Com. v. Gerber, G., Jr.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GARY LEE GERBER, JR. :
:
Appellant : No. 1899 MDA 2018
Appeal from the PCRA Order Entered October 12, 2018
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0006395-2003
BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED JULY 08, 2020
Appellant, Gary Lee Gerber, Jr., appeals pro se from the order of the
Court of Common Pleas of Berks County denying his post-conviction petition,
which the court deemed as a petition filed pursuant to the Post Conviction
Relief Act, 42 Pa. C.S.A. §§ 9541-9546 (“PCRA”). We conclude that Appellant
is not entitled to relief under either common law post-conviction proceedings
or the PCRA and therefore affirm.
On February 5, 2010, a jury convicted Appellant of one count of unlawful
conduct under the Solid Waste Management Act for the disposal of solid waste
without a permit. See 35 P.S. § 6018.610(1). Immediately following the
conviction, Appellant made an oral motion for acquittal and the trial court
subsequently granted that motion. The Commonwealth appealed, and this
Court vacated the order of acquittal and remanded for sentencing. Appellant
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filed a petition for allowance of appeal, which our Supreme Court denied on
January 30, 2012.
“After a lengthy delay, due in part to [Appellant] serving a life sentence
after being convicted of first-degree murder in an unrelated matter, the [trial]
court sentenced [Appellant] on February 26, 2015, to one to twelve months’
incarceration, with credit for 365 days’ time served.” Commonwealth v.
Gerber, 141 A.3d 582, 591 MDA 2015 at 2 (Pa. Super. 2016) (unpublished
memorandum). Therefore, Appellant's sentence ended on the day it was
imposed. Appellant filed a timely post-sentence motion, which the court
denied. The court subsequently appointed conflict counsel for Appellant, who
filed a notice of appeal on April 1, 2015. This Court affirmed Appellant’s
judgment of sentence, and simultaneously denied Appellant’s application to
remand to hold an evidentiary hearing to consider claims of trial counsel’s
ineffective assistance on direct appeal. Our Supreme Court once again denied
Appellant’s petition for allowance of appeal, and the United States Supreme
Court denied certiorari.
On August 1, 2017, Appellant filed a pro se document entitled “petition
for habeas corpus/writ of coram nobis,” in which he raised several claims of
trial counsel’s ineffectiveness. The Commonwealth filed a motion to have
Appellant’s motion treated as a PCRA petition, which the PCRA court granted.
The PCRA court then appointed counsel, who filed a motion to withdraw as
counsel as well as a no-merit letter pursuant to Commonwealth v. Turner,
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544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988). In the letter, counsel maintained that Appellant was not eligible
for PCRA relief because he did not meet the PCRA’s requirement that a
petitioner be serving a sentence of imprisonment, parole or probation for the
crime being challenged at the time the petition is granted. See 42 Pa.C.S.A.
§ 9543(a)(1)(i) (stating that to be eligible for relief, a petitioner must plead
and prove that he has been convicted of a crime and is “currently serving a
sentence of imprisonment, probation or parole for the crime”).
On September 6, 2018, the PCRA court issued a notice of its intent to
dismiss Appellant’s PCRA petition without a hearing. See Pa.R.Crim.P. 907.
Appellant filed objections to the court’s notice of intent and to counsel’s
Turner/Finley letter. The PCRA court nonetheless granted PCRA counsel’s
motion to withdraw and subsequently denied Appellant’s PCRA petition in an
order dated October 12, 2018. Appellant filed the instant pro se notice of
appeal on November 16, 2018, challenging the PCRA court’s denial of his
petition on several grounds.1
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1 Appellant summarily asserts in his appellate brief that he filed a timely notice
of appeal from the court’s October 12, 2018 order on November 8, 2018. While
it is true that Appellant dated his notice of appeal November 8, 2018, the
notice of appeal is stamped as being filed with the clerk of courts on November
16, 2018. Under Pa.R.A.P. 903(a), a notice of appeal must be filed within 30
days after the entry of the order from which the appeal was taken. However,
it appears from the record that the clerk of courts first sent a copy of the order
to Appellant on October 15, 2018 but then resent a copy of the order to
Appellant by certified mail on October 17, 2018. Under Pa.R.A.P. 108(a)(1),
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We first address Appellant’s contention that the PCRA court erred in
addressing his post-conviction petition under the PCRA. To that end, Appellant
claims the PCRA court erred by granting the Commonwealth’s motion to
consider his writ for coram nobis as a PCRA petition. This claim fails.
Section 9542 of the PCRA provides:
[The PCRA] provides for an action by which persons convicted of
crimes they did not commit and persons serving illegal sentences
may obtain collateral relief. The action established in this
subchapter shall be the sole means of obtaining collateral relief
and encompasses all other common law and statutory remedies
for the same purpose that exist when this subchapter takes effect,
including habeas corpus and coram nobis. This subchapter is not
intended to … provide relief from collateral consequences of a
criminal conviction.
42 Pa. C.S.A. § 9542 (emphasis added). As this statutory language makes
clear, the “PCRA is intended to be the sole means of achieving post-conviction
relief.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013).
____________________________________________
the day of the entry of an order is the day the clerk mails or delivers copies of
the order to the parties. If the date of the resending of the order to Appellant
is used as the date the order was entered, Appellant had until November 17,
2018 to file his notice of appeal. In addition, even though Appellant is
incarcerated for an unrelated first-degree murder conviction and filed his
notice of appeal pro se, he does not argue that the prisoner mailbox rule
applies to his notice of appeal. See Commonwealth v. Jones, 700 A.2d 423,
426 (Pa. 1997) (stating that an appeal filed by a pro se prisoner is deemed
filed on the date the appellant deposits the appeal with prison authorities
and/or places it in the mailbox). Nonetheless, the record contains an envelope
attached to Appellant’s notice of appeal that has a postage stamp dated
November 13, 2018. Under all of these circumstances, we conclude that
Appellant’s notice of appeal was timely filed.
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Therefore, “any petition filed after the judgment of sentence becomes final
will be treated as a PCRA petition.” Commonwealth v. Jackson, 30 A.3d
516, 521 (Pa. Super. 2011) (citation omitted).
Appellant claims, however, that the PCRA court erred in treating his
petition as a PCRA petition because he was never eligible for PCRA relief given
that he never served a sentence of imprisonment, probation or parole for the
unlawful conduct conviction. This Court addressed a similar argument in
Commonwealth v. Pagan, 864 A.2d 1231 (Pa. Super. 2004). There, the
appellant argued that the PCRA court erred in converting his writ for coram
nobis into a PCRA petition because he was no longer serving a sentence for
the challenged crimes and therefore, was no longer eligible for relief under the
PCRA. In rejecting this claim, this Court stated that the plain language of the
PCRA dictates that if a petitioner’s underlying substantive claim is
encompassed by the PCRA, “it is exclusive to the PCRA.” Id. at 1233
(emphasis in original). The Court continued:
In other words, coram nobis relief does not become available
merely because the PCRA refuses to remedy a petitioner's
grievance; rather, we look at the claims a petitioner is raising.
Here, “[b]ecause [the] [a]ppellant's claim [challenging his
competency to enter a guilty plea or stand trial] could have been
brought under the PCRA, [the] claim[ ] had to be brought under
the PCRA.
Id. (citations omitted)(emphasis in original).
As such, the Pagan Court concluded that the PCRA court properly
treated the appellant’s post-conviction petition as a PCRA petition and, in turn,
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properly concluded that any relief due to the appellant could only be obtained
pursuant to the PCRA. However, the Court found that the appellant was not
eligible for any relief according to the plain language of the PCRA because he
was not currently serving a sentence for the challenged crimes. See id. at
1235; see also Commonwealth v. Descardes, 136 A.3d 493, 496 n.4, 503
(Pa. 2018) (discussing Pagan and holding that “where a petitioner’s claim is
cognizable under the PCRA, the PCRA is the only method of obtaining collateral
review” even when the petitioner is not eligible for PCRA relief because he is
not currently serving a sentence); Commonwealth v. Concordia, 97 A.3d
366, 371 (Pa. Super. 2014) (stating that “claims that are cognizable under
the PCRA are to be pursued within the parameters of that statute”).
Similarly, here, the issues of trial counsel’s ineffectiveness raised in
Appellant’s petition are encompassed by the PCRA and the PCRA court
therefore properly treated Appellant’s petition as a PCRA petition. See 42
Pa.C.S.A. § 9543(a)(2)(ii). As Appellant is undisputedly not currently serving
a sentence of imprisonment, probation or parole for the challenged crime, he,
like the appellant in Pagan, is not entitled to collateral relief. Accord
Commonwealth v. Fisher, 703 A.2d 714, 716 (Pa. Super. 1997) (treating
writ of coram nobis as PCRA petition and holding that the petitioner, whose
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only remaining sentence was a fine, was ineligible for PCRA relief because he
was not currently serving a sentence under the plain language of the PCRA).2
Appellant also argues, however, that treating his post-conviction
petition under the PCRA violates his rights to effective assistance of counsel
and due process because he will never have the opportunity to challenge the
stewardship of his counsel. This claim has no merit under our Supreme Court’s
decision in Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013).
In Turner, the petitioner completed her two-year sentence of probation
after she filed a PCRA petition alleging trial counsel’s ineffectiveness. The
Commonwealth moved to dismiss the PCRA petition on the ground that the
petitioner was ineligible for relief under the PCRA because she was no longer
serving a sentence. In response, the petitioner argued that the dismissal of
her petition on that ground would violate her due process rights by denying
her any opportunity to vindicate her right to the effective assistance of
counsel. See id. at 760. The PCRA court agreed. On appeal, however, our
Supreme Court reversed on the basis that the petitioner no longer had a
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2 Although Appellant focuses on his ineffectiveness claims, we note that
Appellant also raised a sufficiency of the evidence claim in his petition.
Appellant, however, challenged the sufficiency of the evidence on direct
appeal. The trial court rejected that challenge, and this Court affirmed.
Appellant has therefore previously litigated his sufficiency claim. See 42
Pa.C.S.A. § 9544(a)(2). Of course, relief outside the framework of the PCRA
is not available “simply because the merits of [a] PCRA [claim] cannot be
considered due to previous litigation.” Commonwealth v. Kutnyak, 781
A.2d 1259, 1261 (Pa. Super. 2001).
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protected liberty interest which would implicate her due process rights. See
id. at 766. The Court found that petitioners seeking collateral relief, such as
the petitioner in Turner, have no protected liberty interest in collateral review
when their liberty is no longer burdened by a state sentence. See id. at 765-
66. Accordingly, the Court concluded that due process does not require the
legislature to provide collateral review when a petitioner is no longer serving
a sentence. See id. at 765. The Court then stated:
Because individuals who are not serving a state sentence have no
liberty interest in and therefore no due process right to collateral
review of that sentence, the statutory limitation of collateral review
to individuals serving a sentence of imprisonment, probation, or
parole is consistent with the due process prerequisite of a
protected liberty interest.
Id. at 766.
As Turner makes clear, because Appellant is not currently serving a
sentence for the crime challenged, he has no due process right to collateral
review of that sentence. He is therefore not entitled to any relief on the basis
of this claim.
Lastly, Appellant claims that the PCRA court erred in dismissing his PCRA
petition because PCRA counsel was ineffective for filing a no-merit letter
without attempting to convert his PCRA petition back into a writ for coram
nobis. This claim fails.
In rejecting this claim below, the PCRA court stated:
[W]hen PCRA counsel determines, in the exercise of her
professional judgment, that the issues raised in the PCRA petition
are meritless, PCRA counsel may submit a letter detailing the
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nature and extent of her review and an explanation as to why the
petitioner’s PCRA petition is meritless. Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988); Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988). In determining whether there
is merit to the PCRA petition, counsel must review all issues raised
by the petitioner. [Finley, 550 A.2d at 215]. If the PCRA court
agrees with the PCRA counsel’s assertion that the issues raised in
the petition are meritless, counsel may be permitted to withdraw.
Id.
In this case, PCRA counsel examined Appellant’s Petition for
Habeas Corpus/Writ of Coram Nobis and the Court order which
considered Appellant’s coram nobis petition as a PCRA petition and
determined that she was obligated to follow the Court’s order and
examined the petition as a PCRA petition. She then recognized
that Appellant’s issues had no merit under the PCRA because
Appellant was ineligible for PCRA relief, as he was not serving a
sentence of incarceration or probation. She then filed a
Turner/Finley letter with the Court, explaining why Appellant’s
petition was meritless and requesting to withdraw as counsel. All
of the actions that [PCRA counsel] took in her capacity as PCRA
counsel was consistent with her obligations as described in Turner
and Finley. Therefore, she was not ineffective as PCRA counsel.
PCRA Court Opinion, 4/11/2019, at 7-8.
We find no error in the PCRA court’s resolution of this claim. While
Appellant argues that counsel was ineffective because she did not review the
notes of testimony from his motion to dismiss/sentencing hearing as they
were not made part of the certified record until after PCRA counsel submitted
her no-merit letter, we do not agree. Appellant has simply not established how
those notes of testimony would have altered the PCRA court’s treatment of his
petition as a PCRA petition or the determination by PCRA counsel and the
PCRA court that Appellant was not entitled to any relief under the PCRA
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because he is not currently serving a sentence of imprisonment, probation or
parole. No relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/08/2020
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