Com. v. Rottman, D. ( 2021 )

J-S20041-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DUSTIN JEFFREY ROTTMAN :
:
Appellant : No. 1276 MDA 2020
Appeal from the PCRA Order Entered August 27, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004638-2019
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J. FILED: AUGUST 16, 2021
Dustin Jeffrey Rottman (“Rottman”) appeals from the Order denying his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We vacate the Order, and remand for further proceedings.
In its Opinion, the PCRA court summarized the relevant history of this
case as follows:
[Rottman] was charged with a [d]riving [u]nder the [i]nfluence
[(“DUI”)] offense on February 17, 2009. He completed
[Accelerated Rehabilitative Disposition (“ARD”)], and a discharge
of the case was ordered. [Rottman] was charged with his second
DUI offense on November 12, 2016, and he pled guilty on April
10, 2017. On June 30, 2019, [Rottman] was charged with his
third DUI offense. On January 30, 2020, [Rottman] pled guilty to
one count of DUI pursuant to 75 Pa.C.S.[A.] § 3802(d)(2), graded
as a [f]elony of the third degree. [Rottman] was sentenced[,] in
accordance with his plea agreement[,] to 7 years of intermediate
punishment, with the first 6 months to be served in York County
Prison, followed by 6 months of house arrest and electronic
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1 42 Pa.C.S.A. §§ 9541-9546.
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monitoring, and the balance to be served on probation.
[Rottman], as ordered, reported to [the] York County Prison on
February 24, 2020. As no post-sentence motions were filed and
no appeal was perfected, [Rottman’s] sentence became final on
February 29, 2020. On March 27, 2020, [Rottman] was granted
early parole and released to house arrest.
[Rottman] filed a [PCRA Petition] on July 15, 2020[,]
seeking relief under the theory that his sentence was illegal
pursuant to the Superior Court’s decision in Commonwealth v.
Chichkin, 232 A.3d 959 (Pa. Super. 2020). On August 21, 2020,
the Commonwealth filed a Motion for Dismissal of [Rottman’s
PCRA] Petition. On August 24, 2020, [the PCRA court] entered an
Order dismissing [Rottman’s] [P]etition without a hearing. On
September 23, 2020, [Rottman] filed a [timely] Notice of Appeal.
[Rottman] was directed to file a [c]oncise [s]tatement of
[m]atters [c]omplained of on [a]ppeal pursuant to Pa.R.A.P.
1925(b). [Rottman] filed a [Concise Statement] on October 19,
2020….
PCRA Court Opinion, 11/25/20, at 1-2.
Rottman presents the following claims for our review:
1. Was the [PCRA] court’s denial of [Rottman’s PCRA] Petition
…[,] ordered without a Notice of Intent to Dismiss PCRA Petition
and without a hearing on the merits, improper?
2. Should the rule set forth in [] Chichkin, establishing that an
ARD disposition shall not be considered a prior conviction for
sentencing purposes on a subsequent criminal charge, apply
retroactively to [Rottman’s] sentence?
Brief for Appellant at v (issues renumbered).
In reviewing the dismissal of a PCRA petition, our standard of review is
abuse of discretion. Commonwealth v. Roney, 79 A.3d 595, 603 (Pa.
2013). “With respect to the PCRA court’s decision to deny a request for an
evidentiary hearing, or to hold a limited evidentiary hearing, such a decision
is within the discretion of the PCRA court and will not be overturned absent
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an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.
2015).
Rottman first claims that the PCRA court improperly dismissed his PCRA
Petition without first issuing notice pursuant to Pa.R.Crim.P. 907. Brief for
Appellant at 9. Rottman points out that in its Opinion, the PCRA court agreed
that a remand is necessary to rectify this error. Id. (citing PCRA Court
Opinion, 11/25/20, at 5-6). We agree.
This Court has recognized that the notice requirement of Rule 907(1)
is mandatory. Commonwealth v. Feighery, 661 A.2d 437, 439 (Pa. Super.
1995). Non-compliance with Rule 907(1) requires vacatur of the order of
dismissal, unless the petitioner waives the claim by failing to raise it on
appeal. Commonwealth v. Vo, 235 A.3d 365, 372 (Pa. Super. 2020); see
also Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (stating
that the “failure to challenge the absence of a Rule 907 notice constitutes
waiver.”).
[T]he purpose of a Rule 907 pre-dismissal notice is to allow a
petitioner an opportunity to seek leave to amend his petition and
correct any material defects, the ultimate goal being to permit
merits review by the PCRA court of potentially arguable claims.
The response to the Rule 907 notice is an opportunity for a
petitioner and/or his counsel to object to the dismissal and alert
the PCRA court of a perceived error, permitting the court to
discern the potential for amendment. The response is also the
opportunity for the petitioner to object to counsel’s effectiveness
at the PCRA level…
Vo, 235 A.3d at 372 (citations, quotations, emphasis and brackets omitted).
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Here, the PCRA court concedes its failure to comply with Rule 907, and
Rottman has objected. Brief for Appellant at 9. Accordingly, we vacate the
Order dismissing Rottman’s PCRA Petition, and remand for the PCRA court to
comply with Pa.R.Crim.P. 907.
Order vacated. Case remanded with instructions. Superior Court
jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2021
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