Com. v. Shrum, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ERIC ROBERT SHRUM :
:
Appellant : No. 1032 WDA 2017
:
Appeal from the PCRA Order June 21, 2017
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0002320-2010
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 18, 2018
Appellant, Eric Robert Shrum, appeals from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
On February 23, 2011, Appellant pled guilty to four counts each of rape
of a child, involuntary deviate sexual intercourse, aggravated indecent
assault, statutory sexual assault, incest, indecent assault, and endangering
the welfare of a child,1, 2. Guilty Plea, 2/23/11. Appellant filed a counseled
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1 18 Pa.C.S. §§ 3121(c), 3123(a)(7), 3125(a)(8), 3133.1, 4302, 3126(a)(8),
and 4304(a)(1), respectively.
2 The facts of the underlying convictions are not relevant to our disposition.
Moreover, we note that the record certified to us on appeal does not contain
any notes of testimony.
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petition to withdraw his guilty plea (“Petition 1”) on March 7, 2011. On March
30, 2011, Appellant filed a counseled petition requesting withdrawal of his
petition to withdraw his plea (“Petition 2”). The trial court granted Petition 2
on March 31, 2011, stating that Appellant’s “plea of guilt shall remain in
[effect].” Order, 3/31/11.
By order dated June 8, 2011, and docketed July 14, 2011, the trial court
sentenced Appellant to an aggregate term of imprisonment of fifty-three to
106 years. Order, 6/8/11, at 2–4. The trial court then ordered the 337
remaining charges to be nol prossed. Memorandum and Notice of Dismissal,
5/3/17, at 5. Appellant did not file a motion to modify or reconsider his
sentence or a direct appeal.3
On March 29, 2016, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, who filed an amended PCRA petition on August 29,
2016. On September 29, 2016, the PCRA court directed the Commonwealth
to file an answer by November 1, 2016. Order, 9/29/16. When an answer
was not forthcoming, the PCRA court filed a rule to show cause why the PCRA
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3 On August 9, 2011, Appellant attempted to file a pro se notice of appeal,
which this Court returned to the Washington County Clerk of Courts due to
defects. The Superior Court Prothonotary instructed the Washington County
Clerk of Courts to return the appeal to this Court “[w]hen [A]ppellant amends
his appeal to include” the required information. Letter, 9/16/11. The defects
were never remedied, and thus, an appeal was never perfected. There are no
further docket entries in the lower court until the filing of the instant PCRA
petition.
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petition should not be granted. Rule to Show Cause, 11/9/16. The
Commonwealth filed a response and brief on November 16, 2016.4
On May 1, 2017, PCRA counsel filed a petition to withdraw as counsel
and a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc). The PCRA court agreed with counsel that the PCRA petition was
untimely and no exceptions applied, issued a notice of intent to dismiss the
petition without a hearing, and granted counsel’s request to withdraw. Order,
5/1/17; order, 5/3/17. The PCRA court dismissed the PCRA petition on June
21, 2017.
Appellant, pro se, filed a notice of appeal on July 12, 2017. On July 18,
2017, the PCRA court directed Appellant to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925 within twenty-one days.
Order, 7/18/17. Appellant failed to file a Rule 1925(b) statement, and the
PCRA court indicated it would not file a Rule 1925(a) opinion.5
On appeal, Appellant asserts that the PCRA court erred in denying his
PCRA petition and “accepting [PCRA] counsel[’s] ‘No Merit’ letter.” Appellant’s
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4 Despite the fact that he had counsel, Appellant, pro se, filed a reply to the
Commonwealth’s response on January 10, 2017. It is well settled that hybrid
representation is not permitted, and pro se filings submitted by a represented
party are legal nullities. See Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010)
(explaining that hybrid representation is not permitted).
5 We note our displeasure that the Commonwealth failed to file an appellee’s
brief.
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Brief at v. Appellant suggests he overcame the PCRA’s jurisdictional time bar
by satisfying 42 Pa.C.S. § 9545(b)(1)(iii), one of the three statutory
exceptions. Id.; Amended PCRA Petition, 8/29/16, at 1. Appellant further
asserts plea counsel’s ineffectiveness for failing to raise a claim in a direct
appeal that Appellant’s sentence was beyond the Sentencing Guidelines.
Appellant’s Brief at 6.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
Initially, we must address the consequences of Appellant’s failure to file
the court-ordered Rule 1925(b) statement. Rule 1925(b)(4)(vii) directs that
“[i]ssues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(vii).
In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), our Supreme Court
established the bright-line rule that “in order to preserve their claims for
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appellate review, [a]ppellants must comply whenever the trial court orders
them to file a Statement of Matters Complained of on Appeal pursuant to Rule
1925. Any issues not raised in a 1925(b) statement will be deemed waived.”
Id. at 309; see also Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)
(Pa.R.A.P. 1925 “obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered.”).
In 2007, our Supreme Court amended Rule 1925 and added subsection
(c)(3), which directs us to remand for the filing of a statement nunc pro tunc
if we are convinced that counsel has been per se ineffective. Pursuant to this
provision, this Court remands where a counseled appellant in a criminal case
fails to file a Rule 1925(b) statement or an untimely statement that amounts
to per se ineffectiveness. See Commonwealth v. Scott, 952 A.2d 1190 (Pa.
Super. 2008) (holding that counsel’s failure to file Rule 1925(b) statement
constitutes per se ineffectiveness requiring a remand).
This rule providing for a remand pursuant to Pa.R.A.P. 1925(c)(3) is not
applicable herein. Because he is pro se, Appellant cannot assert his own
ineffectiveness. See Commonwealth v. Fletcher, 986 A.2d 759, 773 (Pa.
2009) (“The law prohibits a defendant who chooses to represent himself from
alleging his own ineffectiveness”) (citing Faretta v. California, 422 U.S. 806,
834 n.46 (1975)). Indeed, our Supreme Court has stated that a pro se
defendant “may not rely upon his own lack of expertise as a ground for relief.”
Commonwealth v. Bryant, 855 A.2d 726, 737 (Pa. 2004). Accordingly,
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Appellant’s failure to file a Rule 1925(b) statement waives all claims.
Pa.R.A.P. 1925 (b)(4)(vii) (Issues not included in the Rule 1925(b) statement
or not raised in accordance with the provisions of this paragraph (b)(4) are
waived); Cf. Commonwealth v. Oliver, 128 A.3d 1275, 1279 (Pa. Super.
2015) (PCRA petitioner’s failure to file Rule 1925(b) statement, where PCRA
counsel was permitted to withdraw in PCRA court, permitted Superior Court
to find that the petitioner waived all issues; however, due to irregularities in
the substance and timing of the PCRA court’s treatment of counsel’s
Turner/Finley letter and lack of notice to the petitioner, Superior Court
declined to apply waiver “in the very limited and narrow circumstances of [the]
case.”).
Furthermore and significantly, even if Appellant had filed a timely Rule
1925(b) statement, the PCRA court did not have jurisdiction to review the
merits of Appellant’s issues because Appellant did not satisfy the timeliness
requirements of the PCRA. The timeliness of a PCRA petition is a jurisdictional
threshold that may not be disregarded in order to reach the merits of the
claims raised in a PCRA petition that is untimely. Commonwealth v.
Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing Commonwealth v. Murray,
753 A.2d 201, 203 (Pa. 2000)). As noted supra, the trial court imposed the
judgment of sentence on June 8, 2011. Appellant did not perfect a direct
appeal. Thus, his judgment of sentence became final thirty days later on July
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8, 2011.6 Therefore, Appellant had until July 8, 2012, to file a timely PCRA
petition. See 42 Pa.C.S. § 9545(b)(3) (stating that, for purposes of
calculating the timeliness of a petition, a “judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review”). Appellant filed his PCRA petition
on March 29, 2016, over four years after his judgment of sentence became
final. Hence, the petition is facially untimely.
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6 As noted supra, although Appellant was sentenced on June 8, 2011, the
sentencing order was docketed on July 14, 2011. We reiterated in
Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007), that the
date of imposition of sentence is the date the trial court pronounces
the sentence in open court, not the date that the order imposing the
judgment of sentence is docketed, if those dates are different. Id. at 498
(emphasis added) (citing Commonwealth v. Green, 862 A.2d at 618–619
(Pa. Super. 2004)).
Both the Commonwealth and the PCRA court erroneously relied on
Appellant’s ineffective pro se attempt to file a direct appeal and this Court’s
return of the document to the Washington County Clerk of Courts in
determining the date Appellant’s judgment of sentence became final,
suggesting it became final “[a]t the latest” on October 20, 2011.
Commonwealth’s Brief in Opposition to [Appellant’s] Amended [PCRA]
Petition, 11/16/16, at 4. The trial court, relying on the Commonwealth’s
explanation, nevertheless noted that the “date of final conviction” arguably
was an earlier date than October 20, 2011. Memorandum and Notice of
Dismissal, 5/3/17, at 6.
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The jurisdictional time bar can be overcome only by satisfaction of one
of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).7
Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). The PCRA
petitioner bears the burden of proving the applicability of one of the
exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).
While inartfully stated, it appears that Appellant is claiming that his
sentence is illegal due to “New United States Constitution Law,” and therefore,
the PCRA court should should not have permitted PCRA counsel to withdraw
pursuant to Turner and Finley. Appellant’s Brief at viii. This claim by
Appellant, apparently in reliance on 42 Pa.C.S. § 9545(b)(1)(iii), is based on
his assertion that his sentence is illegal in light of Alleyne v. United States,
133 S.Ct. 2151 (2013), which he contends should have been applied
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7 The exceptions to the timeliness requirement are:
(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;
(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)(i), (ii), and (iii).
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retroactively pursuant to Montgomery v. Louisianna, 136 S.Ct. 718 (2016).
Appellant’s Brief at 1–2.
Although a challenge based on Alleyne does implicate the legality of a
sentence, “a legality of sentence claim may nevertheless be lost should it be
raised . . . in an untimely PCRA petition for which no time-bar exception
applies.” Commonwealth v. Miller, 102 A.3d 988, 995–996 (Pa. Super.
2014). In Alleyne, the United States Supreme Court held that any facts that
increase a mandatory minimum sentence must be submitted to the jury and
found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2155, 2163.
However, the Pennsylvania Supreme Court held that Alleyne does not apply
retroactively to collateral attacks on a petitioner’s mandatory minimum
sentence. Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).
Furthermore, there is no indication in the record that Appellant was sentenced
pursuant to a mandatory minimum term of incarceration,8 and therefore,
Alleyne is inapplicable. Moreover, while Montgomery states that Miller v.
Alabama, 132 S.Ct. 2455 (2012), applies retroactively to cases on collateral
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8 In addition to the silence of the certified record concerning application of a
mandatory minimum sentence, a court commitment form, form DC-300B,
accompanying the written sentencing order, has the “No” box checked under
the heading, “Mandatory Sentence.” We acknowledge this form is not part of
the sentencing order. See Commonwealth v. Motley, 177 A.3d 960, 962
(Pa. Super. 2018) (Form DC-300B is a document generated by the Common
Pleas Criminal Court Case Management System that is provided to the
Department of Corrections upon an inmate’s commitment and “does not
constitute part of the trial court’s sentencing order.”).
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review, Miller is inapplicable because Appellant was not sentenced to a
mandatory term of life without the possibility of parole. Finally, Appellant was
not a juvenile at the time he committed his crimes. Complaint, 10/22/10, at
1.
In Appellant’s second issue, he baldly claims plea counsel was ineffective
for failing to raise, in a direct appeal, a claim that the imposition of sentence
was beyond the Sentencing Guidelines. A claim of ineffective assistance of
counsel, however, does not save an otherwise untimely petition for review on
the merits. Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa. Super.
2008).
The PCRA petition was untimely and no exceptions apply. Therefore,
the PCRA court lacked jurisdiction to address the claims presented. See
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack
the authority to address the merits of any substantive claims raised in the
PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007) (“[J]urisdictional time limits go to a court’s right or competency to
adjudicate a controversy.”). Thus, even if the issues were not waived by
Appellant’s failure to file a Pa.R.A.P. 1925(b) statement, the PCRA court lacked
jurisdiction to address the claims and grant relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2018
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