Com. v. Baker, S., Jr. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
STEPHEN FREDERICK BAKER JR. :
:
Appellant : No. 1435 MDA 2020
Appeal from the PCRA Order Entered January 31, 2020
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000013-2005
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEPHEN FREDERICK BAKER JR. :
:
Appellant : No. 269 MDA 2021
Appeal from the PCRA Order Entered January 31, 2020
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000013-2005
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED: JUNE 8, 2021
Stephen Frederick Baker, Jr. has filed two pro se notices of appeal from
the order that dismissed as untimely his third petition filed pursuant to the
Post Conviction Relief Act (“PCRA”). We affirm the PCRA court’s January 31,
2020 order at 1435 MDA 2020 and dismiss the appeal at 269 MDA 2021 as
duplicative.
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On September 11, 2006, Appellant pled guilty to, inter alia, two counts
of second-degree murder, and was sentenced to life imprisonment. His direct
appeal resulted in no relief. See Commonwealth v. Baker, 951 A.2d 1204(Pa.Super. 2008) (unpublished memorandum). Appellant filed a timely PCRA
petition challenging the effectiveness of plea counsel, which the PCRA court
denied without a hearing on November 19, 2009.
On February 2, 2010, Appellant filed his second PCRA petition. Counsel
was appointed but took no action. The PCRA court, more than four and one-
half years later, appointed new counsel, who obtained nunc pro tunc
reinstatement of Appellant’s right to appeal the dismissal of the first petition.
However, that appeal also failed to garner Appellant relief. See
Commonwealth v. Baker, 134 A.3d 506 (Pa.Super. 2015) (unpublished
memorandum) (rejecting Appellant’s claims that his plea was involuntary
because a limited mental capacity prohibited him from understanding the
charges against him and counsel had failed to share discovery materials with
him prior to the plea), appeal denied, 136 A.3d 978 (Pa. 2016).
Appellant next sought relief in federal court, again pursing claims of
mental incapacity and counsel abandonment. Those efforts also proved
unfruitful, as the district court denied his petition for a writ of habeas corpus
and appeals from that decision did not succeed. See Baker v. Lane, 1:16-
CV-2478, 2019 WL 11767650 (M.D. Pa. July 17, 2019), certificate of
appealability denied sub nom., Baker v. Superintendent Fayette SCI, 19-
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2800, 2020 WL 8615525 (3d Cir. Apr. 2, 2020), cert. denied sub nom., Baker
v. Capozza, 141 S.Ct. 1408 (2021).
Meanwhile, back in state court, Appellant filed his third pro se PCRA
petition on May 10, 2019. Therein, Appellant raised a bevy of claims related
to prior counsel’s performance, the denial of his suppression motion, his
mental health, violations of Brady v. Maryland, 373 U.S. 83 (1963), and the
voluntariness of his plea. Counsel was appointed, who subsequently
requested to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa. 1988), and Commonwealth v. Finley, 550, A.2d 213 (Pa.Super. 1988)
(en banc). Specifically, counsel observed that the petition was untimely and
none of the timeliness exceptions was applicable, and that, even if timely, the
issues Appellant raised were previously litigated in state and federal court.
See Petition to Withdraw, 10/10/19, at 3.
The PCRA court granted counsel leave to withdraw and issued notice of
its intent to dismiss Appellant’s third PCRA petition, explaining that Appellant
“alleged no facts and cited no controlling law showing that his petition was
timely,” and furthermore, it was “apparent from the record that all pertinent
issues raised by [Appellant] in his petition have been previously litigated[.]”.
Order and Notice of Intent to Dismiss, 11/14/19, at 2 (unnecessary
capitalization omitted). Appellant filed no response, and the PCRA court
dismissed the petition by order of January 31, 2020. However, the order was
sent to Appellant’s then-withdrawn counsel rather than to Appellant. Hence,
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the PCRA court, upon timely petition by Appellant, reinstated his right to
appeal the dismissal of the third PCRA petition, but did not inform him that
said appeal had to be filed within thirty days. See Order, 8/31/20.
On September 22, 2020, Appellant requested an extension of time to
file his appeal, citing, inter alia, the COVID-19-related prison lockdown.
Hearing nothing from the PCRA court, Appellant on November 4, 2020, filed
the notice of appeal which was docketed at 1435 MDA 2020. On December
15, 2020, this Court ordered the PCRA court to rule upon Appellant’s extension
request. Fifteen days later, the PCRA court filed an order granting Appellant
an additional sixty days to file a notice of appeal, but the order was not served
upon Appellant until January 14, 2021. On February 8, 2021, Appellant filed
the notice of appeal that was docketed at 269 MDA 2021.
In this Court, Appellant filed the same brief at both docket numbers.
The Commonwealth filed separate briefs which, by and large, overlap.
Specifically, the Commonwealth advocates: (1) quashal of the appeal because
Appellant’s brief does not conform to the Rules of Appellate Procedure; or (2)
affirmance of the order dismissing Appellant’s third PCRA petition based upon
(a) the untimeliness of the petition, (b) the fact that the claims were
previously litigated, or (c) a lack of substantive merit. See Commonwealth’s
brief (1435 MDA 2020) at 1; Commonwealth’s brief (269 MDA 2021) at 1.
One disposition the Commonwealth fails to suggest is quashal based
upon the untimeliness of either or both of Appellant’s notices of appeal.
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However, we must first consider the issue sua sponte, as the timeliness of an
appeal implicates our jurisdiction to entertain its merits. See, e.g.,
Commonwealth v. Willis, 29 A.3d 393, 395 (Pa.Super. 2011).
Ordinarily, a notice of appeal must “be filed within 30 days after the
entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). Neither
a trial court nor this Court has the power to enlarge the time for filing a notice
of appeal. See Commonwealth v. Smith, 501 A.2d 273, 275 (Pa.Super.
1985) (“A court may not enlarge the time for filing a notice of appeal as a
matter of grace or indulgence.”); State Farm Mut. Auto. Ins. Co. v.
Schultz, 421 A.2d 1224, 1225 (Pa.Super. 1980). However, once the period
for filing a timely appeal has elapsed, a court may reinstate the right to appeal
an order “now for then.” Commonwealth v. Wright, 846 A.2d 730, 735
(Pa.Super. 2004). When such relief is granted, although the appeal serves to
challenge a prior order, the notice must be filed within thirty days of the entry
of the order granting nunc pro tunc relief. Id.Here, the order granting Appellant leave to appeal the January 31, 2020
dismissal order nunc pro tunc was entered on August 31, 2020. Accordingly,
Appellant had until September 30, 2020, to file a timely notice of appeal. The
notice of appeal docketed at 1435 MDA 2020 was filed more than one month
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after that, on November 2, 2020.1 The PCRA court by order entered January
14, 2021, purported to grant Appellant an additional sixty days to file a timely
notice of appeal, and Appellant filed the notice docketed at 269 MDA 2021
within that timeframe.
However, as noted above, the trial court’s order granting Appellant the
right to file an appeal nunc pro tunc did not specify the resultant due date for
Appellant’s notice of appeal. In such instances where the court failed to advise
the litigant of the time constraints for filing the nunc pro tunc appeal, this
Court has repeatedly declined to quash as untimely an appeal filed more than
thirty days later. See Commonwealth v. Maddrey, 205 A.3d 323, 326
(Pa.Super. 2019); In re J.M.P., 863 A.2d 17, 20 (Pa.Super. 2004); Wright,
supra. Following this precedent, we conclude that Appellant’s November 2,
2020 notice of appeal was timely filed nunc pro tunc, and thus establishes our
jurisdiction to entertain the appeal filed at 1435 MDA 2020.2 Consequently,
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1 The notice of appeal was docketed on November 4, 2020, but was
postmarked November 2, 2020. As Appellant did not indicate an earlier date
on which he deposited the notice in the prison mail system, we use the
postmark date as the date of filing. See, e.g., Commonwealth v. Betts,
240 A.3d 616, 620 n.4 (Pa.Super. 2020) (explaining that, pursuant to the
prisoner mailbox rule, “submissions from an incarcerated litigant are deemed
to be filed when deposited into the prison mailing system, or handed over to
prison officials for mailing”).
2 The Commonwealth suggests dismissal of the appeal at 1435 MDA 2020 on
the basis that Appellant is not an aggrieved party. See Commonwealth’s
brief (1435 MDA 2020) at 1. This stems from the fact that in that notice of
(Footnote Continued Next Page)
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Appellant’s second appeal is duplicative of the first, and is hereby dismissed
for that reason.3 See, e.g., Neidert v. Charlie, 143 A.3d 384, 387 n.3
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appeal, Appellant purported to appeal from the order reinstating his appellate
rights nunc pro tunc rather than from the order dismissing his third PCRA
petition. This Court raised the issue in a rule to show cause why that appeal
should not be quashed on the basis that Appellant was not an aggrieved party.
Although our docket does not reflect that Appellant responded to the rule, this
Court discharged it and referred the issue to this panel.
“Failure of an appellant to take any step other than the timely filing of a notice
of appeal does not affect the validity of the appeal[.]” Pa.R.A.P. 902. “Indeed,
this Court regularly amends captions to reflect the properly-appealed-from
orders when parties designate incorrect orders in their notices of appeal.”
Commonwealth v. Jones, 139 EDA 2019, 2020 WL 686215, at *2 n.2
(Pa.Super. Feb. 11, 2020) (non-precedential decision) (collecting cases).
Accordingly, rather than quash or dismiss the appeal on the basis that
Appellant was not aggrieved by the order from which he purported to appeal,
we have amended the caption to reflect the order which Appellant actually
seeks to have this Court review: the January 31, 2020 order dismissing his
PCRA petition. Accord Foster v. Mut. Fire, Marine & Inland Ins. Co., 676
A.2d 652, 657 n.5 (Pa. 1996) (declining to quash appeal where notice listed
only an order that had been subsequently modified by a different order where
it was obvious from the record that the appellant sought review of both
orders).
3 Given our disposition of the appeal at 269 MDA 2021, we need not decide
whether the trial court’s subsequent extension of time for Appellant to file an
appeal, which exceeded its authority as discussed above, could nonetheless
have validated Appellant’s second appeal by serving as a de facto new grant
of nunc pro tunc relief and/or constituting a misstatement of the appeal period
that amounted to a breakdown in court processes. Compare
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa.Super. 2001)
(declining to quash untimely appeal where the trial court provided erroneous
information about the appeal period), with Commonwealth v. Santiago,
1450 WDA 2018, 2020 WL 1527266, at *1 (Pa.Super. Mar. 30, 2020) (non-
precedential decision) (quashing appeal as untimely despite the fact that the
trial court had granted a motion for an extension of time to file it).
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(Pa.Super. 2016) (dismissing appeal that was duplicative of properly-filed
appeal).
Having determined that we have jurisdiction to consider the appeal filed
at 1435 MDA 2020, we note the legal principles applicable to our 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. Rizvi, 166
A.3d 344, 347 (Pa.Super. 2017).
“Because the PCRA time limitations implicate our jurisdiction and may
not be altered or disregarded in order to address the merits of a petition, we
must start by examining the timeliness of Appellant’s petition.”
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014). Indeed, “no
court has jurisdiction to hear an untimely PCRA petition.” Commonwealth
v. Ballance, 203 A.3d 1027, 1031 (Pa.Super. 2019). The pertinent statute
provides as follows regarding the time for filing a PCRA petition:
Any petition [filed pursuant to the PCRA], including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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;
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(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. § 9545(b)(1). Further, any petition invoking an exception to the
one-year time bar “shall be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant’s judgment of sentence became final in 2008 after Appellant
declined to file a petition for allowance of appeal following this Court’s
affirmance of his judgment of sentence. See Commonwealth v. Baker, 951
A.2d 1204 (Pa.Super. 2008) (unpublished memorandum filed February 12,
2008). Appellant filed the PCRA petition that is the subject of the instant
appeal more than a decade later. Thus, it was facially untimely. As noted
above, the PCRA court dismissed Appellant’s petition upon observing that
Appellant failed to offer any legal basis to except him from the one-year
timeliness requirement.
Appellant in his brief states eight substantive issues on topics such as
suppression of his statements to police, a Brady violation, the adequacy of
his guilty plea colloquy, and ineffectiveness of various prior counsel. See
Appellant’s brief at unnumbered 3-4. We do not discern anywhere in his forty-
seven stream-of-consciousness paragraphs an explanation of how one or
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more of the enumerated timeliness exceptions was invoked in the PCRA court
and improperly rejected. Instead, he offers rambling assertions of error and
discussion of various points of state and federal law in a manner that, as the
Commonwealth correctly observes, fails to conform with multiple Rules of
Appellate Procedure. See Commonwealth’s brief (1435 MDA 2020) at 12-14.
“[A]lthough this Court is willing to construe liberally materials filed by a
pro se litigant, a pro se appellant enjoys no special benefit.” Commonwealth
v. Tchirkow, 160 A.3d 798, 804 (Pa.Super. 2017). “This Court will not act
as counsel and will not develop arguments on behalf of an appellant.” Id.(internal quotation marks omitted). “It is an appellant’s burden to persuade
us that the PCRA court erred and that relief is due.” Commonwealth v.
Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (internal quotation marks
omitted).
Appellant has failed to convince us that the PCRA court erred in
concluding that his third PCRA petition was untimely filed, a finding fully
supported by the record. Consequently, neither the PCRA court nor this Court
has jurisdiction to rule on the merits of the claims raised therein. Therefore,
we have no basis to disturb the PCRA court’s order dismissing Appellant’s
petition.
Order affirmed at 1435 MDA 2020. Appeal at 269 MDA 2021 dismissed.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/08/2021
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