Com. v. Oliphant, M. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MARCELLUS OLIPHANT, : No. 779 EDA 2015
:
Appellant :
Appeal from the PCRA Order, February 12, 2015,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0002145-2009
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 05, 2016
Marcellus Oliphant appeals, pro se, from the order of February 12,
2015, dismissing his PCRA1 petition and granting court-appointed counsel
permission to withdraw. We affirm.
Following a four-day jury trial in October 2010, appellant was found
guilty of numerous offenses, including four counts of robbery. The charges
were brought in connection with a bank robbery on April 30, 2005, during
which appellant acted as the getaway driver. On April 12, 2011, appellant
was sentenced to 10½ to 21 years’ imprisonment. Appellant took a direct
appeal, and this court affirmed on June 5, 2012. Commonwealth v.
Oliphant, 53 A.3d 924 (Pa.Super. 2012) (unpublished memorandum).
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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Appellant did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court.
On June 25, 2013, appellant filed a timely pro se PCRA petition.
Counsel was appointed, and on October 4, 2013, filed a petition to withdraw
and a Turner/Finley “no-merit” letter.2 On November 14, 2013, the PCRA
court issued a Rule 907 20-day notice of intent to dismiss the petition
without a hearing.3 On January 16, 2014, appellant filed a pro se response
to Rule 907 notice. On June 13, 2014, the PCRA court directed counsel to
review appellant’s pro se response and file either an amended PCRA petition
on appellant’s behalf or another petition for leave to withdraw pursuant to
Turner/Finley. On June 30, 2014, PCRA counsel filed an answer to
appellant’s pro se response to Rule 907 notice, addressing the issues raised
therein. On February 12, 2015, the PCRA court dismissed the petition and
granted counsel leave to withdraw.
A timely pro se notice of appeal was filed on March 11, 2015.4 On
March 23, 2015, the PCRA court granted appellant in forma pauperis
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3
Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A.
4
Although appellant’s appeal notice was not docketed until March 16, 2015,
it was dated March 11, 2015. See Commonwealth v. Jones, 700 A.2d
423, 426 (Pa. 1997) (an appeal by a pro se prisoner is deemed filed on the
date the prisoner deposits the appeal with prison authorities and/or places it
in the prison mailbox).
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status and also ordered appellant to file a concise statement of errors
complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A. The criminal docket indicates that the PCRA court’s Rule 1925
order was sent to appellant by certified mail on March 25, 2015. On May 5,
2015, the PCRA court filed a Rule 1925(a) opinion, stating that appellant had
failed to file a concise statement as ordered and has therefore waived any
alleged errors complained of on appeal.
In 1998, our Supreme Court held that “in order to
preserve their claims for appellate review, Appellants
must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal
pursuant to Rule 1925.” Commonwealth v. Lord,
553 Pa. 415, 719 A.2d 306, 309 (1998).
Subsequently, in Commonwealth v. Castillo, 585
Pa. 395, 888 A.2d 775 (2005), the Supreme Court
affirmed its holding in Lord, ruling that a failure to
file a 1925(b) statement within 14 days[Footnote 8]
after entry of an order requesting the statement,
regardless of the length of the delay, results in
automatic waiver.
[Footnote 8] Lord and Castillo
examined the application of the previous
version of Pa.R.A.P. 1925. Under that
version, when the trial court entered an
order directing the appellant to file a
concise statement, the appellant had
only 14 days to file the statement.
Pa.R.A.P. 1925(b) (2007).
Commonwealth v. Thompson, 39 A.3d 335, 338 (Pa.Super. 2012)
(additional footnotes omitted).
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
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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 Lord
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 Matters 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).
Instantly, the record indicates that appellant failed to comply with the
trial court’s Rule 1925 order. While appellant claims that he filed a concise
statement on April 6, 2015 (appellant’s brief at 5-6), none appears
anywhere in the certified record, nor did he attach any such statement to his
brief as required by Pa.R.A.P. 2111(d).5 As such, appellant has waived all
issues on appeal.6
5
In support of his assertion that he filed a concise statement on April 6,
2015, appellant attaches to his brief his April 2015 “Monthly Account
Statement,” indicating that $1.61 in postage fees was deducted from his
prisoner account on that date. (Appellant’s brief, Appendix “D”.) This does
not prove anything, except that appellant mailed something on that date.
Appellant does not attach a copy of his Rule 1925(b) statement to his brief,
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We further note that because appellant is pro se, the remand
procedure added to Rule 1925 in 2007 does not apply. See
Pa.R.A.P. 1925(c)(3) (“If an appellant in a criminal case was ordered to file a
Statement and failed to do so, such that the appellate court is convinced
that counsel has been per se ineffective, the appellate court shall remand for
the filing of a Statement nunc pro tunc and for the preparation and filing of
an opinion by the judge.”) (codifying the procedure established by this court
in Commonwealth v. West, 883 A.2d 654 (Pa.Super. 2005)); see also
Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc)
(extending the remedy in Rule 1925(c)(3) to untimely Rule 1925 concise
statements).
In addition, this is an appeal from dismissal of a PCRA petition. Our
supreme court has held that the procedure devised in West, as codified in
Rule 1925(c)(3), does not apply to PCRA appeals. Hill, 16 A.3d at 496-497.
as required by the Rules of Appellate Procedure, nor can it be found in the
certified record. The PCRA court did not receive it, as indicated in its
Rule 1925(a) opinion finding waiver. Appellant does not allege that he was
not properly served with the PCRA court’s Rule 1925 order; in fact, he insists
that he filed a concise statement in compliance with the rules. Therefore,
we are compelled to find waiver.
6
We note that appellant does not raise any legality of sentencing claims
which could be considered non-waivable. See, e.g., Commonwealth v.
Edrington, 780 A.2d 721, 723 (Pa.Super. 2001) (“So long as jurisdictional
requirements are met, [a]n illegal sentence can never be waived and may be
reviewed sua sponte by this court.” (internal quotation marks and citations
omitted)). All of appellant’s issues allege ineffectiveness of trial and/or
PCRA counsel.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2016
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