Com. v. Schultz, P., Jr.

J-S58027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PETER J. SCHULTZ, JR.
Appellant No. 313 MDA 2016
Appeal from the PCRA Order January 19, 2016
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000114-2012
CP-54-CR-0000117-2012
CP-54-CR-0000654-2011
CP-54-CR-0000655-2011
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2017
Peter J. Schultz, Jr. appeals from the January 19, 2016 order denying
his petition for post-conviction relief filed August 27, 2015. We affirm.
We set forth the facts in a previous appeal.
The Commonwealth charged Appellant with multiple counts
of possession of a controlled substance, possession with intent to
deliver, delivery of a controlled substance, and possession of
drug paraphernalia at the above-captioned criminal docket
numbers. Appellant entered a negotiated guilty plea, and on
May 17, 2012, the trial court imposed a sentence of 24 months
of State Intermediate Punishment (“SIP”), with 59 days of credit
for time served dating to March 20, 2012. On March 5, 2014,
shortly before the 24-month SIP sentence was set to expire, the
trial court found Appellant in violation of the program and
therefore ordered him to serve an additional three months.
* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Schultz, 580 MDA 2014 (Pa.Super. 2015) (unpublished
memorandum) (hereinafter “Schultz I”).
Appellant filed a timely appeal from the March 5, 2014 order1
extending his SIP sentence (Schultz I), alleging that he was deprived of his
right to counsel at the hearing. The trial court, in its Pa.R.A.P. 1925(a)
opinion, agreed and requested that we vacate and remand for a counseled
hearing.
Notwithstanding the pending appeal and request for remand, the trial
court, prior to our Schultz I decision, revoked Appellant’s SIP sentence on
June 12, 2014. Appellant was then re-sentenced on September 4, 2014 to
fifty-two months to 104 months of incarceration.2 Appellant filed a notice of
appeal from that sentence. See Commonwealth v. Schultz, 116 A.3d
1116 (Pa.Super. 2015) (hereinafter “Schultz II”).
On January 27, 2015, we issued Schultz I. In addition to his right to
counsel claim, Appellant maintained that he had completed his SIP sentence
and requested discharge. We disagreed, finding that Appellant had failed to
successfully complete his SIP sentence by the end of the twenty-four month
term. We vacated the March 5, 2014 order, however, holding that the trial
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1
We note that the order is dated March 5, 2014, but was not docketed until
March 7, 2014. We use the earlier date in this memorandum.
2
The trial court’s opinion in this matter states that Appellant was
represented at this hearing.
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court did not actually revoke the SIP sentence but had instead extended the
sentence. We concluded that the trial court lacked both jurisdiction and
statutory authorization to extend the SIP sentence beyond the statutory
twenty-four month period, and remanded for further proceedings. The
memorandum noted in a footnote that the appeal of the September 4, 2014
sentence was then pending before a different panel.
On May 4, 2015, we issued Schultz II, which addressed the
September 4, 2014 judgment of sentence. Appellant raised five challenges
pertaining to the trial court’s revocation and re-sentencing, four of which we
deemed harmless.3 Appellant’s fifth issue was that the trial court erred in
imposing a new judgment of sentence, again raising the allegation that his
SIP sentence had expired in late March of 2014. We proceeded to address
that claim, and concluded that the sentence was valid since Appellant had
failed to successfully complete his SIP sentence by the end of the twenty-
four month term. Schultz II. Appellant did not seek review with our
Supreme Court.
On August 27, 2015, Appellant filed a pro se PCRA petition,
challenging the September 4, 2014 judgment of sentence. The
Commonwealth filed a response to the motion on October 5, 2015, averring
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3
The four issues concerned the propriety of introducing hearsay evidence
demonstrating that Appellant was expelled from the SIP program.
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that the Schultz I remand order meant Appellant’s sentence was not yet
final. Id. Accordingly, the Commonwealth requested that the court dismiss
the petition as premature and issue a briefing schedule on the jurisdictional
issue. Id. at 2. The trial court treated the petition under the PCRA and
issued a Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing.
Following dismissal, Appellant timely filed a notice of appeal. The trial court
and Appellant complied with Pa.R.A.P. 1925, and the matter is now ready for
review. Appellant raises the following issue:
Whether the [s]entencing [c]ourt had jurisdiction to issue an
order dated March [5], 2014, in which the court extended
Appellant’s participation in the State Intermediate Punishment
Program[?]
Appellant’s brief at 4.
Preliminarily, we note that the trial court properly treated the petition
as a request for relief under the PCRA. Appellant’s revocation sentence was
imposed on September 4, 2014, and he timely appealed that sentence to
this Court. On May 4, 2015, Schultz II affirmed Appellant’s judgment of
sentence. Accordingly, his sentence became final on June 3, 2015, when his
time period for seeking further review expired. See 42 Pa. C.S. §
9545(b)(3) (judgment of sentence final upon expiration of time for seeking
review with our Supreme Court); Pa.R.A.P. 1113(a) (petition for allowance
of appeal must be filed within thirty days after entry of Superior Court
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order). Thus, the court properly treated the request for relief as a PCRA
petition.
We now address the denial of PCRA relief. We review the order to
determine whether the findings of the PCRA court are supported by the
record and free of legal error. Commonwealth v. Treiber, 121 A.3d 435,
444 (Pa. 2015) (citation omitted). The court’s credibility findings are to be
accorded great deference and are binding where supported by the record.
Id. (citation omitted). However, we afford no deference to its legal
conclusions, which we review de novo with a plenary scope of review.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc)
(citing Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012)).
Herein, Appellant continues to assert that his SIP sentence expired
before the June 12, 2014 revocation proceeding. According to Appellant, his
SIP sentence was completed as of March 20, 2014. “Therefore, the
subsequent sentence of 52 to 104 months was a nullity since the March 5th
extension of SIP was devoid of jurisdiction.” Appellant’s brief at 6. The
Commonwealth, on the other hand, concedes that the court was without
jurisdiction to enter the March 5, 2014 order, but asks us to affirm because
the trial court “regained jurisdiction to revoke and resentence upon the
[Department of Corrections] formally expelling Appellant[.]”
Commonwealth’s brief at 16.
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It is clear that Appellant is litigating issues that have already been
decided. Schultz I vacated the March 5, 2014 order, and we did not
remand for any type of fact-finding. Appellant claims that the September
re-sentencing was a nullity because his sentence had expired in March of
2014, but this position was clearly rejected by Schultz II. Id. at 1123.
The trial court could not rule to the contrary, nor can we. See
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995).
To be eligible for PCRA relief, the petitioner is required to establish
that the allegation of error has not been previously litigated. 42 Pa.C.S. §
9543(a)(3). An issue is considered previously litigated if “the highest
appellate court in which the petitioner could have had review as a matter of
right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2). The
statute does not explicitly define the term “issue.” See Commonwealth v.
Collins, 957 A.2d 237, 246 (Pa. 2008). However, the previous litigation bar
clearly applies where a litigant is advancing the exact same allegation of
error. “A claim previously litigated in a direct appeal is not cognizable under
the PCRA.” Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa.Super.
2000); Commonwealth v. Berry, 760 A.2d 1164 (Pa.Super. 2000)
(voluntariness of plea previously litigated; that bar cannot be avoided
through “different packaging”). Instantly, Appellant argued to the Schultz
II Court that his SIP sentence expired on March 20, 2014. The same exact
claim is made here. Thus, the previous litigation bar applies.
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Since we may affirm on any basis supported by the record,
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa.Super. 2016), we deem
the issue previously litigated and affirm the denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2017
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