Com. v. Bowra, S.

J-S67016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTT ISAAC BOWRA
Appellant No. 330 WDA 2014
Appeal from the PCRA Order February 20, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010997-2007
BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 24, 2015
Appellant, Scott Isaac Bowra, appeals from the February 20, 2014
order, denying relief in response to his self-titled “Post-Sentence Motion,”
which we deem to be a denial of a motion filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After careful
review, we affirm, albeit on a different basis than that relied on by the trial
court.
We summarize the procedural history of the case as determined from
the certified record as follows. On May 13, 2008, a jury found Appellant
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*
Former Justice specially assigned to the Superior Court.
1
As discussed more fully within, Appellant purports to appeal from a
February 6, 2014 judgment of sentence. As we conclude Appellant’s
characterization of the procedural posture of this case is faulty, we have
amended the caption to reflect the true position of this appeal.
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guilty of possession of a controlled substance, possession of a controlled
substance with intent to deliver (PWID), and conspiracy.2 On August 28,
2008, Appellant was sentenced to an aggregate sentence of five to ten
years’ incarceration followed by two years’ probation. Specifically, Appellant
received three to six years for the PWID count, a consecutive two to four
years for the conspiracy count, and a consecutive two years’ probation on
the possession count. On direct appeal, this Court vacated the sentence and
remanded because the trial court had not conducted a full suppression
hearing in response to Appellant’s omnibus pre-trial motion. See
Commonwealth v. Bowra, 13 A.3d 987 (Pa. Super. 2010) (unpublished
memorandum). On remand, the trial court, after a full hearing, denied
Appellant’s suppression motion and reinstated the original sentence on
January 3, 2011. Appellant again appealed, and this Court affirmed the
judgment of sentence on May 4, 2012. See Commonwealth v. Bowra, 50
A.3d 233 (Pa. Super. 2012) (unpublished memorandum). Appellant did not
seek allowance of appeal from our Supreme Court.
On December 20, 2012, Appellant filed a pro se PCRA petition.
Counsel was appointed and an amended PCRA petition was filed on January
31, 2013. Therein, Appellant raised the legality of his sentence for the
failure of the trial court to merge the possession of a controlled substance
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2
35 P.S. § 780-113(a)(16), (30), 18 Pa.C.S.A. § 903, respectively.
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and PWID counts. The PCRA court agreed and provided the following relief
on February 14, 2013.
[Appellant’s] PCRA Petition is GRANTED to the extent
that an amended sentencing order shall be entered,
which shall sentence the Petitioner as follows: Count
1: Possession of a Controlled Substance (Heroin)
with Intent to Deliver Said Controlled Substance, 3
to 6 years incarceration; Count 2: Possession of a
Controlled Substance (Heroin), merged for purpose
of sentencing with Count I; and, Count 3: Criminal
Conspiracy, 2 to 4 years of incarceration to be
followed by a consecutive period of 2 years
probation.
PCRA Court Order, 2/14/13, at 1. No appeal was taken from the PCRA
court’s February 14, 2013 order.
On February 10, 2014, Appellant filed a counselled post-sentence
motion. Therein, Appellant references the trial court’s issuance, on February
6, 2014, of “a Form DC-300B Court Commitment State of County
Correctional Institution” that he purports resentenced Appellant in
accordance with the February 14, 2013 PCRA order. Appellant’s Post-
Sentence Motion, 2/10/14, at 3-4, ¶ 17. In his post-sentence motion,
Appellant sought modification of his sentence in consideration of his
rehabilitative efforts since his initial 2008 sentencing. Id. at 4 ¶ 18. The
trial court denied Appellant’s post-trial motion, without a hearing or
accompanying reasons, on February 20, 2014.
Appellant filed a notice of appeal on February 27, 2014, purportedly
from the “judgment of sentence—amended February 6, 2014.” Appellant’s
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Notice of Appeal, 2/27/14, at 1. Although not ordered to do so, Appellant
filed a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b) contemporaneously with
his notice of appeal. The trial court filed its Rule 1925(a) opinion on July 14,
2014, addressing the merits of Appellant’s discretionary aspects of
sentencing issue.
On appeal, Appellant raises the following issue for our review.
1. Whether the [trial court] failed to consider—in
light of [Appellant’s] conduct since imposition of the
August, 6, 2008 sentence in this matter—all of the
factors contained in 42 Pa.C.S. §§ 9721(b) and/or
9781(d) prior to denying [Appellant’s] February 10,
2014 Post-Sentence Motion?
Appellant’s Brief at 4.
We first address the Commonwealth’s contention that the trial court’s
apparent treatment of Appellant’s post-sentence motion as timely filed is
erroneous. Commonwealth Brief at 9. The Commonwealth asserts
Appellant’s characterization of the trial court’s issuance of Pennsylvania
Department of Corrections form DC-300B as a sentencing order is not
correct.3 Id. at 9, n.7. We agree.
The DC-300B form is not a court order imposing a sentence. It serves
as a commitment form addressed to the Department of Corrections.
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3
We note the DC-300B form referenced by Appellant in his notice of appeal
and appellate brief is not contained in the certified record.
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Form DC–300B is a commitment document
generated by the Common Pleas Criminal Court Case
Management System. See 37 Pa.Code § 96.4; 42
Pa.C.S.A. § 9764. Section 9764 of the Judicial Code
sets forth the procedure associated with transfer of
an inmate into DOC custody and provides that, on
commitment of an inmate, the transporting official
must provide the DOC with a copy of the trial court’s
sentencing order and a copy of the DC–300B
commitment form. See 42 Pa.C.S.A. § 9764(a)(8).
Commonwealth v. Heredia, 97 A.3d 392, 394 n.3 (Pa. Super. 2014).
The amended sentence in this case was imposed on February 14,
2013, by the PCRA court’s order granting relief and pronouncing the new
sentence. “As a practical matter… a defendant begins to serve his or her
sentence immediately after the pronouncement of sentence. The
pronouncement of sentence is not merely informational. It is the actual
imposition of penalty.” Commonwealth v. Nahavandian, 954 A.2d 625,
630 (Pa. Super. 2008), quoting Commonwealth v. Green, 862 A.2d 613,
620 (Pa. Super. 2004). Accordingly, Appellant’s post-sentence motion was
untimely. See Pa.R.Crim.P. 720(A)(1) (requiring a post-sentence motion to
be filed within 10 days of the imposition of sentence). Further, absent the
filing of a timely post-sentence motion, any direct appeal from the judgment
of sentence must be filed within 30 days of the date of the imposition of the
sentence. Id. at 720(A)(3); Pa.R.A.P. 903(c)(3). Additionally, a sentencing
court loses jurisdiction to modify a sentencing order more than 30 days after
it is entered or after an appeal has been filed. 42 Pa.C.S.A. § 5505.
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In light of the above, the Commonwealth recognizes that we must
determine whether Appellant’s self-titled post-sentence motion should have
been treated as an untimely post-sentence motion or as a PCRA petition.
Commonwealth’s Brief at 9. If treated as an untimely post-sentence motion,
Appellant’s appeal should be quashed as patently untimely, depriving this
court of jurisdiction. “[T]he timeliness of an appeal implicates our
jurisdiction and may be raised sua sponte.” Commonwealth v. Trinidad,
96 A.3d 1031, 1035 (Pa. Super. 2014) (citations omitted). We note again
that a timely appeal must be filed within 30 days of the imposition of a
judgment of sentence. Pa.R.A.P. 903(c)(3). The period for filing an appeal
may not be enlarged by this Court. Id. at 105(b).
However, this Court has previously treated filings, raising discretionary
aspects of sentencing claims, entered after the direct appeal period has
expired, as PCRA petitions. See Commonwealth v. Taylor, 65 A.3d 462,
465-468 (Pa. Super. 2013) (recognizing “that an untimely post-sentence
motion filed after finality of judgment is to be treated as a PCRA petition[]”),
citing Commonwealth v. Evans, 866 A.2d 442, 443 (Pa. Super. 2005), and
Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000).4
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4
The Taylor panel recognized a tension between its holding and the holding
in Commonwealth v. Wrecks, 934 A.2d 1287 (Pa. Super. 2007)
(concluding the trial court properly treated Wrecks’ filing, after his sentence
was final, as an untimely post-sentence motion). Taylor criticized Wrecks
for essentially ignoring Evans and Guthrie and relying on cases with
analyses that are no longer applicable. See Taylor, supra at 467, n.4.
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Accordingly, we conclude the trial court should have treated Appellant’s self-
titled post-sentence motion as a timely PCRA petition.5
Instantly, as noted above, Appellant filed a counseled motion, and said
counsel continues to represent Appellant. Thus, there is no need to remand
for appointment of counsel. Cf. Evans, supra; Guthrie, supra (remanding
for appointment of counsel when trial court failed to treat untimely pro se
post-sentence motions as PCRA petitions). We therefore proceed to
determine if the trial court’s order denying relief is nevertheless proper when
Appellant’s motion is viewed as a PCRA petition. “[W]e, as an appellate
court, are empowered to affirm [the PCRA court’s] decision on any ground
without regard to the ground relied upon by [the PCRA court] itself.”
Commonwealth v. McKeever, 947 A.2d 782, 786 (Pa. Super. 2008)
(internal quotation marks and citation omitted).
We reiterate the following principles guiding our consideration of an
appeal from the denial of PCRA relief.
“On appeal from the denial of PCRA relief, our
standard and scope of review is limited to
determining whether the PCRA court’s findings are
supported by the record and without legal error.”
Commonwealth v. Edmiston, 65 A.3d 339, 345
(Pa. 2013) (citation omitted)[, cert. denied,
Edminston v. Pennsylvania, 1345 S. Ct. 639
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5
There being no direct appeal, Appellant’s amended sentence became final
on March 16, 2013, 30 days after its imposition on February 14, 2013. See
Pa.R.A.P. 903(c)(3). Accordingly, Appellant had until March 16, 2014 to file
a timely PCRA petition, unless an exception to the one-year time
requirement applies. See 42 Pa.C.S.A. § 9545(b).
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(2013)]. “[Our] scope of review is limited to the
findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the
prevailing party at the PCRA court level.”
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d
121, 131 (2012) (citation omitted). “The PCRA
court’s credibility determinations, when supported by
the record, are binding on this Court.”
Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
244, 259 (2011) (citation omitted). “However, this
Court applies a de novo standard of review to the
PCRA court’s legal conclusions.” Id.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc), appeal granted, --- A.3d ---, 2014 WL 6991663 (Pa. 2014).
Further, in order to be eligible for PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).
These issues must be neither previously litigated nor waived. Id. §
9543(a)(3). “A claim is waived under the PCRA if, inter alia, it could have
been raised on direct appeal.” Commonwealth v. Price, 876 A.2d 988,
993 (Pa. Super. 2005) (citation omitted), appeal denied, 897 A.2d 1184 (Pa.
2006), cert. denied, 549 U.S. 902 (2006).
Instantly, Appellant’s sole issue is a challenge to the discretionary
aspect of his sentence. Appellant’s Brief at 12. This issue was not raised in
a timely post-sentence motion or a timely direct appeal. Consequently, the
issue is “previously waived” and relief under the PCRA is unavailable. See
42 Pa.C.S.A. § 9543(a)(3); Price, supra. As no claim cognizable by the
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PCRA has been advanced by Appellant in his counselled February 10, 2014
motion, we conclude the denial of relief by the trial court was legally correct.
In sum, we determine that Appellant’s characterization of the trial
court’s issuance of the Department of Corrections form DC-300B as an
imposition of sentence is mistaken. We conclude the trial court should have
treated Appellant’s counselled motion as a petition filed pursuant to the
PCRA. We nevertheless affirm the trial court’s decision to deny relief on the
alternative ground that Appellant failed to assert a claim cognizable under
the PCRA. Accordingly, we affirm the trial court’s February 20, 2014 order
denying relief, albeit on other grounds. 6
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6
This panel originally filed this memorandum decision on December 9, 2014.
Appellant filed an application for reargument on December 19, 2014, and we
granted panel reconsideration on January 20, 2014. In his application for
reargument, Appellant first seeks to rely on the filing of a revised sentencing
order “Form CPCMS 2066,” which appears in the record. Application for
Reargument, 12/19/14, at 3. However, Appellant only referenced the DC-
300B form in his February 10, 2014 self-titled “Post-Sentencing Motion”
presented to the trial court. See Appellant’s Post-Sentence Motion, 2/10/14,
at 3-4, ¶ 17. Appellant may not raise this issue for the first time on appeal.
See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on appeal”). Even if we
were to consider his argument relative to Form CPCMS 2066, it would not
alter our conclusion about the effective date of the February 14, 2013
amended sentence, as the same reasoning expressed herein would apply.
Appellant also argues that if this Court deems his February 10, 2014
Post-Sentence Motion to be a PCRA petition, the proper disposition was not
to affirm, but to vacate and remand for a hearing or compliance by the trial
court with Pennsylvania Rule of Criminal Procedure 907. Again, however,
Appellant did not raise this issue on appeal. In Taylor, the trial court
treated the appellant’s habeas corpus petition as an untimely post-sentence
motion. Taylor, supra at 468. This Court held that the trial court should
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
_______________________
(Footnote Continued)
have treated the petition as a PCRA petition. Id. The Taylor Court further
held that any issue relative to the trial court’s non-compliance with Rule 907
was waived for failure to raise it on appeal. Id. Accordingly, Appellant’s
instant belated Rule 907 issue is similarly waived.
Finally, Appellant raises a new legality of sentencing issue based on
the imposition of a mandatory minimum sentence of three years’
incarceration, under 18 Pa.C.S.A. § 7508(a)(2)(ii), on the PWID count in
contravention of Alleyne v. United States, 133 S. Ct. 2151 (2013)
(requiring any fact, other than a prior conviction, which triggers the
imposition of a mandatory minimum sentence to be first established by a
jury beyond a reasonable doubt). As Appellant himself aptly notes,
“Alleyne has not been held to be retroactive to cases on collateral review
and, for reasons similar to those in Schriro v. Summerlin, 542 U.S. 348
(2004), would not likely be applied retroactively ….” Appellant’s Application
for Reconsideration, 12/19/14, at 14, see also Commonwealth v.
Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (noting the holding
in Alleyne applies retroactively to cases on direct appeal at the time of its
decision). As noted herein, Appellant’s judgment of sentence became final
on March 16, 2013, shortly before the decision in Alleyne was handed down
on June 17, 2013. Therefore, after full reconsideration in response to
Appellant’s application, we conclude our original disposition is proper.
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