Brown, N. v. Tice, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NOEL BROWN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ERIC TICE : No. 1472 WDA 2021
Appeal from the Order Entered November 18, 2021
In the Court of Common Pleas of Somerset County Civil Division at
No(s): No 549 Civil 2021
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 24, 2022
Appellant, Noel Brown, appeals pro se from the trial court’s November
18, 2021 order denying his petition for writ of habeas corpus. Appellant
contends his incarceration is illegal because he was ostensibly denied his right
to counsel at various stages of the trial proceedings in his underlying criminal
case. We affirm.
This Court previously summarized the facts and procedural history of
Appellant’s underlying criminal case, which was filed and prosecuted in the
Wayne County Court of Common Pleas, as follows:
The record reveals that on June 29, 2016, A.C., the fifteen-year-
old victim in this case, was reported as a runaway. A.C. had
answered an online advertisement seeking escorts and strippers.
On that day, A.C. left her mother’s house with Appellant. By
tracking A.C.’s cellular telephone, Pennsylvania State Police were
able to locate A.C. at a local motel. When the police arrived, they
noticed that A.C. appeared intoxicated; A.C. stated that Appellant
had given her vodka. The troopers transported A.C. to the State
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Police barracks and questioned her regarding the events of the
prior evening. A.C. told the troopers that she had answered an
online advertisement for escorts, and Appellant picked her up and
drove her to the motel. At the motel, Appellant provided A.C. with
liquor, and A.C. fell asleep. Police discovered that after A.C. fell
asleep, Appellant undressed A.C., exposed her breasts, took a
photograph of the minor’s breasts, and placed the photograph
online in an effort to utilize A.C. as a prostitute. Police also
recovered a document signed by A.C. wherein she agreed to work
for Appellant, and Appellant would act as her pimp.
Police arrested Appellant and charged him with numerous crimes
in connection with the aforementioned events. At the preliminary
hearing before a magisterial district judge, there was a colloquy
consistent with Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.
1998),1 and a thorough discussion of the factors outlined in
Pa.R.Crim.P. 121(A)(2) concerning pro se representation. N.T.,
7/18/16, at 8. At the subsequent hearing on pretrial motions,
Appellant informed the trial court that he remained steadfast in
his desire to represent himself. N.T., 10/3/16, at 4. The trial
court questioned Appellant, urged him to retain counsel, and
informed Appellant that the court would appoint counsel. Id.Appellant reiterated that he would not accept counsel and would
represent himself. Id. The trial court ultimately permitted
Appellant to proceed pro se, but the trial court appointed standby
counsel. Id. Following a jury trial, Appellant was found guilty of
interference with custody of children, dissemination of photos of
child sex acts, corruption of minors, furnishing liquor to minors,
and trafficking [] minors.[1]
1 In Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa.
1998), the Supreme Court of Pennsylvania held that when
a defendant wishes to waive counsel, an on-the-record
determination should be made that said waiver is knowing,
intelligent, and voluntary.
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118 Pa.C.S. § 2904(a), 18 Pa.C.S. § 6312(c), 18 Pa.C.S. § 6301(a)(1)(ii), 18
Pa.C.S. § 3011(b), and 18 Pa.C.S. § 6310.1(a), respectively.
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Commonwealth v. Brown, No. 649 EDA 2017, unpublished memorandum
at 1-3 (Pa. Super. filed Oct. 23, 2017) (some citations to the record and two
footnotes omitted).
On February 3, 2017, the Wayne County trial court sentenced Appellant
to an aggregate term of 180 to 384 months’ incarceration. He filed a timely,
pro se appeal, and we affirmed his judgment of sentence after concluding that
Appellant had waived his issues for our review due to the “overwhelming
deficiencies” in his pro se brief. Id. at 4.
In 2018, Appellant filed a pro se petition under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel was appointed and
subsequently filed a ‘no-merit’ letter and petition to withdraw. The PCRA court
ultimately dismissed Appellant’s petition and granted counsel leave to
withdraw. Appellant filed a timely, pro se appeal, but we dismissed his appeal,
again on the basis that Appellant had filed a wholly deficient brief. See
Commonwealth v. Brown, 2388 EDA 2019, unpublished memorandum at
6-7 (Pa. Super. filed Mar. 24, 2020).
Appellant, who is currently serving his sentence in the State Correctional
Institution at Somerset (“SCI Somerset”), filed a petition for writ of habeas
corpus on September 30, 2021, in the Court of Common Pleas of Somerset
County. Appellant named Eric Tice — the purported warden of SCI Somerset
— as the respondent, and vaguely claimed that Tice was illegally detaining
him. On October 19, 2021, the trial court denied the petition, without
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prejudice, based on Appellant’s failing to set forth specific facts to make out a
prima facie case for the issuance of the writ.
On November 2, 2021, Appellant again filed, in the Somerset County
Court of Common Pleas, a petition for writ of habeas corpus, which he
construed as an amendment to his prior-filed petition. Therein, Appellant
raised various new claims, including, inter alia, that his rights to a speedy and
public trial were violated, that his due process rights were violated by a
suggestive identification procedure, that certain evidence should have been
suppressed at trial, that the trial court erred by not granting Appellant’s
request for a continuance at one point during the trial, and that the jury voir
dire process was invalid. On November 18, 2021, the court denied Appellant’s
petition. He filed a timely, pro se notice of appeal on December 8, 2021. In
his subsequently-filed, pro se brief (which does not adhere to the Rules of
Appellate Procedure in any meaningful fashion), Appellant seemingly raises a
wholly new claim that he was denied his right to counsel at various stages of
his criminal prosecution and, thus, that his incarceration is illegal.
Initially, the PCRA provides “the sole means of obtaining [post-
conviction] collateral relief and encompasses all other common law and
statutory remedies for the same purpose that exist…, including habeas corpus
and coram nobis.” 42 Pa.C.S. § 9542; see also Commonwealth v. Fowler,
930 A.2d 586, 591 (Pa. Super. 2007) (“It is equally well-settled that the PCRA
provides the sole means for obtaining collateral review, and that any petition
filed after the judgment of sentence becomes final will be treated as a PCRA
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petition”) (internal citation omitted). Furthermore, Pennsylvania Rule of
Criminal Procedure 901(B) states that “[a] proceeding for post-conviction
collateral relief shall be initiated by filing a petition and 3 copies with the
clerk of the court in which the defendant was convicted and
sentenced.” Pa.R.Crim.P. 901(B) (emphasis added). Pennsylvania Rule of
Criminal Procedure 902(A) requires that the petition shall bear the caption of
the case in which relief is requested.
Here, Appellant’s petition for writ of habeas corpus raises collateral
attacks on the validity of his underlying criminal conviction that are cognizable
under the PCRA. It must, therefore, be considered a PCRA petition pursuant
to Fowler, supra. Notably, Appellant incorrectly filed his PCRA petition in the
Court of Common Pleas of Somerset County, where he is currently serving his
sentence, rather than in the Court of Common Pleas of Wayne County, in
which he was convicted and sentenced. Appellant also mislabeled the caption
of his petition, naming Eric Tice as the respondent, rather than providing the
caption of his underlying criminal case in which he is seeking the requested
relief. Accordingly, the Somerset County Court of Common Pleas could not
have jurisdiction to grant Appellant PCRA relief from his conviction in the
Wayne County Court of Common Pleas.2
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2 Moreover, because Appellant was sentenced in 2017, and his present PCRA
petition was not filed until 2021, it is patently untimely, and he must plead
and prove the applicability of one of the exceptions to the PCRA’s one-year
time-bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Appellant failed to meet this
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2022
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burden in his pro se petition. Thus, even if the Somerset County Court of
Common Pleas was the proper court in which to file Appellant’s petition, it
lacked jurisdiction to grant him post-conviction relief. See Commonwealth
v. Lawson, 90 A.3d 1, 8 (Pa. Super. 2014) (“Because the instant PCRA
petition was untimely and no exceptions apply, the PCRA court lacked
jurisdiction to address the claims presented and grant relief.”) (citing
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
that the PCRA court lacks jurisdiction to hear untimely petition). Likewise,
this Court lacks jurisdiction to consider the merits of Appellant’s appeal from
the denial of his untimely petition. Id. (citing Commonwealth v. Johnson,
803 A.2d 1291, 1294 (Pa. Super. 2002) (holding that the Superior Court lacks
jurisdiction to reach merits of appeal from untimely PCRA petition)).
Accordingly, we would affirm the order denying Appellant post-conviction
relief on this basis, as well.
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