffective assistance of counsel by Attorney Nell for not raising the
ineffectiveness of prior counsel.
6. Ineffective assistance of counsel for not making the results of DNA testing
part of the record.
7. Errors by the trial court for:
a. Disregarding the SOAB assessment;
b. Breaching a plea agreement.
8. Imposition of an improper sentence because:
a. The counts should have merged;
b. The sentence involved matters which occurred in Franklin County,
c. There was no statutory authority to impose the sentence.
9. Petitioner improperly waived a preliminary hearing in exchange for a plea
agreement that was not accepted
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10. Charges were improperly re-filed on December 30, 2002.
The Court granted Petitioner until October 28, 2012 to respond with additional reasons
not to dismiss the petition.
On October 5, 2012, Petitioner filed a "Notice of Non-compliance" wherein he
expressly stated that he would not respond to the Court's correspondence dated
September 25, 2012. Therein, he reasoned that the "Affidavit of Prejudice" filed with his
Petition on July 30 2012, was sufficient to disqualify the undersigned from further
involvement in the proceeding. The undersigned concluded that the accusations
contained in that Affidavit were frivolous and that there was no valid basis for recusal
from disposing of the Petition. Therefore, on October 28, 2012, that Petition was
dismissed without a hearing and Petitioner was advised of his right to file an appeal. No
direct appeal was filed.
On February 1, 2013, Petitioner filed a civil action against the superintendent of
the state correctional institution where he is imprisoned, the District Attorney of Adams
County, the undersigned, and the Attorney General of Pennsylvania, seeking habeas
corpus relief. 11
By Order dated February 15, 2013, Adams County President Michael A
George noted that all Adams County judges had recused themselves from this matter
and the case was assigned to the Honorable Edward E. Guido of Cumberland County.
On April 1. 2013, Judge Guido dismissed the Petition with prejudice as to the
undersigned. That decision was affirmed by the Supreme Court on June 27, 2013.
On March 10, 2014, Judge Guido dismissed the entire civil action. He wrote that
it appeared Petitioner was attacking the propriety of his conviction and sentence in the
criminal case and, therefore. all issues should be addressed in the context of a
proceeding under the Post-Conviction Relief Act. Judge Guido felt Petitioner's issues
11
Jeffrey L. Armolt v John Kerestes, Superintendent; Shawn Wagner, District Attorney of Adams
County: Judge John Kuhn, Kathleen Kane, Attorney General. No. 2013-SU-125.
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were previously addressed in this Court's Opinion dated January 28, 2008 and letter
dated September 25, 2012.
This decision was affirmed by Superior Court on July 23, 2014. Superior Court
identified five issues Petitioner stated he was attempting to raise.
1. Whether the writ of habeas corpus is a matter where relief is sought in the
context of a separate case record; the beglnning of an independent civil
action/inquiry which, is not subject to criminal appellate review or jurisdiction;
2. Whether when challenges to jurisdiction arise, is the burden of proof upon the
government a matter that must be decided;
3. Whether pursuant to the habeas corpus act and present-day law there is a
condition precedent that entitled the applicant to specific practices and
procedures from the court;
4. Whether the no answer letters submitted either personally or on behalf of the
respondents render a form of confessed judgment warranting plaintiff's relief;
and
5. Whether plaintiff's privilege/right to the writ of habeas corpus was unlawfully
suspended through constructive deprivations by the specific acts, omissions
or conduct of the specially presiding court Uudge).
In its written opinion, Superior Court noted that although Petitioner's allegations were
"confusing" it was able to discern that his argument was that the Adams County Court of
Common Pleas lacked jurisdiction over his criminal matter. The Court concluded,
without much discussion, that a claim alleging that a conviction or sentencing resulted
from a proceeding in a tribunal without jurisdiction is cognizable under the PCRA.
Having so concluded, the court then noted that under the PCRA all petitions must be
filed within one year of when a defendant's judgment becomes final. Noting that
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Petitioner invoked none of the time-bar exceptions, it concluded that the instant action
was facially untimely and affirmed the dismissal of the action.
CURRENT PCRA
The current Petition was filed on August 26, 2014. Therein, it appears that
Petitioner is raising the following issues:
1. Where challenges to jurisdiction arise, the burden of proof is upon the
Commonwealth and the Court. - Specifically, Petition contends that there
were improper re-filings of criminal charges in this matter and, as a result, the
Court proceeded without jurisdiction.
2. The regularity of the proceedings can be called into question where the
Commonwealth and the Court exceeded jurisdiction through misrepresented
evidence. - Specifically, Petitioner contends that the Commonwealth
misrepresented the DNA evidence and that his counsel was ineffective for not
making the test results part of the record. He stresses that this evidence
could not have supported a guilty verdict. Finally, he questions why the Court
did not make the test results part of the record.
3. The regularity of the proceedings can be called into question where the court
exceeded jurisdiction by implementation of a court-made policy and blatant
disregard of fact-finding by the Pennsylvania Sexual Offenders Assessment
Board. - Specifically, the Petitioner claims the Court exceeded its authority by
having a policy not to accept nolo condentere pleas in sexual offenses. He
argues that this interferes with plea negotiations and violates his right against
self-incrimination. Petitioner further claims that the court exceeded its
authority by subjecting htm to registration requirements under Megan's Law
even though the Sexual Offenders Assessment Board found that he was not
a sexually violent predator.
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4. The regularity of the proceedings can be called into question where Petitioner
was permitted to enter multiple guilty pleas and the sentencing court exceeds
its jurisdiction when imposing sentence under mandatory sentencing
guidelines without proof of prior conviction. - Specifically, Petitioner claims
that the Court improperly imposed mandatory sentencing upon him even
though he had no prior criminal convictions.
Petitioner stated that he was seeking the following relief:
1. For the Court to establish for the record exactly what statute(s) authorized the
Court to impose the sentences on April 12, 2004;
2. For the Court to establish for the record exactly what statute(s) authorized the
Court to impose any and all sentencing terms, conditions, or stipulations to go
along with the sentences imposed on April 12, 2004;
3. For the Court to establish for the record exactly what statute(s) specific to
Petitioner's claims by law that serve as a bar to the Court defining the exact
contours of the underlying constitutional rights;
4. The regularity of the proceeding can be called into question where Petitioner
was permitted to enter multiple guilty pleas and the sentencing court
exceeded its jurisdiction when imposing sentences under mandatory
sentencing guidelines without proof of prior conviction;
5. For the Court to establish for the record exactly what statutes permitted the
Commonwealth and the Court to exercise power and authority beyond its
jurisdiction: and
6. Any other relief this Court deems appropriate.
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On October 8, 2014, after review of the Petition,12 the Court issued an Order
indicating that Petitioner's claims were time-barred but granted him 30 days to submit
additional reasons to avoid the Jurisdictional time bar. On October 29, 2014, Petitioner
filed his Response to this Order.
Meanwhile. on October 16, 2014, Petitioner filed a Supplemental Amendment to
Post-Conviction Collateral Relief Act Petition wherein he challenged the legality of his
sentence as ,t related to the imposition of the restitution. On October 29, 2014. the
Court issued an Order outlining why this claim was also time-barred but granted
Petitioner 30 days to submit additional reasons to avoid that outcome. On November
12, 2014, Petitioner filed his Response.
DISCUSSION
In Pennsylvania. every person convicted of a crime has a right to file a direct
appeal from the sentencing 42 Pa. C.S.A. §9781; Pa. R. Crim. 720. Once the defendant
has exhausted his direct appeal rights. or has waived his right to do so, he may seek
collateral relief from a conviction for a crime he did not commit or from an illegal
sentence under provisions of the Post Conviction Relief Act. 42 Pa. C.S.A §9541, et.
seq. The purpose of the PCRA is to prevent fundamentally unfair convictions.
Commonwealth v. Carbone, 707 A.2d 1145, 1148 (Pa. Super. 1998).
Petitions under the PCRA are to be filed in the court of common pleas. §9545(a);
Pa. R. Cnm. P 901 (B) In order to be eligible for relief under the PCRA, the petitioner
must plead and prove, 13 inter alia, that
12
Pa.R Cnm P 907 requiresthe court to promptly review the petition and if the Judge is satisfied
that there is no genuineissue concerningany materialfact, that the defendantis not entitledto
post-conviction collateralrelief and that no purposewould be served by further proceedings, the
judge must give notice to the partiesof us intentionto dismissthe petition, the reasons for the
dismissal, and an opportunityfor the defendantto respond to the proposed dismissal within 20
days
13
§9543.
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1. He has been convicted of a crime and is currently serving the sentence for
that crime;
2 The conviction resulted from one or more of the following:
a. A violation of the constitution of either the United States or
Pennsylvania which, under the circumstances, so undermined the
truth determining process that no reliable adjudication of guilt or
innocence could have taken place.
b. Ineffective assistance of counsel which, under the circumstances, so
undermined the truth determining process that no reliable adjudication
of guilt or innocence could have taken place;
c. A plea of guilty unlawfully induced where the circumstances make it
likely that the inducement caused the petitioner to plead guilty and the
petitioner is innocent;
d. The improper obstruction by government officials of the petitioner's
righ1 to appeal where a meritorious appealable issue existed and was
properly preserved in the trial court;
e. The unavailability at the time of exculpatory evidence that has
subsequen11ybecome available and would have changed the
outcome of the trial if it had been introduced;
f. The imposition of a sentence greater than the lawful maximum; or
g. A proceeding in a tribunal without jurisdiction; and
3. The allegation of error had not been previously litigated or waived. An issue
has been previously litigated if the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue or it has been previously raised and decided in a proceeding
collaterally attacking the conviction or sentence. As issue is waived if the
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petitioner could have raised it but failed to do so before trial, at trial, during
unitary review. or on appeal or in a prior post-conviction proceeding.14
Clearly, at the time the instant Petition was filed, Petitioner was still (and
continues to be) serving his sentence. He claims he is eligible for relief because of
constitutional violations. a sentence greater than the lawful maximum, and a proceeding
in a tribunal without jurisdiction. §9545(a)(2)(i). (vii) and (viii). 15 Facially, Petitioner has
raised some issues which arguably might render his claims eligible for a hearing on the
merits.
However, initial or subsequent PCRA petitions must be filed within one year of
the date the judgment becomes final. §9545(b)(i). A judgment becomes final, at the
conclusion of direct review or at the expiration of the time for seeking review.
§9545(b)(3)_ The one-year statutory time restriction is to be strictly construed.
Commonwealth v. Stokes, 959 A.2d 306, 309 (Pa. 2008). It is both mandatory and
jurisdictional in nature and may not be altered or ignored in order to reach the merits of
the claims raised in the petition. Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa.
2012); Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). A petitioner is
not automatically entiUed to an evidentiary hearing, Commonwealth v. Miller, 102 A.3d
988, 992 (Pa. Super. 2014), and a hearing cannot be used as a fishing expedition. If the
14
§9544
15
Petitioner also claims that he is eligible for relief under §9545(b)(5) of the PCRA which he
contends was enacted pursuant to "The Act of June 17. 2011, Senate Bill No. 1153, Printers No.
1367, Session of 2011 (effective in (60) days)" which allegedly reads
(5) Notwithstanding any other provision of law, any petition filed under this
subchapter alleging a miscarriage of justice that lead (sic) to the convictton of a
person who was factually innocent of the crime for which the person was
convicted, m light of all the credible evidence available at and subsequent to trial,
may be filed at any time
It rs the concept of an alleged "miscarriage of justice" the Petitioner uses as the basic premise
upon which he contends he is entitled to a hearing and relief more than 1 O years after his
sentencing. Unfortunately for Petitioner, he cannot rely on this passage to support his eligibility
for reltef because this provision was never enacted by the Legislature and is not part of the
PCRA.
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petition is not filed timely, the court has no jurisdiction to consider the claims raised
therein. Id. Jurisdiction 16 relates to the competency of a court to hear and decide the
type of controversy presented. Commonwealth v. Concordia, 97 A.3d 366, 371 (Pa.
Super. 2014). Thus, if the petition is not filed timely, the court is not competent to
consider it.
In the instant case, Petitioner was sentenced on April 12, 2004, but filed a timely
motion for modification of sentence. That motion was denied on July 20, 2004. At the
latest. Petitioner had until August 19, 2004 to file an appeal to Superior Court. Pa. R.
Crim. P. 720(A)(2)(b) No direct appeal was filed. Accordingly, Petitioner had until
August 19, 2005 to file his current Petition but did not do so until August 26, 2014. more
than nine years later. For that reason, the petition could be dismissed unless Petitioner
is able to satisfy exceptions to the one-year time bar.
There are statutory exceptions to this one-year filing requirement if the petitioner
pleads and proves that 1} the failure to file timely was the result of interference by
governmental officials with the presentation of the claim; 2) the f-acts upon which the
claim is based were unknown to the petitioner and could not have been ascertained by
the exercise of due diligence, or 3) the right asserted is a constitutional right recognized
by the Supreme Court of the United States or Pennsylvania after the time for filing and
that court ruled it can be applied retroactively. §9545(b)(i-iii). If the petitioner raises one
of these exceptions, the petition must be filed within 60 days of the date the claim could
have been presented. §9545(b)(2)
These timeliness requirements apply to all PCRA petitions, regardless of the
nature of the individual claims raised therein. Commonwealth v. Jones, supra., 54
A.3d at 17, including whether the sentence is illegal. Commonwealth v. Taylor, 65
16
As opposed to the power of the court which refers to the ability of a court to effect a certain
result
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A.3d 462, 468 (Pa. Super. 2013); Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.
Super. 2007)
Furthermore, a second or subsequent PCRA will not be entertained unless the
petitioner presents a strong prima facie showing that a miscarriage of justice may have
occurred. Commonwealth v. Stokes, suprs., 959 A.2d at 309; Commonwealth v.
Hawkins, 953 A.2d 1248, 1251 (Pa Super. 2006).
Here, Petitioner's fundamental barrier to a consideration of the merits of his
petition lies with the fact that all issues raised are time-barred, waived or previously
litigated. As noted above. if Petitioner cannot get past the jurisdictional time-bar, this
Court has no jurisdiction or authority to consider his claims, is not permitted to conduct a
hearing on the merits, and cannot grant him any relief. Nevertheless, he attempts to
circumvent this impediment by alleging that government officials interfered with his
presentation of the claim, §9545(b)(1 )(i). and by arguing that he can challenge the
legality of his sentence at any time pursuant to 42 Pa. C.S.A. §9781 (a).
Below the undersigned will discuss why each issue is time-barred, waived or
previously litigated and will. for the sake of argument (and in an effort to bring closure to
Petitioner's repetitious pleadings), also offer some explanation why the issue might lack
merit.
The Court can quickly dispatch Petitioner's argument that 42 Pa. C.S.A. §9781
entitles him to challenge the legality of his sentence at any time. In pertinent part. that
section reads
(a) Right to Appeal - The defendant or the Commonwealth may appeal
as of right the legality of a sentence.
This provision, however, only applies to direct appeals from sentencing. At the time of
Petitioner's sentencing in 2004, the Court was required to advise a defendant of his right
to file a direct appeal from the sentence within 30 days after the sentence or disposition
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following any post-sentencing motions. Pa. R. Cnm. P. 704(C)(3)(a); 720. Part of the
plea colloquy documents submitted by Petitioner included a Statement of Post-
Sentencing Rights which set forth this information. Petitioner indicated his review and
understanding of the information by placing his initials next to the paragraph discussing
the Rule. In addition, these requirements were discussed at sentencing on April 12,
2004. Petitioner did not file a direct appeal.
Instantly, Petitioner is not "appealing" his sentence. Instead, he is attempting to
initiate post-conviction collateral relief from his sentence. There is a fundamental
difference between filing an appeal and seeking collateral relief even though the end
result could be similar. As will be discussed later in this Opinion, there is a general rule
that a challenge to the legality of a sentence may be raised at any time. However, it
must be raised in the proper proceeding and before a court having jurisdiction to correct
the sentence. Our appellate courts have held that any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition. Commonwealth v.
Jackson, 30 A.3d 516, 522 (Pa. Super. 2011). The plain language of the PCRA
provides for an action by which a person serving an illegal sentence may obtain
collateral relief and it is intended as the sole means of obtaining such relief. Id.However, one is not permitted to challenge the legality of his sentence in a PCRA
proceeding if his petition is not timely filed. Id. Commonwealth v. Taylor, supra. Thus,
§9781 does not provide a basis to proceed with the instant PCRA petition.
Petitioner also claims that he is not time-barred from proceeding on the merits of
his petition because he has alleged an exception to the one-year requirement under
§954S(b)(1)(i) which applies when the failure to raise the claim within one year after
judgment became final resulted from interference by governmental officials with the
presentation of the claims. In that regard, Petitioner alleges the following governmental
obstructions:
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1. The Court failed to question the Commonwealth's re-starts/re-filing of the
criminal informations;
2 That there was an improper delay from the filing of the motion for remand of
the preliminary hearing on April 30, 2002 until that hearing was held on
November 12, 2002;
3. The Court permitted the re-filing of a criminal information on December 30,
2002 without regard to whether the charges were properly withdrawn;
4. The Court permitted Petitioner to remain incarcerated from his second
preliminary hearing on November 19, 2002 until November 12, 2003 while
awaiting results of a second DNA test;
5. The Court previously denied Petitioner a PCRA hearing to develop a record
regarding discussions about re-filing of criminal informations. waivers of
preliminary hearings and the DNA testing;
6. Petitioner was denied transcripts of the preliminary hearings;
7. The Court fails to acknowledge a proceeding taking place on November 19 or
20, 2002;
8. The Court limited Petitioner's access to transcripts;
9. Judge Guido "converted" Petitioner's 2013 habeas corpus action to a PCRA
proceeding;
10. The Petitioner and his counsel were misled that the DNA evidence was not
part of the record
17
Without commenting on the merits of any of these alleged obstructions they
clearly do not allow Petitioner to avoid the jurisdictional time bar. The governmental
17
However, 1t is obvious that none of these claims constitute interference by a government official
that prevented Petitoner from raising those claims in a PCRA proceeding prior to August 19,
2005. To the extent he did raise claims previously, which were either not appealed or rejected on
appeal. a court decision denying him a hearing because of untimeliness is not government
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interference exception allowed in §9545(b)(1)(i) must be raised in a petition filed within
60 days after information supporting the claim became known to the petitioner.
§9545(b)(2). Here, the current Petition was filed on August 26, 2014. The background
Petitioner is using to support all of his claims was known to him long before that 60-day
period could have commenced on June 28, 2014. Therefore, he is precluded from
raising this exception to the jurisdictional time bar.
Petitioner alleges that there were improper "re-starts" of his legal proceedings
and the "re-filing" of criminal informations. Specifically, he claims that there was 1) a
2001 criminal information. 2) a criminal information dated March 27, 2002, 3) a criminal
information dated April 30, 2002. and 4) a criminal information filed in open court on
December 30, 2002. He contends that these documents demonstrate a withdrawing and
re-filing of charges in violation of the Rules of Criminal Procedure which, in turn,
deprived the Court of jurisdiction to sentence him.
Petitioner directs the Court to documents attached to his 2012 PCRA where he
raised this issue and his 2013 habeas corpus action to support his claim. To the extent
Petitioner raises an issue cognizable under the PCRA, his reference to documents in his
possession before filing his 2013 action, demonstrates that the issue was known to him
more than 60 days before he filed the instant Petition. 'Accordingly, this issue is
untimely. Furthermore, because this issue was raised previously and not overturned on
appeal, it has been previously litigated and is not eligible for consideration at this time.
Even if the issue was not time-barred, the record clearly shows that there was no
re-filing of criminal charges and the claim is meritless. Petitioner points to a computer-
generated docket sheet produced on some unknown date which seems to refer to a
disposition on Rape, Aggravated Indecent Assault and Indecent Assault charges in the
interference as contemplated by §9545. Even 1f rt did constitute interference, it does not explain
why the current petition was not filed within 60 days after learning of the information supporting
the claim
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above matter on "10/1/01". The entry is an obvious error not supported by the record
documents and likely related to a migration error occurring during the transition to the
CPCMS docketing system in Adams County. The entry appears to suggest that on that
date, Petitioner entered a guilty plea to Rape and the other charges were withdrawn.
Obviously, Petitioner knows he did not enter a guilty plea on that date. Furthermore, the
State Police were not summoned to investigate this case until February 24, 2002.
Therefore. nothing could have occurred procedurally four months earlier. Petitioner's
allegations are an attempt to create an issue where none exists.
A review of the file supports the background outlined in the beginning of this
Opinion. Documents show the following:
03/27/2002 - Criminal Complaint filed with the MDJ charging Rape,
Aggravated Indecent Assault and Indecent Assault and case given MDJ
docket number CR-103-02 and OTN H-472454-3:
04/29/2002 - Petitioner waived his preliminary hearing and was given
notice that his formal arraignment would be held on May 30, 2002;
04/30/2002 - MDJ docket transcript for MDJ Case No. CR-103-02; OTN
H-472454-3; printed that date at 11 :44 A.M. is filed with the Clerk of
Courts and the case receives a Common Pleas docket number of CR-
509-02. The MDJ docket does not show any charges being added or
withdrawn;
04/30/2002 - Attorney Robinson files Petition For Remand;
08/01 /2002 - Petition For Remand granted by the Court;
08/22/2002 - Clerk of Courts returned the file to the MDJ;
11 /12/2002 - Petitioner waives his preliminary hearing in MDJ Docket No.
CR-103-02; OTN H-472454-3. The MDJ docket does not show any
charges being added or withdrawn;
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11 /12/2002 - MDJ docket transcript for MDJ Case No. CR 103-02, OTN
H-472454-3. filed with Clerk of Courts in the Common Pleas docket
number of CR-509-02;
12/30/2002 - Petitioner formally arraigned and the Criminal Information,
filed in open court, charging him with Rape under §3121-6 (Counts 1-15);
Aggravated Indecent Assault under §3125(1) (Counts 16-30); Aggravated
Indecent Assault under §3125-7 (Counts 31-45); Indecent Assault under
§3126(a}(1) (Counts 46-60), and Indecent Assault under §3126(a)(7)
(Counts 61-75) was time stamped by the Clerk of Courts;
12/22/2003 - Petitioner signs his name on the aforementioned Criminal
Information indicating that he is pleading guilty to Counts 1, 2 and 3 and
the Clerk of Courts places its time stamp thereon.
The record documents show that the charges were originally filed on March 27,
2002 and up to the time of Petitioner's guilty plea were not withdrawn or amended.
Therefore, there was no improper violation of the procedural rules or any reason to
question the Court's jurisdiction to sentence Petitioner.
Petitioner's second claim rs that the "Commonwealth and Court exceeded
jurisdiction through misrepresented evidence." Petitioner seems to claim that throughout
this case the District Attorney "misrepresented" that the two DNA test results indicated
his guilt and that those tests were never made part of the record to prove otherwise.
This issue was known to Petitioner well before the time allowed for the filing of the
instant petition.
The Affidavit of Probable Cause filed with the Criminal Complaint on March 27,
2002 made Petitioner aware that testing was done by Cellmark which identified him as
father of the baby. Claiming that test was invalid, Petitioner filed a Motion on February
7, 2003 for a second test that was granted On November 20, 2003, Attorney Robinson
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11 /12/2002 - MDJ docket transcript for MDJ Case No. CR 103-02, OTN
H-472454-3, filed with Clerk of Courts in the Common Pleas docket
number of CR-509-02:
12/30/2002 - Petitioner formally arraigned and the Criminal Information,
filed in open court, charging him with Rape under §3121-6 (Counts 1-15);
Aggravated Indecent Assault under §3125(1) (Counts 16-30); Aggravated
Indecent Assault under §3125-7 (Counts 31-45); Indecent Assault under
§3126(a)(1) (Counts 46-60); and Indecent Assault under §3126(a)(7)
(Counts 61-75) was time stamped by the Clerk of Courts;
12/22/2003 - Petitioner signs his name on the aforementioned Criminal
Information indicating that he is pleading guilty to Counts 1, 2 and 3 and
the Clerk of Courts places its time stamp thereon.
The record documents show that the charges were originally filed on March 27,
2002 and up to the time of Petitioner's guilty plea were not withdrawn or amended.
Therefore, there was no improper violation of the procedural rules or any reason to
question the Court's jurisdiction to sentence Petitioner.
Petitioner's second claim is that the "Commonwealth and Court exceeded
jurisdiction through misrepresented evidence '' Petitioner seems to claim that throughout
this case the District Attorney "misrepresented" that the two DNA test results indicated
his guilt and that those tests were never made part of the record to prove otherwise.
This issue was known to Petitioner well before the time allowed for the filing of the
instant petition.
The Affidavit of Probable Cause filed with the Criminal Complaint on March 27,
2002 made Petitioner aware that testing was done by Cellmark which identified him as
father of the baby. Claiming that test was invalid, Petitioner filed a Motion on February
7. 2003 for a second test that was granted. On November 20, 2003, Attorney Robinson
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reported in court that the second test came back positive. At hearing on July 20, 2004.
the District Attorney referred to the two tests as supporting Petitioner's guilt. During a
video conference on April 17, 2007. held in response to Petitioner's first PCRA petition,
he identified as an issue the failure of his blood type to appear on the DNA report.
Petitioner admitted discussing this concern with Attorney Robinson on April 12, 2004,
the date of sentencing, and that he was aware of this issue when he filed his Motion to
Reconsider Finally, in his second PCRA petition filed July 30, 2012, Petitioner attached
a letter dated October 24, 2003. from the District Attorney to Attorney Robinson that
included a copy of the March 25, 2002 Cellmark report, a letter dated November 6, 2003
from the District Attorney to Attorney Robinson that included a copy of the October 14,
2003 BRT lab report, and a letter dated November 12, 2003, from Attorney Robinson to
him which enclosed a copy of that second report.
The fact that the DNA test results were not made part of the record prior to the
filing of the 2012 PCRA petition is of no import. There was no reason to submit those
test results as evidence because the case never went to trial. Petitioner's guilty plea
was based upon his admission to three separate acts of sexual intercourse with a
juvenile; not because a witness. expert or otherwise, testified as to the chain of
evidence, the DNA testing procedure, or the results of the DNA testing. Clearly, he was
aware of those tests prior to his plea, as evidenced by the November 12, 2003 letter
mentioned above.
Even if the issue was timely filed, it lacks merit. The copies of the reports
submitted by Petitioner in 2012 support the fact that the District Attorney did not
misrepresent the test results. The Cellmark report makes no mention of blood type but
does state ''The data are consistent with [Petitioner] being the biotogical father of Kevin
Sheeley " likewise. the BRT report makes no mention of blood type but does state "On
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the basis of all systems tested, ((Petiitioner]) cannot be excluded as the father of (Frozen
Tissue Sample)". That report listed the Paternity Probability as 99.99%.
Third, Petitioner claims that the Court exceeded its jurisdiction by implementing a
court-made policy of not accepting nolo contendere pleas in sexual offenses. He claims
that the court rejected his nolo contendere and, by doing so, interfered in the plea
bargaining process, violated Pa. R. Crim. P. 105 and violated his right against self-
incrimination. This issue has also been well known to Petitioner for years. The Court
discussed this "policy" on the record on July 20, 2004. Petitioner raised this issue in his
2007 PCRA. Superior Court affirmed this Court's ruling that the issue was untimely. He
again raised the same issue in his 2012 PCRA. The issue was again rejected as
untimely but Petitioner did not appeal that decision. Thus, not only is the claim untimely
but has been previously litigated.
Even if filed timely, the "policy" issue would not grant Petitioner relief. First, the
record clearly shows that Petitioner never appeared before the Court and tendered a
nolo contendere plea. However, if he had done so, it is likely that it would have been
rejected for the reasons set forth by the undersigned on July 20, 2004. That being said,
the use of the term "policy" was probably a misnomer because, in reality, it was not a
policy adopted by the s1st Judicial District nor a policy binding upon any other judge in
the county. Instead, it was a personal judicial philosophy arising from years of
experience with sex offenders.18
18
The Court certainly understands that a person facing multiple counts of Rape based upon
substantial evidence may want to enter into a plea agreement that limits his exposure to
punishment even if he is not willing to admit guilt. However, sex offenders are normally directed
to sex offender treatment where acknowledgment of the facts supporting the crime rs related to
successful therapeutic treatment. Those not willing to admit guilt in court often do not admit guilt
in treatment. When treatment fails. the rehabilitative goals of sentencing are jeopardized.
Accordingly, for purposes of community safety, at that time, I believed nolo contendere pleas
should be rejected in such cases In this case, Petitioner was not pressured into pleading guilty
or forfeiting his nght to trial. This court's concern was discussed, to some degree, by Judge
Klein's dissenting opinion in Commonwealth v. Snavely, 982 A.2d 1244 (Pa. Super. 2009)
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This philosophy did not violate Rule 105.19 Rule 590 expressly provides that
criminal pleas are to be taken in open court where "a defendant may plead not guilty,
guilty, or with the consent of the judge, nolo contendere." (emphasis added). Thus, the
court has discretion whether to accept or reject a plea of nolo contendere.
It is important to note that, in the context of a PCRA proceeding, there is nothing
regarding the nature of this issue that meets the eligibility criteria under §9543. There is
no constitutional violation at play nor claim of ineffective assistance of counsel that so
undermined the truth determining process that no reliable adjudication of guilt or
innocence could have taken place. A guilty plea unlawfully induced is not at issue.
There is no governmental obstruction of the accused's right to appeal a meritorious
issue. The issue does not involve the discovery of exculpatory evidence, an unlawful
sentence or court jurisdiction. Furthermore, Petitioner could have raised the issue on
appeal after sentencing but, by failing to do so. has waived any merit that might possibly
exist.
More importantly, Petitioner has shown no prejudice. A plea of nolo contendere
is a plea by which a defendant does not expressly admit his guilt but he nevertheless
waives his right to trial and exposes himself to sentencing as if he were guilty.
Commonwealth v. V.G., 9 A.3d 222, 226 (Pa. Super. 2010). Petitioner suggests that
he initially intended to plead nolo contendere. If he had done so, he would have been
exposed to the same plea agreement and ultimate sentence. He was given the option to
withdraw his plea of guilty and vehemently rejected that opportunity. He was sentenced
the same whether he had pleaded guilty or nolo contendere.
where he suggested the solution to sex offenders violating treatment by not admitting guilt is to
not offer them nolo contendere pleas. That is exactly what my philosophy encompassed.
19
That Rule provides that local rules cannot be inconsistent with general rules of the
Pennsylvania Supreme Court nor statute. Local rules include policy or custom adopted or
enforced by a court of common pleas to govern criminal practice and procedure which requires a
party or an attorney to do or refrain from doing something.
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Finally, Petitioner's claim that by rejecting a plea of nolo contendere the Court
violated his right against self-incrimination is totally meritless. That 5th Amendment right
basically guarantees that a person cannot be compelled to testify in a criminal
proceeding in a manner that will incriminate himself. The Court did not compel Petitioner
to plead guilty. That choice was made by Petitioner with the assistance of counsel and
after an extensive written and verbal colloquy. Petitioner was made aware that he was
presumed to be innocent. that he had a right to trial, with or without a jury, where the
prosecution would be required to present evidence that must convince the fact finder
beyond a reasonable doubt of his guilt, and that he was not required to present any
evidence or to testify. Petitioner was well aware of the accusations against him, that
K.S. would likely testify as to the sexual encounters, and that the Commonwealth would
present testimony as to the results of the DNA testing on the child born to K. S. Instead
of proceeding to trial, Petitioner gave up the aforementioned rights and admitted guilt.
During the plea colloquy he acknowledged that no one was pressuring him to plead
guilty. Additionally. despite this background, months later he was given the option to
withdraw his plea and declined to do so. It is clear beyond reproach that Petitioner
selected a course of action that he believed would be in his best interest at the time and
was not forced to admit guilt.
Fourth, Petitioner claims that the Court "exceeded its jurisdiction regarding a fact-
finding determination by the Pennsylvania Sexual Offenders Assessment Board" (SOAB)
in regard to whether he should be designated a sexually violent predator. He suggests
that the SOAB's determination that he did not meet the criteria for a sexually violent
predator "serves as an acquittal." Petitioner further argues that the Court violated
Apprendi v. New Jersey, 530 U.S. 466 (2000) by imposing a mandatory lifetime
registration requirement upon him. For several reasons, this claim must be dismissed.
The undersigned does not recall this issue being previously raised but it is, nevertheless,
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untimely because it was not filed by August 19, 2005. nor does any of the timeliness
exceptions apply In addition, the issue was not appealed after sentencing and was,
therefore, waived. Finally, the issue is not cognizable under the PCRA.
On October 24. 1995, the Pennsylvania Legislature amended the Sentencing
Code and enacted Title 42, Sections 9791 - 9799.6, subchapter H, entitled Registration
of Sexual Offenders, 42 Pa. C.S.A. §9791 - 9799.6, commonly known as Pennsylvania's
Megan's Law (Megan's Law 1).20 Megan's Law I established a procedure for
adjudicating persons convicted of certain offenses as sexually violent predators. The
sexually violent predator provisions of Megan's Law I were struck down by the
Pennsylvania Supreme Court in Commonwealth v. Williams (Williams/), 733 A.2d
593 (Pa. 1999)., cert. den. Pennsylvania v. Williams, 120 S. Ct. 792 (2000). In
response, Megan's Law I was amended on May 10, 2000, and became Megan's Law 11,
effective July 9, 2000.21 The amendment provided that after conviction of an
enumerated offense the defendant could be subject to a separate adjudicatory process
to determine whether he satisfies the criteria to be designated a sexually violent
predator. It was this version that was in effect at the time of Petitioner's plea and
sentence.
Megan's Law II required that after conviction for certain offenses, but before
sentencing, the court was required to order a person to be assessed by the SOAB. One
of those offenses was Rape, 18 Pa. C.S.A. §3121. Once the assessment was
completed, the SOAB would send its report to the district attorney.22 At the request of
the district attorney, the court would schedule a hearing to determine whether the person
20
Act No. 1995-24 (SSI).
21
Act No 2000-18.
22
The assessment report sets forth the opinion of the evaluator It does not become a finding
that the defendant rs a sexually violent predator unless. and until, it is found to be credible by a
court after a hearing at which the defendant is represented by counsel and entitled to his own
expert
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is a sexually violent predator §9795.4. At sentencing, the court was required to notify
the offender of his duty to register certain information with the police on a periodic basis.
§9795.3. The statute provided that a person convicted of Rape was required to register
for his lifetime regardless of whether he was determined to be a sexually violent
predator. §9795.1 (b}(2). Registration is not a sanction imposed upon a defendant by
the court but rather a statutory consequence that flows from the conviction. The court is
simply required to notify the defendant of those consequences.
In the instant case, Petitioner was advised of the requirements of Megan's Law at
the time of his plea. Sentencing was deferred to allow the SOAB to complete its
assessment. The District Attorney did not request a hearing to determine whether
Petitioner fit the criteria for a sexually violent predator because the assessment did not
support that finding.23 Accordingly, the case proceeded to sentencing where Petitioner
was again advised of the requirements of Megan's law. Contrary to Petitioner's
assertion, the Court made no findings regarding him being a sexually violent predator
although the sentencing order noted that he was advised that he was subject to the
provisions of Megan's Law. He was subject to Megan's Law because of his conviction
not because of his sentence.
PCRA petitions only allow a person to collaterally challenge a conviction or
sentence. Commonwealth v. Masker, 34 A.3d 841, 843 (Pa. Super. 2011). Our
Supreme Court has held that the provisions of Megan's Law are not punitive in nature
and are not part of one's sentence even though the ramifications of the law are
discussed at the time of sentencing. Instead, Megan's Law registration requirements are
collateral consequences of one's conviction Commonwealth v. Williams, 977 A.2d
23Such a finding does not, as Petitioner contends, constitute an acquittal. As noted above, the
report merely expresses the opinion of the evaluator.
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1174, 1176 (Pa. Super. 2009). Accordingly, the Megan's Law process discussed above
cannot be challenged in a PCRA proceeding.
Likewise, Apprendi rs not applicable in this proceeding. That case stands for the
proposition that any finding of fact that increases the maximum penalty to be imposed
upon a criminal conviction must be determined by a jury beyond a reasonable doubt.
Because Megan's Law requirements are not part of one's sentence and therefore do not
increase the maximum penalty, a jury is not involved in determining its applicability in a
particular case.
Fifth, Petitioner contends that the Court violated its jurisdiction in the imposition
of a mandatory sentence. Specifically, it appears that he argues the Court improperly
subjected him to mandatory sentencing under Pa. C.S.A. §9714 without evidence of a
prior criminal conviction. This claim does not warrant PCRA scrutiny because 1) it is an
issue that could have been raised on direct appeal and therefore is waived, 2) it was not
filed prior to August 19, 2005 and therefore is untimely, 3) no exception to the
jurisdictional time-bar has been averred, and 4) the claim does not meet any of the
eligibility criteria under the PCRA.
Even if the Court could consider this issue, Petitioner incorrectly asserts that he
was sentenced under §9714. That section addresses legislative concerns over
recidivism by violent criminals and dictates sentences for second and subsequent
convictions for crimes of violence. As such, it does require a prior criminal conviction
before a mandatory sentence can be imposed. However, in 2004, Petitioner was
sentenced under a different statutory provision.
Petitioner admitted to three separate rapes upon the same 12-year-old victim. At
that time, 42 Pa. C.S.A. §971824 provided that if a person was convicted of raping a
2"
In 1995, §9718 was amended to provide that "A person convicted of the following offenses
when the vrchrn rs under 16 years of age shall be sentenced to a mandatory term of imprisonment
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victim under the age of 16 years a mandatory minimum period of incarceration of not
less than 5 years was to be imposed. Rape, as a felony of the first degree, exposed
Petitioner to a maximum term of imprisonment of 20 years. The plea agreement called
for Petitioner to be sentenced to a period of incarceration on each count of 5-1 O years
with the possibility of each count being served consecutively. Petitioner reserved the
right to argue for any of the counts to be served concurrently. Thus. he was facing an
aggregate sentence that could range from a minimum of 5-10 years up to a maximum of
15-30 years of incarceration. The Court determined for each count to be served
consecutively.
Petitioner is not entitled to relief under the PCRA on this issue because the
sentence imposed on each count did not exceed the lawful maximum. Furthermore,
because each rape was considered a separate criminal event, the Court had the legal
authority to impose consecutive sentences on each count. The mandatory nature of the
sentence and the imposition of the consecutive sentences were not dependent upon
whether Petitioner had a prior criminal history.
Sixth, Petitioner claims that the restitution imposed upon him was illegal.
Specifically, he argues 1) that the restitution ordered was not for the benefit of the victim,
and. 2} that he was denied due process of law regarding his ability to pay restitution.
When Petitioner entered his plea on December 22, 2003, he was advised that
the Commonwealth was seeking $70,473.62 in restitution. In fact, his written plea
colloquy form recognized that request as follows:
The Defendant agrees to pay restitution on all charges to which pleas of
guilty . . are entered ... as follows·
as follows· 18 Pa. C.S. §3121(1), (2). (3), (4). (5) and (6) (relating to rape)-not less than five
years" Act 10 Section 17 (Special Session). As notedearlier in this Opinion, the Crimes Code
was amended by Act 226 of 2002, effective February 14, 2003 to redefinethe crime of Rape of a
victim less than 13 years of age under §3121(c} Finally, Act 178 of 2006 amended §9718 to its
current requirement of a 10-year mandatory minimumterm of imprisonment for Rape under
§3121(c)
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($70,473.62) 694.00 to Wetzel Funeral Home; $2,200 to Victims Comp;
67,473.62 to Blue Cross
After the plea was completed, the Court entered an Order which included, inter alta,
Restitution has been presented to the Court in the amount of $70,473.62.
The Defendant is reserving the right to request a restitution hearing at or
about the time of sentencing after he has had sufficient time to review
documentation presented by the Commonwealth in support of those
restitution figures.
The presentence investigation report noted that $75.00 was also being requested
for the Gettysburg Fire Department and $31. 00 was being requested for Gettysburg
Diagnostic Imaging. At the time of sentencing, Petitioner did not request a hearing on
restitution but instead, through counsel, indicated "we'll stipulate and we have no
objection" to the amount requested.
At the time of sentencing in this matter, the Crimes Code mandated that
restitution be imposed where "the victim suffered personal injury directly resulting from
the crime." 18 Pa. C.S.A. §1106(a).25 Here, Petitioner contends that this section26
requires payment to be made to reimburse the victim for her loss and that payment
should only be made to the Victim Compensation Fund or an insurance carrier if the
compensation from the fund or the carrier was paid directly to compensate the victim.
He suggests that payment was not made by those entities to reimburse K. S. directly but
rather is being directed to reimburse third parties.
Any claim that implicates the fundamental authority of the court to impose a
particular sentence constitutes a challenge to the legality of the sentence. If no statutory
authority exists for the particular sentence, if the sentence rs outside the legal
25
The version of Section 1106 in effect at that time was first enacted in 1976, and amended in
1978 (PL. 202. No. 53, §7(5), effective June 27. 1978), 1995 (P.L. 999, No. 12 (Spec. Sess. No.
1), §1, effective in 60 days). and 1998 (Act 121 of 1998, §1, effective December 3, 1998).
2
Petitioner also correctly mentions that 42 Pa. C.S.A. §9721, Sentencing Generally, also directs
that the court at sentencing "shall order the defendant to compensate the victim of his criminal
conduct for the damage or injury that he sustained." §9721(c)
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parameters prescribed by the applicable statute, Commonwealth v. Infante, 63 A.3d
358, 363 (Pa. Super. 2013), or if a restitution order is unsupported by the record,
Commonwealth v. Stradley, 50 A.3d 769, 771-2 (Pa. Super. 2012), the sentence is
illegal. It is well settled that the PCRA is intended to be the sole means of achieving
post-conviction relief The PCRA is intended to provide relief to persons serving illegal
sentences. §9542. Thus, one claiming that his sentence is illegal can only achieve
post-conviction collateral relief under the PCRA. However, in order for the PCRA court
to have jurisdiction to correct an illegal sentence, the petition must comply with the time
requirements of §9545. Commonwealth v. Jackson, supre., 30 A.3d at 521-2. Here,
the petition was patently untimely, therefore, this Court does not have jurisdiction to
consider Petitioner's claim. See Commonwealth v. Taylor, supra.
Petitioner also argues that the right to pursue relief from an illegal sentence
cannot be waived and cites Commonwealth v. Jones, 932 A.2d 179 (Pa. Super. 2007).
Petitioner is correct that Jones stands for the proposition that the PCRA waiver
definition in §9544(b) does not preclude one from challenging an illegal sentence even if
that issue was not properly preserved on direct appeal. However, that case also made
clear that the challenge had to be filed timely or the court could not grant relief. That
court expressly stated,
When a petitioner files an untimely PCRA petition raising a legality-of-
sentence claim, the claim is not waived, but the jurisdictional limits of the
PCRA itself render the claim incapable of review. (emphasis added).
Id. at 182 Thus. even though challenges to the legality of a sentence are not technically
warvable, such claims may be lost unless they are presented to a court having
jurisdiction to address the challenge. Commonwealth v. Miller, supra., 102 A.3d at
995 In the context of a PCRA proceeding, the court does not have jurisdiction to
address an alleged illegal sentence if the PCRA petition was not filed timely. Id.
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Petitioner's claim that he was denied due process to challenge the
appropriateness of the restitution or his ability to pay restitution cannot be addressed for
the reasons outlines above. Even if that claim could be addressed, it lacks merit. The
concept of due process encompasses the right to a hearing where the Commonwealth
has the burden of establishing the appropriateness of the restitution requested.
Commonwealth v. Atansio, 997 A.2d 1181, 1183-4 (Pa. Super. 2010). (It is the
Commonwealth's burden of proving its entitlement to restitution and it is necessary that
the amount be determined under an adversarial system with consideration of due
process.) Here. Petitioner had the right to a hearing but waived that right when his
counsel, in his presence, indicated that he had no objection to the restitution and
stipulated to the amount. Furthermore. restitution under §1106 is mandatory and is not
dependent upon the defendant's ability to pay.27 The defendant's ability to pay only
becomes relevant if he fails to make payment and appears for a contempt proceeding.
Petitioner also tailors his due process argument around a challenge to Act 84 of
1998. Specifically. he relies upon the recent decision in Montanez v. Secretary
Pennsylvania Department of Corrections, 2014 WL 5155040, _ F.3d _ (3rd Cir.
August 15, 2014).28
By way of background, Act 84 amended provisions of the Sentencing Code to
allow the Pennsylvania Department of Corrections (DOC) to make monetary deductions
from an inmate's account for the purpose of collecting restitution and court costs. 42 Pa.
C.S.A. §9728(b)(5). The Act directed the DOC to develop guidelines related to that
collection process. The DOC did develop a policy that allowed deduction of 20% from
the inmate's account for purposes of such payment.
27
§1106(c)(1 )(i) requires the court to order full restitution "[rJegardless of the current financial
resources of the defendant. so as to provide the victim with the fullest compensatfon for the loss .
"
28 That court issued an Opinion on August 14, 2014, but the following day issued an Amended
Opinion
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Over the years, there have been a number of challenges to Act 84. For example,
in Commonwealth v. Danysh, 833 A.2d 151 (Pa. Super. 2003) a state inmate filed a
motion with the sentencing court to stop the deductions being made from his account
pursuant to Act 84. Superior Court held that the request was an attempt to stop the
DOC from taking money out of his inmate account and, therefore, was an action against
the Commonwealth. As such, the court ruled that jurisdiction is vested with the
Commonwealth Court and not the court of common pleas. In Buck v. Bear, 879 A.2d
157 (Pa. 2005) an inmate asserted that the DOC's action of deducting funds from his
account pursuant to Act 84 violated his due process rights. He argued that the trial court
should hold a hearing to determine his ability to afford the deductions. Our Supreme
Court, while acknowledging that a prisoner has a property interest in his inmate account,
nevertheless rejected Buck's claim. Instead, the Court held that the sentencing hearing
process provided the defendant with adequate pre-deprivation due process. The same
result was reached in Richardson v. Pennsylvania Department of Corrections, 991
A.2d 394 (Pa. Comwlth Ct. 2010).
Several months ago, the Third Circuit issued its opinion involving a pre-
deprivation due process claim regarding Act 84 deductions in Montanez. There, an
inmate29 brought a §1983 actlorr'" challenging the DOC's automatic deduction of funds
from his inmate account to cover restitution and court costs. The court noted that the
inmate was not suggesting that any additional process be given by the Pennsylvania
courts. Rather, his challenge was limited to whether the inmate must be provided with
notice under the DOC Policy regarding the deductions and an opportunity to be heard
regarding application of the Policy prior to the first deduction. The court agreed with the
inmate. It stated that it agreed with Buck v. Beard that Pennsylvania did not need to
29
The action involvedinmatesMontanezand Hale. Montanez'claim was dismissed based upon
the statuteof ltmitations
30
42 U.S.C. §1983.
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provide any additional judicial hearing for an inmate to determine his ability to pay before
making deductions from his account. However, it did conclude that
At a minimum, federal due process requires inmates to be
informed of the terms of the DOC Policy and the amount of their total
monetary liability to the Commonwealth ... In particular, the DOC must
disclose to each inmate before the first deduction: the total amount the
DOC understands the inmate to owe pursuant to the inmate's sentence;
the rate at which funds will be deducted from the inmate's account; and
which funds are subject to deduction. Further, inmates must have a
meaningful opportunity to object to the application of the DOC Policy to
their inmate accounts before the first deductions commence ...
To be clear, we do not suggest that the DOC must provide each
inmate with a formal, judicial-like hearing before the onset of deductions.
Moreover, we find nothing substantively unreasonable about the DOC's
refusal to provide exceptions to its across-the-board 20% rate of
deduction, in light of the fact that the DOC will not make deductions when
an inmate's account falls below a certain minimum. Because we find the
deduction rate to be reasonable, the DOC need not entertain a challenge
to the rate of deduction. though it must provide an opportunity for inmates
to object to potential errors in the deduction process.
We also do not mean to suggest that inmates must have an
opportunity to be heard prior to each deduction. Rather, after providing
the required initial notice the DOC could provide inmates with an informal
opportunity to supply written objections to prison administrators prior to
the first deduction ...
(citations omitted).
As this Court understands Petitioner's current claim, he believes Montanez
means he is entitled to a hearing before this Court to determine his ability to afford the
deductions from his account. As is obvious from the above discussion, Montanez does
not provide him with a due process argument outside the walls of the DOC. If he has a
concern regarding deductions from his account, he should direct his attention to those
officials. Furthermore, a claim challenging whether deductions can be made from one's
account does not challenge the legality of a sentence and, therefore, is not cognizable
under the PCRA Even if this issue somehow implicates the legality of Petitioner's
sentence. the claim is set forth in a petition that is patently untimely. In either
circumstance, this Court has no jurisdiction to address this claim.
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Based upon past history, the undersigned suspects that Petitioner will not agree
with the reasoning nor the decision made herein. He is invited to share his arguments
with an appellate court 1f he is convinced that this jurist's conclusions are erroneous.
Accordingly, the attached Order is entered
~--
JOHN,.KUHN
Jucfge
Dated: January Y . 2015
COPIES
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Shawn Wagner Esq. - .,.1;"l1~- - 4 c-, . .,\_
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Court Administration -- r&_ ~\ lV',crQ``\
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48