Com. v. Semple, S.

J-S68038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEVEN ERIC SEMPLE, :
:
Appellant : No. 835 EDA 2014
Appeal from the Order entered on February 28, 2014
in the Court of Common Pleas of Montgomery County,
Criminal Division, No. CP-46-CR-0001766-2005
BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 09, 2014
Steven Eric Semple (“Semple”) appeals, pro se, from the Order
denying his “Motion for Modification of Sentence Nunc Pro Tunc Pa.R.Crim.P.
720” (hereinafter referred to as “Motion for Modification”). We affirm.
The lower court set forth the relevant procedural history underlying
this appeal as follows:
On March 6, 2006, [Semple] entered into a negotiated
guilty plea, in which he pled guilty to attempted murder, in
exchange for an agreed to sentence of 17 to 34 years [of]
imprisonment. [Semple] did not file a direct appeal. On
September 14, 2006, [Semple] filed a pro se [M]otion entitled,
“Motion Challenging the Validity of Guilty Plea.” Th[e c]ourt
construed this [M]otion as a [P]etition under the PCRA, and
appointed counsel to assist [Semple] with his [P]etition. PCRA
counsel found no issues of arguable merit to pursue, and
accordingly, filed a no-merit letter. An [O]rder was issued in
compliance with Pa.R.Crim.P. 907, providing notice of the
proposed dismissal. Subsequently on December 27, 2006, a
Final Order of Dismissal was issued, denying PCRA relief. No
appeal followed.
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Over seven years later, on February 27, 2014, [Semple]
filed the present pro se [M]otion [for Modification] …. Therein[,
Semple] alleges that his 17 to 34 year sentence is “grossly
disproportionate” and “unduly harsh and excessive.” In support
thereof, [Semple] argues that the sentencing Court did not
consider the mitigating factors in this case, namely that he
“never actually participated as a perpetrator” and that he is the
“least culpable defendant in this case.” On February 28, 2014,
the [M]otion was denied as an untimely post-sentence
[M]otion.[1]
PCRA Court Opinion, 3/28/14, at 1-2 (footnote added).
Semple timely filed a pro se Notice of Appeal from the February 28,
2014 Order, in response to which the PCRA court ordered him to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Semple timely filed a pro se Concise Statement.
On appeal, Semple presents the following issues for our review:
1. Did the [PCRA] court abuse its discretion [by] denying
[Semple’s] pro se Motion for Modification []?
2. Did the [PCRA] court commit error [by] denying [the]
pro se Motion for Modification []?
3. Did the [PCRA] court unreasonably deny and dismiss
[the] pro se Motion for Modification []?
1
We observe that the lower court correctly noted in its Pa.R.A.P. 1925(a)
Opinion that “[Semple’s M]otion [for Modification] should have been treated
as an untimely second [P]etition for post-conviction relief pursuant to the
Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, rather than
an untimely post-sentence [M]otion ….” PCRA Court Opinion, 3/28/14, at 1;
see also Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011)
(stating that this Court has “repeatedly held that any petition filed after the
judgment of sentence becomes final will be treated as a PCRA petition.”
(citation and ellipses omitted)); 42 Pa.C.S.A. § 9542 (providing that “[t]he
action established in this subchapter shall be the sole means of obtaining
collateral relief ….”).
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4. Did the [PCRA] court commit error when it denied
[Semple’s] pro se Motion for Modification [] without [a]
hearing and without reviewing the record and applicable
law?
5. Did the [PCRA] court deny [Semple] his right to due
process of law when it denied/dismissed [the] pro se
Motion for Modification [] without issuing notice of [the
court’s] intention to dismiss and providing [Semple an]
opportunity to respond?
Brief for Appellant at 3-4.
Initially, the Commonwealth argues that Semple has waived all of his
purported claims because his brief is so underdeveloped as to preclude
appellate review. See Commonwealth’s Brief at 5-8. The Commonwealth
accurately describes the Argument section of Semple’s brief as follows:
[Semple] has presented a brief consisting of two pages of
purported argument, in which he lists questions with one-
sentence responses alleging error below. He cites one source of
authority in his entire [A]rgument section, Commonwealth v.
Dreves, 839 A.2d 1122 (Pa. Super. 2003), but does not explain
how it applies to his case, or entitles him to any form of relief.
Further, [Semple’s] lone citation to authority is completely
inconsequential to the instant appeal.
Brief for the Commonwealth at 6-7 (footnotes omitted); see also Brief for
Appellant at 10-11.2
When briefing the various issues that have been
preserved, it is an appellant’s duty to present arguments that
are sufficiently developed for our review. The brief must support
the claims with pertinent discussion, with references to the
2
We observe that Semple also filed a Reply Brief in this appeal. While the
Reply Brief advances scant Argument, it is somewhat more developed than
the Argument section of Semple’s original brief. See Reply Brief for
Appellant at 8-9.
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record and with citations to legal authorities. Pa.R.A.P. 2119(a),
(b), (c). Citations to authorities must articulate the principles for
which they are cited. Pa.R.A.P. 2119(b).
This Court will not act as counsel and will not develop
arguments on behalf of an appellant. Moreover, when defects in
a brief impede our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues
to be waived. Pa.R.A.P. 2101.
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some
citations omitted); see also Commonwealth v. Lewis, 63 A.3d 1274,
1278 (Pa. Super. 2013) (stating that “[a]lthough this Court is willing to
construe liberally materials filed by a pro se litigant, pro se status generally
confers no special benefit upon an appellant.”).
In the instant case, we decline to find waiver, and will briefly address
Semple’s claims. The only discernible claims in Semple’s briefs assert that
the PCRA court erred by (1) opining in its Pa.R.A.P. 1925(a) Opinion that
Semple’s Motion for Modification should have been treated as a PCRA
petition, see Reply Brief for Appellant at 8-9; and (2) failing to give Semple
notice of the court’s intention to dismiss the Motion for Modification, see
Brief for Appellant at 11.
Initially, we have already determined above that the Motion for
Modification should have been deemed an untimely second Petition for relief
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under the PCRA.3 To the extent that Semple argues that the PCRA court
deprived him of due process by failing to give him notice of the court’s
intention to dismiss his Motion for Modification/second PCRA Petition,
pursuant to Pa.R.Crim.P. 907, the PCRA court cogently addressed this claim
in its Opinion as follows:
[I]n accordance with the well-settled rules of law, the
proper vehicle to have reviewed [Semple’s] pro se filing was
under the PCRA as an untimely second PCRA [P]etition and not
as an untimely post-sentence [M]otion. However, [Semple] has
suffered no prejudice. The only difference is that if it had been
considered under the PCRA, th[e c]ourt would have issued pre-
dismissal notice in accordance with Pa.R.Crim.P. 907. That was
not done here, and although [Semple] does raise this issue in his
Concise Statement of Errors Complained of on Appeal, it does
not warrant a reversal. [See Commonwealth v.] Taylor, 65
A.3d [462,] 468 [(Pa. Super. 2013)] ([holding that] even if a
notice of intent was not issued and the issue is raised on appeal,
it does not automatically warrant reversal where the petition is
untimely). There is simply no prejudice to [Semple] because
[his] claims are record[-]based and there are no facts that [he]
would be able to plead which would permit him to avail himself
of the timeliness exceptions to save his patently untimely PCRA
[P]etition.
PCRA Court Opinion, 3/28/14, at 4. We agree with the PCRA court’s
rationale, which is supported by the law.
3
We observe that Semple did not plead in the Motion for Modification any of
the three exceptions to the PCRA’s jurisdictional time limitation. See 42
Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Crews, 863 A.2d
498, 501 (Pa. 2004) (stating that “it is the petitioner’s burden to plead in the
petition and prove that one of the exceptions applies.” (citation omitted,
emphasis in original)).
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Accordingly, we determine that Semple’s claims do not entitle him to
relief, and discern no abuse of discretion by the PCRA court in denying
Semple’s Motion for Modification/second PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2014
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