Com. v. Rodabaugh, S. ( 2019 )

J-S20042-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEVEN RODABAUGH :
:
Appellant : No. 1743 WDA 2018
Appeal from the Order Entered November 13, 2018
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000539-2002
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED JUNE 03, 2019
Appellant, Steven Rodabaugh, appeals pro se from the order entered in
the Jefferson County Court of Common Pleas, which denied his second petition
filed under the Post-Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-
9546, which he styled as a motion for sentence modification. We affirm.
The relevant facts and procedural history of this case are as follows. On
August 22 and 23, 2002, Appellant placed a series of five threatening phone
calls to Victim, who is a Jefferson County Domestic Relations Department
employee. Appellant cursed at Victim and warned her not to show up to work
the following Monday. The Commonwealth charged Appellant on September
4, 2002, with terroristic threats, harassment and stalking, and harassment by
communication or address.
On October 2, 2002, Appellant pled guilty to two counts of terroristic
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threats, and the court sentenced Appellant to an aggregate three (3) months
to two (2) years less one (1) day of imprisonment, plus four (4) years’
probation. While on probation, Appellant moved to Michigan and committed
new crimes. When released on bail for the Michigan crimes, Appellant
absconded to Florida. After police apprehended Appellant in Missouri,
Appellant pled guilty to the Michigan crimes on June 21, 2011. Appellant
completed the sentences related to the Michigan charges on May 18, 2015.
On June 3, 2015, the trial court held a violation of probation hearing
regarding the original Pennsylvania crimes. The court resentenced Appellant
to an aggregate three (3) to ten (10) years’ imprisonment. Appellant filed a
pro se “Post-Sentence Motion to Modify Sentence” on October 6, 2017, which
the court denied on October 10, 2017. On June 6, 2018, this Court reversed
and remanded for further proceedings, concluding the trial court should have
treated Appellant’s October 6, 2017 motion as a first, though untimely, PCRA
petition and appointed counsel. In response, the court appointed PCRA
counsel on June 8, 2018. On July 13, 2018, counsel filed a petition to
withdraw and a Turner/Finley1 no-merit letter. The court issued notice on
July 16, 2018, of its intent to dismiss per Pa.R.Crim.P. 907 and granted
counsel’s petition to withdraw. Appellant did not respond. On August 6, 2018,
the court denied Appellant’s PCRA petition, and Appellant filed a pro se notice
____________________________________________
1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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of appeal.
During the pendency of that appeal, Appellant filed the current “Motion
for Modification of Sentence” on October 22, 2018. On October 25, 2018, the
court ordered the October 22, 2018 motion to be held in abeyance until the
prior appeal was resolved. On November 13, 2018, however, the court denied
relief on the October 22, 2018 motion. Appellant timely filed a pro se notice
of appeal on December 3, 2018. On December 6, 2018, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on December 17,
2018.
Appellant raises the following issues for our review:
WAS APPELLANT ENTITLED TO PRE-TRIAL CONFINEMENT
CREDIT PURSUANT TO 42 PA.C.S. [§] 9737, UNDER COM.
V. HOLLAWELL, 604 A.2D 723 [(PA.SUPER. 1992)] AND
COM. V. MANN, 957 A.2D 746 [(PA.SUPER. 2008)]?
WAS APPELLANT ENTITLED TO PRE-TRIAL CONFINEMENT
CREDIT FOR PENNSYLVANIA WHILE HELD ON A
PENNSYLVANIA DETAINER WHILE BEING HELD IN
MISSOURI AND MICHIGAN?
WAS APPELLANT ELIGIBLE FOR RRRI ON THIS 2002 CASE
FOR SENTENCING AND RE-SENTENCING BECAUSE
APPELLANT HAD NO PRIOR CRIMINAL HISTORY UNDER
COM. V. CULLEN-DOYLE, [640 PA. 783,] 164 A.[3]D 1239
[(2017)]?
HAS APPELLANT BEEN DENIED DUE PROCESS OF LAW
UNDER THE TIMELY VIOLATION HEARING?
WAS APPELLANT DENIED EFFECTIVE ASSISTANCE OF
COUNSEL FOR VIOLATION HEARING AND THE RE-
SENTENCING HEARING?
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(Appellant’s Brief at 4).
As a prefatory matter, any petition for post-conviction collateral relief
generally is considered a PCRA petition, regardless of how an appellant
captions the petition, if the petition raises issues for which the relief sought is
the kind available under the PCRA. Commonwealth v. Peterkin, 554 Pa.
547, 722 A.2d 638 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole
means of obtaining collateral relief and encompasses all other common law
and statutory remedies for same purpose). “A challenge to a court’s failure
to impose an RRRI sentence implicates the legality of the sentence.”
Commonwealth v. Hanna, 124 A.3d 757, 759 (Pa.Super. 2015). “Issues
concerning the legality of sentence are cognizable under the PCRA.”
Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795
(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74
(2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). Further, a
petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA
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court can decline to hold a hearing if there is no genuine issue concerning any
material fact, the petitioner is not entitled to relief, and no purpose would be
served by any further proceedings. Commonwealth v. Wah, 42 A.3d 335
(Pa.Super. 2012).
Significantly,
Pennsylvania law makes clear the trial court has no
jurisdiction to consider a subsequent PCRA petition while an
appeal from the denial of the petitioner’s prior PCRA petition
in the same case is still pending on appeal.
Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585,
588 (2000). See also Commonwealth v. Montgomery,
181 A.3d 359, 364 (Pa.Super. 2018) (en banc), appeal
denied, ___ Pa. ___, 190 A.3d 1134 (2018) (reaffirming
that Lark precludes consideration of subsequent PCRA
petition while appeal of prior PCRA petition is still pending).
A petitioner must choose either to appeal from the order
denying his prior PCRA petition or to file a new PCRA
petition; the petitioner cannot do both, i.e., file an appeal
and also file a PCRA petition, because “prevailing law
requires that the subsequent petition must give way to a
pending appeal from the order denying a prior petition.”
Commonwealth v. Zeigler, 148 A.3d 849, 852 (Pa.Super.
2016). In other words, a petitioner who files an appeal from
an order denying his prior PCRA petition must withdraw the
appeal before he can pursue a subsequent PCRA petition.
Id. If the petitioner pursues the pending appeal, then the
PCRA court is required under Lark to dismiss any
subsequent PCRA petitions filed while that appeal is
pending. Lark, supra.
Pennsylvania law also states unequivocally that no court has
jurisdiction to place serial petitions in repose pending the
outcome of an appeal in the same case. Id. See also
Commonwealth v. Porter, 613 Pa. 510, 523, 35 A.3d 4,
12 (2012) (stating that holding serial petitions in abeyance
pending appeal in same case perverts PCRA timeliness
requirements and invites unwarranted delay in resolving
cases, as well as strategic litigation abuses).
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Commonwealth v. Beatty, ___ A.3d ___, 2019 Pa. Super. 107, *2-*3 (filed
April 8, 2019).
In the instant case, Appellant pro se previously filed a “Post-Sentence
Motion to Modify Sentence” on October 6, 2017, which the court denied. In
an opinion filed June 6, 2018, this Court reversed and remanded for further
proceedings, concluding the court should have treated Appellant’s motion as
a first, albeit untimely, PCRA petition and appointed counsel. Following
remand and appointment of counsel, the court again denied collateral relief
on August 6, 2018. On the same day, Appellant appealed the decision.
During the pendency of that appeal, Appellant filed the current “Motion
for Modification of Sentence” on October 22, 2018, challenging the court’s
denial of RRRI eligibility. The court should have treated this current motion
as a serial PCRA petition. See Peterkin, supra; See 42 Pa.C.S.A. § 9542.
Appellant filed the serial petition while the appeal from his first petition was
still pending, so the court should have dismissed the current petition outright.
See Lark, supra. Instead, the PCRA court erred in initially ordering the
petition held in abeyance until the appeal of the first petition was resolved.
See id.
Under Pennsylvania law, Appellant had the option of either going
forward with his appeal from the order denying his first PCRA petition or filing
and pursuing the second PCRA petition, but he could not do both. See
Zeigler, supra. As soon as Appellant decided to exhaust the appeal from the
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denial of his first petition, the law required the PCRA court to dismiss any serial
petitions filed during the pendency of that appeal. See Lark, supra. The
court had no authority to hold Appellant’s second petition in abeyance until
Appellant’s pending appeal concluded. See id. Thus, we respectfully disagree
with the court’s suggestion to vacate the order denying Appellant’s current
petition and dismiss the instant appeal. Instead, we affirm the denial of relief
on Appellant’s current petition, albeit on other grounds. See
Commonwealth v. Reese, 31 A.3d 708, 727 (Pa.Super. 2011) (en banc)
(stating appellate court may affirm on any basis as long as ultimate decision
is correct).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2019
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