Com. v. Austin, S.

J-S27007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
SHAUN PATRICK AUSTIN
Appellant No. 819 EDA 2021
Appeal from the PCRA Order Entered November 18, 2020
In the Court of Common Pleas of Northampton County
Criminal Division at No.: CP-48-CR-0002008-2008
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 01, 2022
Appellant Shaun Patrick Austin pro se appeals from the November 18,
2020 order of the Court of Common Pleas of Northampton County (“PCRA
court”), which dismissed his serial petition under the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we vacate and remand.
Briefly,1 a jury convicted appellant of 96 counts of possession of child
pornography under 18 Pa.C.S.A. § 6312(d). The trial court imposed an
aggregate sentence of 72 to 192 years of imprisonment. This Court affirmed
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1 Unless otherwise stated, the facts and procedural history of this case are
taken from our previous decisions rendered in connection with this case. See
Commonwealth v. Austin, 26 A.3d 1188 (Pa. Super. 2011) (unpublished
memorandum), appeal denied, 32 A.3d 1274 (Pa. 2011); Commonwealth
v. Austin, 66 A.3d 798 (Pa. Super. 2013), appeal denied, 77 A.3d 1258 (Pa.
2013); Commonwealth v. Austin, 159 A.3d 1010 (Pa. Super. 2016)
(unpublished memorandum); Commonwealth v. Austin, 217 A.3d 379 (Pa.
Super. 2019) (unpublished memorandum); Commonwealth v. Austin, 229
A.3d 365 (Pa. Super. 2020) (unpublished memorandum).
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Appellant’s convictions, but vacated his judgment of sentence and remanded
for resentencing after concluding that the trial court abused its discretion by
imposing a de facto life sentence. On remand, Appellant was resentenced to
an aggregate term of incarceration of 35 to 70 years to run consecutively to
a sentence he received in an unrelated case.2 We affirmed Appellant’s
judgment of sentence on May 13, 2013. On October 22, 2013, our Supreme
Court denied Appellant’s petition for allowance of appeal.
On August 27, 2020, Appellant filed the instant—serial—PCRA petition,
alleging, inter alia, that the Commonwealth violated his “right to a speedy trial
by withholding evidence that would prove Commonwealth requested
continuances.” PCRA Petition, 8/27/20, at 1 (unpaginated). On November
18, 2020, the PCRA court dismissed the petition based on Appellant’s failure
to file a brief pursuant to Pa.R.A.P. 2311(b). The PCRA court did not provide
Appellant with a Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA
petition without a hearing. Appellant eventually appealed.3 Both the PCRA
court and Appellant complied with Pa.R.A.P. 1925.
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2 In a companion case at No. CP-48-CR-0002007-2008 (No. 2007-2008), a
jury convicted Appellant of rape of a child (18 Pa.C.S.A. § 3121(c)), statutory
sexual assault (18 Pa.C.S.A. § 3122.1), involuntary deviate sexual intercourse
(18 Pa.C.S.A. § 3123), and recklessly endangering another person (18
Pa.C.S.A. § 2705). The trial court imposed an aggregate sentence of 15 to 40
years’ imprisonment. We ultimately affirmed the judgment of sentence at No.
2007-2008.
3We decline the Commonwealth’s invitation to quash this appeal as untimely.
The PCRA court failed to comply with the mandate of Rule 907(4) by failing to
advise Appellant “by certified mail, return receipt requested, of the right to
(Footnote Continued Next Page)
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On appeal,4 Appellant raises two issues for our review, which we
reproduce verbatim.
[I.] Did the court error by ignoring/denying request for
transcripts/recreation of record upon which instant PCRA was
filed[.]
[II.] Did the court error by dismissing for failure to file a brief the
instant PCRA[.]
Appellant’s Brief at I (sic).
We start our discussion with Appellant’s second issue, as we find it
dispositive.5 Here, the PCRA dismissed his petition for want of filing a brief.
In support of dismissal, the PCRA court relied upon Rule 2311(b) of our Rules
of Appellate Procedure, which provides that “[a]ll parties shall submit post
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appeal from the final order disposing of the petition and of the time limits
within which the appeal must be filed. The order shall be filed and served as
provided in Rule 114.” Pa.R.Crim.P. 907(4). Pursuant to Rule 114, service
shall be in writing by “sending a copy to an unrepresented party by certified,
registered, or first class mail addressed to the party’s place of . . .
confinement.” Pa.R.Crim.P. 114(B)(3)(a)(v). Further, the docket entries shall
contain the date of receipt in the clerk’s office of the order, the date appearing
on the order, and the date of service of the order. Pa.R.Crim.P. 114(C).
Finally, Pa.R.A.P. 301 provides that “no order of a court shall be appealable
until it has been entered upon the appropriate docket in the lower court.”
Pa.R.A.P. 301(a)(1). An order properly is entered upon the docket by
complying with Pa.R.Crim.P. 114(C). As stated, the order at issue does not
advise Appellant of the right to appeal or the time limits within which the
appeal must be filed. It appears it was served by certified mail, but there is
no indication of return receipt requested.
4“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
5 Based on our disposition below, we need not address Appellant’s first issue.
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conviction relief cases on the briefs unless otherwise directed by the court on
its own motion or upon application.” Pa.R.A.P. 2311(b). Rule 2311(b) requires
parties to submit their appeal on briefs, unless this Court directs, or the parties
request, otherwise. Because Rule 2311(b) applies only on appeal, the PCRA
court erred in relying upon that rule to dismiss Appellant’s petition. The PCRA
court had a pending serial petition filed by Appellant, and instead of issuing a
Pa.R.Crim.P. 907 notice, the court simply dismissed it under Section 2311(b).
It erred in doing so. Accordingly, we are constrained to vacate and the remand
this matter to the PCRA court with instruction to properly dispose of
Appellant’s serial petition under the Rules of Criminal Procedure and local
rules, if applicable.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2022
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