Com. v. Gonzalez, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SAMUEL GONZALEZ :
:
Appellant : No. 591 MDA 2018
Appeal from the Order Entered March 23, 2018
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000632-2004,
CP-38-CR-0000633-2004, CP-38-CR-0000987-2004
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 13, 2018
Samuel Gonzalez appeals from the order entered in the Court of
Common Pleas of Lebanon County, denying him in forma pauperis status, an
evidentiary hearing, and transcripts. We affirm.
The Commonwealth filed charges against Gonzalez under docket
numbers CP-38-CR-0000632-2004, CP-38-CR-0000633-2004, and CP-38-CR-
0000987-2004.1 The court consolidated no. 632 and no. 987, and held a
single trial after which Gonzalez was found guilty of rape by forcible
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1 On June 1, 2018, our Supreme Court held separate notices of appeal must
be filed when convictions arise from separate dockets.
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018). However,
Walker was applied prospectively from June 1, 2018. Id. at 977. Here,
where Gonzalez filed his notice of appeal on April 4, 2018, we will not
apply Walker, and decline to quash Gonzalez’s single appeal from judgments
of sentence entered on separate dockets.
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compulsion, statutory rape, indecent assault, corruption of minors, and
endangering the welfare of children. After a separate trial on docket no. 633,
Gonzalez was found guilty of rape by forcible compulsion, involuntary deviate
sexual intercourse, statutory rape, aggravated indecent assault, statutory
sexual assault, indecent assault, and corruption of minors. The trial court
consolidated all three cases for sentencing, and on October 25, 2005,
sentenced Gonzalez to an aggregate term of fourteen to thirty years’
incarceration and determined he is a Sexually Violent Predator (SVP) under
Megan’s law. On February 28, 2006, the court denied Gonzalez’s post-
sentence motion.
On October 16, 2006, this Court affirmed Gonzalez’s judgment of
sentence, and on May 25, 2007, our Supreme Court denied his petition for
allowance of appeal. Commonwealth v. Gonzalez, 913 A.2d 941 (Pa.
Super. 2006) (unpublished memorandum), appeal denied, 926 A.2d 441 (Pa.
2007). On May 21, 2008, Gonzalez filed a Post-Conviction Relief Act2 (PCRA)
petition, which was denied on November 18, 2008.
On January 10, 2018, Gonzalez filed two petitions—one requesting the
withdrawal of prior counsel and the appointment of alternative counsel, and
another seeking the transcripts from his PCRA hearing. Gonzalez filed three
more petitions on March 8, 2018, one to proceed in forma pauperis, a second
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2 42 Pa.C.S.A. §§ 9541–9546.
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for withdrawal of counsel, and a third for an evidentiary hearing in the event
that his other petitions were not granted. Petition for Evidentiary Hearing,
3/8/2018 at 1. On March 21, 2018, the court issued an order denying
Gonzalez’s requests for transcripts, an evidentiary hearing, and in forma
pauperis status, characterizing these three requests as an untimely petition
for PCRA relief.3 Before the court filed its order, however, Gonzalez filed a
second PCRA petition on March 23, 2018, arguing that Commonwealth v.
Muniz,4 164 A.3d 1189 (Pa. 2017), entitled him to relief from the registration
requirements of SORNA5 and his designation as an SVP, or in the alternative,
he again requested the appointment of counsel, an evidentiary hearing and in
forma pauperis status.
On April 4, 2018, Gonzalez filed a notice of appeal challenging “the
[order] of [the] court denying appellant’s motions for [transcripts], petition
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3 Gonzalez filed his notice of appeal solely from this order.
4 Although a plurality Opinion Announcing the Judgment of the Court (“OAJC”)
has no precedential value, “where a concurring opinion enumerates the
portions of the plurality’s opinion in which the author joins or disagrees, those
portions of agreement gain precedential value.” Commonwealth v. Brown,
23 A.3d 544, 556 (Pa. Super. 2011). In Muniz, the OAJC found that SORNA
violates the ex post facto clauses under both the Pennsylvania and United
States Constitutions. Muniz, 164 A.3d at 1189. Justice Wecht’s Concurring
Opinion, joined by Justice Todd, found that SORNA violates the Pennsylvania
Constitution and declined to consider whether SORNA violates the United
States Constitution. Id. at 1124–25.
5Pennsylvania’s Sex Offender Registration and Notification Act. 42 Pa.C.S.
§§ 9799.10–9799.41.
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for [in forma pauperis], and petition for [evidentiary hearing], denied on the
21st day of March, 2018.” Notice of Appeal, 4/4/2018, at 1. His subsequent
Pa.R.A.P. 1925(b) statement asserted he was appealing the following: 1) that,
“at the time of his P.C.R.A. denial . . . he wanted counsel to file an appeal to
the Superior Court of Pennsylvania related to that denial[;]” 2) he assumed
counsel had appealed his PCRA denial; 3) he sent letters to his attorney of
record to which counsel did not respond; 4) he did not know there was a
timeline to appeal the denial of his PCRA petition; 5) his English proficiency
rendered him unable to navigate the legal process without counsel; and 6) he
needed transcripts and pro se status in order to appeal. Pa.R.A.P. 1925(b)
Statement, 4/25/2018 at 1–2. On May 21, 2018, the court’s Rule 1925(a)
opinion stated “Gonzalez . . . offers nothing other than his assertion that he
directed his attorney to appeal [the denial of] his [p]etition under the Post-
Conviction Relief Act [] and that his attorney did not do so.” Pa.R.A.P 1925(a)
Opinion, 5/21/2018, at 1.
On June 1, 2018, Gonzalez filed a motion for reconsideration, arguing
that the court’s Rule 1925(a) opinion mistakenly failed to address the impact
of Muniz on his sentence, including his designation as an SVP. On June 4,
2018, he filed an “answer to the court[’]s [notice of] intent to dismiss
defendant[’]s [PCRA]” restating the merits of his PCRA petition, and averring
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that his petition fell under an exception to the PCRA’s timeliness
requirements.6
In an order dated June 4, 2018, the court concluded Gonzalez’s petition
for reconsideration raised different arguments than those contemplated in his
Rule 1925(b) statement. Consequently, the court found itself unable to take
further action regarding Gonzalez’s PCRA petition filed on April 4, 2018, and
dismissed it as moot.
A pro se litigant is granted the same rights, privileges and considerations
as those accorded a party represented by counsel; however, pro se status
does not entitle a litigant to any particular advantage because of the lack of
legal training. Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa. Super.
2016). A judge can direct any appellant to file a concise statement of errors
complained of on appeal. Pa.R.A.P. 1925(b). That statement must “concisely
identify each ruling or error that appellant intends to challenge with sufficient
detail to identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4).
Our Supreme Court has made it clear that “[a]ny issues not raised in a
[Rule] 1925(b) statement will be deemed waived.” Commonwealth v.
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6 Section 9545(b)(1)(iii) of the PCRA affords an exception to the PCRA’s
timeliness requirements. Gonzalez, however, mistakenly asserts a one-year
time period applies to that exception. Petition for Post-Conviction Relief,
3/23/2018, at 1. Petitioners are obligated to file within 60 days of the date
that a claim could have been presented under 42 Pa.C.S.A. § 9545(b)(1).
42 Pa.C.S.A. § 9545(b)(2). Gonzalez filed his claim on March 23, 2018,
more than 60 days after the filing of Muniz.
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Castillo, 888 A.2d 775, 780 (Pa. 2005). “[A] [c]oncise [s]tatement which is
too vague to allow the court to identify the issues raised on appeal is the
functional equivalent of no [c]oncise [s]tatement at all.” Commonwealth v.
Dowling, 778 A.2d 683, 687 (Pa. Super. 2001). To avoid waiver, a concise
statement must be specific enough “for the trial court to identify and address
the issue Appellant wishes to raise on appeal.” Id. at 687 (finding Rule
1925(b) statement impermissibly vague when appellant failed to identify
witness he was prevented from cross examining); see also Commonwealth
v. Pukowsky, 147 A.3d 1229, 1236 (Pa. Super. 2016) (finding Rule 1925(b)
statement impermissibly vague when appellant failed to state particular
grounds for limiting witnesses testimony).
Gonzalez’s notice of appeal challenges the March 21, 2018 order
denying him transcripts, an evidentiary hearing, and in forma pauperis status.
Notice of Appeal, 4/4/2018, at 1. Gonzalez’s Rule 1925(b) statement lists six
reasons for his appeal. However, only one of those six reasons relates to the
petitions denied on March 21, 2018; the remaining five relate to his failure to
appeal the court’s denial of his initial PCRA petition. As this appeal is not from
an order denying a PCRA petition, these issues are not properly before us.7
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7The judge below noted that the instant appeal was premature, and prevented
an assessment of Gonzalez’s April 4, 2018 PCRA petition. Court Order,
6/4/2018, 3.
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The lone issue related to the order from which Gonzalez appeals states
“appellant . . . needs the transcripts and [pro se] status in order to be able to
exercise his Constitutional Rights to a fair and unbiased appeal process.” Rule
1925(b) statement, 4/25/2018, at 2. This lone statement, combined with
subsequent out-of-turn filings, left the trial court unable to discern what
Gonzalez intended to appeal—whether it was the order he appealed, or the
conduct of his attorney following his initial PCRA hearing, or the impact of
Muniz on his sentence. Moreover, Gonzalez himself has asserted two
different theories in support of his need for transcripts, an evidentiary hearing
and in forma pauperis status—one theory relating to the conduct of his PCRA
counsel, the other relating to the impact of Muniz on his registration
requirements. The confusion resulting from Gonzalez’s Rule 1925(b)
statement clearly evinces the trial court was unable to “identify and address
the issue Appellant wishe[d] to raise on appeal.” Commonwealth v.
Dowling, 778 A.2d 683, 687 (Pa. Super. 2001). His statement, moreover,
fails to state any grounds on which he bases his claim. See e.g. Pukowsky,
supra. Consequently, we must find that Gonzalez has waived his challenge
to the March 21, 2018 order denying him transcripts, an evidentiary hearing,
and in forma pauperis status.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2018
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