Com. v. Faust, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER CHARLES FAUST :
:
Appellant : No. 950 EDA 2022
Appeal from the PCRA Order Entered February 1, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at CP-23-CR-0002079-2008
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 9, 2023
Christopher Charles Faust (Appellant) appeals pro se from the order
denying his first Post Conviction Relief Act (PCRA)1 petition following
resentencing. We affirm.
On September 9, 2010, the trial court found Appellant guilty of third-
degree murder, attempted murder, and related offenses.2 Appellant’s
convictions resulted from the February 24, 2008 shooting death of Anthony
Dunn (Dunn) and attempted murder of Yahshaw Humphrey (Humphrey). On
November 3, 2010, the trial court sentenced Appellant to an aggregate prison
term of 22 to 50 years, followed by 4 years of probation. This Court affirmed
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1 42 Pa.C.S.A. §§ 9541-9546.
2 See 18 Pa.C.S.A. §§ 2502(c), 901.
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Appellant’s judgment of sentence; our Supreme Court denied allowance of
appeal. See Commonwealth v. Faust, 64 A.3d 11 (Pa. Super. 2012)
(unpublished memorandum), appeal denied, 74 A.3d 1030 (Pa. 2013).
Appellant timely filed a first PCRA petition, which the PCRA court
dismissed without a hearing on November 2, 2015.3 On April 18, 2017, this
Court reversed the PCRA court’s order, in part. We vacated Appellant’s
judgments of sentence for attempted murder and third-degree murder and
remanded for resentencing in accordance with Alleyne v. United States, 570
U.S. 99 (2013). See Commonwealth v. Faust, 169 A.3d 1176 (Pa. Super.
2017) (unpublished memorandum at 3-4). On remand, the trial court
appointed new counsel for Appellant. Following a hearing, the court
resentenced Appellant to 17 – 35 years in prison for third-degree murder, and
a consecutive 5 – 10 years in prison for attempted murder. Sentence,
9/19/17.
On October 3, 2017, counsel filed an untimely post-sentence
motion on Appellant’s behalf. That same day, counsel filed a
petition for leave to withdraw. The court conducted a hearing on
the post-sentence motion on October 19, 2017. At the conclusion
of the hearing, the court denied the post-sentence motion as
untimely and without merit. In a separate order entered that
same day, the court permitted counsel to withdraw. Appellant
filed a pro se notice of appeal on October 30, 2017, which this
Court quashed for lack of jurisdiction. Appellant subsequently
filed a petition for allowance of appeal, which our Supreme Court
denied on January 7, 2020.
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3The PCRA court permitted counsel to withdraw pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc).
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On March 2, 2020, Appellant filed a pro se PCRA petition, alleging
ineffective assistance of prior counsel in conjunction with the
resentencing proceedings. The petition also averred that
Appellant remained indigent, and it explicitly requested the
appointment of counsel. (See PCRA Petition, filed 3/2/20, at
8(B)). The PCRA court issued Pa.R.Crim.P. 907 notice of its intent
to dismiss the petition without a hearing on April 22, 2020.
Appellant timely filed a pro se response to the Rule 907 notice,
but the PCRA court dismissed his petition on May 27, 2020.
Appellant timely filed a pro se notice of appeal on June 19, 2020….
Commonwealth v. Faust, 245 A.3d 1034 (Pa. Super. 2020) (unpublished
memorandum at 3) (emphasis added; footnote omitted).
On appeal, this Court vacated the PCRA court’s order and remanded for
appointment of counsel. Id. (unpublished memorandum at 6). We concluded,
“Appellant’s current petition effectively amounts to a ‘first’ petition challenging
his resentencing[.]” Id. (unpublished memorandum at 5).
On remand, the PCRA court appointed counsel for Appellant, who filed
an amended PCRA petition claiming resentencing counsel rendered ineffective
assistance. Amended PCRA Petition, 3/31/21, ¶ 26. Appellant requested an
evidentiary hearing and reinstatement of his post-resentencing and direct
appeal rights nunc pro tunc. Id., ¶¶ 27-28. On December 10, 2021, the PCRA
court filed Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s amended
PCRA petition. Appellant filed counseled and pro se responses to the Rule 907
notice. On February 1, 2022, the PCRA court dismissed Appellant’s amended
PCRA petition. Appellant timely appealed.
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Appellant also filed a pro se petition to dismiss PCRA counsel and
proceed pro se. Motion to Dismiss Counsel, 3/2/22. The PCRA court
forwarded the motion to PCRA counsel, and dismissed Appellant’s pro se
motion for lack of jurisdiction. Order, 4/13/22. On April 22, 2022, PCRA
counsel filed a petition to withdraw from representation in this Court. Petition
to Withdraw, 4/22/22.
On May 17, 2022, this Court remanded the matter to the PCRA court to
conduct a hearing “as to whether Appellant’s waiver of counsel is knowing,
intelligent and voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998)[.]” Commonwealth v. Faust, 590 EDA 2022 (Pa. Super.
5/17/22) (order). The PCRA court conducted a hearing, after which it
permitted Appellant to proceed pro se with his appeal. PCRA Court Order,
6/30/22. The appeal is now before us for review.
Appellant presents the following issues:
I. Whether PCRA counsel was ineffective for failing to raise, in her
Amended PCRA Petition, whether the resentencing court abused
its discretion by failing to give reasons why it mechanically
reimposed Appellant’s previous (22) year sentence.
II. Whether the PCRA court erred for failing to comply with
Pa.R.Crim.P. 720(A), which constituted a breakdown that excuses
the untimely filing of Appellant’s direct appeal.
Appellant’s Brief at 4 (punctuation modified).
Before addressing Appellant’s issues, we must ascertain whether
Appellant timely filed his PCRA petition. The timeliness of a PCRA petition is
jurisdictional; if the petition is untimely, courts lack jurisdiction and cannot
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grant relief. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa.
2005); see also Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa.
Super. 2014) (recognizing courts do not have jurisdiction over an untimely
PCRA petition). A PCRA petition must either (1) be filed within one year of
the judgment of sentence becoming final, or (2) plead and prove a timeliness
exception. 42 Pa.C.S.A. § 9545(b). The one-year time limit is jurisdictional,
and a court has no power to address the substantive merits of an untimely
petition. Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003);
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
The three exceptions to the one-year filing requirement are for newly
discovered facts, interference by a government official, and a newly
recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any
petition asserting an exception must also establish that the exception was
raised within one year of the date the claim could have been first presented.
42 Pa.C.S.A. § 9545(b)(2).
Instantly, the trial court resentenced Appellant on September 19, 2017.
Appellant’s counsel filed untimely post-sentence motions which did not stay
the 30-day appeal period. See Pa.R.Crim.P. 720(A)(3) (“If the defendant
does not file a timely post-sentence motion, the defendant’s notice of appeal
shall be filed within 30 days of imposition of sentence ….”). Although Appellant
filed a direct appeal, this Court quashed the appeal for lack of jurisdiction; on
January 7, 2020, the Pennsylvania Supreme Court denied allowance of appeal.
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Commonwealth v. Faust, 217 A.3d 378 (Pa. Super. 2019) (unpublished
memorandum at 8), appeal denied, 222 A.3d 1133 (Pa. 2020). Thus,
Appellant’s judgment of sentence became final on Thursday, October 19,
2017. See Pa.R.A.P. 903(a) (“the notice of appeal … shall be filed within 30
days after the entry of the order from which the appeal is taken.”). Appellant
was required to file a PCRA petition within one year, or by October 19, 2018.
Appellant filed the instant PCRA petition, his first after resentencing, on
March 2, 2020. Appellant’s petition is facially untimely under the PCRA.
However, in his amended petition, Appellant alleged he was abandoned by
post-sentence counsel and on appeal. Amended Petition, 3/31/21, ¶¶ 8-10.
Appellant claimed resentencing counsel did not communicate with him
“relative to the legality of filing untimely post-sentence motion[s] and of
effectuating his direct appeal to the Superior Court.” Id. ¶ 21. Appellant
averred that he informed counsel he wished to challenge his sentence. Id.
¶ 22. Appellant filed his petition within one year of the Supreme Court’s denial
of allowance of appeal, after the appointment of counsel.
While “[i]t is well settled that allegations of ineffective assistance of
counsel [(‘IAC’)] will not overcome the jurisdictional timeliness requirements
of the PCRA[,]” Wharton, 886 A.2d at 1127, this rule does not extend to
claims alleging abandonment of counsel. Commonwealth v. Bennett, 930
A.2d 1264, 1274 (Pa. 2007). As our review of the record confirms that counsel
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abandoned Appellant, and Appellant proceeded pro se with his direct appeal,
we address Appellant’s substantive claims.
Our review of the denial of PCRA relief “is limited to examining whether
the PCRA court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Sandusky, 203 A.3d
1033, 1043 (Pa. Super. 2019) (citation and internal quotation marks omitted).
“The PCRA court’s credibility determinations, when supported by the record,
are binding on this Court; however, we apply a de novo standard of review to
the PCRA court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d
1257, 1265 (Pa. 2014) (citation omitted).
Appellant asserts ineffectiveness of counsel. To be eligible for relief
based on a claim of ineffective assistance of counsel, a PCRA petitioner must
demonstrate, by a preponderance of the evidence, that (1) the underlying
claim is of arguable merit; (2) no reasonable basis existed for counsel’s action
or omission; and (3) there is a reasonable probability that the result of the
proceeding would have been different absent such error. Commonwealth v.
Steele, 961 A.2d 786, 796 (Pa. 2008).
Appellant first claims PCRA counsel was ineffective for not challenging
discretionary aspects of Appellant’s new sentence. Appellant’s Brief at 8.4
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4Appellant claims ineffective assistance of counsel in his purported “Pa.R.A.P.
2119(f) Statement of the Reasons to Allow an Appeal[.]” Appellant’s Brief at
7.
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Appellant argues his claim has merit because the resentencing court failed to
state on the record its reasons for imposing the same sentence, “without
considering the sentencing criteria pursuant to 42 Pa.C.S.A. § 9781(d)[.]” Id.
According to Appellant, he asked PCRA counsel to challenge his sentence, but
counsel advised him to wait until federal proceedings. Id. at 9.
Appellant further contends the resentencing court failed to consider
mitigating evidence.5 Id. at 8. Appellant repeats his challenge to the
discretionary aspects of his new sentence.6 Id. at 12-25. According to
Appellant, the PCRA court improperly denied his request to file a nunc pro tunc
post-sentence motion. Id. at 25.
A discretionary sentencing claim is not cognizable under the PCRA. See
42 Pa.C.S.A. § 9543(a)(2) (setting forth the cognizable claims under the
PCRA). Thus, PCRA counsel did not render ineffective assistance by not raising
this issue. See Steele, 961 A.2d at 796.
To the extent Appellant presents a layered ineffectiveness claim based
on resentencing counsel’s failure to timely file a post-sentence motion, and
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5Appellant also claims his sentence is illegal. Appellant’s Brief at 8. Appellant
does not develop this bald claim, stating that his sentence is “manifestly
excessive and clearly unreasonable under [42 Pa.C.S.A. §] 9781(c)(1) and (2)
and (d).” Id.
6 Appellant acknowledges the court resentenced him within the standard
ranges of the sentencing guidelines, and appears to challenge the imposition
of consecutive rather than concurrent sentences. Appellant’s Brief at 21.
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PCRA counsel’s failure to present this claim, we observe that post-sentence
counsel sought reinstatement of Appellant’s post-sentence rights nunc pro
tunc. As the PCRA court explained:
Following remand, Robert Turco, Esquire, was appointed to
represent Appellant at the resentencing hearing, which was held
on September 19, 2017. At the conclusion of the hearing,
Appellant was resentenced to 17-to-35 years’ imprisonment for
third-degree murder and a consecutive term of 5–to-10 years’
imprisonment for attempted murder. Appellant executed a
statement of post sentence rights. [N.T., 9/19/2017, p. 29].
On October 3, 2017, Attorney Turco filed a petition to
withdraw as counsel as well as an untimely Petition for
Reconsideration of Sentence from September 19, 2017. In the
petition, Attorney Turco relayed that Appellant wrote him a letter
dated September 19, 2017, requesting that a post-sentence
motion be filed; however, the letter was not sent until September
27, 2017, and [counsel] did not receive the letter until the ten
days to file a timely motion had expired.[FN] There was no
documentation attached to the motion or provided by Appellant to
this [c]ourt or Attorney Turco to indicate when the letter was
actually given to the prison authorities to be mailed. Following a
hearing held on October 19, 2017, the motion to reconsider was
denied as untimely but also without merit, indicating that this
[c]ourt would not have changed Appellant’s sentence even if
timely filed. Attorney Turco was permitted to withdraw.
See Petition for Reconsideration of Re-Sentence of September
[FN]
19, 2017[,] filed on October 3, 2017.
* * *
The transcript from the resentencing hearing clearly evinces
that this [c]ourt provided Appellant adequate reasons for the new
sentence. Therefore, assuming arguendo[] that Attorney Turco
had filed a timely post-sentence petition, it would unquestionably
have been denied as meritless.
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PCRA Court Opinion, 3/15/22, at 2-3, 6 (footnote in original, emphasis added).
The record confirms the PCRA court’s account. Further, the trial court
explained it
appointed counsel to represent Appellant at the re-sentencing
hearing. Both counsel for Appellant and counsel for the
Commonwealth submitted sentencing memorandums which this
[c]ourt reviewed. [The c]ourt also reviewed the transcripts from
the original sentencing, which included testimony from the
victim’s families. [The c]ourt heard from counsel for Appellant
and Appellant at the hearing, in regard to Appellant’s upbringing,
his remorse, and the actions he has taken while incarcerated in
order to better himself. [N.T., 9/17/2017 p. 9-12]. [The c]ourt
also heard from Appellant’s friend, Randall Smith, who told [the
c]ourt about Appellant’s good character [N.T., 9/17/2018 p. 17].
The Commonwealth recited to [the c]ourt the facts from trial, that
Appellant was chasing three victims down by Veteran’s Park in
Chester, PA, all the way down the block while firing his weapon at
them. [N.T., 9/17/2017 p. 18]. The Commonwealth also pointed
out that Appellant has been misconduct free in prison for three
years but has been incarcerated for ten. [N.T., 9/17/2017 p. 20].
The guidelines for the re-sentencing were Murder In the
Third Degree, with deadly weapon enhancement, 90 [-] 240
months with a mitigated range of 78 months. For Criminal
Attempt to Murder with no serious bodily injury, the standard
range was 78 [-] 96 months with a mitigated range of 66 months.
[N.T., 9/17/2017 p. 24].
The [c]ourt imposed the following sentence: Information A:
Murder in the Third Degree, 204 [-] 420 months at SCI and on
Information G: Attempted Murder: 60 [-] 120 months consecutive
to Information A. Appellant was not RRRI eligible or boot camp
eligible. All other conditions of the original sentence remained the
same.
….
… Appellant claims that [the resentencing court] should
have considered the mitigating facts that the original sentencing
judge was unable to consider due to the mandatory minimum.
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[The resentencing court] took into consideration everything
Appellant detailed in his memorandum as well as his words at
sentencing. Simply because [the c]ourt did not minimize his
sentence does not mean they were not considered.
Secondly, Appellant claims that everything he has done in
prison since the time of his incarceration, such as taking classes
and good behavior, should be considered. This is wholly false and
an issue[] that would be considered at a parole board hearing.
[The resentencing c]ourt was instructed to re-sentence Appellant
solely because of the mandatory minimum that was imposed at
the time of the original sentence. The rest of the sentencing
scheme was affirmed. [The c]ourt removed the mandatory
minimum and sentenced Appellant accordingly. What Appellant
has completed while incarcerated is of no bearing on re-
sentencing Appellant.
See Trial Court Opinion, 2/7/18, at 2, 6-7.
Our review of the record confirms the above findings and conclusions,
and we discern no abuse of discretion. Because Appellant’s underlying claim
lacks arguable merit, a layered claim of ineffectiveness of counsel would fail.
See Steele, 961 A.2d at 796.
In his second issue, Appellant argues the resentencing court violated
Pa.R.Crim.P. 720(A). Appellant’s Brief at 25. Appellant also claims the PCRA
court erred by not allowing him to file a post-sentence motion nunc pro tunc.
Id. Appellant asserts that noncompliance with Pa.R.Crim.P. 720(A) deprived
him of the ability to file a post-sentence motion. Id.
We address this claim to the extent it invokes the legality of Appellant’s
sentence. See 42 Pa.C.S.A. § 4523(a)(2)(i), (vii) (deeming cognizable a claim
challenging the legality of sentence).
Pennsylvania Rule of Criminal Procedure 720(A) provides:
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(1) Except as provided in paragraphs (C) and (D), a written post-
sentence motion shall be filed no later than 10 days after
imposition of sentence.
(2) If the defendant files a timely post-sentence motion, the
notice of appeal shall be filed:
(a) within 30 days of the entry of the order deciding the
motion;
(b) within 30 days of the entry of the order denying the
motion by operation of law in cases in which the judge
fails to decide the motion; or
(c) within 30 days of the entry of the order memorializing
the withdrawal in cases in which the defendant withdraws
the motion.
(3) If the defendant does not file a timely post-sentence motion,
the defendant’s notice of appeal shall be filed within 30 days of
imposition of sentence, except as provided in paragraph (A)(4).
(4) If the Commonwealth files a timely motion to modify sentence
pursuant to Rule 721, the defendant’s notice of appeal shall be
filed within 30 days of the entry of the order disposing of the
Commonwealth’s motion.
Pa.R.Crim.P. 720(A).
Appellant fails to demonstrate any error. There is no legal authority to
support Appellant’s claim that he was entitled to file a post-sentence motion
nunc pro tunc. Although Appellant argues the resentencing court should have
notified him of counsel’s untimely filing, Rule 720(A) does not require the court
to do so. See id. As this issue lacks merit, a related ineffectiveness claim
would not warrant relief. See Steele, 961 A.2d at 796.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2023
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