Com. v. Eichelberger, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL EICHELBERGER,
Appellant No. 46 WDA 2015
Appeal from the Order Entered December 2, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001968-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 19, 2016
Appellant, Daniel Eichelberger, appeals from the December 2, 2014
order denying his “Petition for Relief Pursuant to 42 Pa.C.S.A. §5505.” We
affirm.
On February 12, 2013, Appellant pled guilty to one count of possession
with intent to deliver a controlled substance. That same day, he was
sentenced to a term of 6 months’ probation, in accordance with the
negotiated plea agreement. Appellant did not file a post-sentence motion or
direct appeal.
On October 25, 2013, Appellant filed a counseled petition under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, raising claims
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*
Former Justice specially assigned to the Superior Court.
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of the ineffective assistance of trial counsel. The Commonwealth filed an
answer to Appellant’s PCRA petition on October 30, 2013, and Appellant filed
a response thereto on November 1, 2013.
Before the trial court could rule on Appellant’s PCRA petition, however,
he filed a counseled “Petition for Relief Pursuant to 42 Pa.C.S.A. §5505”
(hereinafter, “section 5505 petition”). On December 2, 2014, the court
issued an order denying Appellant’s section 5505 petition. The court’s order
simply stated, “This court does not have jurisdiction to grant the relief
requested.” Order, 12/2/14. On December 30, 2014, Appellant filed a
timely notice of appeal from that order. He also timely complied with the
trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. In that Rule 1925(b) statement, Appellant
presented the following single issue, which mirrors the issue he presents in
this appeal:
Did the trial court err and/or abuse its discretion when it denied
[Appellant’s] Motion for Extraordinary Relief where the facts and
circumstances surrounding [Appellant’s] guilty plea amount to
such “extraordinary circumstances” as to warrant relief pursuant
to 42 Pa.C.S.A. §5505?
Rule 1925(b) Statement, 4/27/15; see also Appellant’s Brief at 1. The trial
court issued a Rule 1925(a) opinion on September 18, 2015.
To fully understand Appellant’s claim, we must begin by discussing, in
more detail, the factual and procedural background underlying his argument.
As discussed, supra, Appellant was sentenced to six months’ probation;
when he filed his PCRA petition on October 25, 2013, over eight months had
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passed since Appellant’s sentence was imposed. Consequently, in the
Commonwealth Answer to Appellant’s petition, it contended that the court
did not have jurisdiction to grant Appellant PCRA relief because his 6-month
sentence of probation had expired. See Commonwealth’s Answer to PCRA
Petition, 10/30/13, at 5 (citing 42 Pa.C.S. § 9543(a)(1)(i) (requiring that the
petitioner be “currently serving a sentence of imprisonment, probation or
parole for the crime” when the requested relief is granted);
Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (“To be eligible
for [PCRA] relief a petitioner must be currently serving a sentence of
imprisonment, probation or parole. To grant relief at a time when [the
petitioner] is not currently serving such a sentence would be to ignore the
language of the statute.”) (emphasis in original). In Appellant’s Response to
the Commonwealth’s Answer, however, he maintained that he was still
serving his term of probation. See Appellant’s Response to the
Commonwealth’s Answer, 11/1/13, at 1 ¶ 1 (unpaginated).
Before the court ruled on Appellant’s PCRA petition, he filed his section
5505 petition. Therein, Appellant conceded that he “is no longer serving a
sentence and, in fact, had completed his sentence when his counseled PCRA
Petition was filed….” Section 5505 Petition, 8/14/14, at 1 ¶ 2 (unpaginated).
Appellant further acknowledged that he “is not entitled to PCRA relief
pursuant to Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013).” Id.Nevertheless, Appellant requested that the trial court “exercise its authority
pursuant to 42 Pa.C.S.A. §5505 and permit [Appellant] to withdraw his plea
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of guilty” because his trial counsel acted ineffectively. Specifically, Appellant
asserted:
As set forth in the Petitioner’s counseled PCRA Petition,
trial counsel’s inexplicable decision to advise a first time
offender to plead guilty to a felony drug offense six days
after his being charged is so far below the standard for
zealous representation as to constitute “extraordinary
circumstances.”
Id. at 1 ¶ 4 (unpaginated). The trial court ultimately denied Appellant’s
section 5505 petition, concluding that he was simply attempting to raise an
ineffectiveness claim under the guise of section 5505 because he was no
longer eligible for relief under the PCRA. See Trial Court Opinion (TCO),
9/18/15, at 2.
Now, on appeal, Appellant contends that the trial court erred by
denying his section 5505 petition. Section 5505 states:
Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or
allowed.
42 Pa.C.S. § 5505. This Court has further explained:
Generally, once the thirty-day period is over, the trial court loses
the power to alter its orders.” Commonwealth v. Walters, 814
A.2d 253, 255-56 (Pa. Super. 2002) (some citations omitted). A
trial court may, however, act outside its thirty-day window to
correct a patent or obvious mistake in a sentence, or in case of
fraud “or another circumstance so grave or compelling as
to constitute extraordinary cause[ ].” Id. at 256 (internal
quotation marks omitted).
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Commonwealth v. LeBar, 860 A.2d 1105, 1111 (Pa. Super. 2004)
(emphasis added).
Citing the above-emphasized language, Appellant argues that the
ineffectiveness of his trial counsel constitutes an “extraordinary
circumstance” permitting the trial court to vacate his judgment of sentence
and permit him to withdraw his plea over 1½ years after that plea was
entered and his sentence was imposed.1 Appellant’s argument is clearly
meritless. “The PCRA provides eligibility for relief for cognizable claims, see
42 Pa.C.S. § 9543(a)(2), including claims of ineffective assistance of trial
counsel, and is the sole means of obtaining collateral relief in Pennsylvania.”
Turner, 80 A.3d at 767 (emphasis added). Appellant may not circumvent
the PCRA by raising his ineffectiveness claim under the ‘extraordinary
circumstances’ exception to section 5505.2 Accordingly, we ascertain no
error in the trial court’s denial of Appellant’s section 5505 petition.
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1
Appellant also devotes a large majority of his argument to contending that
the “currently serving a sentence” requirement of 42 Pa.C.S. § 9543(a)(1)(i)
violates his substantive due process rights. See Appellant’s Brief at 7-11.
However, Appellant did not present this claim in either his section 5505
petition, or in his Rule 1925(b) statement. Consequently, it is waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”).
2
This is true despite the fact that Appellant is no longer eligible for PCRA
relief because he is not ‘currently serving’ his sentence of probation. Our
Supreme Court has held that,
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2016
_______________________
(Footnote Continued)
the constitutional nature of the claims asserted by [the]
[p]etitioner does not overcome the statutory restrictions on [his]
eligibility for relief, subject, of course, to due process. Such due
process, however, does not require infinite opportunity to attack
a conviction under any and all circumstances; rather, it permits
our legislature through the PCRA statute to place limitations on
claims of trial error and strikes a reasonable balance between
society’s need for finality in criminal cases and the convicted
person’s need to demonstrate that there has been an error in the
proceedings that resulted in [] conviction.
Turner, 80 A.3d at 767 (citation and internal quotation marks omitted).
Our Supreme Court concluded in Turner “that due process does not require
the legislature to continue to provide collateral review when the offender is
no longer serving a sentence.” Id. at 766.
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