Com. v. Bracken, S.

J-S09027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN ALAN BRACKEN :
:
Appellant : No. 1069 WDA 2022
Appeal from the Order Entered August 22, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0000730-2012
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED: APRIL 20, 2023
Shawn Alan Bracken appeals from the order entered August 22, 2022,
which denied Appellant’s motion to correct an illegal sentence as an untimely
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). Since those
PCRA proceedings are still pending before the PCRA court, we quash the
instant appeal as interlocutory.
We glean the following history from the record. On August 8, 2014,
Appellant pled guilty to indecent assault of a person less than thirteen years
of age, endangering the welfare of children (“EWOC”), and child pornography
based upon Appellant’s sexual abuse of his daughter. That same day,
Appellant was sentenced pursuant to the plea agreement as follows: three to
six years of incarceration for indecent assault, five years of probation for
EWOC, and five years of probation for child pornography. The probation
sentences were set to run concurrent to each other and consecutive to the
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term of incarceration. Appellant did not timely file post-sentence motions or
a direct appeal to this Court. Instead, what followed was a hotchpotch of
PCRA and revocation proceedings.
Appellant initiated his first PCRA proceedings by filing a motion seeking
credit for time served on house arrest. The trial court did not consider the
filing as a PCRA petition, instead denying it as an untimely post-sentence
motion. Appellant pro se filed a notice of appeal to this Court and, upon
Appellant’s request, the trial court appointed Brian Aston, Esquire, to
represent Appellant in all matters related to the above-captioned case. Upon
review, this Court reversed the denial order and, on September 15, 2016,
remanded for the PCRA court to consider the motion for credit as a first PCRA
petition. See Commonwealth v. Bracken, 158 A.3d 179 (Pa.Super. 2016)
(judgment order).
Meanwhile, on the same day that Appellant filed the notice of appeal
from the court’s denial of his motion for time credit, the Commonwealth filed
a motion to revoke Appellant’s probation based upon a violation of the
conditions of his supervision. At the time, Appellant had not yet begun to
serve his probationary tail. On July 1, 2016, during the pendency of the
above-referenced appeal, the trial court anticipatorily revoked Appellant’s
probation sentences and resentenced him to one to six years of incarceration
at both the EWOC and child pornography convictions. The revocation
sentences were set to run concurrent to each other and consecutive to the
originally-imposed term of incarceration of three to six years for indecent
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assault. Thus, Appellant’s new aggregate sentence of incarceration was four
to twelve years. Appellant did not seek to challenge this sentence through a
direct appeal.
Upon remand from this Court, which postdated the revocation
proceedings, the PCRA court commenced Appellant’s first PCRA proceedings.
Attorney Aston filed a PCRA petition in 2017, an amended petition in 2019,
and an amended petition in 2020. Following a hearing, the court denied
Appellant’s PCRA petition. See PCRA Court Order, 11/5/21. Appellant timely
filed a notice of appeal but Attorney Aston failed to file a docketing statement
pursuant to Pa.R.A.P. 3517. Therefore, this Court dismissed the appeal on
March 2, 2022, thereby bringing Appellant’s first PCRA proceedings to an end.
On May 5, 2022, Appellant initiated the instant PCRA proceedings.
Specifically, Appellant pro se submitted a letter to the PCRA court, along with
two filings. First, he submitted a PCRA petition raising an ineffective
assistance of counsel claim against Attorney Aston for failing to file the
docketing statement and an illegal sentencing claim based upon
Commonwealth v. Simmons, 262 A.3d 512 (Pa.Super. 2021) (en banc)
(holding that a trial court may not anticipatorily revoke a defendant’s
probation before the probationary period begins). Appellant also filed a
motion to correct an illegal sentence, raising the same Simmons claim.
In response to these filings, the PCRA court appointed instant PCRA
counsel. Although Appellant’s claims were cognizable under the PCRA and
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raised within a PCRA petition,1 counsel separated out the Simmons claim. In
doing so, counsel first attempted to circumvent the parameters of the PCRA
by filing a new motion to correct illegal sentence. See Motion to Correct Illegal
Sentence, 7/1/22. Then, as will be detailed more infra, counsel sought and
was granted several extensions to file an amended PCRA petition, the
purported substance of which is unknown to this Court.
Dealing first with the motion to correct illegal sentence, the PCRA court
held a hearing on July 14, 2022, regarding the retroactivity of our decision in
Simmons. Thereafter, it held the disposition of the motion under advisement
and ordered briefing on the retroactivity question. On August 23, 3022, the
court issued an order and opinion disposing of the motion. In its recitation of
the procedural history, the court noted that Appellant’s “amended PCRA
petition or no-merit letter is due on or before September 6, 2022.” Opinion
and Order of Court, 8/23/22, at 4 (capitalization altered). Thus, it was
apparent that an amended petition or no-merit letter was forthcoming.
Nonetheless, the court determined that the motion to correct illegal sentence
was cognizable under the PCRA and Appellant had failed to plead and prove a
____________________________________________
1 Whenever a claim is cognizable under the PCRA, it must be pursued as a
PCRA petition. See 42 Pa.C.S. § 9542 (The PCRA “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.”). Our courts have held that
motions to correct an illegal sentence are cognizable under the PCRA. See,
e.g., Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.Super. 2011)
(holding that Jackson’s motion to correct illegal sentence was cognizable
under the PCRA and therefore must be pursued within the strictures of the
PCRA).
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statutory exception to the PCRA’s time bar. Accordingly, it dismissed the
motion as an untimely PCRA petition.
Appellant filed the instant appeal from that dismissal order. The record
was transmitted to this Court on November 7, 2022. Notwithstanding the
PCRA court’s dismissal of Appellant’s motion as an untimely PCRA petition and
the filing of the instant appeal, the court continued to grant extensions for
counsel to file an amended PCRA petition or no-merit letter. Specifically, the
court granted counsel a sixty-day extension on September 12, 2022, and
another sixty-day extension on November 3, 2022. Since the record was
thereafter transmitted to this Court, we are unaware of the status of the PCRA
proceedings below.
With respect to the instant appeal, Appellant timely filed a concise
statement pursuant to Pa.R.A.P. 1925(b). In lieu of a Rule 1925(a) opinion,
the PCRA court directed us to its August 23, 2022 opinion. Appellant presents
the following issue for our review: “Whether the trial court erred by denying
the Appellant’s motion to correct an illegal sentence?” Appellant’s brief at 7
(capitalization altered).
Before we reach the merits of this issue, we must consider whether this
appeal is properly before us. “This Court may consider the issue of jurisdiction
sua sponte.” Commonwealth v. Grove, 170 A.3d 1127, 1136–37 (Pa.Super.
2017) (cleaned up). Generally, this Court has jurisdiction of “appeals from
final orders of the courts of common pleas.” 42 Pa.C.S. § 742. In the PCRA
context, “[a]n order granting, denying, dismissing, or otherwise finally
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disposing of a petition for post-conviction collateral relief shall constitute a
final order for purposes of appeal.” Pa.R.Crim.P. 910.
The PCRA court dismissed Appellant’s counselled motion to correct an
illegal sentence as an untimely PCRA petition that failed to plead and prove
one of the timeliness exceptions, which would appear to be a final order.
However, at the same time, the PCRA court contemplated further PCRA
proceedings as it continued to grant PCRA counsel extensions for filing an
amended PCRA petition or no-merit letter. As noted, Appellant’s claims were
both cognizable under the PCRA and were submitted simultaneously to the
PCRA court in Appellant’s pro se PCRA petition. Despite this, counsel
employed a divergent approach to the instant PCRA proceedings, filing first a
motion to correct illegal sentence purportedly outside the parameters of the
PCRA, and then pursuing an amended PCRA petition.
This Court has held that “PCRA courts are not jurisdictionally barred
from considering multiple PCRA petitions relating to the same judgment of
sentence at the same time unless the PCRA court’s order regarding a
previously filed petition is on appeal and, therefore, not yet final.”
Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa.Super. 2018) (en
banc). In that vein, if Appellant’s motions fall within this framework, his
motion to correct an illegal sentence would be considered his second PCRA
petition, and the forthcoming petition would be a subsequent petition. If that
were the case, the PCRA court could have disposed of the second PCRA petition
while the subsequent petition was still pending before it, the order appealed
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from would be a final order, and the instant appeal would stay the subsequent
PCRA proceedings. Stated simply, if the motion and petition constitute
separate PCRA petitions, we would be able to reach the merits of Appellant’s
issue on appeal.
However, a different result would ensue were we to conclude that
Appellant’s May 5, 2022 filings initiated a single PCRA proceeding. In this
scenario, the court would have denied Appellant relief on the Simmons claim
by issuing the appealed-from order, but deferred ruling on any remaining
PCRA issues by granting counsel extensions to file an amended petition.
Within this framework, if the motion and pending PCRA petition would be part
of the same PCRA petition, then the order appealed from is not a final order
pursuant to Pa.R.Crim.P. 910 as not all issues have been finally disposed.
Thus, the threshold question before this Court is whether the motion
should be considered a separate petition from Appellant’s pending PCRA
petition, such that they operated independently of each other as a second and
subsequent PCRA petition, or whether Appellant’s May 5, 2022 filings were
inextricably part of the same PCRA proceedings, such that counsel’s attempt
to separate them was futile and the undecided portion of Appellant’s PCRA
petitions rendered the instant order not final.
Upon review, we conclude that Appellant’s bundling of his filings on May
5, 2022, seeking relief cognizable under the PCRA and set forth together within
a single PCRA petition, initiated Appellant’s second PCRA petition. In his pro
se PCRA petition, Appellant set forth the following. Before the PCRA court
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dismissed Appellant’s first PCRA petition, Appellant purportedly learned of this
Court’s decision in Simmons, supra, and asked Attorney Aston to amend his
petition to include a claim based thereon. See PCRA Petition, 5/5/22, at 4.
Counsel declined to pursue the claim and, according to Appellant, did not
proffer a reason beyond stating that the claim lacked merit. Id. at 5. Citing
Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), Appellant argued that
this PCRA petition was the first opportunity to raise Attorney Aston’s
ineffectiveness. Id. at 7. Then, he set forth two claims. In his first claim,
Appellant averred that Attorney Aston had abandoned him by failing to file a
docketing statement in this Court. Id. at 7. In his second claim, Appellant
raised his Simmons illegal sentencing issue. Id. at 8-9. With respect to
these claims, Appellant sought the appointment of new counsel to pursue his
original PCRA claims before the PCRA court and to amend his petition to
include the Simmons claim. Id. at 8-9.
In Appellant’s letter to the court that accompanied the PCRA petition
and his motion to correct illegal sentence, he explained the reasoning for the
separate motions as follows:
As [Attorney Aston] failed to comply with the Superior Court’s
order, the Court dismissed my case, thus foreclosing me from
seeking review. Pursuant to the statutes delineated under the
[PCRA], I have filed a PCRA seeking appointment of counsel, as
well as seeking the court to issue an order reinstating my appellate
rights nunc pro tunc. All of which is allowable under the law.
Having said that, I have also raised an issue in my PCRA petition
that involves an action that occurred in my case that has now been
determined by the Superior Court to be an error of law and can
be corrected at any time. This issue pertains to the [c]ourt’s
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misapplying the law in regards to conducting probation revocation
hearings[.] . . .
Just after I typed up the PCRA petition, I came across a law article
at the prison library that discusses same and it seems that if a
defendant’s PCRA rights have been exhausted, a defendant can
now raise the issue pursuant to [42 Pa.C.S.] § 5505 which allows
the court to retain jurisdiction to correct a patent error. . . .
As such, I have enclosed a PCRA [petition] based on [Attorney
Aston] abandoning me, and, I have enclosed a separate motion to
correct an illegal sentence. Of course my main thrust is to be
released from prison immediately. If Your Honor will entertain my
motion to correct an illegal sentence I will abandon my PCRA in
its entirety.
Pro se Correspondence, 5/5/22, at 1-2 (punctuation, spacing, and spelling
errors corrected).
Upon receipt of the May 5, 2022 filings, the PCRA court appointed
counsel “to represent [Appellant] in this proceeding. PCRA counsel is ordered
to file either an amended PCRA petition or a motion to withdraw as counsel
and a . . . no-merit letter within 30 days[.]” Order of Court, 5/10/22
(capitalization altered). This phrasing indicated that the PCRA court’s
appointment of PCRA counsel was meant to encompass Appellant’s pro se
filings and provide counsel the opportunity to recast them in an amended
petition or no-merit letter pursuant to the PCRA.
Based on the foregoing, it is evident that the issues were contemplated
being handled together. Counsel’s attempt to litigate the Simmons issue
outside the parameters of the PCRA did not create multiple PCRA petitions.
Moreover, the sui generis nature of this case sets it outside the familiar hybrid
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scenario where a PCRA court grants relief as to sentencing and denies all other
PCRA issues. See Commonwealth v. Grove, 170 A.3d 1127, 1138
(Pa.Super. 2017) (holding that “PCRA court’s order granting relief with regard
to sentencing and denying all other claims therefore was a final appealable
order”). Here, the PCRA court, while denying Appellant’s Simmons issue,
cannot have disposed of Appellant’s remaining PCRA issues because counsel
had not yet raised them. Accordingly, this is not a hybrid scenario. Rather,
it is an appeal from an interlocutory order that dismissed only a portion of a
PCRA petition. Consequently, we conclude that this appeal is premature and
we quash.2
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2023
____________________________________________
2 It follows that Appellant may challenge the PCRA court’s rejection of his
illegal sentencing claim by appealing from the final order that disposes of all
pending PCRA claims.
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