Com. v. Zurburg, B. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRANDEN ZURBURG :
:
Appellant : No. 440 MDA 2018
Appeal from the Order Entered February 5, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001585-2001
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 02, 2018
Branden Zurburg (Appellant) appeals pro se from the trial court’s order
denying his “Petition to Vacate Conviction for Lack of Subject Matter
Jurisdiction, Denial of Consent, and Rescission of Signatures.” We affirm.
In 2001, Appellant responded to an internet advertisement placed by an
agent from the Pennsylvania Attorney General’s Child Sexual Exploitation Task
Force. Appellant and the agent exchanged emails, and thereafter Appellant
arrived at a Harrisburg area hotel and expressed his intent to engage in sexual
activities with three children under the age of 13. The agent arrested
Appellant and he was charged with numerous crimes. Appellant was tried by
a jury in 2004. The trial court summarized:
[Appellant] was convicted of multiple sex crimes against a
minor in January of 2004 and was sentenced to nine (9) to forty
(40) years of imprisonment. [Appellant] filed a PCRA petition and
his direct appeal rights were reinstated in October of 2006. On
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December 3, 2007, the Superior Court affirmed [Appellant’s]
judgment of sentence. On April 8, 2009, [Appellant] filed a PCRA
petition and was appointed counsel. This Court dismissed such
petition on December 2, 2009. [Appellant] filed a notice of appeal,
and on September 22, 2010, the Superior Court quashed the
appeal for untimeliness and failure to comply with appellate rule
requirements.
Over seven years later, on November 2, 2017, [Appellant]
filed a pro se “Petition to Vacate Conviction for Lack of Subject
Matter Jurisdiction, Denial of Consent, and Rescission of
Signatures.” This Court denied [Appellant’s] petition on February
5, 2018, and this appeal followed. [Appellant’s] Statement of
Matters Complained of on Appeal includes eight points for review,
most of which are conclusory statements asserting a lack of this
Court’s subject matter jurisdiction.
Trial Court Opinion, 6/11/18, at 1.
Preliminarily, we note that rather than treating Appellant’s November 2,
2017 petition as his second petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546, the trial court denied Appellant’s petition
because “the petition consists of disorganized thoughts and no analysis or
discussion regarding the issues he is attempting to raise.” Trial Court Opinion,
6/11/18, at 1-2; see also 42 Pa.C.S.A. § 9542 (providing that “[t]he 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 . . .”);
Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)
(holding that “any petition filed after the judgment of sentence becomes final
will be treated as a PCRA petition.”). The trial court subsequently noted,
however, that had it treated Appellant’s petition as a PCRA petition, the
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petition would be untimely and the trial court would lack jurisdiction. Trial
Court Opinion, 6/11/18, at 2 n.1.
The trial court should have treated Appellant’s petition as his second
PCRA petition. Nonetheless, we agree with the trial court that under the PCRA,
the petition would not merit relief or even jurisdiction because it did not meet
the one-year time restriction of the PCRA, having been filed more than seven
years after the Superior Court’s quashal of Appellant’s first PCRA – from which
Appellant did not seek allowance of appeal with the Supreme Court.
Commonwealth v. Zurburg, 153 MDA 2010 (Pa. Super. Sept. 22, 2010)
(unpublished).
“Pennsylvania law makes clear no court has jurisdiction to hear an
untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079
(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,
1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of
the date on which the petitioner’s judgment became final, unless one of the
three statutory exceptions apply:
(i) the failure to raise the claim previously was the
result of interference by government officials with the
presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States
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or the Supreme Court of Pennsylvania after the time
period provided in this section and has been held by
that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of
these exceptions “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the
petitioner has not pled and proven any exception, “neither this Court nor the
trial court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
We further agree that Appellant has failed to development a meaningful
argument. On appeal, he phrases his issues as follows:
1. WHETHER THE TRIAL COURT LACKED SUBJECT MATTER
JURISDICTION TO CHARGE, CONVICT AND SENTENCE
[APPELLANT]?
2. WHETHER THE COMMONWEALTH’S FAILURE TO RESPOND TO
[APPELLANT’S] PETITION TO VACATE CONVICTION FOR LACK OF
SUBJECT MATTER JURISDICTION, INDICATES THAT THE FACTS
WITHIN [APPELLANT’s] PETITION ARE TRUE?
3. WHETHER THE COMMONWEALTH’S FAILURE TO RESPOND TO
[APPELLANT’S] PETITION TO VACATE CONVICTION FOR LACK OF
SUBJECT MATTER JURISDICTION, STIPULATE THAT THE
CONVICTION AND SENTENCE IS VOID AD [sic] INITIO?
4. WHETHER CONSENT FROM THE GOVERNED MUST EXIST FOR
ANY GOVERNMENTAL AUTHORITY TO BE EXERTED UPON AN
INDIVIDUAL?
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5. WHETHER [APPELLANT] HAS THE RIGHT TO RESCIND HIS
SIGNATURE FROM ALL COURT DOCUMENTS IF [APPELLANT] WAS
NOT AFFORDED THE RIGHT TO KNOW THE TRUE NATURE OF THE
CHARGES?
6. WHETHER [APPELLANT’S] AFFIDAVIT STIPULATES A PRIMA
FACIE CASE?
Appellant’s Brief at 4.
Although he presents six issues, Appellant’s summary of the argument
simply states:
Appellant avers that the trial court committed fraud upon
the court when stating that facts. [sic] Appellant also avers that
the trial court never informed him of the true nature of the charges
which deprived the trial court of its jurisdiction.
Appellant’s Brief at 6.
The argument section of Appellant’s brief is not “divided into as many
parts as there are questions to be argued,” in contravention of Pa.R.A.P.
2119(a). Moreover, Appellant’s argument is largely nonsensical. His most
cogent statements are that he “never committed any sex crime against an
actual minor,” and he was convicted of a “victimless crime” because the
Commonwealth “use[d] fictitious entities (kids) . . . to prosecute Appellant.”
See Appellant’s Brief at 7-11. Appellant fails to support his assertions with
citations to legal authority and the record. See Pa.R.A.P. 2119(a) (requiring
that an appellant develop an argument with citation to and analysis of relevant
legal authority).
In response, the Commonwealth observes that Appellant’s claims are
“unintelligible,” and he “has failed to cite pertinent legal authority or develop
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any cognizable argument.” Commonwealth Brief at 7. The trial court likewise
states that Appellant’s “underlying petition provide[d] no legal authority; he
[did] not cite to any statutes or case law to support his claims, which are
confusing at best.” Trial Court Opinion, 6/11/18, at 1. We agree with the
Commonwealth and the trial court. Although Appellant is pro se, his status
does not relieve him of his duty to properly raise and develop an appealable
claim. Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996).
This is particularly so because this Court quashed Appellant’s appeal from the
denial of his first PCRA petition on the basis that, inter alia, “Appellant has
waived all issues on appeal by failing to comply with Pa.R.A.P. 2111, et seq,
relative to the format and content of his appellate brief.” Commonwealth v.
Zurburg, 153 MDA 2010 at 1 (Pa. Super. Sept. 22, 2010) (unpublished).
For these reasons, Appellant is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2018
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