Com. v. Gessner, A. ( 2016 )

J-S45037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AMANDA LYNN GESSNER,
Appellant No. 1965 WDA 2015
Appeal from the PCRA Order November 17, 2015
in the Court of Common Pleas of Crawford County
Criminal Division at No.: CP-20-CR-0000202-2013
BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 29, 2016
Appellant, Amanda Lynn Gessner, appeals pro se from the court’s
order denying her first petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, after a hearing. We affirm.
We take the following facts from the PCRA court’s memorandum and
order of October 19, 2015, its Rule 1925(a) opinion filed on February 23,
2016, and our independent review of the certified record. On May 30, 2013,
Appellant pleaded guilty to aggravated harassment by a prisoner, 18
Pa.C.S.A. § 2703.1. The charge arose from Appellant’s throwing urine at a
corrections officer at SCI Cambridge Springs, where she was serving a
sentence for arson and related crimes.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S45037-16
On August 20, 2013, the court sentenced Appellant to a term of not
less than twenty-four nor more than forty-eight months’ incarceration in a
state correctional institution, consecutive to the sentence she was then-
serving. The court denied Appellant’s motion for modification of sentence on
September 23, 2013. On September 30, 2013, the court granted counsel’s
petition to withdraw. Appellant filed a petition for sentence reconsideration
pro se nunc pro tunc in this Court. On November 15, 2013, we transferred
the document to the trial court to be treated as a notice of appeal. On
November 19, 2013, the court appointed counsel. This Court affirmed the
judgment of sentence on May 27, 2014. (See Commonwealth v.
Gessner, 104 A.3d 60 (Pa. Super. 2014) (unpublished memorandum)).
Appellant mailed a pro se petition for PCRA relief to the Pennsylvania
Supreme Court, which in turn forwarded it to the PCRA court, where it was
filed on November 12, 2014. The PCRA court appointed counsel on
November 17, 2014. Counsel filed an amended petition on January 15,
2015. After a hearing, the court issued an order on October 19, 2015
notifying Appellant of its intention to dismiss the petition. Appellant
responded pro se on November 16, 2015, and the court dismissed the
petition on November 17, 2015.
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Appellant filed a purported pro se notice of appeal on December 10,
2015, and the PCRA court scheduled a Grazier1 hearing to determine
whether Appellant intended to proceed without the assistance of counsel.
On January 26, 2016, after the Grazier hearing, the court entered an order
in which it found that Appellant’s “waiver of counsel is knowing, voluntary[,]
and intelligently made,” and relieved counsel of further representation.
(Grazier Hearing Order, 1/26/16). The same day, the court ordered
Appellant to file a Rule 1925(b) statement of errors complained of on appeal
within twenty-one days of the order’s entry. See Pa.R.A.P. 1925(b). The
order further provided that failure of Appellant to file the statement would
result in waiver of her issues on appeal. (See Concise Statement Order,
1/26/16, at 2). Appellant failed to file the court-ordered statement, and the
court filed an opinion on February 23, 2016, in which it suggested that
Appellant’s issues are waived, but incorporated its October 19, 2015 opinion
“in an abundance of caution[.]” (Pa.R.A.P. 1925(a) Opinion, 2/23/16, at
2);2 see also Pa.R.A.P. 1925(a).
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1
Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (“When a waiver
of the right to counsel is sought at the post-conviction and appellate stages,
an on-the-record determination should be made that the waiver is a
knowing, intelligent, and voluntary one.”) (citations omitted).
2
The court notes in its February 23, 2016 opinion that:
The [c]ourt has this day received by mail an unsigned
statement of errors from one Mark Marvin purportedly on behalf
(Footnote Continued Next Page)
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Appellant raises seven issues for this Court’s review.
I[.] [Appellant] is not guilty.
II[.] Plea was irrational and unintelligent and based on the
decisions of the Superior Court that the government was relieved
of its burden of proof to the extent that the government did not
need to prove the identity of the substance that was reported to
have been used in the harassment incident, and further denying
the right of Confrontation, and Due Process.
III[.] The incident arose from unconscionable deprivation of
hygiene products that were requested by [Appellant].
IV[.] The manner of refusal of hygiene products was provocative
and constituted entrapment by government.
V[.] [Appellant] was denied equal protection under the laws of
the United States.
VI[.] The statute in question: (18 Pa.C.S.A. [§] 2703.1:
Aggravated Harassment by a Prisoner) is unconstitutionally
vague, and identifies a crime that non-prisoners are exempt
from.
VII[.] Counsel was ineffective.
(Appellant’s Brief, at 1).
It is well-settled that our standard of review of the court’s denial of a
PCRA petition “is whether the record supports the PCRA court’s
_______________________
(Footnote Continued)
of []Appellant, dated February 17, 2016, and enclosed in an
envelope bearing a postmark of February 18, 2016. The
statement is untimely, has not been filed with our Clerk of
Courts, and is presented [] by an individual who has not entered
an appearance on behalf of []Appellant (and, moreover, is
reportedly not licensed to practice law). Accordingly, the [c]ourt
disregards this correspondence.
(Trial Ct. Statement, at 1 n.1).
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determination and whether the PCRA court’s determination is free of legal
error.” Commonwealth v. Perzel, 116 A.3d 670, 671 (Pa. Super. 2015)
(citation omitted). However, before we reach the merits of Appellant’s
issues, we must determine whether she has properly preserved them for
appeal.
Our Supreme Court has stated:
Our jurisprudence is clear and well-settled, and firmly
establishes that: Rule 1925(b) sets out a simple bright-line rule,
which obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered; any issues not raised in a Rule
1925(b) statement will be deemed waived; the courts lack the
authority to countenance deviations from the Rule’s terms; the
Rule’s provisions are not subject to ad hoc exceptions or
selective enforcement; appellants and their counsel are
responsible for complying with the Rule’s requirements; Rule
1925 violations may be raised by the appellate court sua sponte,
and the Rule applies notwithstanding an appellee’s request not
to enforce it; and, if Rule 1925 is not clear as to what is required
of an appellant, on-the-record actions taken by the appellant
aimed at compliance may satisfy the Rule. We yet again repeat
the principle first stated in [Commonwealth v.] Lord[,719 A.2d
306 (Pa. 1998),] that must be applied here: “[I]n order to
preserve their claims for appellate review, [a]ppellants must
comply whenever the trial court orders them to file a Statement
of [Errors] Complained of on Appeal pursuant to Pa.R.A.P. 1925.
Any issues not raised in a Pa.R.A.P. 1925(b) statement will be
deemed waived.” 719 A.2d at 309.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted);
see id. at 493-94 (finding appellant waived all issues when he failed to file a
court-ordered Rule 1925(b) statement, even though he had made ex parte,
off the record, contact with the court concerning his claims).
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Likewise, here, Appellant failed to file a court-ordered Rule 1925(b)
statement. The fact that a previously unknown third party sent the court an
untimely, unsigned statement of errors does not cure this defect. The
person is not a licensed attorney representing Appellant; and the document
was not filed of record. The PCRA court properly disregarded it.
Additionally, contrary to Appellant’s assertion, (see Appellant’s Reply Brief,
at 1), her inclusion of a Rule 1925(b) statement in her appellate brief does
not satisfy the Rule either, because “Pa.R.A.P. 1925 is intended to aid trial
judges in identifying and focusing upon those issues which the parties plan
to raise on appeal. Rule 1925 is thus a crucial component of the appellate
process.” Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002)
(citation omitted).
Therefore, because Appellant failed to file a court-ordered Rule
1925(b) statement, any appellate issues are waived.3
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3
We are cognizant that Appellant has waived her right to appellate counsel
and that she is proceeding pro se. However, it is well-settled that:
Under Pennsylvania law, pro se defendants are subject to
the same rules of procedure as are represented defendants.
See Commonwealth v. Williams, 586 Pa. 553, 896 A.2d 523,
534 (2006)[, cert. denied, 549 U.S. 1213 (2007)] (pro se
defendants are held to same standards as licensed attorneys).
Although the courts may liberally construe materials filed by a
pro se litigant, pro se status confers no special benefit upon a
litigant[.]
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2016
_______________________
(Footnote Continued)
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014), cert. denied,
135 S.Ct. 2817 (2015). “To the contrary, any person choosing to represent
[herself] in a legal proceeding must, to a reasonable extent, assume that
[her] lack of expertise and legal training will be [her] undoing.” In re
Ullman, 995 A.2d 1207, 1212 (Pa. Super. 2010), appeal denied, 20 A.3d
489 (Pa. 2011) (citation omitted).
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