Com. v. Schade, K. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BERNARD KENNETH SCHADE :
:
Appellant : No. 2411 EDA 2018
Appeal from the Order Entered July 5, 2018
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000681-2014,
CP-45-CR-0000917-2014
BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MAY 03, 2019
Appellant, Bernard Kenneth Schade, appeals the July 5, 2018 denial of
his third petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We quash.
The PCRA court summarized the relevant facts as follows.
In case number 681 CR 2014, [Appellant] was charged by criminal
information with one count each of rape—forcible compulsion,
involuntary deviate sexual intercourse with person less than 16
years of age, aggravated indecent assault with person less than
16 years of age, statutory sexual assault, and corruption of
minors. [Appellant pleaded guilty to statutory sexual assault] on
July 14, 2014. The underlying facts in connection with
[Appellant’s] plea were that between 1995 and 1997, [Appellant]
had sexual relations with S.T., a person less than 16 years of age.
In case number 917 CR 2014, [Appellant] was charged with 1,101
counts of child pornography and one count each of criminal
solicitation and tampering/fabricating physical evidence.
[Appellant pleaded guilty to two counts of child pornography] on
July 14, 2014. The underlying facts in connection with
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[Appellant’s] plea [at 917 CR 2014] were that he possessed two
suitcases that contained photographs of child pornography.
[Appellant] was sentenced in both cases on January 7, 2015, to a
total, aggregate term of 54 to 120 months of incarceration.
[Appellant] was also ordered to register as a sexual offender for
his lifetime under 42 Pa. C.S.A. § 9799.23.
On January 16, 2015, [Appellant] filed a post-sentence motion to
modify his sentence. After [a] hearing, [the] motion was denied
by opinion and order dated April 15, 2015. No appeal was filed,
but on April 29, 2015, [Appellant] filed his first, pro se PCRA,
which [the PCRA court] dismissed as premature. On July 7, 2015,
[Appellant] filed his second PCRA, with the assistance of retained
counsel. On November 9, 2015, [the PCRA court] denied relief
and [Appellant] appealed. On November 3, 201[6], th[is C]ourt
affirmed [the denial of relief] and on August 2, 2017, the
Pennsylvania Supreme Court denied allowance of appeal.
On July 19, 2017, [during the pendency of Appellant’s request for
allowance of appeal], the Pennsylvania Supreme Court decided
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and, in
response to said decision, [Appellant] filed this, his third PCRA
[petition], on November 6, 2017. [The PCRA court] appointed
counsel for [Appellant] and held a hearing on March 5, 2018.
Counsel for [Appellant] did not file an Amended PCRA [petition]
but indicated at the hearing that the only issue to be discussed
was a legal issue concerning [registration under the Sexual
Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A.
§§ 9799.10-9799.42], and requested a briefing schedule. [After
the parties submitted timely briefs, the PCRA court dismissed
Appellant’s petition as untimely on July 5, 2018. Since the 30-day
appeal period ended on Saturday, August 4, 2018, this timely
appeal followed on August 6, 2018, which was the Monday which
followed the conclusion of the appeal period. See 1 Pa.C.S.A.
§ 1508.]
PCRA Court Opinion, 7/5/18, at 1-2.
Appellant’s brief raises the following questions for our review.
1. When a statute of limitations expires on an alleged crime,
rendering it unprosecutable [sic] to ex post facto prohibitions,
does a common pleas court lose jurisdiction, to entertain its
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prosecution, under Article V § 5 of the Pennsylvania
Constitution and 42 § 931(a), as such a crime is no longer
“cognizable by law?”
2. Is Appellant’s challenge to the coerced guilty plea, for crimes
the statute of limitations expired on, thereby implicating a
court’s subject matter jurisdiction, timely, when the PCRA was
filed before [Class v. Unites States, 138 S. Ct. 798 (2018)]
was announced; although, PCRA counsel failed and refused to
address Class and the PCRA court refused to accord Appellant
his Constitutional right to self represent?
3. Does the PCRA’s timelines clause divest a litigant of a vehicle
to address a court’s lack of jurisdiction over charges a statute
of limitations expired on, when dismissal can only be ordered
if the prosecution pleads and proves prejudice under 42 §
9543(b)?
4. Does a PCRA court obstruct the administration of justice in
thwarting Appellant’s right to self represent, in a design to
prevent litigation of the court’s lack of jurisdiction over charges
the statute of limitations expired on, when it refuses to
recognize pro se motions filed pursuant to Pa.R.Crim.P. 121?
5. Does a PCRA court err in refusing to provide relief from a
sentence, found to be illegal and unconstitutional under
[Muniz] in reliance on a timeliness claim when Muniz was not
“final” until certiorari was denied?
Appellant’s Brief at 4-5.
Before we consider the merits of Appellant's claims, we first determine
whether this appeal is properly before us. Appellant, on August 6, 2018, filed
a single notice of appeal listing two docket numbers, rather than separate
notices of appeal at both dockets in accordance with Pa.R.A.P. 341. Because
of this procedural misstep, we are constrained to quash.
In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme
Court recognized that the “Official Note to Rule 341 provides a bright-line
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mandatory instruction [] to file separate notices of appeal.... The failure to do
so requires the appellate court to quash the appeal.” Id. at 976-977. The
Court, however, determined that the failure to file separate notices of appeal
would result in quashal only for appeals filed after the date of that decision,
i.e., June 1, 2018. The instant appeal was filed on August 6, 2018. Therefore,
the rule announced in Walker governs.
On October 9, 2018, this Court issued an order directing Appellant to
show cause why the appeal should not be quashed pursuant to Walker.
Appellant filed a response. In his response, Appellant pointed out that he took
his appeal from a single order, that there were no co-defendants or competing
interests involved in this appeal, and that all issues on appeal were intertwined
and related to the sole order challenged on appeal. See Appellant’s Answer
to Rule to Show Cause Order, 10/15/18, at 2. In addition, Appellant argued
that the Walker decision was not available at SCI Coal Township where he is
confined and that he therefore lacked notice and guidance as to the application
of Pa.R.A.P. 341. See Appellant’s Answer to Rule to Show Cause Order,
10/15/18, at 1 and 3. By order entered November 1, 2018, this Court
discharged its rule to show case and referred the matter to this merits panel.
Walker mandates that, after June 1, 2018, failure to file separate
notices in accordance with the Official Note to Rule 341(a) “will result in
quashal of the appeal.” Walker, 185 A.3d at 977. The Supreme Court did
not carve out any exceptions and we have no authority to do so. Appellant’s
observations that his appeal stemmed from a single order, that there were no
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co-defendants or competing interests involved, and that his claims are
intertwined are common features encountered in multi-docket appeals and do
not furnish grounds for disregarding Walker. Moreover, the plain text of the
commentary to Rule 341 found in the version of the appellate rules which were
available to Appellant states, “Where, however, one or more orders resolves
issues arising on more than one docket or relating to more than one judgment,
separate notices of appeal must be filed.” Pa.R.A.P. 341 cmt. (from
Pennsylvania Rules of Court, Volume I – State, 2018 which includes
amendments issued up to December 15, 2017) (emphasis added); Appellant’s
Answer to Rule to Show Cause Order, 10/15/18, at 3 para. 1(F) (noting that
prison law library possessed printed copy of 2018 Pennsylvania Rules of Court
published by Thompson Reuters). Accordingly, we reject Appellant’s claim
that he lacked notice of his obligation to file notices of appeal at each docket
number. Therefore, we must quash the appeal.1
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1 Even if we did not quash the instant appeal, we would concur in the PCRA
court’s conclusion that Appellant’s petition was untimely. As the PCRA court
noted, Appellant’s judgment of sentence became final 30 days after the denial
of his post-sentence motion on April 15, 2015 since no direct appeal was
taken. As such, a timely PCRA petition was due no later than May 15, 2016.
Because Appellant filed the instant petition on November 6, 2017, his
submission was facially untimely.
Appellant relies on Muniz to invoke the timeliness exception set forth at 42
Pa.C.S.A. § 9545(b)(1)(iii), commonly referred to as the “newly-recognized
constitutional right” exception. Our current case law is clear, however, that
Muniz does not support the newly-recognized constitutional right exception
because our Supreme Court has not expressly held that Muniz applies
retroactively. See Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa.
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____________________________________________
Super. 2018) (to validly invoke timeliness exception at § 9545(b)(1)(iii),
petitioner must demonstrate that the Pennsylvania Supreme Court has held
that Muniz applies retroactively). Thus, Appellant’s reliance on Muniz does
not validly invoked the timeliness exception at § 9545(b)(1)(iii).
Even if Muniz supported application of the exception found at
§ 9545(b)(1)(iii), we would nevertheless conclude that Appellant’s petition
was untimely since he failed to satisfy the 60-day filing requirement referred
to in § 9545(b)(2). The PCRA court explained that Appellant’s November 6,
2017 petition was untimely because he failed to file it within 60 days of July
19, 2017, the date on which our Supreme Court issued its decision in Muniz.
Although the court erred in construing the issuance date of the Muniz decision
as triggering the 60-day filing period set forth in § 9545(b)(2), the court
correctly held that Appellant’s petition was untimely. We explain.
Appellant could not file the instant petition while his appeal from a prior
petition was pending. In addressing the interplay between the pendency of a
prior PCRA appeal and the filing of a subsequent petition in which the
petitioner seeks to invoke an exception to the PCRA’s timeliness requirement,
our Supreme Court stated:
[W]hen an appellant's PCRA appeal is pending before a court, a
subsequent PCRA petition cannot be filed until the resolution of
review of the pending PCRA petition by the highest state court in
which review is sought, or upon the expiration of the time for
seeking such review. If the subsequent petition is not filed within
one year of the date when the judgment became final, then the
petitioner must plead and prove that one of the three exceptions
to the time bar under 42 Pa.C.S.A. § 9545(b)(1) applies. The
subsequent petition must also be filed within sixty days of the date
of the order which finally resolves the previous PCRA petition;
because this is the first “date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2).
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). Here, the Supreme
Court denied further review of Appellant’s prior PCRA petition on August 2,
2017. Using this date as the trigger for the 60-day filing period under
§ 9545(b)(2), Appellant needed to file his petition no later than October 2,
2017, the Monday following the conclusion of the 60-day period on Sunday,
October 1, 2017. See 1 Pa.C.S.A. § 1508. Because Appellant filed the instant
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Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/19
____________________________________________
petition on November 6, 2017, he failed to comply with the 60-day
requirement set forth in § 9545(b)(2) and his petition would be time-barred.
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