Com. v. Wetzel, D. ( 2018 )

J-S73002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DOUGLAS JAMES WETZEL :
:
Appellant : No. 1821 WDA 2017
Appeal from the PCRA Order September 14, 2016
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0000300-2013,
CP-10-CR-0000317-2013, CP-10-CR-0000354-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 18, 2018
Appellant, Douglas James Wetzel, appeals pro se from the order entered
in the Butler County Court of Common Pleas, which denied his second petition
brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. On
February 25, 2013, the Commonwealth charged Appellant on multiple dockets
with burglary, theft, and related offenses regarding a string of home and
business invasions. On April 29, 2015, Appellant entered an open guilty plea
to numerous offenses at multiple docket numbers, including those listed on
appeal. The court, on May 21, 2015, sentenced Appellant to an aggregate
term of 12 to 30 years’ imprisonment. Appellant did not file post-sentence
motions or pursue a direct appeal.
J-S73002-18
On April 13, 2016, Appellant timely filed pro se his first PCRA petition.
The PCRA court appointed counsel on April 19, 2016. On July 18, 2016,
counsel filed a petition to withdraw and a Turner/Finley1 no-merit letter.
The PCRA court issued notice of intent to dismiss pursuant to Pa.R.Crim.P.
907 on August 19, 2016; Appellant did not respond. The PCRA court granted
counsel’s petition to withdraw and denied PCRA relief on September 14, 2016.
On October 15, 2017, Appellant filed pro se a motion for reconsideration
of sentence at all three docket numbers, which alleged the court erred by
failing to merge his sentences and give him credit for time served. On October
19, 2017, the PCRA court denied Appellant’s motion. Appellant timely filed
pro se notices of appeal at all three docket numbers on November 7, 2017.
On November 22, 2017, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);
Appellant did not comply. The Commonwealth, on August 30, 2017, filed in
this Court a motion to dismiss based on Appellant’s non-compliance with the
PCRA court’s Rule 1925(b) order; this Court denied the motion on October 12,
2018.
Appellant raises the following issues for our review:
DID THE [PCRA] COURT ERR[] BY NOT
GRANTING…APPELLANT RELIEF FOR TIME CREDIT AND
MERGER OF SENTENCES?
____________________________________________
1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
-2-
J-S73002-18
WAS…APPELLANT ENTITLED TO TIME CREDIT PURSUANT
TO 42 PA.C.S.A. § 9760; 42 PA.C.S.A. § 9737;
COMMONWEALTH V. HOLLAWELL, 604 A.2D 723
[(PA.SUPER. 1992)]; AND COMMONWEALTH V. MANN,
957 A.2D 746 [(PA.SUPER. 2008)]?
DID PRIOR COUNSEL INEFFECTIVELY
REPRESENT…APPELLANT, AS PROVIDED BY THE 6TH
AMENDMENT AND ARTICLE 1, SECTION 8?
WILL…APPELLANT’S SENTENCE(S) BECOME UNLAWFUL
AND UNCONSTITUTIONAL IF NOT PROPERLY RE-
CALCULATED…?
(Appellant’s Brief at 2).2
Preliminarily, a petition for collateral relief will generally be considered
a PCRA petition if it raises issues cognizable under the PCRA. See
Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42
Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for same
purpose). The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition
must be filed within one year of the date the underlying judgment becomes
final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is “final” at the conclusion of
direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. §
____________________________________________
2 The failure to file a court-ordered Rule 1925(b) statement generally
constitutes waiver of all issues. Commonwealth v. Lord, 553 Pa. 415, 719
A.2d 306 (1998). Here, Appellant is proceeding pro se on appeal. The PCRA
court ordered Appellant on November 22, 2017, to file a Rule 1925(b)
statement. Appellant did not comply with the PCRA court’s order. Therefore,
as a practical matter, Appellant waived his issues on appeal. See id.-3-
J-S73002-18
9545(b)(3). The exceptions to the PCRA time-bar allow for very limited
circumstances under which the late filing of a petition will be excused; a
petitioner asserting an exception must file a petition within 60 days of the date
the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, Appellant’s current claims on merger and credit for time
served implicate the legality of his sentence, which is cognizable under the
PCRA. See 42 Pa.C.S.A § 9543(a)(2)(vii); Commonwealth v. Ousley, 21
A.3d 1238 (Pa.Super. 2011), appeal denied, 612 Pa. 698, 30 A.3d 487 (2011)
(stating claim that sentences should have merged challenges legality of
sentence); Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super. 2009)
(stating claim that court did not credit time served challenges legality of
sentence); Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super. 2007),
appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (holding collateral attack
on legality of sentence must be raised in timely PCRA petition or first satisfy
one of statutory exceptions to PCRA time bar). Appellant’s judgment of
sentence became final on Monday, June 22, 2015, upon expiration of the time
for filing an appeal with this Court. See Pa.R.A.P. 903(a). Appellant filed the
current pro se petition on October 15, 2017, which is patently untimely. See
42 Pa.C.S.A. § 9545(b)(1). Appellant did not acknowledge the obvious
untimeliness of his current petition under the PCRA or attempt to invoke any
of its exceptions to the statutory time-bar. See Commonwealth v.
Liebensperger, 904 A.2d 40 (Pa.Super. 2006) (explaining petitioner must
-4-
J-S73002-18
specifically plead timeliness exception to invoke jurisdiction over untimely
PCRA petition). Therefore, Appellant’s petition remains time-barred, and the
PCRA court lacked jurisdiction to review it.3 See Zeigler, supra. Accordingly,
we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2018
____________________________________________
3 Notice of the court’s intent to dismiss a PCRA petition without a hearing
under Rule 907 is mandatory. Commonwealth v. Guthrie, 749 A.2d 502(Pa.Super. 2000). Nevertheless, the failure to challenge on appeal the
absence of Rule 907 notice constitutes waiver. Commonwealth v. Taylor,
65 A.3d 462 (Pa.Super. 2013). Here, Appellant did not challenge on appeal
the lack of Rule 907 notice, so any related concern is waived. See id.-5-