Com. v. Mutschler, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
TONY LEE MUTSCHLER,
Appellant No. 529 MDA 2017
Appeal from the PCRA Order March 3, 2017
In the Court of Common Pleas of Northumberland County
Criminal Division at No(s): CP-49-CR-0000948-1998, CP-49-CR-0000949-
1998, CP-49-CR-0000950-1998
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 23, 2017
Appellant, Tony Lee Mutschler, appeals pro se from the order denying
his third petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the initial factual and
procedural history as follows:
Three criminal action docket numbers are at issue in this
appeal. All three concern crimes that occurred on March 8,
1998, in Allentown. At criminal action number 948-1998,
Appellant was charged with burglary, conspiracy, attempted
theft, and corruption of the morals of a minor after Grace
Lutheran Church in Allentown was forcibly entered and the office
was ransacked during a search for cash. At 949-1998, Appellant
was charged with burglary, conspiracy, attempted theft, and
corruption of the morals of a minor in connection with a break-in
at A-1 Mini Storage. That establishment’s door was pried open,
and the office was ransacked in an unsuccessful attempt to find
money. At criminal action 950-1998, Appellant was charged
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with burglary, conspiracy, trespass, theft, criminal mischief,
receiving stolen property, and corruption of the morals of a
minor. Funn-Tastic Pool and Spa in Allentown was forcibly
entered and $5,000 in cash was removed from a locked box.
Appellant’s fourteen-year-old-brother admitted to police that he
committed all three burglaries with Appellant. Appellant was
interviewed and also admitted to the crimes.
On May 28, 1999, Appellant entered a guilty plea at the
three action numbers, and he was sentenced on July 27, 1999,
to consecutive terms of five to ten years incarceration at 948-
1998 and 949-1998. He received a consecutive probationary
term of ten years at 950-1998. Appellant filed a timely PCRA
petition on August 15, 2000. Counsel was appointed, and
counsel filed an amended petition averring that the May 28,
1999 guilty plea was unknowing and involuntary for various
reasons, including that Appellant was not mentally competent to
enter it. After a hearing,1 the petition was denied on May 15,
2001. Appellant did not appeal.[1]
1 Although the hearing was not transcribed, the
docket sets forth that one was held.
Appellant filed a second, pro se PCRA petition on April 9,
2013. After the court issued notice of its intent to deny that
petition without a hearing, it was denied on January 29, 2014.
That order contains the following statement: “The Defendant is
hereby advised of his right to file an appeal within thirty (30)
days of the entry of this Order.” Order of Court, 1/29/14, at 1.
On March 18, 2014, Appellant filed with this Court a petition to
appeal nunc pro tunc, a petition to file original process, a petition
for writ of prohibition, and a petition for writ of mandamus
and/or extraordinary relief. On April 4, 2014, we denied all his
requests for relief. We also stated that denial of his petition to
appeal nunc pro tunc was without prejudice to Appellant’s right
to seek reinstatement of his appellate rights in the trial court.
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1 To the contrary, Appellant did appeal to this Court. Commonwealth v.
Mutschler, 823 A.2d 1027, 954 MDA 2001 (Pa. Super. Filed March 11,
2003) (unpublished memorandum). We affirmed the dismissal of Appellant’s
first PCRA petition on March 11, 2003.
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On May 5, 2014, Appellant filed a “Notice of Appeal and
Request for Transcripts” in the trial court. On May 15, 2014,
Appellant was directed to file a Pa.R.A.P. 1925(b) statement
within twenty-one days. Appellant’s statement of matters to be
raised on appeal was filed on June 6, 2014, but indicates that it
was signed and mailed from his prison on May 26, 2014, within
the twenty-one day time frame. The trial court concluded that
the statement was untimely, and all issues were waived for
purposes of this appeal. The Commonwealth asserts the same
position in its appellate brief. However, since the Pa.R.A.P.
1925(b) statement appears to have been mailed from jail within
twenty-one days from when it was ordered, we will consider the
statement timely under the prisoner mailbox rule. Pa.R.A.P.
121(a) (“A pro se filing submitted by a prisoner incarcerated in a
correctional facility is deemed filed as of the date it is delivered
to the prison authorities for purposes of mailing or placed in the
institutional mailbox, as evidenced by a properly executed
prisoner cash slip or other reasonably verifiable evidence of the
date that the prisoner deposited the pro se filing with the prison
authorities.”).
Commonwealth v. Mutschler, 120 A.3d 372, 780 MDA 2014 (Pa. Super.
2015) (unpublished memorandum at 1–4). This Court determined that the
appeal was timely filed and that the PCRA court properly held that the PCRA
petition was untimely. We concluded that no statutory exception to the
time-bar was applicable and affirmed the dismissal of the PCRA petition. Id.
at 7.
On March 10, 2015, Appellant initiated a habeas corpus action in
federal court challenging his conviction and sentence. On June 29, 2015,
the United States District Court of the Middle District dismissed the petition
for writ of habeas corpus as time-barred by the statute of limitations, 28
U.S.C. § 2244(d), and determined there was no basis for the issuance of a
certificate of appealability. 28 U.S.C. § 2253(c). Mutschler v. Tritt, 2015
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WL 3953183, at *6 (M.D.Pa. June 29, 2015) (certificate of appealability
denied November 30, 2015).
On January 19, 2017, Appellant filed a pro se Motion Challenging
Validity of Guilty Plea, followed by a Motion to Compel on Ruling to Respond
on February 21, 2017, which the common pleas court properly treated as
Appellant’s third, and current, PCRA petition.2 The PCRA court dismissed the
petition as untimely on March 3, 2017, and Appellant filed a timely notice of
appeal. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
1) PETITION HAS ONLY ONE IS THE GUILTY PLEA SINGED IN
1999 VALID?
Appellant’s Brief at 5 (verbatim).3
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2 See, e.g., Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.
Super. 2001) (motion challenging validity of guilty plea “must be treated as
a PCRA petition, since the PCRA is the exclusive vehicle for obtaining post-
conviction collateral relief . . . regardless of the manner in which the petition
is titled.”). Appellant’s claim that the PCRA is not applicable because he is
raising an issue of contract, Appellant’s Brief at 13, is rejected.
3 We are compelled to comment on the brief Appellant has filed in this
appeal. “Appellate briefs must conform materially to the requirements of
the Pennsylvania Rules of Appellate Procedure, and this Court may quash or
dismiss an appeal if the defect in the brief is substantial.” Commonwealth
v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017); Pa.R.A.P. 2101.
“Although this Court is willing to construe liberally materials filed by a pro se
litigant, a pro se appellant enjoys no special benefit.” Id. In addition to
failing to abide by our appellate procedural rules governing briefs, Pa.R.A.P.
2119, Appellant’s brief is rambling and often inexplicable. Nonetheless, in
the interest of justice, we address the arguments that can reasonably be
discerned from this defective brief. See Commonwealth v. Lyons, 833
(Footnote Continued Next Page)
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When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in
the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.
Super. 2014).
Initially, we must address whether this appeal is properly before us.
In order to be considered timely, a first, or any subsequent PCRA petition,
must be filed within one year of the date the petitioner’s judgment of
sentence becomes final. 42 Pa.C.S. § 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.” 42
Pa.C.S. § 9545(b)(3). Appellant’s judgment of sentence was imposed on
July 27, 1999, and because he did not file a direct appeal, his sentence
became final on August 26, 1999. He had until August 26, 2000, to file a
timely petition. Thus, his January 19, 2017 petition is patently untimely.
An untimely petition may be received when the petition alleges and
the petitioner proves that any of the three limited exceptions to the time for
(Footnote Continued) _______________________
A.2d 245 (Pa. Super. 2003) (holding that while pro se brief was defective,
this Court would address issues that could reasonably be discerned).
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filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is
met.4 In order to be entitled to the exceptions to the PCRA’s one-year filing
deadline, “the petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time frame” under
section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.
Super. 2001).
Because Appellant continues to maintain that his claim is not governed
by the PCRA, he fails to assert his petition was timely under one of the three
exceptions to the one-year time bar. He contends, instead, that his plea
counsel was ineffective for failing to fully explain the plea agreement and
that he was taking medication at the time of the guilty pleas that rendered
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4 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
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him incapable of entering a knowing and voluntary plea. Appellant’s Brief at
6–7.
Following our careful review, we conclude Appellant has failed to raise
any claim that his petition was timely under one of the three exceptions to
the one-year time bar. Hence, PCRA relief properly was denied.
Commonwealth v. Callahan, 101 A.3d 118, 123 (Pa. Super. 2014)
(holding where the appellant “failed to plead and prove the applicability of
any of the PCRA’s three statutory exceptions to the timeliness requirement,”
the PCRA court properly denied relief). Moreover, allegations of ineffective
assistance of counsel will not overcome the jurisdictional requirements of the
PCRA. Commonwelath v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007)
(quoting Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005)).5,6
____________________________________________
5 In addition, we note that Appellant’s claim that his guilty pleas were
unknowing and involuntary for “various reasons, including that Appellant
was not mentally competent,” Mutschler, 780 MDA 2014 (unpublished
memorandum at 2), was previously litigated in his first, timely PCRA
petition, which was dismissed, and we affirmed. Mutschler, 954 MDA 2001
(unpublished memorandum at 2). Thus, on this basis as well, Appellant’s
claims are not entitled to review. 42 Pa.C.S. § 9543(a)(3) (a petitioner is
eligible for relief only if “the allegation of error has not been previously
litigated or waived”); 42 Pa.C.S. § 9544(a)(3) (“an issue has been
previously litigated if . . . it has been raised and decided in a proceeding
collaterally attacking the conviction or sentence.”); Commonwealth v.
Robinson, 82 A.3d 998, 1005 (Pa. Super. 2013) (An issue is previously
litigated if “the highest appellate court in which [the] appellant could have
had review as a matter of right has ruled on the merits of the issue.”).
6 Appellant’s Application for Relief, “MOTION TO ARREST JUDGMENT FOR
ENTENTION FOR TIME AND OR ANY OTHER JUDGMENT DO TO THE
(Footnote Continued Next Page)
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Motion to arrest judgment denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2017
(Footnote Continued) _______________________
FOLLOWING REASONS PETITION COULD NOT RESPOND IN TIME TO ANY
COURT ORDER,” filed on September 25, 2017, in which he asserts that he
had a mental breakdown and therefore could not respond “TO ANY ORDER
BY THIS COURT,” is denied. Appellant has failed to provide any time frame
to his allegation or to reference any specific order.
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