Com. v. Dozier, M. ( 2016 )

J-S10032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARVIN DOZIER,
Appellant No. 1130 EDA 2015
Appeal from the PCRA Order March 13, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002656-2008
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 09, 2016
Appellant, Marvin Dozier, appeals pro se from the order dismissing his
petition seeking relief pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541–9546, as untimely. Appellant chiefly maintains that his
petition should be considered timely because his pro se post-sentence
motion to withdraw his guilty plea should have been treated as a PCRA
petition. We disagree. Accordingly, we affirm.
The PCRA court summarized the procedural and factual background of
the present appeal as follows:1
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
We accept the PCRA court’s findings and conclusions to the extent that
they are supported by the certified record. However, we are constrained to
(Footnote Continued Next Page)
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I. PROCEDURAL BACKGROUND
On August 27, 2008, [Appellant] Marvin Dozier pled guilty,
pursuant to a negotiated plea agreement, to rape of a child (18
Pa.C.S. § 3121(c)), endangering the welfare of a child (18
Pa.C.S. § 4304(a)(1)) ("EWOC"), and corrupting the morals of a
minor (18 Pa.C.S. § 6301(a)(1)) ("CMOM"). N.T. 08/27/2008 at
19-20. After the plea was accepted, the [c]ourt imposed an
aggregate sentence of one and a half to three years
incarceration on the charges of EWOC and CMOM and deferred
sentencing on the rape charge pending a Megan’s Law hearing
pursuant to 42 Pa.C.S. § 9794.5(3). At the Megan’s Law hearing
on March 5, 2010, [Appellant] was found not to be a Sexually
Violent Predator ("SVP"). The [c]ourt then sentenced
[Appellant] to three and a half to seven years[’] incarceration on
the rape charge to run consecutive to the sentences previously
imposed for an aggregate sentence equal to the negotiated
sentence of five to ten years incarceration in state prison.
[Appellant] filed a post-sentence motion to withdraw his guilty
plea on March 16, 2010, and a supplemental post-sentence
motion on March 23, 2010. The [c]ourt denied both on April 7,
2010.
_______________________
(Footnote Continued)
note that the record before us is not a model of clarity, nor of orderliness.
We have attempted to verify each key event in the procedural history from
our own independent review of the record. In some instances, although
there is no support in the record, the parties do not dispute a filing or other
procedures. We accept these assertions without additional inquiry. Some
procedural steps, particularly the entries and the withdrawals of the various
counsel, are noted only in the docket entries, if at all.
A significant portion of this confusion appears to have been
exacerbated, if not generated, by Appellant’s proclivity for filing various pro
se motions, etc. even when represented by counsel. It is well-settled, as
explained in the text of this memorandum, that Appellant has no right to
hybrid representation. His numerous disagreements with counsel, evident in
the record, do not justify any ad hoc deviation from this well-settled rule of
law. Nevertheless, where Appellant makes a procedural claim, and there is
no explanation or refutation of his claim in the record before us, we give him
the benefit of the doubt. Conversely, where Appellant’s claims are
contradicted by the record, we reject them.
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[Appellant] subsequently filed [a direct] appeal on April 12,
2010. On April 5, 2011, the Superior Court quashed
[Appellant’s] appeal as untimely.[2] [Appellant’s] petition for
allowance of appeal to the [Pennsylvania] Supreme Court was
denied on May 15, 2012. [Appellant] then filed a pro se petition
under the Post-Conviction Relief Act (“PCRA”) on June 14, 2012.
Peter A. Levin, Esquire was appointed to represent [Appellant]
on March 4, 2013.
On February 1, 2015, pursuant to Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988), Mr. Levin filed a letter
stating that the petition was untimely and that there was no
arguable merit to [Appellant’s] claims for collateral relief. See
Finley Letter of Peter A. Levin, filed 2/01/2015 (“Finley
Letter”). On February 12, 2015, the [c]ourt issued notice
pursuant to Pa.R.Crim.P. 907 (“907 Notice”) of its intent to
dismiss Appellant’s PCRA Petition without an evidentiary hearing.
On March 13, 2015, the [c]ourt formally dismissed Appellant’s
PCRA Petition and granted Mr. Levin’s motion to withdraw his
appearance.
[Appellant] has now appealed the [c]ourt’s dismissal of his
PCRA Petition, alleging that: 1) the [c]ourt erred in dismissing
the PCRA petition as untimely as [Appellant’s] initial post-
sentence motion filed on March 16, 2010 should have been
treated as a PCRA petition; and 2) the [c]ourt lacked jurisdiction
to impose sentence on March 5, 2010. Statement of Matters
Complained of on Appeal ("Statement of Errors") at ¶¶ 1 -2. . . .
II. FACTUAL BACKGROUND
The factual background of this matter is set forth in [this]
[c]ourt’s 1925(a) Opinion filed in [Appellant’s] direct appeal.
Between January 1, 1998, and December 31, 2000,
[Appellant] had a sexual relationship with E.S. who was
then between eleven and thirteen years old and was living
____________________________________________
2
(See Commonwealth v. Dozier, No. 997 EDA 2010, unpublished
memorandum at *8 (Pa. Super. filed April 5, 2011), appeal denied, 44 A.3d
1160 (Pa. 2012)).
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with [Appellant's] sister. [Appellant] had sex with E.S.
while his sister was not home and [Appellant] was the
adult in charge. [Appellant] paid for E.S. to have an
abortion after he impregnated her in 1998 when she was
eleven or twelve years old and [Appellant] was about
thirty-six years old. On February 11, 2000, [Appellant]
confessed to police that he had sexual contact with E.S.
while he knew she was less than thirteen years old and
that he paid for her abortion after he learned that she was
pregnant.
Trial Court Opinion, dated June 18, 2010.3
(PCRA Court Opinion, 5/12/15, at 1-3).
We supplement the PCRA court’s history with several additional
observations, based on our independent review of the record. First, on
March 17, 2010,4 although still represented by counsel (by now the Defender
Association of Philadelphia),5 Appellant filed a purported pro se motion to
____________________________________________
3
Record citations and footnote omitted.
4
For clarity and completeness, Appellant dated the motion “3/16/10”; the
clerk of quarter sessions time-stamped the motion “Mar[ch] 17, 2010”; and
the motion was docketed on March 24, 2010.
5
Docket entries confirm that for his plea and sentencing, Appellant was
represented by retained counsel, Joseph Santaguida, Esq. (and Santaguida’s
associate or partner, Brendan McGuigan, Esq.). (See docket; see also N.T
Hearing, Volume 2, 5/21/09, at 3-5). The court relieved Attorney
Santaguida from further representation on October 9, 2009. On October 16,
2009, the court appointed the Defender Association to represent Appellant.
The Defender Association petitioned to withdraw from representation on
October 21, 2011. The court granted the Defender Association’s petition to
withdraw on November 9, 2011. David S. Rudenstein, Esq. appears to have
entered his appearance to represent Appellant on November 10, 2011.
Although there is no order in the record, a docket entry indicates that the
court confirmed his appointment, on December 1, 2011. Even though the
(Footnote Continued Next Page)
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withdraw guilty plea. On appeal, this motion to withdraw his guilty plea is
the post-sentence motion he claims should have been treated as a PCRA
petition. (See Appellant’s Brief, at 4-5).
Additionally, Appellant’s post-plea counsel (the Defender Association)
filed a “Post Sentence Motion Nunc Pro Tunc,” on March 16, 2010, and a
“Supplemental Post Sentence Motion Nunc Pro Tunc,” on March 23, 2010.
Counsel did not request leave of court to file either purported nunc pro tunc
motion. As the PCRA court notes, sitting as the trial court, it denied both of
the motions on April 7, 2010. The Defender filed a notice of appeal for
Appellant and a statement of errors. As already noted, this Court quashed
the appeal, as untimely. (See Dozier, supra at *6-8).
Docket entries confirm that after the Defender Association filed a
petition for allowance of appeal, our Supreme Court remanded for the
appointment of new counsel and to permit the Defender Association counsel
_______________________
(Footnote Continued)
docket entry notes that Attorney Rudenstein was appointed to “handle
further [a]ppellate matters,” correspondence in the record presented by
Appellant suggests that Mr. Rudenstein told Appellant he was appointed for a
limited purpose only, no longer represented Appellant, and advised Appellant
to file a pro se PCRA petition to protect his right to PCRA relief. Appellant’s
pro se PCRA petition followed. Peter A. Levin, Esq. entered his appearance
on behalf of Appellant on March 4, 2013. As previously noted, Attorney
Levin did not file an amended petition; instead he filed a “no merit” letter on
February 1, 2015. The court denied Appellant’s pro se PCRA petition and
permitted Attorney Levin to withdraw in the same order. (See Order,
3/13/15).
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to file a motion to withdraw. The trial court granted permission to withdraw
on November 9, 2011.
After our Supreme Court denied allowance of appeal, Appellant filed
the instant PCRA petition, pro se. While the record is not clear when
Attorney Rudenstein was permitted to withdraw, the PCRA court accepted
Appellant’s pro se PCRA petition filed on June 14, 2012.6
After the PCRA court’s dismissal of the PCRA petition on March 13,
2015, Appellant filed a pro se notice of appeal, on April 8, 2015. (See
Notice of Appeal, dated April 4, 2015, and docketed April 8, 2015). On the
same day (April 8), the court ordered a statement of errors, on penalty of
waiver. (See Order, 4/08/15); see also Pa.R.A.P. 1925(b). There is no
statement of errors in the certified record, and no corresponding docket
entry. However, the PCRA court references the statement of errors in its
Rule 1925(a) opinion. (See, e.g., PCRA Court Opinion, 5/12/15, at 2).7
____________________________________________
6
The record confirms that Appellant apparently relied on correspondence
from Attorney Rudenstein purportedly disclaiming any continuing
representation, and advising Appellant to file a pro se PCRA petition to
protect his appeal rights. (See Appellant’s Letter to Peter A. Levin, Esq.,
8/09/13, Exhibit D, Letter from David Rudenstein, Esq. to Appellant [“aka
Roger Boyd”], 5/25/12). We give Appellant the benefit of the doubt and
treat his instant pro se PCRA petition as validly filed.
7
We also observe that the issues mentioned by the PCRA court are
substantially the same as the issues Appellant raised on appeal.
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And the PCRA court has helpfully provided us with a copy of Appellant’s
statement.8
On appeal, Appellant presents two questions for our review:
I. Whether the PCRA [court] erred as a matter of law and
constitution in dismissing [Appellant’s] PCRA petition as
[untimely], where his initially filed post-sentence motion on
March 16, 2010, according to Pennsylvania law should have been
treated as a PCRA petition, if it was untimely filed since issues
relating to an illegal sentence are cognizable under the PCRA?
II. Whether [Appellant’s] sentence imposed [on] March 5,
2010, is illegal because the trial court lack[ed] jurisdiction to
impose a sentence after the thirty (30) day appeal period, in
violation of [Appellant’s] due process, equal protection and cruel
and unusual punishment under both the Pennsylvania and United
States [C]onstitution and the due process clauses and under 42
Pa.C.S.A. [§] 5505?
(Appellant’s Brief, at 4) (some capitalization omitted).9
Our standard and scope of review for the denial of a PCRA petition is
well-settled.
[A]n appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the
record, and reviews its conclusions of law to determine
whether they are free from legal error. The scope of
review is limited to the findings of the PCRA court and the
____________________________________________
8
Appellant sent his statement to the Office of Judicial Records, which
apparently forwarded it to the PCRA court’s judicial chambers. Thus,
Appellant appears to have made a good-faith effort to comply with the PCRA
court’s order. Accordingly, even though the statement is not in the certified
record, we will give Appellant the benefit of the doubt and decline to dispose
of his claims on the basis of waiver for non-compliance with Pa.R.A.P.
1925(b).
9
The Commonwealth did not file a brief in this appeal.
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evidence of record, viewed in the light most favorable to
the prevailing party at the trial level.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations
and internal quotation marks omitted).
Initially, we must determine whether Appellant’s petition is untimely.
The filing mandates of the PCRA are jurisdictional in nature and
are strictly construed. Commonwealth v. Stokes, 598 Pa.
574, 959 A.2d 306, 309 (2008). The question of whether a
petition is timely raises a question of law. See Commonwealth
v. Fahy, 598 Pa. 584, 959 A.2d 312, 316 (2008). Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary. Commonwealth v.
Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010). An untimely
petition renders this Court without jurisdiction to afford relief.
Commonwealth v. Gandy, 38 A.3d 899 (Pa. Super. 2012).
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).
Furthermore,
Pennsylvania law makes clear no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 575
Pa. 500, 508, 837 A.2d 1157, 1161 (2003). Statutory time
restrictions are mandatory and jurisdictional in nature, and may
not be altered or disregarded to reach the merits of the claims
raised in the petition. Commonwealth v. Murray, 562 Pa. 1,
4, 753 A.2d 201, 203 (2000) (holding court lacks jurisdiction to
hear merits of PCRA claim where petition is filed in untimely
manner and no exception to timeliness requirements is properly
alleged and proved; timeliness requirements do not depend on
nature of violations alleged). A PCRA petition, including a
second or subsequent petition, must be filed within one year of
the date the underlying judgment becomes final. 42 Pa.C.S.A.
§ 9545(b)(1). See Commonwealth v. Bretz, 830 A.2d 1273
(Pa. Super. 2003); Commonwealth v. Vega, 754 A.2d 714 (Pa.
Super. 2000). A judgment is deemed 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 review.”
42 Pa.C.S.A. § 9545(b)(3); Pollard, supra.
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The three statutory exceptions to the timeliness provisions
in the PCRA allow for very limited circumstances under which the
late filing of a petition will be excused. 42 Pa.C.S.A.
§ 9545(b)(1). To invoke an exception, a petition must allege
and the petitioner must prove:
(i) the failure to raise a 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.A. § 9545(b)(1)(i)-(iii). The PCRA specifically
provides that a petitioner raising one of the statutory exceptions
to the timeliness requirements must affirmatively plead and
prove the exception. Id. See also Commonwealth v.
Beasley, 559 Pa. 604, 741 A.2d 1258 (1999) (stating
petitioner’s burden is to plead and prove exception applies when
PCRA is untimely). The statutory exceptions to the timeliness
requirements of the PCRA are also subject to a separate time
limitation and must be asserted within sixty (60) days of the
date the claim could have been first presented. 42 Pa.C.S.A.
§ 9545(b)(2). “As such, when a PCRA is not filed within one
year of the expiration of direct review, or not eligible for one of
the exceptions, or entitled to one of the exceptions, but not filed
within 60 days of the date that the claim could have been first
brought, the trial court has no power to address the substantive
merits of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa–Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).
Commonwealth v. Taylor, 933 A.2d 1035, 1038-39 (Pa. Super. 2007),
appeal denied, 951 A.2d 1163 (Pa. 2008).
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Preliminarily, we note that at the time Appellant filed his purported
post-sentence motion he was still represented by counsel, as confirmed by
the docket entries and is obvious by counsel’s filing of post-sentence
motions several days later.
It is well-settled that “there is no constitutional right to hybrid
representation either at trial or on appeal.” Commonwealth v. Jette, 23
A.3d 1032, 1038 (Pa. 2011) (quoting Commonwealth v. Ellis, 626 A.2d
1137, 1139 (Pa. 1993)). Our Supreme Court explained, in part, that adding
pro se briefs to counseled briefs “would overwhelm an already overburdened
court.” Ellis, supra at 1140.10 Because Appellant was still represented by
counsel at the time he filed his pro se post-sentence motion, under Jette
and Ellis, that pro se filing was (and remains) a legal nullity.
Additionally, this Court has already ruled that Appellant’s direct appeal
was untimely. (See Dozier, supra at *6-8). Thus, our legal review of the
timeliness of Appellant’s filings is subject to the law of the case and the
coordinate jurisdiction rule.
____________________________________________
10
The Ellis Court also observed:
Tails should not wag dogs. Merely because an appellant believes
that the irrelevant is relevant is no reason to turn the system on
its head and solemnly contemplate the wisdom of a person who
does not have the sense to be guided by experts in an area
where he himself possesses no expertise.
Ellis, supra at 1140.
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[T]his Court has long recognized that judges of coordinate
jurisdiction sitting in the same case should not overrule each
others’ decisions. This rule, known as the “coordinate
jurisdiction rule,” is a rule of sound jurisprudence based on a
policy of fostering the finality of pre-trial applications in an effort
to maintain judicial economy and efficiency.
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (citations
omitted).
The law of the case doctrine refers to a family of rules which
embody the concept that a court involved in the later phases of
a litigated matter should not reopen questions decided by
another judge of that same court or by a higher court in the
earlier phases of the matter. . . . The various rules which make
up the law of the case doctrine serve not only to promote the
goal of judicial economy . . . but also operate (1) to protect the
settled expectations of the parties; (2) to insure uniformity of
decisions; (3) to maintain consistency during the course of a
single case; (4) to effectuate the proper and streamlined
administration of justice; and (5) to bring litigation to an end.
Commonwealth v. McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005),
(quoting Starr, supra at 1331), appeal dismissed as improvidently granted,
933 A.2d 650 (Pa. 2007).
Here, consistent with our application of the law of the case, and the
coordinate jurisdiction rule, we find that Appellant’s judgment of sentence,
imposed on March 5, 2010, became final on Monday, April 5, 2010.11
Accordingly, Appellant had until April 5, 2011 to file a timely PCRA petition.
____________________________________________
11
April 4, 2010 fell on a Sunday. See 1 Pa.C.S.A. § 1908.
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Therefore, his pro se petition, filed on June 14, 2012, over fourteen months
later, is untimely on its face.
Appellant mistakenly assumes that claims alleging illegality of
sentence can never be waived, even on collateral review. (See Appellant’s
Brief, at 10). “Although legality of sentence is always subject to review
within the PCRA, claims must still first satisfy the PCRA’s time limits or one
of the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999) (citation omitted).
Appellant raises no other cognizable exceptions to the time-bar. (See
Appellant’s Brief, at 4-22).12 Appellant’s petition is untimely, with none of
the statutory exceptions to the time-bar pleaded or proven.
Because Appellant’s claim of an earlier PCRA petition is frivolous, and
his current PCRA petition is untimely, we lack jurisdiction to review his other
claims.13
Order affirmed.
____________________________________________
12
On independent review, we find none.
13
We also note, for completeness, that in his actual (current) PCRA petition,
Appellant conceded that he did not file a previous PCRA petition, as he now
contends on appeal. (See PCRA Petition, 6/14/12, at 4 ¶ 7 (b) (stating no
previous post-conviction petitions filed)). Accordingly, Appellant’s argument
that his pro se post-sentence motion constituted a timely PCRA petition is
legally frivolous. Furthermore, because Appellant did not raise this issue
with the PCRA court, his claim is waived on appeal. See Pa.R.A.P. 302(a).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2016
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