Scullen, M. v. Tritt, B. ( 2016 )

J-S08035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL SCULLEN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
BRENDA TRITT : No. 1112 WDA 2015
Appeal from the PCRA Order June 23, 2015
in the Court of Common Pleas of Erie County,
Criminal Division, No(s): 821 and 824-2011
BEFORE: STABILE, DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 29, 2016
Michael Scullen (“Scullen”), pro se, appeals from the Order denying his
Application for habeas corpus, relief filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On February 16, 2011, Scullen entered the Bradley Shur-Fine grocery
store in Erie, Pennsylvania carrying a sawed-off shotgun. N.T. (Guilty Plea),
9/1/11, at 9. Upon entering, Scullen pointed the shotgun at the head of a
female clerk and stated, “Empty the register.” Id. at 9-10. The clerk took
money from the register and gave it to Scullen. Id. at 10.
On February 22, 2011, Scullen and three friends entered the Tops
Friendly Market in Erie. Id. at 12. Scullen loaded the shotgun and, pointing
it at a store-clerk’s head, demanded that the clerk open the register. Id.
Scullen gave the clerk a black bag in which to put the money. Id. At one
J-S08035-16
point, Scullen told the clerk, “Hurry the fuck up, bitch. You think I am
playing?” Id. at 13.
Subsequently, police arrested Scullen and his accomplices. On
September 11, 2011, Scullen entered an open guilty plea related to the two
incidents. Specifically, Scullen pled guilty to two counts each of robbery,
terroristic threats, possessing an instrument of crime, and prohibited
offensive weapon, and one count each of criminal conspiracy (robbery) and
receiving stolen property.1 On October 19, 2011, the trial court sentenced
Scullen to an aggregate prison term of 27-54 years. Scullen timely filed a
post-sentence Motion, which the trial court denied. This Court affirmed
Scullen’s judgment of sentence. Commonwealth v. Scullen, 60 A.3d 853
(Pa. Super. 2012) (unpublished memorandum). Scullen did not petition for
allowance of appeal to the Pennsylvania Supreme Court.
On August 12, 2013, Scullen filed his first Petition for relief pursuant to
the PCRA. The PCRA court appointed counsel to represent Scullen. After
appropriate Notice, the PCRA court, on October 25, 2013, denied Scullen’s
Petition, and granted counsel leave to withdraw from representation
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
This Court quashed Scullen’s subsequent appeal as untimely filed.
1
See 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2706, 907(b), 908(a), 903, 3925.
-2-
J-S08035-16
Commonwealth v. Scullen, No. 165 WDA 2014 (Pa. Super. filed May 12,
2014).
On May 18, 2015, Scullen filed the instant pro se Application for
habeas corpus relief. On June 1, 2015, the PCRA court issued Notice of its
intention to deny Scullen’s Application without hearing. In its Notice, the
PCRA court stated that it considered Scullen’s Application to be a request for
relief filed pursuant to the PCRA. Scullen filed a Motion to reverse the PCRA
court’s treatment of his Application as a request for relief under the PCRA,
which the PCRA court denied. On July 2, 2015, the PCRA court denied
Scullen’s Application as untimely filed, and not subject to any exception to
the PCRA’s timeliness requirements. Thereafter, Scullen filed a pro se Notice
of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement
of matters complained of on appeal.
Scullen presents the following claims for our review:
1. Did the [PCRA] court abuse its discretion when it re-
characterized [Scullen’s Application] for [a] writ of habeas
corpus ad subjiciendum as a PCRA[,] and dismissed the Petition
as untimely?
2. Was the judgment entered at Com[monwealth v.] Scullen
… void ab initio, as the court lacked subject matter jurisdiction to
impose any penalty whatsoever[,] because the statutes 18
Pa.C.S.A. §[§] 3701, 907, and 903 to not affix, warn, specify,
nor authorize a penalty to be imposed upon their violations?
3. Did the [trial] court lack subject matter jurisdiction to accept
[Scullen’s] plea of guilt, when [Scullen] pled guilty to elements
of an aggravated crime not specified in his [C]riminal
[I]nformation?
-3-
J-S08035-16
Brief for Appellant at 1.
An appellate court’s standard of review regarding an order denying a
PCRA petition is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009). The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
the certified record. Commonwealth v. Treadwell, 911 A.2d 987, 989
(Pa. Super. 2006).
Scullen first claims that the PCRA court improperly treated his
Application for habeas corpus relief as a Petition for relief filed pursuant to
the PCRA. Brief for Appellant at 6. Scullen argues that he has “a statutory
and state constitutional right” to seek habeas corpus relief because he is
time-barred from seeking PCRA relief, and there is no time bar to seeking
habeas corpus relief. Id. at 6, 7. Scullen further asserts that a claim
challenging the trial court’s jurisdiction is not waivable, and can be raised at
any time. Id. at 6.
In its Notice of Intent to Dismiss, the PCRA court correctly considered
Scullen’s Application as a claim for relief under the PCRA. See PCRA Court
Notice of Intent to Dismiss, 6/1/1; see also 42 Pa.C.S.A. § 9542 (providing
that the PCRA “shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exist when this subchapter takes effect, including habeas
-4-
J-S08035-16
corpus and coram nobis.”). Further, Scullen’s claim that habeas corpus
relief is available because a PCRA petition would be time-barred is without
merit.2
As our Supreme Court has explained, “the General Assembly intended
that claims that could be brought under the PCRA must be brought under
that Act. No other statutory or common law remedy ‘for the same purpose’
is intended to be available; instead, such remedies are explicitly
‘encompassed’ within the PCRA.” Commonwealth v. Hall, 771 A.2d 1232,
1235 (Pa. 2001) (emphasis in original). “[W]hile challenges to the legality
of a defendant’s sentence cannot be waived, they ordinarily must be raised
within a timely PCRA petition.” Commonwealth v. Concordia, 97 A.3d
366, 372 (Pa. Super. 2014). Thus, the PCRA court did not err in considering
Scullen’s claims within the context of the PCRA, and Scullen’s claim in this
regard lacks merit.
Scullen next claims that the trial court lacked subject matter
jurisdiction and, accordingly, his judgment of sentence is void. Brief for
Appellant at 8. In support, Scullen argues that Crimes Code Sections 3701,
907 and 903 do not specify the penalty to be imposed upon their violation,
“or direct to where the penalty may lay.” Brief for Appellant at 11.
2
A PCRA petition must be filed within one year of the date the petitioner’s
judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(3). The one-
year time limitation is jurisdictional, and a trial court has no power to
address the substantive merits of an untimely petition. Commonwealth v.
Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003).
-5-
J-S08035-16
According to Scullen, this omission constitutes a violation of his rights
pursuant to the 14th Amendment to the United States Constitution. Id. at
10.
Scullen’s claim is cognizable under the PCRA. See 42 Pa.C.S.A.
§ 9543(a)(2)(vii) (stating that to be eligible for relief under the PCRA, the
petition must plead and prove that his conviction resulted from, inter alia,
“[a] violation of the Constitution of this Commonwealth or the Constitution
or laws of the United States which, in the circumstances of the particular
case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place[,] or “[a]
proceeding in a tribunal without jurisdiction.”). Because this claim is
cognizable under the PCRA, it must be brought pursuant to the PCRA. See
Hall, 771 A.2d at 1235. As Scullen’s Application for relief is untimely and
not subject to any of the statutory exceptions to the timeliness requirement,
we are unable to grant him relief on this claim. See Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (explaining that, “if a PCRA
petition is untimely, neither an appellate court nor a trial court has
jurisdiction over the petition. Without jurisdiction, a court simply does not
have the legal authority to address the substantive claims.”).
Finally, Scullen claims that the trial court lacked subject matter
jurisdiction to accept his guilty plea “when [he] pled guilty to elements of an
aggravated crime not specified in his [C]riminal [I]nformation.” Brief for
-6-
J-S08035-16
Appellant at 15. Scullen asserts that 42 Pa.C.S.A. § 9712 has been deemed
unconstitutional,” and that imposition of a sentence pursuant to that section
was a part of his plea agreement. Brief for Appellant at 15 (citing Alleyne
v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013)).3 According to Scullen, because section 9712 “is an element of the
offense, it must be specified in the criminal information.” Brief for Appellant
at 15. Because it was not, Scullen argues, the trial court lacked jurisdiction
to accept his plea of guilt. Id. at 16.
Our review of the record discloses that Scullen did not raise this claim
in his court-ordered Pa.R.A.P. 1925(b) Concise Statement and, accordingly,
it is waived. See Commonwealth v. Johnson, 107 A.3d 52, 69 (Pa. 2014)
(deeming waived an issue not included in an appellant’s Pa.R.A.P. 1925(b)
concise statement); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998) (holding that issues not raised in Rule 1925(b) concise statement are
waived); see also Pa.R.A.P. 302(a) (stating that an issue cannot be raised
for the first time on appeal).
Even if Scullen had properly raised this claim in his Concise Statement,
as the law presently stands, we would conclude that he is not entitled to
relief. As set forth above, Scullen concedes that his PCRA Petition is facially
untimely. The PCRA provides an exception to the timeliness requirement
3
In Alleyne, the United States Supreme Court held that “facts that increase
mandatory minimum sentences must be submitted to the jury” and must be
found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2163.
-7-
J-S08035-16
where “the right asserted is a constitutional right that was recognized by the
Supreme Court of the United States … after the time period provided in this
section and has been held by that court to apply retroactively.” 42
Pa.C.S.A. § 9545(b)(1)(iii) (emphasis added).
In Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), this
Court stated that,
[e]ven assuming that Alleyne did announce a new constitutional
right, neither our Supreme Court, nor the United States
Supreme Court has held that Alleyne is to be applied
retroactively to cases in which the judgment of sentence had
become final. This is fatal to [an a]ppellant’s argument
regarding the PCRA time-bar. This Court has recognized that a
new rule of constitutional law is applied retroactively to cases on
collateral review only if the United States Supreme Court or our
Supreme Court specifically holds it to be retroactively applicable
to those cases.
Id. at 995 (citations omitted) (emphasis supplied).
Here, Scullen’s direct appeal had concluded prior to the filing to
Alleyne. According, Scullen’s claim invoking Alleyne does not overcome
the PCRA’s time bar, or establish an exception to the PCRA’s timeliness
-8-
J-S08035-16
requirement.4 As such, we are unable to grant him relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2016
4
In Commonwealth v Hopkins, 117 A.3d 247 (Pa. 2015), our
Pennsylvania Supreme Court held that the portions of the mandatory
minimum sentencing statutes that violate Alleyne are not severable. Id. at
249. However, the Hopkins court did not address the retroactivity of
Alleyne. We are aware that our Supreme Court has accepted allowance of
appeal on the issue of whether Alleyne relates to the legality of sentence,
stating as the issue follows:
Whether a challenge to a sentence pursuant to Alleyne …
implicates the legality of the sentence and is therefore non-
waivable[?]
Commonwealth v. Johnson, 93 A.3d 806 (Pa. 2014). At this time,
however, the applicability of Alleyne on collateral review has not yet been
addressed by our Supreme Court.
-9-