Com. v. Shipley, S. ( 2018 )

J-S08026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHANE NICHOLAS SHIPLEY,
Appellant No. 1065 WDA 2017
Appeal from the PCRA Order entered July 3, 2017,
in the Court of Common Pleas of Fayette County,
Criminal Division, at No(s): CP-26-CR-0001648-2015,
CP-26-CR-0001998-2011, CP-26-CR-0002199-2011,
CP-26-CR-0002260-2011, & CP-26-CR-0002355-2011
BEFORE: LAZARUS, J., KUNSELMAN, J. and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J. FILED MARCH 9, 2018
Appellant, Shane Nicholas Shipley, appeals pro se from the order
denying his first timely petition for relief pursuant to the Post Conviction
Relief Act. 42 Pa.C.S.A. §§ 9541-46. We affirm.
Appellant’s most recent criminal charges arose after he, along with two
others, conspired to rob a local pool hall. Appellant entered the pool hall
wearing a child’s Spiderman mask and pointed what the victim believed to
be a handgun at her. Appellant took two cash drawers and fled the scene
with his two cohorts. Subsequent police investigation led to Appellant’s
arrest. The Commonwealth charged Appellant at CP-26-CR-0001648-2015
with robbery and related charges.
*Former Justice specially assigned to the Superior Court.
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On May 2, 2016, Appellant entered into a negotiated plea to robbery
graded as a third-degree felony. On May 19, 2016, the trial court sentenced
Appellant in accordance with the plea agreement. Appellant’s sentence
included, in pertinent part, the following:
THE COURT: At Number 164[8] of 2015 . . . [Appellant
shall undergo] imprisonment at a state correctional
institution for a period of not less than two and one-half
years nor more than five years. . . . This sentence is to
run concurrent with 1988, 2199, 2260 and 2355 all of
2011.
N.T., 5/19/16, at 4-5. The written order that appears in the certified record
contains the same sentencing terms.
Appellant did not file a direct appeal. On February 27, 2017, Appellant
filed a timely PCRA petition. Within this petition, he claimed that his
sentence was illegal. According to Appellant, he was had been informed by
the Pennsylvania Department of Corrections that his entire back time for his
parole violations at the 2011 dockets had to be served before he began
serving his 2 ½ to 5 year sentence, even though his written sentencing
order stated that his 2016 sentence was to run concurrent to them.
Appellant also asserted that his counsel had abandoned him.
On March 2, 2017, the PCRA court appointed counsel. On April 18,
2017, PCRA counsel filed a motion to withdraw and a “no-merit” letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). In
this filing, PCRA counsel averred that the record refuted Appellant’s
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ineffective assistance claim, and that Appellant’s sentence was legal,
because it did not exceed the applicable statutory maximum.
On June 1, 2017, the PCRA Court issued Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s petition without a hearing. 1 Appellant did not
file a response.2 By order entered July 3, 2017, the PCRA court denied
Appellant’s latest PCRA petition. This timely appeal followed. By order
entered July 24, 2017, the PCRA court ordered Appellant to file within 21
days a concise statement of errors complained of on appeal. In this order,
the trial court warned Appellant “any issue not properly included in the
statement, timely filed and served pursuant to [Pa.R.A.P. 1925](b), shall be
deemed waived.”
Before reaching Appellant’s claims raised on appeal, we must first
determine whether they are properly before us. On August 28, 2017, the
PCRA court filed a statement in lieu of opinion pursuant to Pa.R.A.P. 1925(a)
in which it stated that Appellant failed to comply with its previous order
ordering him to file a Pa.R.A.P. 1925(b) statement. Given this failure, the
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1By order entered August 30, 2017, the PCRA court granted PCRA counsel’s
motion to withdraw.
2 In his brief, Appellant asserts that, on June 11, 2017, he had sent a
request to extend the time in which to respond, and sent his objections to
the court’s Rule 907 notice approximately one week later, and that PCRA
counsel misunderstood his sentencing claim. These documents do not
appear in the certified record.
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PCRA court opined that any issue raised by Appellant is waived. We agree.
See generally, Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Allshouse,
969 A.2d 1236 (Pa. Super. 2009). We therefore affirm the PCRA court’s
order denying Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2018
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