Com. v. Wolfe, N. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NEAL LEROY WOLFE
Appellant No. 1709 MDA 2015
Appeal from the Order Entered September 17, 2015
In the Court of Common Pleas of Union County
Criminal Division at No(s): CP-60-CR-0000060-2014
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 23, 2016
Appellant, Neal Leroy Wolfe, appeals pro se from the order entered in
the Union County Court of Common Pleas, dismissing his first petition filed
under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
The PCRA court opinion accompanying its notice of intent to dismiss
per Pa.R.Crim.P. 907 set forth the relevant facts and procedural history of
this case as follows:
On January 24, 2014, the Commonwealth charged
[Appellant] with a two (2) count Information. Count 1
being the crime of simple assault,[1] a misdemeanor of the
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The charges arose from an incident in which Appellant placed his hands
around his Victim’s neck and throat causing severe redness to her neck. At
that time, Appellant was on probation.
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second degree punishable by up to two (2) years’
incarceration, a $5,000 fine or both. On March 12, 2014,
[Appellant] entered a guilty plea to simple assault and the
terms of the plea agreement were to be a “standard range
county sentence middle of standard range.”
A Presentence Investigation Report was prepared by the
Union County Probation Department, which recommended
against a county sentence. [Appellant] was scheduled for
sentencing on May 13, 2014. A review of the sentencing
transcript beginning with Page 2 reveals the following
dialogue between defense counsel and the [c]ourt in the
presence of [Appellant]:
THE COURT: Well, if I’m revoking his five-year
intermediate punishment sentence, sentence him to the
standard range, it’s going to aggregate into a state
sentence anyway.
MR. BEST: Unless it would be run concurrently,
that’s correct.
THE COURT: Which isn’t going to happen. So at
this point I’m not going to agree to a county sentence.
After that a sidebar discussion with counsel took place.
Following the sidebar discussion, the [c]ourt went back on
the record and made the following statements in the
presence of [Appellant]:
THE COURT: After our discussion at sidebar, it’s my
understanding that after reviewing the Presentence
Report, the recommendation of the Probation
Department, the parties have agreed to modify the plea
agreement primarily as to the location; it wouldn’t be a
county sentence. It would be a state sentence, and
essentially it would be at the bottom of the standard
range on the current charge of simple assault and it
would be the bottom half−well, almost the bottom of
the standard range on the revocation. Is that correct,
Mr. Best?
MR. BEST: That’s correct, Your Honor.
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THE COURT: Mr. Johnson?
MR. JOHNSON: Yes sir; and that the maximum on
each would be 24 months, and those sentences would
be consecutive for an aggregate sentence of 4 to 48
months.
THE COURT: [Appellant], do you understand the
discussion that we’ve just had?
[APPELLANT]: Yes.
THE COURT: Essentially what the modified
agreement would be is you would receive a 4-month to
48-month sentence in a state correctional institution;
you would receive credit since going back to January
24th. Do you understand that?
[APPELLANT]: Yep.
THE COURT: Actually, he would receive credit on
the simple assault, not the revocation.
MR. BEST: (Nods head up and down).
THE COURT: Very well, [is] that modification
acceptable to you?
[APPELLANT]: Yes.
THE COURT: Was that a yes? Is that a yes?
[APPELLANT]: Yes.
Following that discussion on the record, [Appellant] was
sentenced to a period of incarceration in a state
correctional facility of three (3) months to two (2) years.
He was given 110 days of credit.
* * *
[Appellant]’s chief complaint is that he wanted to have his
sentence served in the county jail and has alleged that his
attorney never addressed the [c]ourt about doing county
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time.
(PCRA Opinion, filed July 15, 2015, at 1-2). The simple assault conviction
constituted a violation of a prior intermediate punishment sentence, which
was revoked at this proceeding as well. On the revocation sentence, the
court imposed a term of incarceration of one (1) month to twenty-four (24)
months. Appellant’s aggregate sentence was four (4) to forty-eight (48)
months’ incarceration. Appellant did not file a post-sentence motion to
modify his sentence or a direct appeal.
In its Rule 1925(a) opinion, the court continues:
On May 6, 2015, [Appellant] filed a [m]otion for [PCRA
relief]. On July 15 2015, the [c]ourt filed a Notice of
Intention to Dismiss the Petition without a hearing [per
Pa.R.Crim.P. 907]. An Opinion was attached to the Notice
of Intention to Dismiss.
On July 30, 2015, the [c]ourt entered an Order appointing
the Public Defender’s Office to represent [Appellant]. On
August 31, 2015, [c]ourt−[a]ppointed [c]ounsel filed a
Turner-Finley No Merit Letter and a [m]otion to
[w]ithdraw as [c]ounsel. On September 14, 2015, the
[c]ourt granted the [m]otion to [w]ithdraw and on
September 17, 2015, dismissed [Appellant]’s [m]otion for
[PCRA relief].
On October 1, 2015, [Appellant] filed a [n]otice of
[a]ppeal. The [c]ourt then entered a Scheduling Order
requiring [Appellant] to file a concise statement of errors
complained of on appeal on or before October 23, 2015.
(PCRA Court Opinion, filed November 2, 2015, at 1).
As a prefatory matter, “to preserve their claims for appellate review,
appellants must comply whenever the [PCRA] court orders them to file a
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Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925. As
a general rule, any issues not raised in a [Rule] 1925(b) statement will be
deemed waived.” Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d
775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719
A.2d 306, 309 (1998)). Here, by order dated October 2, 2015, and entered
with notice to Appellant on October 5, 2015, the PCRA court ordered
Appellant to file a Rule 1925(b) statement. Appellant filed his Rule 1925(b)
statement on November 25, 2015, after the certified record had been
transmitted to this Court. Based on Appellant’s failure to preserve his
claim(s) in a Rule 1925(b) statement, we deem Appellant’s issue(s) waived.
Moreover, Appellant proceeds in this appeal pro se. While a pro se
litigant is granted the same rights, privileges, and considerations as those
accorded an appellant represented by counsel, pro se status does not entitle
an appellant to any particular advantage because the appellant lacks legal
training. Commonwealth v. Rivera, 685 A.2d 1011 (Pa.Super. 1996).
Appellant has a duty to file a comprehensible brief and to raise and develop
his issues sufficiently for appellate review. Commonwealth v. Hardy, 918
A.2d 766 (Pa.Super. 2007), appeal denied, 596 Pa. 703, 940 A.2d 362(2007). Accordingly, “a pro se litigant must comply with the procedural
rules set forth in the Pennsylvania Rules of Court.” Commonwealth v.
Lyons, 833 A.2d 245, 252 (Pa.Super. 2003), appeal denied, 583 Pa. 695,
879 A.2d 782 (2005).
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Rule 2111 of the Pennsylvania Rules of Appellate Procedure mandates
that an appellant’s brief shall consist of the following matters, separately
and distinctly entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the
standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.
(7) Statement of the reasons to allow an appeal to
challenge the discretionary aspects of a sentence, if
applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise relief sought.
(10) The opinions and pleadings specified in Subdivisions
(b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of the
matters complained of on appeal, filed with the trial court
pursuant to Rule 1925(b), or an averment that no order
requiring a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) was entered.
Pa.R.A.P. 2111(a). Further,
The argument [section] shall be divided into as many
parts as there are questions to be argued; and shall have
at the head of each part--in distinctive type or in type
distinctively displayed--the particular point treated
therein, followed by such discussion and citation of
authorities as are deemed pertinent.
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Pa.R.A.P. 2119(a) (emphasis added).
Instantly, Appellant’s initial brief and reply brief fail to comply with
many of the pertinent Pennsylvania Rules of Appellate Procedure; for
example, the briefs lack a statement of jurisdiction, a statement of the scope
and standard of review, a statement of the questions involved, a
comprehensible summary of the argument, and legal argument sufficient for
appellate review. See Pa.R.A.P. 2111 (a), Pa.R.A.P. 2119(a). Given these
deficiencies, Appellant has waived his issue(s) on this ground also.2
Accordingly, we affirm. See In Interest of K.L.S., 594 Pa. 194, 934 A.2d
1244 (2007) (stating trial court’s order or judgment is more properly
“affirmed,” when appellant has failed to preserve issues for appeal).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2016
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2
Moreover, to the extent we can decipher Appellant’s claim(s), the record
belies them. Here, the court rejected a county sentence. The parties
renegotiated in open court, and the court reviewed the agreement (to state
incarceration) with Appellant on the record. Appellant acknowledged his
understanding and acceptance of the new sentence. Thus, even if Appellant
had properly preserved his claim(s), they would not merit relief.
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