Com. v. Stitt, G. ( 2014 )

J-S46008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GLENN STEWART STITT, JR., :
:
Appellant : No. 1881 MDA 2013
Appeal from the PCRA Order Entered October 9, 2013,
In the Court of Common Pleas of Berks County,
Criminal Division, at No. CP-06-CR-0003102-2005.
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 26, 2014
Appellant, Glenn Stewart Stitt, Jr., appeals pro se, from the denial of
his second petition filed pursuant to the Post Co
42 Pa.C.S.A. §§ 9541 9546. We affirm.
On June 29, 2005, Appellant was charged at Berks County Docket
Number 3102-05 with failing to register as a sex offender for the period of
July 12, 2001, through June 8, 2005. On May 5, 2006, following an April 28,
2006 bench trial, Appellant was convicted of Failure to Comply with
Registration of Sexual Offenders Requirements, 18 Pa.C.S.A. §4915(a)(1),1
1
Former § 4915, relating to failure to comply with registration of sexual
offenders requirements, was derived from 2004, Nov. 24, P.L. 1243, No.
152, § 1; 2006, Nov. 29, P.L. 1567, No. 178, § 3; 2011, Dec. 20, P.L. 446,
No. 111, § 1; 2012, July 5, P.L. 880, No. 91, § 1; and expired according to
its own terms on December 20, 2012. See 18 Pa.C.S.A. § 4915.1.
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and Verification Procedures and Applicability, 42 Pa.C.S.A. §
9795.2(a)(2)(ii).2 The trial court sentenced Appellant on December 1, 2006,
to one to three years of imprisonment followed by four years of probation.3
A timely appeal to this Court followed, wherein we summarized the facts and
early procedural history as follows:
The underlying facts of this matter are not at issue. In
fact, much of the evidence presented at trial was stipulated. It
is agreed that [Appellant] was convicted of sexual offenses in
Texas;[4] [Appellant] was required by Texas law to register as a
sex offender and the offenses, had they been committed in
Pennsylvania, would require registration under Pennsylvania law.
[Appellant] did register with the police when he first came to
Pennsylvania in July 2001. However, in July 2002 [Appellant]
moved from his apartment and did not notify the police. For at
least part of the time after moving from his initial Pennsylvania
residence, [Appellant] lived at the Barto Motel. The manager of
the Barto Motel testified that [Appellant] lived at the motel from
at least December 2003 through 2005.
2
Former § 9795.2, relating to registration procedures and applicability, was
derived from 2000, May 10, P.L. 74, No. 18, § 3; 2000, Dec. 20, P.L. 811,
No. 113, § 2; 2002, Oct. 17, P.L. 880, No. 127, § 4; 2004, Nov. 24, P.L.
1243, No. 152, § 8; 2006, Nov. 29, P.L. 1567, No. 178, § 7; 2011, Dec. 20,
P.L. 446, No. 111, § 9.1. See 42 Pa.C.S.A. §§ 9799.13, 9799.16, 9799.18,
9799.19, 9799.21.
3
Appellant was originally sentenced on October 20, 2006, to one to seven
years of imprisonment. On December 1, 2006, the trial court granted
-described
sentence.
4
Appellant was convicted in Texas of Section 21.11 (indecency with a child)
of the Texas Penal Code, and as a result, he registered as a sex offender in
Pennsylvania on July 12, 2001. N.T. (Trial), 4/28/06, at 9 10
Commonwealth Exhibit #1. The April 28, 2006 bench trial was largely
submitted on the record created at the December 8, 2005 pretrial hearing.
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Commonwealth v. Stitt, 947 A.2d 195, 196 (Pa. Super. 2008). We held
therein:
It is clear that at all times relevant to this matter,
[Appellant] was aware that he was required to register as a sex
offender and that prosecution was a possible consequence of
failing to register. It is clear that [Appellant] failed to notify the
proper authorities when he changed his address. Any technical
error in referencing a prior statute (which was in effect when the
violation began) in no way caused [Appellant] any prejudice due
to lack of notice or caused him to be unable to present a
defense. This is especially true where the statute referenced, 42
Pa.C.S. § 9795.2, specifically refers to both section 9795.1
(referenc[ing] those who are required to register) and 18 Pa.C.S.
§ 4915 (referencing the authority to prosecute for failing to
register and setting forth the grade of the crime committed).
Id. at 199. Our Supreme Court denied review on May 5, 2010.
Commonwealth v. Stitt, 995 A.2d 353 (Pa. 2010).
On June 14, 2010, Appellant filed a timely pro se PCRA petition.
Counsel was appointed on June 18, 2010, and sought to withdraw on
February 18, 2011. The PCRA court granted the request to withdraw on
March 10, 2011, appointed Lara Glenn Hoffert, Esquire, as conflict counsel,
and issued notice to Appellant of its intent to dismiss the PCRA petition
without a hearing. Counsel filed a petition to withdraw as counsel and a
- Commonwealth v. Turner, 518 Pa. 491, 544
A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). The PCRA court permitted counsel to withdraw on March
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10, 2011, and dismissed the PCRA petition on April 11, 2011. No appeal
followed.
A bench warrant issued for Appellant on June 8, 2011, for violation of
the probationary part of his sentence. The Berks County Common Pleas
Court held a pre-revocation (Gagnon I)5 hearing by video conferencing on
June 20, 2011, and determined that probable cause existed to believe that
Appellant violated his probation. On July 19, 2011, the court appointed
Nicholas Stroumbakis, Esq., as conflict counsel. The court held a Gagnon II
hearing on November 9, 2011. On November 10, 2011, the court revoked
to a term of incarceration of eight
months to four years. No appeal followed.
On December 14, 2011, Appellant filed a second pro se PCRA petition
challenging the validity of the 2006 conviction and sentence at the instant
docket number as well as that imposed in a separate case at Berks County
Docket Number 2321-06. Since it was a first petition for the other docket
number, the PCRA court appointed Osmer S. Deming as counsel on March 5,
2012. Between April 3, 2012, and July 1, 2013, PCRA counsel filed nine
petitions for extension of time to file an amended PCRA petition or no-merit
letter; the PCRA court granted all of the petitions. On August 19, 2013,
counsel filed a petition to withdraw as counsel and a no-merit letter pursuant
5
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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to Turner/Finley. That same day, the PCRA court issued notice of its intent
to dismiss the petition without a hearing and permitted counsel to withdraw.
The PCRA court dismissed the PCRA petition on October 9, 2013.
Appellant filed notices of appeal at both docket numbers on October
18, 2013. The PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement on October 25, 2013, which was due within twenty-one days of
the date of that order. No such statement was filed.6, 7
6
Number 2321-06, at Superior Court Docket Number 1882 MDA 2013, was
dismissed on January 29, 2014, for failure to comply with Pa.R.A.P. 3517
(Docketing Statement).
7
As noted, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement on October 25, 2013, due twenty-one days from the date of the
order, or by November 15, 2013. Appellant failed to file the court-ordered
statement. The PCRA court notes in its Pa.R.A.P. 1925(a) opinion that
-page
directing the filing of a Pa.R.A.P. 1925(b) statement because he did not have
access to the notes of testimony from his trials. PCRA Court Opinion,
11/12/13, at 1. The docket and record certified to us on appeal do not
include the document referenced by the PCRA court. Moreover, the PCRA
court noted that on July 19, 2013, the PCRA court ordered, and PCRA
counsel complied, with the directive to provide, inter alia, all transcripts to
Appellant.
bright-line rule, which obligates an appellant to file and serve a Rule 1925(b)
Commonwealth v. Hill, 16 A.3d 484, 494
(Pa. 2011); Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998). In 2007,
our Supreme Court amended Rule 1925 and added subsection (c)(3), which
directs us to remand for the filing of a statement nunc pro tunc if we are
convinced that counsel has been per se ineffective. Pursuant to this
provision, this Court remands where a counseled appellant in a criminal
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When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We
grant great de
record and will not disturb them unless they have no support in the certified
record. Commonwealth v. Rigg, 84 A.3d 1080 (Pa. Super. 2014).
Initially, we must assess whether Appellant satisfied the timeliness
requirements of the PCRA. The timeliness of a PCRA petition is a
case fails to file a Rule 1925(b) statement or an untimely statement that
amounts to per se ineffectiveness. See Commonwealth v. Scott, 952
1925(b) statement constitutes per se ineffectiveness requiring a remand);
Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009) (extending
remand procedure where counsel filed untimely Rule 1925(b) statement).
The rule requiring a remand for the filing of a Rule 1925(b) statement
nunc pro tunc due to per se ineffective assistance of counsel pursuant to
Pa.R.A.P. 1925(c)(3), is not applicable herein. As a pro se appellant, he
cannot assert his own ineffectiveness. See Commonwealth v. Fletcher,
es
Faretta
v. California, 422 U.S. 806, 834 n.46 (1975)). Indeed, our Supreme Court
has stated that a pro se
expertise as a ground for relie Commonwealth v. Bryant, 855 A.2d
726, 737 (Pa. 2004).
Thus, assuming, arguendo, that we had jurisdiction to address the
merits in this case, any issues raised in this appeal would be waived.
Pa.R.A.P. 1925 (b)(4)(vii) (Issues not included in the Rule 1925(b)
statement or not raised in accordance with the provisions of this paragraph
(b)(4) are waived).
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jurisdictional threshold that may not be disregarded in order to reach the
merits of the claims raised in a PCRA petition that is untimely.
Commonwealth v. Murray, 753 A.2d 201, 203 (2000).
Effective January 16, 1996, the PCRA was amended to require a
petitioner to file any PCRA petition within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Seskey
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
before the effective date of the amendment, a special grace proviso, not
applicable herein, allowed first PCRA petitions to be filed by January 16,
1997. Commonwealth v. Robinson, 12 A.3d 477, 479 n.3 (Pa. Super.
2011).
An untimely petition may be received when the petition alleges, and
the petitioner proves, that any of the three limited exceptions to the time for
filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is
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met.8 A petition invoking one of these exceptions must be filed within sixty
days of the date the claim could first have been presented. 42 Pa.C.S.A.
§
exception has been pled and proven, the petition must be dismissed without
a hearing because Pennsylvania courts are without jurisdiction to consider
Commonwealth v. Lambert, 57 A.3d 645, 648
(Pa. Super. 2012).
became final on August 3, 2010. He was sentenced on December 1, 2006,
and we affirmed the judgment of sentence on March 26, 2008. Our
2010. Appellant did not seek review in the United States Supreme Court;
8
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii).
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pursuant to Sup.Ct.R. 13, the time for filing a petition for certiorari expired
ninety days later, on August 3, 2010. Thus, any PCRA petition had to be
filed by August 3, 2011. 42 Pa.C.S.A. § 9545(b)(1) (PCRA petition must be
filed within one year of the date the judgment of sentence becomes final).
Appellant filed the instant second PCRA petition on December 14, 2011,
more than sixteen months after his judgment of sentence became final.
Thus, the instant PCRA petition is patently untimely. Seskey, 86 A.3d 237.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.A.
§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file
the petition within sixty days of the date that the exception could be
asserted. 42 Pa.C.S.A. § 9545(b)(2). The PCRA Court determined that none
of the allegations in the PCRA petition raised applicability of any of the
section 9545(b)(2) exceptions. Thus, it dismissed the petition as untimely.
bar; indeed, he makes no argument concerning the timeliness of the
petition. The allegations of the PCRA petition do not assert any claims
relating to the revocation of his probation; rather, to the extent we can
discern the nature of his incoherent ramblings, Appellant suggests violations
at his initial bench trial and sentencing. These are the same issues that
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were rejected when the PCRA court permitted counsel to withdraw on March
10, 2011, and dismissed the first PCRA petition on April 11, 2011. As to
has made clear that an allegation of cou
invoked as an after-discovered fact to satisfy the requirements of 42
Pa.C.S.A. § 9545(b)(1)(ii). Commonwealth v. Bennett, 930 A.2d 1264(Pa. 2007).
As Appellant did not allege below or in this appeal any exceptions to
the time-bar of the PCRA statute, we conclude, as did the PCRA court, that
his petition was untimely filed. Because the court below was without
jurisdiction to reach the merits of the petition,9 we affirm.10
Order affirmed.
9
As noted in note 8, supra, even if this petition were timely and we had
failure to file the court-ordered Rule 1925(b) statement. Pa.R.A.P.
1925(b)(4)(vii).
10
is denied. The Applica -
-[sic]Down
of Act 111 as Unconstitutional in Penn
2014, is denied as moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
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