Com. v. Gardner, S.

J-A18028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN ALAN GARDNER :
:
Appellant : No. 1305 WDA 2021
Appeal from the PCRA Order Entered September 29, 2021
In the Court of Common Pleas of Butler County
Criminal Division at CP-10-CR-0000219-1995
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 7, 2022
Steven Alan Gardner (Appellant) appeals pro se from the order
dismissing his serial petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 1995, a jury convicted Appellant of shooting and killing his roommate.
On October 23, 1995, the trial court sentenced Appellant to life in prison. This
Court affirmed, and our Supreme Court denied allowance of appeal.
Commonwealth v. Gardner, 764 A.2d 1122 (Pa. Super. 2000) (unpublished
memorandum), appeal denied, 785 A.2d 87 (Pa. 2001). In the ensuing
years, Appellant filed numerous PCRA petitions, each of which was dismissed
and affirmed on appeal. See generally Commonwealth v. Gardner, 106
A.3d 156 (Pa. Super. 2014) (unpublished memorandum) (explaining
Appellant’s various petitions, and affirming PCRA court’s dismissal of serial
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petition where it was jurisdictionally time-barred and Appellant did not meet
any exception); see also Commonwealth Brief at 4 (asserting Appellant “has
filed at least ten [PCRA] petitions, some of which have been couched as
proposed amendments to other, previously filed petitions.”).
On September 14, 2020, Appellant filed the instant pro se PCRA petition,
claiming judicial bias and deprivation of his constitutional rights. The PCRA
court appointed counsel to represent Appellant. However, after holding a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998),
the court granted Appellant’s request to represent himself. Appellant filed an
amended PCRA petition on June 7, 2021.
On July 14, 2021, the PCRA court issued Pa.R.Crim.P. 907 notice of
intent to dismiss Appellant’s petition, opining that it was time-barred and
Appellant had failed to plead or prove any exception. On August 2, 2021,
Appellant filed a response to the Rule 907 notice, as well as another amended
PCRA petition.1 The PCRA court dismissed Appellant’s petition on September
29, 2021. Appellant filed a pro se notice of appeal 33 days later, on November
1, 2021.
On December 13, 2021, this Court issued a rule upon Appellant to show
cause why we should not quash his appeal as being untimely filed. See
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1 Appellant did not obtain leave of court to amend his PCRA petition. See
Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015) (a petitioner must
seek leave of court to amend a PCRA petition, and claims raised in an
unauthorized amended petition are waived); see also Pa.R.Crim.P. 905(A).
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Pa.R.A.P. 903(a) (requiring all appeals to be filed “within 30 days after the
entry of the order from which the appeal is taken.”); see also
Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007)
(“Jurisdiction is vested in the Superior Court upon the filing of a timely notice
of appeal.” (citation omitted)). Appellant, an inmate at the State Correctional
Institution (S.C.I.) at Mercer, filed a response (Response) on December 22,
2021. Appellant claimed he deposited his notice of appeal in the prison mail
on October 27, 2021. He argued his appeal was timely pursuant to the
“prisoner mailbox rule,” where his “notice of appeal [] got mailed by the S.C.I.
Mercer mailroom personnel on[] October 28th[.]” Response, 12/22/21, at 1
(some capitalization and bold omitted). Appellant also attached to the
Response copies of a (1) proof of service, dated October 27, 2021; and (2)
prison cash slip showing the same date. This Court discharged the rule on
January 12, 2022.
Under the prisoner mailbox rule, a pro se prisoner’s submissions are
deemed filed on the date delivered to prison authorities for mailing.
Commonwealth v. Kennedy, 266 A.3d 1128, 1132 n.8 (Pa. Super. 2021);
Pa.R.A.P. 121(f) (“A pro se filing submitted by a person incarcerated in a
correctional facility is deemed filed as of the date of the prison postmark or
the date the filing was delivered to the prison authorities for purposes of
mailing as documented by a properly executed prisoner cash slip or other
reasonably verifiable evidence.”). Here, the record reveals Appellant delivered
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his notice of appeal to prison authorities on October 27, 2021, prior to the
expiration of the 30-day requirement of Rule 903(a). Thus, Appellant’s appeal
is timely.
On November 2, 2021, the PCRA court ordered Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Order, 11/2/21 (directing Appellant to file a statement within 21 days “after
the entry of this Order or face dismissal due to waiver.”). Appellant filed a
pro se statement (Rule 1925(b) Statement) nearly a month later, on
November 29, 2022. Appellant dated his Rule 1925(b) Statement
November 23, 2021, which is one day after the expiration of the 21-
day period set in the PCRA court’s Rule 1925(b) order. The envelope
containing Appellant’s Rule 1925(b) Statement was postmarked November
24, 2021.
The PCRA court issued an opinion on December 23, 2021. The court did
not address the merits of the claims Appellant raised in his Rule 1925(b)
Statement. Rather, the court relied on its rationale in the September 29,
2021, memorandum and order dismissing Appellant’s PCRA petition.
Appellant presents four issues for our review:
I. Is the [PCRA] court abusing discretion or not according to
statutory law by continuously dismissing/denying
[Appellant’s] post-conviction actions by [sic] “judicial bias”
and impeding upon his statutorily required relief?
II. Is the [PCRA] court failing to know or is ignoring that
[Appellant’s] action shall be construed as a writ of rehearing,
writ of habeas corpus, or[] an extension towards the first
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properly filed post-conviction [petition] as a full, fair,
adequate, and meaningful hearing was not conducted with
constitutionally sound representation, the hearing judge was
judicially bias [sic], and action is a recoupment action to gain
a proper hearing?
III. Is the [PCRA] court abusing discretion or not according to
statutory law by not granting a hearing so that [Appellant]
can prove [and] substantiate the issues?
IV. Is an instant remand to the [PCRA] court in appropriate order
[sic] concerning trial counsel’s recent admittance of
ineffective assistance at trial by counsel’s letter dated:
November 29, 2021?
Appellant’s Brief at 4 (unnecessary brackets and some capitalization omitted).
“We first must address the consequences of [Appellant’s] untimely filing
of” his Rule 1925(b) Statement. Commonwealth v. Boniella, 158 A.3d 162,
164 (Pa. Super. 2017). Our jurisprudence sets forth a “clear and well-settled”
rule that requires appellants to timely “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[.]” Commonwealth v. Hill, 16 A.3d 484,
494 (Pa. 2011) (relying on Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998) (superseded by rule as stated in Commonwealth v. Burton, 973 A.2d
428, 431 (Pa. Super. 2009) (en banc))). “[F]ailure to comply with the minimal
requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the
issues raised.” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs,
Inc., 88 A.3d 222, 224 (Pa. Super. 2014) (en banc) (emphasis in original;
citation omitted). An appellate court does “not have the discretion to
countenance deviations from the Rule’s requirements[.]” Hill, 16 A.3d at 494;
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see also Commonwealth v. Butler, 812 A.2d 631, 636 (Pa. 2002) (“Rule
1925 is [] a crucial component of appellate process.”). Also, when an
appellant proceeds pro se, we recognize no remedy or exception for an
Appellant’s failure to timely file a Rule 1925(b) statement. Boniella, 158 A.3d
at 164; see also Elliot-Greenleaf, P.C. v. Rothstein, 255 A.3d 539, 542
(Pa. Super. 2021) (although we are “willing to liberally construe” an
appellant’s pro se filings, an “appellant is not entitled to any particular
advantage because he lacks legal training.” (citation and brackets omitted));
cf. Pa.R.A.P. 1925(c)(3) (procedure where a criminal defendant’s counsel is
ineffective for failing to timely file a Rule 1925(b) statement).
Because Appellant failed to file a Rule 1925(b) statement as ordered, he
waived the issues he seeks to raise on appeal.2 See Hill, supra; Boniella,
158 A.3d at 164 (finding waiver of all issues where pro se appellant filed court-
ordered 1925(b) statement one day late, even where trial court addressed
merits of issues in an opinion). Therefore, we affirm the PCRA court’s
dismissal of Appellant’s petition.
Order affirmed.
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2Even if Appellant had not waived his issues, we would affirm the PCRA court’s
dismissal of Appellant’s petition based on the court’s cogent reasoning in its
September 29, 2021, memorandum and order. See Memorandum Opinion
and Order, 9/29/21, at 2-6 (concluding Appellant’s facially untimely petition
was jurisdictionally time-barred and did not meet any exception).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2022
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