Com. v. Schutzeus, T. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TODD ERIC SCHUTZEUS, : No. 1895 WDA 2013
:
Appellant :
Appeal from the PCRA Order, November 8, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0011106-1999
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 07, 2015
Todd Eric Schutzeus1 appeals from the order of November 8, 2013,
dismissing his PCRA2 petition without a hearing. After careful review, we
reverse.
The lengthy procedural history of this matter has been set forth in a
previous Opinion of this court as follows:
The record reflects that the Commonwealth charged
Schutzues with one count of rape, two counts of
involuntary deviate sexual intercourse (“IDSI”), and
one count each of aggravated indecent assault,
indecent assault, endangering the welfare of a child,
and corruption of minors.[Footnote 1] These charges
arose from Schutzues’ sexual assault of a young girl
* Retired Senior Judge assigned to the Superior Court.
1
Appellant’s surname is alternatively spelled “Schutzeus” and “Schutzues.”
2
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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who was six years old when the assaults began.
N.T., 10/9/01, at 8. The assaults persisted over a
four-year period. Id. at 8-9. The charges also arose
from Schutzues’ repeated attempts to lure a
12-year-old girl into his car, and an incident in which
he exposed himself to an adult female. Id. at 9-10.
[Footnote 1] 18 Pa.C.S.A. §§ 3121,
3123, 3125, 3126, 4304, 6301.
Schutzues pled guilty to rape, one count of IDSI,
endangering the welfare of children, and corruption
of minors. On October 9, 2001, the trial court
sentenced Schutzues to an aggregate 3 1/2 to
7 years of incarceration followed by seven years of
probation for the rape conviction. The trial court
imposed no further penalty on the remaining counts.
Schutzues served the maximum seven-year term of
incarceration and then commenced his probation
sentence. Less than six months into his probation
term, Schutzues violated his probation by having
contact with his young nieces.
After a May 1, 2007 hearing, the trial court found
Schutzues in violation of his probation and sentenced
him to 10 to 20 years of incarceration for rape, a
consecutive 10 to 20 years of incarceration for IDSI,
a consecutive 2 1/2 to 5 years of incarceration for
endangering the welfare of a child, and a consecutive
2 1/2 to 5 years of incarceration for corrupting a
minor. In an unpublished memorandum of July 29,
2009, this Court vacated the judgment of sentence.
Commonwealth v. Schutzeus, 1009 WDA 2007,
981 A.2d 933 (Pa.Super. 2009) (Schutzeus I).
Specifically, we concluded that the trial court failed
to consider 42 Pa.C.S.A. § 9771(c) prior to imposing
a sentence of incarceration. That section provides as
follows:
(c) Limitation on sentence of total
confinement.--The court shall not
impose a sentence of total confinement
upon revocation unless it finds that:
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(1) the defendant has been
convicted of another crime;
or
(2) the conduct of the defendant
indicates that it is likely that
he will commit another crime
if he is not imprisoned; or
(3) such a sentence is essential
to vindicate the authority of
the court.
42 Pa.C.S.A. § 9771(c).
The trial court conducted a new sentencing hearing
on February 9, 2010, at which the court sentenced
Schutzues to 42 to 84 months of incarceration for
rape, a consecutive 10 to 20 years for IDSI, and
consecutive 2 1/2 to 5 year sentences for
endangering the welfare of a child and corruption of
minors. In an unpublished memorandum of
March 31, 2011, this Court once again vacated the
judgment of sentence. Commonwealth v.
Schutzues, 526 WDA 2010, 26 A.3d 1212(Pa.Super. 2011) (“Schutzues II”). In
Schutzues II, we held that the sentences for IDSI,
endangering the welfare of a child and corruption of
a minor were illegal because “[a] probation
revocation court does not have the authority to re-
sentence an offender on a final guilt without further
punishment sentence after the period for altering or
modifying the sentence has expired.” Id. at 3
(quoting Commonwealth v. Williams, 997 A.2d
1205, 1210 (Pa.Super. 2010)). We remanded for re-
sentencing on the rape conviction. Id. at 3-4.
Commonwealth v. Schutzues, 54 A.3d 86, 88-89 (Pa.Super. 2012),
appeal denied, 67 A.3d 796 (Pa. 2013) (“Schutzues III”). The trial court
held another sentencing hearing on June 28, 2011, and imposed a sentence
of 6½ to 13 years’ incarceration. On the ensuing appeal, appellant argued
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that the trial court erred in imposing a sentence of incarceration without
finding that any of the Section 9771(c) factors applied to his case. While
this court expressed frustration with the trial court’s continuing failure to
explicitly reference Section 9771(c) during sentencing, we ultimately found
the matter waived for failure to comply with Pa.R.A.P. 1925. We rejected
appellant’s argument that the trial court’s failure to adhere to
Section 9771(c) resulted in an illegal sentence. See id. at 98 (“challenges
under § 9771(c) are not among the narrow class of issues that implicate the
legality of a sentence”).
Appellant also claimed that his sentence was excessive given the
technical nature of his probation violation, which he described as
de minimus, and his efforts at rehabilitation. Id. While we found that
appellant raised a substantial question as to the legitimacy of his sentence,
ultimately, this court found that appellant failed to establish an abuse of
discretion. Id. at 99-100.
On May 9, 2013, our supreme court denied appellant’s petition for
allowance of appeal. A timely pro se PCRA petition was filed on August 6,
2013, and counsel was appointed. On October 7, 2013, counsel filed a
petition to withdraw and Turner/Finley “no merit” letter.3 On October 17,
2013, the PCRA court granted counsel permission to withdraw and notified
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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appellant of its intention to dismiss his petition without a hearing within
20 days pursuant to Pa.R.Crim.P. 907. On November 7, 2013, appellant
filed a pro se response to Rule 907 notice; and on November 8, 2013,
appellant’s petition was dismissed. A timely pro se notice of appeal was
filed on November 27, 2013.4 On January 6, 2014, the PCRA court ordered
appellant to file a concise statement of errors complained of on appeal within
21 days pursuant to Pa.R.A.P. 1925(b). On January 14, 2014, prior to the
Rule 1925(b) deadline, the PCRA court filed an opinion addressing the issues
raised in appellant’s pro se PCRA petition. Appellant filed his Rule 1925(b)
statement on January 28, 2014. (Docket #98.)5 Appellant has retained new
counsel on appeal.
Appellant has raised the following issues for this court’s review:
I. DID THE COURT VIOLATE ITS DISCRETION
WHEN IT SENTENCED THE APPELLANT TO THE
MAXIMUM ON A PROBATION REVOCATION
WITHOUT STATING VALID REASONS, BY
ABDICATING ITS ROLE AS SENTENCER, AND
BY NOT ALLOWING DEFENSE INPUT INTO THE
REASONS FOR THE AGGRAVATED RANGE
SENTENCE?
4
Appellant initially filed notice of appeal on October 28, 2013, from the
October 17, 2013 Rule 907 notice. That appeal was dismissed on January 9,
2014, as premature. (Docket #99.)
5
Appellant’s Rule 1925(b) statement was due on January 27, 2014.
However, we note that appellant’s concise statement is dated January 23,
2014. We are mindful of the so-called “prisoner mailbox rule,” pursuant to
which a document is deemed filed on the date that a prisoner delivers it to
prison authorities for mailing. Commonwealth v. Jones, 700 A.2d 423,
426 (Pa. 1997). Furthermore, as noted above, the PCRA court issued its
Rule 1925(a) opinion before the 21-day deadline expired.
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II. WAS PRIOR APPELLATE COUNSEL
INEFFECTIVE FOR NOT APPEALING ON THE
DISCRETIONARY ASPECT OF THE SENTENCE?
III. DID THE LOWER COURT NEGLECT TO IMPOSE
CONDITIONS OF PROBATION ON THE
APPELLANT SO THAT HE IS NOT IN
VIOLATION?
Appellant’s brief at 5.
Initially, we recite our standard of review:
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super.2001). It is within the PCRA court’s
discretion to decline to hold a hearing if the
petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. Id.It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
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Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,
1239-1240 (Pa.Super. 2004).
Appellant raises several discretionary sentencing challenges, including
failing to comply with 42 Pa.C.S.A. § 9771(c); failing to state adequate
reasons on the record for the sentence imposed; failing to consider
mitigating evidence; and improperly deferring to the prosecuting attorney to
articulate reasons for the sentence.6 However, we find appellant’s third
issue concerning the trial court’s failure to comply with 42 Pa.C.S.A.
6
See Commonwealth v. Whitmore, 860 A.2d 1032, 1036 (Pa.Super.
2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006) (“a
claim that counsel was ineffective for failing to perfect a challenge to the
discretionary aspects of sentencing is cognizable under the PCRA”) (citations
omitted); Commonwealth v. Watson, 835 A.2d 786, 801 (Pa.Super.
2003) (“a claim regarding the discretionary aspects of [the defendant’s]
sentence, raised in the context of an ineffectiveness claim, would be
cognizable under the PCRA”), discussing Commonwealth ex rel. Dadario
v. Goldberg, 773 A.2d 126 (Pa. 2001) (footnote omitted). Appellant is
correct that, despite this court’s promptings, the trial court has steadfastly
refused to comply with Section 9771(c). Nowhere, during its three
sentencing hearings following revocation of appellant’s probation, does the
trial court make any explicit findings relative to Section 9771(c). See
Schutzues III, 54 A.3d at 91 (“Despite our directive to the trial court in
Schutzeus I to comply with § 9771(c), the trial court has continued to
ignore that statute.”). Indeed, this court observed in Schutzues III, “The
trial court’s attempts to give [appellant] the maximum amount of jail time
possible have already resulted in two flagrantly illegal sentences and two
remands from this Court, as set forth above.” Id. See also id. at 97 (“the
trial court, as noted above, offered no analysis and simply bookended the
sentencing hearing with statements of his desire to incarcerate [appellant]
for as long as possible”). The trial court’s conduct in this matter has been
regrettable, at best.
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§ 9754(b) to be dispositive. Therefore, we need not reach the remaining
issues.
“To prevail on a claim alleging counsel’s
ineffectiveness, Appellant must demonstrate (1) that
the underlying claim is of arguable merit; (2) that
counsel’s course of conduct was without a
reasonable basis designed to effectuate his client’s
interest; and (3) that he was prejudiced by counsel’s
ineffectiveness.” Commonwealth v. Wallace, 555
Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
Commonwealth v. Howard, 538 Pa. 86, 93, 645
A.2d 1300, 1304 (1994) (other citation omitted). In
order to meet the prejudice prong of the
ineffectiveness standard, a defendant must show
that there is a “‘reasonable probability that but for
counsel’s unprofessional errors, the result of the
proceeding would have been different.’”
Commonwealth v. Kimball, 555 Pa. 299, 308, 724
A.2d 326, 331 (1999), quoting Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’
is defined as ‘a probability sufficient to undermine
confidence in the outcome.’” Id. at 309, 724 A.2d at
331, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
2052.
Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002),
appeal denied, 832 A.2d 435 (Pa. 2003).
When we consider an appeal from a sentence
imposed following the revocation of probation, “[o]ur
review is limited to determining the validity of the
probation revocation proceedings and the authority
of the sentencing court to consider the same
sentencing alternatives that it had at the time of the
initial sentencing. 42 Pa.C.S. § 9771(b).”
Commonwealth v. Fish, 752 A.2d 921, 923
(Pa.Super.2000), appeal denied, 565 Pa. 637, 771
A.2d 1279 (2001) (citation omitted). Revocation of
a probation sentence is a matter committed to the
sound discretion of the trial court and that court's
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decision will not be disturbed on appeal in the
absence of an error of law or an abuse of discretion.
Commonwealth v. Smith, 447 Pa.Super. 502, 669
A.2d 1008, 1011 (Pa.Super.1996). The
Commonwealth establishes a probation violation
meriting revocation when it shows, by a
preponderance of the evidence, that the
probationer's conduct violated the terms and
conditions of his probation, and that probation has
proven an ineffective rehabilitation tool incapable of
deterring probationer from future antisocial conduct.
Commonwealth v. Sims, 770 A.2d 346, 350
(Pa.Super.2001).
Commonwealth v. Perreault, 930 A.2d 553, 557-558 (Pa.Super. 2007),
appeal denied, 945 A.2d 169 (Pa. 2008). See also Commonwealth v.
Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014), appeal denied, 109 A.3d
678 (Pa. 2015) (“In order to uphold a revocation of probation, the
Commonwealth must show by a preponderance of the evidence that a
defendant violated his probation.”) (citation omitted).
Appellant argues that prior counsel were ineffective for failing to raise
the trial court’s failure to comply with 42 Pa.C.S.A. § 9754(b),7 which
provides:
7
This issue was argued in appellant’s pro se PCRA petition. (Docket #82.)
Appointed counsel, Robert S. Carey, Jr., Esq., did address the issue in his
Turner/Finley “no-merit” letter but found it to be meritless for the same
reason relied upon by the PCRA court and the Commonwealth, i.e., that the
trial court signed off on a “special field report” from the probation office
which contained a provision that appellant was not to have any contact with
minors. (Docket #85.) We find this argument to be unpersuasive for the
reasons discussed infra.
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§ 9754. Order of probation
(b) Conditions generally.--The court shall attach
such of the reasonable conditions authorized
by subsection (c) of this section as it deems
necessary to insure or assist the defendant in
leading a law-abiding life.
Appellant argues that the terms and conditions of his probation,
including the no-contact order, were not actually imposed by the trial court
as required by Section 9754(b), but rather by the Office of Probation and
Parole. Appellant argues that this was an improper delegation of the court’s
authority. At the original plea and sentencing hearing of October 9, 2001,
the trial court stated:
Then pursuant to the negotiated plea agreement, at
CC199911106, at Count One, it’s three and-a-half to
seven years, plus, seven years probation, terms and
conditions to be set by the Probation Office or Parole
Office, whoever is going to do that. No further
penalty at the remaining counts.
Notes of testimony, 10/9/01 at 16-17. In addition, the trial court’s
October 9, 2001 sentencing order did not impose any terms and conditions
of probation whatsoever, except DNA registration. (Docket #7.)
Regrettably, the trial court did not check the line next to the special
probationary condition “No Contact w/Victim,” let alone order that appellant
was not to have any contact with minor children generally. (Id.)
In Commonwealth v. MacGregor, 912 A.2d 315 (Pa.Super. 2006),
the appellant was required to sign a “Special Conditions of Parole” form upon
his release on probation, having served out the full four-year term of his
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imprisonment. Id. at 316. One of the conditions was that he was not to
have any contact with anyone under age 18. Id. Subsequently, on three
different occasions, the appellant accompanied his girlfriend to gatherings of
her family at which young children were present. Id. at 316-317. The trial
court revoked his probation and imposed a prison sentence of 18 to
60 months. Id. at 317.
On appeal, this court vacated the judgment of sentence on the basis
that the condition appellant violated was never imposed by the trial court.
We relied on Commonwealth v. Vilsaint, 893 A.2d 753, 757 (Pa.Super.
2006), which held that, “the legislature [in the Sentencing Code] has
specifically empowered the court, not the probation offices and not any
individual probation officers, to impose the terms of probation.” Id.(emphasis supplied in MacGregor). Since the condition the appellant was
charged with violating, in addition to having been improperly drafted by a
parole agent, was not imposed by the court as required by Section 9754(b),
revocation of the appellant’s probation could not be sustained. Id. at 318.
Subsequently, in Commonwealth v. Elliott, 50 A.3d 1284 (Pa.
2012), our supreme court sought to reconcile Section 9754 with the Prisons
and Parole Code, 61 Pa.C.S.A. §§ 6131(a)(5)(ii) & 6151, which mandates
that the Board and its agents establish uniform standards for the supervision
of probationers under its authority, and further to implement those
standards and conditions. The court in Elliott distinguished between
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“conditions of probation” and “conditions of supervision,” concluding that
“the Board and its agents may impose conditions of supervision that are
germane to, elaborate on, or interpret any conditions of probation that are
imposed by the trial court.” Id. at 1292.
In Elliott, at the conclusion of the defendant’s sentencing hearing, the
trial court imposed as a condition of his probation that he not have
unsupervised contact with any minor child. Id. at 1285. After serving out
his maximum sentence, the defendant was released and began serving his
five-year probationary term. Id. at 1285-1286. The defendant was given a
form created by the Pennsylvania Board of Probation and Parole entitled
“Standard Special Conditions for Sex Offenders -- Minor Victims,” which
included a condition that he not enter or loiter within 1,000 feet of areas
where minors commonly congregate including playgrounds, youth recreation
centers, elementary schools, etc. Id. at 1286.
The defendant’s probation officer observed him sitting near a large
water fountain in a park in which young children were playing. Id.
According to the probation officer, the defendant was closely observing a
young girl in a red bathing suit. Id. The defendant subsequently admitted
regularly going to the park to watch children and being sexually aroused by
the girl in the red bathing suit. Id. at 1287. The defendant’s probation was
revoked and he was sentenced to two consecutive terms of 2½ to 5 years’
incarceration. Id. The trial court opined, inter alia, that he had violated
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Supervision Condition 19, that he avoid areas where persons under age 18
commonly congregate, such as the park fountain. Id. On appeal, this court
reversed, finding that Supervision Condition 19 (no loitering within
1,000 feet) was not incorporated into the court’s general no-contact
requirement of the defendant’s probation. Id. at 1288.8 Citing Vilsaint,
supra, and MacGregor, supra, this court held that only the court, and not
probation officers, can impose terms and conditions of probation.
The Commonwealth appealed, and our supreme court vacated this
court’s order, holding that the Board merely expounded upon the trial court’s
no-contact order:
[W]e find that Supervision Condition 19, that
Appellee should not ‘enter or loiter within 1,000 feet
of areas where the primary activity at such locations
involve persons under the age of 18,’ is a permissible
condition of supervision imposed by the Board and is
derivative of the trial court’s condition of probation
that Appellee not have unsupervised contact with
minors.
Id. at 1292. The court in Elliott distinguished MacGregor where, in that
case, the trial court had ordered a $25 probation administration fee as the
sole condition of probation, without actually setting forth any terms and
conditions of probation. Id., n.4. The matter was remanded to this court
8
This court also found there was insufficient evidence to support a violation
of Supervision Condition 17, prohibiting the defendant from engaging in
nonverbal communication with minor children while unsupervised such as
waving, gesturing, or winking. That aspect of this court’s decision was not
appealed to the Pennsylvania Supreme Court. Id. at 1288.
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for a determination as to whether the evidence was in fact sufficient to
sustain the defendant’s probation revocation based upon Supervision
Condition 19. Id. at 1293.
The Commonwealth and the PCRA court attempt to distinguish
MacGregor based on the fact that in the matter sub judice, the trial court
signed a “Special Field Report” from the Board specifically stating that
appellant was being supervised as a sexually violent predator and was not to
have any contact with children under the age of 18. (Appellant’s brief,
Appendix B.) Therefore, they argue that the trial court concurred with the
Board’s recommendations.
We find MacGregor to be controlling. As in MacGregor, in the
instant case, the trial court did not impose any terms and conditions of
probation whatsoever, remarking that they would be set by the Probation
Office or “whoever is going to do that.” Nor did the trial court set out any
terms and conditions of probation in its sentencing order. The fact that the
trial court signed a field report some six years later, dated January 28, 2007,
which contained the no-contact provision, is insufficient to comply with
Section 9754(b). The court in Elliott did not overrule Vilsaint and
MacGregor. MacGregor makes clear that only the court, not probation
officers, can impose terms and conditions of probation. The field report was
nothing more than a summary of appellant’s conditions of supervision, as
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contrasted with conditions of probation, which are required to be imposed by
the court.
While Elliott did hold that the Board may impose conditions of
supervision that are “germane to” any conditions of probation imposed by
the trial court, in the instant case, there were no conditions of probation for
the Board to elaborate upon or interpret. In Elliott, at time of sentencing,
the trial court had ordered as a condition of the defendant’s probation that
he not have unsupervised contact with children. The Board does not have
the statutory authority to implement standards and conditions of supervision
out of whole cloth; it can only administer conditions of supervision within the
parameters established by the trial court. Here, since the trial court never
imposed a no-contact provision, the Board could not enforce one. As such,
appellant’s contact with his two nieces was not a violation of his probation.
The Commonwealth failed to establish, as a matter of law, that appellant’s
conduct violated the terms and conditions of his probation. Clearly, then,
prior counsel were ineffective for failing to raise this issue in the court below
and on appeal. Appellant’s revocation sentence must be vacated and we will
reverse the order dismissing appellant’s PCRA petition.9 While it appears
9
As should be evident from this Memorandum, appellant’s claims are not
patently frivolous or without any support in the record, so as to permit
appointed counsel to withdraw. Even appellant’s previously waived
Section 9771(c) claim cannot be characterized as patently meritless, where
this court specifically expressed our displeasure at the trial court’s seemingly
purposeful refusal to address the Section 9771(c) factors. Appointed
counsel should have been required to file an amended petition on appellant’s
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that appellant’s original sentence, including the seven-year probationary tail,
has expired and he is entitled to immediate discharge without condition
except for Megan’s Law registration requirements, we will remand for the
trial court to make that determination and enter an appropriate order
forthwith.
Order reversed. Judgment of sentence vacated. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2015
behalf, and an evidentiary hearing should have been conducted. That said,
as appellant has retained counsel on the instant appeal and we have already
determined that he is entitled to PCRA relief, remand for new counsel would
be pointless.
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