Com. v. Kasper, P., Jr. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PAUL JOHN KASPER, JR., :
:
Appellant : No. 2042 MDA 2016
Appeal from the PCRA Order entered November 30, 2016
in the Court of Common Pleas of Adams County,
Criminal Division, No(s): CP-01-CR-0000462-2010;
CP-01-CR-0000969-2010
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 16, 2017
Paul John Kasper, Jr. (“Kasper”), appeals from the Order denying his
first Amended Petition filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 Additionally, Kasper’s court-appointed PCRA counsel, Thomas R.
Nell, Esquire (“Attorney Nell”), has filed a Petition to Withdraw from
representation. We grant Attorney Nell’s Petition, and affirm the PCRA
court’s Order.
In June 2011, a jury found Kasper guilty of various sexual offenses,
stemming from his repeated sexual assaults of a fourteen-year-old girl. On
September 29, 2011, the trial court sentenced Kasper to serve an aggregate
1
See 42 Pa.C.S.A. §§ 9541-9546.
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prison term of 15-30 years.2 In August 2012, this Court affirmed the
judgment of sentence. See Commonwealth v. Kasp[e]r, 53 A.3d 939 (Pa.
Super. 2012) (unpublished memorandum). Kasper did not seek allowance
of appeal with the Supreme Court of Pennsylvania.
Kasper filed a pro se PCRA Petition on October 19, 2015, challenging
the legality of his mandatory minimum sentence in light of the decision of
the United States Supreme Court in Alleyne v. United States, 133 S. Ct.
2151 (2013).3 Following a procedural history that is not relevant to this
appeal, Kasper filed the instant first Amended PCRA Petition, through
Attorney Nell, on July 22, 2016.4 On October 20, 2016, the PCRA court
conducted a pre-hearing conference concerning Kasper’s PCRA Petition. On
2
In imposing Kasper’s sentence, the trial court applied the mandatory
minimum sentencing provision at 42 Pa.C.S.A. § 9718 (“sentences for
offenses against infant persons”). Section 9718 provides, inter alia, that its
provisions “shall not be an element of the crime,” and that the applicability
“shall be determined at sentencing,” with factual matters being resolved by
the sentencing court “by a preponderance of the evidence.” Id. § 9718(c).
3
In Alleyne, the Supreme Court held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury” and
found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155. The
Supreme Court reasoned that a Sixth Amendment violation occurs where
these sentence-determinative facts are not submitted to a jury. Id. at
2156. Accordingly, Alleyne rendered unconstitutional various Pennsylvania
sentencing statutes, including 42 Pa.C.S.A. § 9718, that allow a judge to
increase a defendant’s sentence based on a preponderance of the evidence
standard. See Commonwealth v. Wolfe, 106 A.3d 800, 806 (Pa. Super.
2014) (ruling that Alleyne rendered section 9718 unconstitutional in its
entirety).
4
Though the Amended PCRA Petition is docketed on the PCRA court’s
docket, it is not contained within the certified record.
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October 31, 2016, the PCRA court issued a Pennsylvania Rule of Criminal
Procedure 907 Notice of Intent to Dismiss the Petition without an evidentiary
hearing (hereinafter, the “Notice to Dismiss”),5 which included a thorough
explanation of the court’s reasons for determining that Kasper was not
entitled to collateral relief. By an Order entered on November 30, 2016, the
PCRA court denied Kasper’s PCRA Petition.
Kasper, through Attorney Nell, timely filed a Notice of Appeal. In
response, the PCRA court ordered Kasper to file a Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal. Attorney Nell timely filed a
Concise Statement on Kasper’s behalf, presenting the following issue:
Did the PCRA court err[] in denying Kasper’s PCRA claim, when
Kasper filed a PCRA [P]etition after finding out that the Supreme
Court in Alleyne v. U.S., had stated that mandatory minimum
sentences may be unconstitutional, where Kasper had not
received notice [that] his [direct] appeal to the Superior Court
had been denied, and filed his PCRA [P]etition after finding out
that he may have redress due to being sentenced by a judge
pursuant to [a] mandatory [minimum] sentencing [statute]?
Rule 1925(b) Concise Statement, 1/5/17, at 1. Thereafter, the PCRA court
issued a Pa.R.A.P. 1925(a) Opinion, relying upon the reasoning advanced in
5
The PCRA court explained in the Notice to Dismiss that “[i]n his [A]mended
PCRA [P]etition, [Kasper] alleges that (1) ineffective assistance of counsel so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place[;] and [] (2) a constitutional
violation which would require the granting of federal habeas corpus relief to
a state prisoner occurred.” Notice to Dismiss, 10/31/16, at 2.
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the Notice to Dismiss. Attorney Nell then filed a Turner/Finley6 no-merit
letter, and a separate Petition to Withdraw as counsel. Kasper did not file a
pro se response or retain private counsel.
Prior to addressing Kasper’s claims on appeal, we must address
Attorney Nell’s Petition to Withdraw as counsel. Pursuant to Turner/Finley,
independent review of the record by competent counsel is required before
withdrawal on collateral appeal is permitted. See Commonwealth v. Pitts,
981 A.2d 875, 876 n.1 (Pa. 2009). In Pitts, our Supreme Court explained
that such independent review requires proof of
1. A “no-merit” letter by PCRA counsel detailing the nature and
extent of his review;
2. The “no-merit” letter by PCRA counsel listing each issue the
petitioner wished to have reviewed;
3. The PCRA counsel’s “explanation,” in the “no-merit” letter, of
why the petitioner’s issues were meritless;
4. The PCRA court conducting its own independent review of the
record; and
5. The PCRA court agreeing with counsel that the petition was
meritless.
Id. (citation and brackets omitted). Further, our Court has held that the
Supreme Court in Pitts did not expressly overrule the additional
requirement imposed by this Court in Commonwealth v. Friend, 896 A.2d
607, 615 (Pa. Super. 2006), stating that
6
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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PCRA counsel seeking to withdraw [must] contemporaneously
forward to the petitioner a copy of the application to withdraw
that includes (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the
trial court grants the application of counsel to withdraw, the
petitioner has the right to proceed pro se, or with the assistance
of privately retained counsel.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).
Here, in the Turner/Finley no-merit letter, Attorney Nell described
the extent of his review, identified the issue that Kasper sought to raise, and
briefly explained why the issue lacks merit. In addition, Attorney Nell
provided Kasper with notice of counsel’s intention to seek permission to
withdraw from representation, a copy of the no-merit letter and Petition to
Withdraw, and advised Kasper of his rights in lieu of representation. Thus,
we conclude that Attorney Nell has substantially complied with the
requirements necessary to withdraw as counsel. See Commonwealth v.
Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003) (holding that substantial
compliance with the requirements to withdraw as counsel will satisfy the
Turner/Finley criteria). We now independently review Kasper’s claims to
ascertain whether they entitle him to relief.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation
omitted). “The scope of review is limited to the findings of the PCRA court
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and the evidence of record, viewed in the light most favorable to the
prevailing party at the trial level.” Id. (citation omitted).
Under the PCRA, any PCRA petition, “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final
“at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” Id. § 9545(b)(3). The
PCRA’s timeliness requirements are jurisdictional in nature, and a court may
not address the merits of the issues raised if the PCRA petition was not
timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010).
Here, Kasper’s judgment of sentence became final on August 3, 2012.
Accordingly, his instant PCRA Petition is facially untimely. 7 However,
Pennsylvania courts may consider an untimely petition if the appellant can
explicitly plead and prove one of three exceptions set forth at 42 Pa.C.S.A.
§ 9545(b)(1)(i)–(iii). Any PCRA petition invoking one of these exceptions
“shall be filed within 60 days of the date the claim could have been
presented.” Id. § 9545(b); Albrecht, 994 A.2d at 1094.
7
Both Kasper’s October 19, 2015 pro se PCRA Petition, and the first
Amended PCRA Petition, are facially untimely.
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Attorney Nell states in the no-merit letter that Kasper wishes to
challenge the legality of his mandatory minimum sentence under Alleyne
and its progeny. See No-Merit letter at 1, 3.8
Here, presuming that Kasper had invoked Alleyne under the newly-
recognized constitutional right timeliness exception (at 42 Pa.C.S.A.
§ 9545(b)(1)(iii)), he is not entitled to relief. Initially, Kasper filed his
October 19, 2015 pro se PCRA Petition well over sixty days after June 17,
2013, the date that Alleyne was decided. See 42 Pa.C.S.A. § 9545(b)(2)
(providing that any PCRA petition invoking one of these exceptions “shall be
filed within 60 days of the date the claim could have been presented.”); see
also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007)
(stating that “[w]ith regard to [a newly]-recognized constitutional right, this
Court has held that the sixty-day period begins to run upon the date of the
underlying judicial decision.”).
Further, the rule established in Alleyne does not apply retroactively
where, as here, the judgment of sentence is final. See Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does
not apply retroactively to cases pending on collateral review.”); see also
Miller, 102 A.3d at 995 (stating that while Alleyne claims go to the legality
of the sentence, a court cannot review a legality claim where it does not
8
Attorney Nell does not set forth in the brief no-merit letter a distinct
argument section, or statement of questions involved section, related to the
issues for appeal that Kasper preserved in his Rule 1925(b) Concise
Statement.
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have jurisdiction). Accordingly, Alleyne is unavailing to Kasper, and the
PCRA court properly denied Kasper’s first Amended PCRA Petition, as the
court lacked jurisdiction to address it.9
Moreover, our independent review of the record has revealed no
meritorious claims that Kasper could have raised on appeal, and we agree
with Attorney Nell that this appeal lacks merit. Accordingly, we affirm the
PCRA court’s Order denying Kasper’s first Amended PCRA Petition and grant
Attorney Nell’s Petition to Withdraw.
Order affirmed. Petition to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2017
9
To the extent that Kasper alleged in his PCRA Petition a claim of trial
counsel’s ineffectiveness, it is well established that “a claim for ineffective
assistance of counsel does not save an otherwise untimely petition for
review on the merits.” Commonwealth v. Gamboa-Taylor, 753 A.2d 780,
785 (Pa. 2000) (citing Commonwealth v. Lark, 746 A.2d 585, 589-90 (Pa.
2000) (stating that couching an argument in terms of ineffectiveness cannot
save a petition that does not fall into an exception to the jurisdictional time
bar)); see also Notice to Dismiss, 10/31/16, at 4-8 (addressing and
rejecting Kasper’s challenge to trial counsel’s effectiveness).
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