Com. v. Harkins, G. ( 2015 )

J-S23012-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARY C. HARKINS, :
:
Appellant : No. 628 EDA 2014
Appeal from the PCRA Order February 6, 2014,
Court of Common Pleas, Chester County,
Criminal Division at No(s): CP-15-CR-0001857-2006
and CP-15-CR-0002546-2008
BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED MAY 13, 2015
Gary C. Harkins (“Harkins”) appeals from the denial of his motion for
transcription and production of notes of testimony. We quash.
In October 2006, Harkins pled guilty to indecent assault and corruption
of minors1 and was sentenced to five years of probation. In March 2009,
Harkins pled guilty to luring a child into a motor vehicle, corruption of
minors, resisting arrest and indecent assault of a person less than sixteen
years old.2 He was sentenced, in relevant part, to eleven and a half to
twenty-three months of incarceration, followed by eight years of probation.
In April 2012, Harkins pled guilty to violating multiple parole and
probationary sentences that he was serving at that time. The trial court
1
18 Pa.C.S.A. §§ 3126(a)(8), 6301(a)(1).
2
18 Pa.C.S.A. §§ 2910, 6301(a)(1), 5104, 3126(a)(8).
*Retired Senior Judge assigned to the Superior Court.
J-S23012-15
resentenced Harkins.3 Harkins did not seek to withdraw his guilty pleas nor
did he file a direct appeal.
No further activity occurred until June 18, 2013, when Harkins filed a
motion seeking transcripts of the guilty plea proceedings that occurred
following the revocation of his parole and probationary sentences. Motion
for Transcription and Production of Notes of Testimony, 6/18/13, at 1. 4 The
lower court elected to treat this filing as a petition filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”), and entered an
order granting Harkins leave to proceed in forma pauperis and appointing
counsel. Trial Court Opinion, 6/27/13.5 Appointed counsel (”Counsel”) filed
a petition seeking to withdraw pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988). On July 31, 2013, the lower court issued notice of its intent
to dismiss pursuant to Pa.R.Crim.P. 907. Harkins did not file a response to
this notice. On January 31, 2014, the lower court granted Counsel’s request
3
Although not germane to our disposition, we note that the trial court
imposed the balance of the maximum sentences on Harkins’ parole
violations and reinstated the probationary sentences on the probation
violations. See Trial Court Opinion, 4/16/14, at 3-4.
4
Harkins averred that the notes of testimony “are necessary and pertinent
in the pursuit of [] petition for post-conviction collateral relief” but he did not
raise any issues or identify what issues he sought to raise in a post-
conviction relief petition. See Motion for Transcription and Production of
Notes of Testimony, 6/18/13, at 1-3.
5
The lower court did not grant or deny Harkins’ request for transcripts in
this order.
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and dismissed Harkins’ “petition.” Harkins timely filed a notice of appeal
and, in response to the lower court’s directive, a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b).6
Presently, Harkins raises two issues for our review:
1. Was [the] plea agreement breached by the
court[] where [Harkins] had agreed to the
Commonwealth’s plea offer and the court had
excepted [sic] the offer and had sentenced
[Harkins] to an incarcerated term followed by ten
[] year registration pursuant to Megan’s Law?
2. Did the court err when it had dismissed [Harkins’]
PCRA petition[] when it had erroneously
misapplied the “prisoner mailbox rule” for
prisoner’s [sic] proceeding pro se?
Harkins’ Brief at 3. Harkins did not include either of these issues in his
statement of matters complained of on appeal. See Concise Statement of
Errors, 3/26/14.7 It is well settled that issues not included in a court-
ordered statement of matters complained of are waived for purposes of
appeal. Commonwealth v. Jackson, 10 A.3d 341, 347 n.4 (Pa. Super.
2010); Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court has repeatedly
reiterated that this is a bright-line rule and that “in order to preserve their
claims for appellate review, appellants must comply whenever the trial court
6
In the order directing Harkins to file a concise statement of errors
complained of on appeal, the lower court specifically advised that “[a]ny
issue not properly included in the [s]tatement shall be deemed waived.”
Trial Court Order, 3/16/14.
7
In this statement, Harkins raised only five vague allegations of ineffective
assistance of counsel. Concise Statements of Errors, 3/26/14, at 1-2.
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orders them to file a [s]tatement of [m]atters [c]omplained of on [a]ppeal
pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived.” Commonwealth v. Castillo, 888 A.2d
775, 780 (Pa. 2005); see also Commonwealth v. Hill, 16 A.3d 484, 494
(Pa. 2011). Here, as the lower court ordered Harkins to file a statement of
matters complained of on appeal and he failed to include these issues
therein, we must find that they have been waived. As neither of the issues
presented in this appeal has been preserved properly, we quash.8
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2015
8
We question the propriety of the lower court’s election to treat Harkins’
motion for transcripts as a PCRA petition, as Harkins conspicuously did not
seek any relief thereby or raise any issues therein; however, Harkins has not
challenged this classification by the lower court at any point in the court
below or on appeal.
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