Com. v. Scheffler, J. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOHN SCHEFFLER, : No. 3206 EDA 2018
:
Appellant :
Appeal from the Order Entered September 21, 2018,
in the Court of Common Pleas of Northampton County
Criminal Division at Nos. CP-48-CR-0002423-2015,
CP-48-CR-0002507-2015
BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: August 25, 2020
John Scheffler appeals from the September 21, 2018 order entered in
the Court of Common Pleas of Northampton County granting in part and
denying in part his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
On January 29, 2016, appellant pleaded guilty to two counts of
burglary.1 The trial court sentenced appellant to an aggregate term of
two and one-half to five years’ imprisonment. Appellant appealed his
judgment of sentence. This court affirmed the judgment of sentence on
October 11, 2016. Commonwealth v. Scheffler, 159 A.3d 39 (Pa.Super.
1 18 Pa.C.S.A. §3502(a)(2).
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2016) (unpublished memorandum). Appellant did not seek discretionary
review with our supreme court.
On February 16, 2018, appellant filed a pro se PCRA petition. Counsel
was appointed to represent appellant, but the record does not demonstrate
that counsel filed an amended PCRA petition.2 After conducting an evidentiary
hearing, the PCRA court granted appellant’s request for permission to file a
petition for allowance of appeal nunc pro tunc of this court’s October 11,
2016 decision affirming the judgment of sentence. (PCRA court order,
9/21/18.) In its opinion, the PCRA court also addressed the merits of
appellant’s claim that he receive credit for time served on his instant sentence
or, in the alternative, be permitted to withdraw his guilty plea because
ineffective assistance of trial counsel caused an involuntary and unknowing
plea. (PCRA court opinion, 9/21/18 at 2-5.) The PCRA court denied
appellant’s PCRA petition, in part, as it related to this claim. (PCRA court
order, 9/21/18.)
On October 22, 2018, appellant filed a petition for allowance of appeal
with our supreme court. That same day, appellant also filed a notice of appeal
to this court from the PCRA court’s order denying, in part, the requested PCRA
2Talia R. (Goffredo) Mazza, Esq., was appointed to represent appellant on his
PCRA petition.
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relief in the form of a time credit to appellant’s sentence or, in the alternative,
permission to withdraw his guilty plea.3
The PCRA court directed appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant timely complied. The
PCRA court subsequently filed its Rule 1925(a) statement in which it relied on
its opinion and order dated September 21, 2018, as the basis for denying the
PCRA petition, in part.
On April 1, 2019, our supreme court denied appellant’s petition for
allowance of appeal. Commonwealth v. Scheffler, 205 A.3d 1226 (Pa.
2019).
Preliminarily, we note that on January 29, 2020, we entered a
per curiam order staying disposition of this case while an en banc panel of
this court considered the proper application of Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), in light of Commonwealth v. Creese, 216 A.3d
1142 (Pa.Super. 2019) (reading Walker as a mandate to quash appeal unless
notice of appeal contains only one trial court docket number).
In Walker, our supreme court provided a bright-line mandate requiring
that “where a single order resolves issues arising on more than one docket,
separate notices of appeal must be filed for each case,” or the appeal will be
3We note that the last day for timely filing an appeal from the PCRA court’s
September 21, 2018 order, October 21, 2018, fell on a Sunday. Accordingly,
appellant’s notice of appeal was timely filed. See 1 Pa.C.S.A. § 1908;
Pa.R.A.P. 903(a).
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quashed. Walker, 185 A.3d at 971, 976-977. The Walker court applied its
holding prospectively to any notices of appeal filed after June 1, 2018. Id. at
971. In the instant case, the notices of appeal were filed on October 23, 2018,
and, therefore, the Walker mandate applies. The appeal was of a single order
resolving issues arising on both docket numbers. A review of the record
demonstrates that appellant filed separate notices of appeal at each docket
number; however, both notices of appeal referenced both docket numbers in
their respective captions. A recent en banc panel of this court held that such
a practice does not invalidate appellant’s separate notices of appeal.
Commonwealth v. Johnson, A.3d , 2020 WL 3869723 at *4-5
(Pa.Super. July 9, 2020) (en banc). Accordingly, we shall consider the issue
raised in appellant’s appeal.
Appellant raises the following issue for our review:
[Did] [t]he [PCRA] Court [err] in denying in part
[appellant’s] [PCRA] Petition regarding prior counsel’s
failure to advise [appellant] that he would not receive
credit for time served and as such, making said guilty
plea unknowing[?]
Appellant’s brief at 5.
This court has held:
we may sua sponte consider whether we have
jurisdiction to consider the merits of the claims
presented. See Commonwealth v. James, 620 Pa.
465, 69 A.3d 180, 184 (2013) (citation omitted).
When a PCRA court lacks jurisdiction to consider the
merits of a petition, we likewise lack jurisdiction to
consider an appeal from disposition of the petition.
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Commonwealth v. Hernandez, 79 A.3d 649, 654
(Pa.Super. 2013) (citation omitted).
Commonwealth v. Harris, 114 A.3d 1, 6 (Pa.Super. 2015).
The PCRA requires that any petition for collateral relief be filed within
one year of the date that the judgment of sentence becomes final.
42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is final “at the conclusion
of direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.” 42 Pa.C.S.A. § 9545 (b)(3); Commonwealth
v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).
Here, appellant’s judgment of sentence became final on November 10,
2016, following the conclusion of the period in which appellant could have filed
a petition for allowance of appeal with the Supreme Court of Pennsylvania.
Pa.R.A.P. 1113(a). Appellant filed the instant PCRA petition on February 16,
2018—over 15 months after his judgment of sentence became final and over
3 months after a PCRA petition could be considered timely. See 42 Pa.C.S.A.
§ 9545(b)(1). Accordingly, appellant’s petition is facially untimely.
A petitioner may only file a PCRA petition beyond one year of the date
the judgment of sentence becomes final if:
(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;
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(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 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)(i)-(iii).
“[T]he time limitations pursuant to . . . the PCRA are
jurisdictional.” Commonwealth v. Fahy, [] 737 A.2d
214, 222 ([Pa.] 1999). “[Jurisdictional time]
limitations are mandatory and interpreted literally;
thus, a court has not authority to extend filing periods
except as a statute permits.” Id. “If the petition is
determined to be untimely, and no exception has been
pled and proven, the petition must be dismissed
without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the
petition.” Commonwealth v. Perrin, 947 A.2d
1284, 1285 (Pa.Super. 2008).
Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012).
Here, appellant neither pled nor proved any of the enumerated
exceptions to the PCRA time-bar. Because appellant’s petition is untimely, we
do not have jurisdiction to consider the merits of his petition.4
4 We note that the PCRA court granted appellant nunc pro tunc relief due to
the ineffectiveness of appellant’s direct appellate counsel. (See PCRA court
opinion, 9/21/18 at 2.) Ineffective assistance of counsel is not one of the
enumerated exceptions to the PCRA time-bar; therefore, the PCRA court did
not have jurisdiction to grant appellant the requested nunc pro tunc relief.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii); Commonwealth v. Rizvi, 166 A.3d 344,
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/20
346 n.2 (Pa.Super. 2017), citing Commonwealth v. Hall, 771 A.2d 1232,
1236 (Pa. 2001) (holding court has no authority to entertain request for
nunc pro tunc appeal outside time constraints of PCRA, notwithstanding
claim of counsel’s ineffectiveness); Commonwealth v. Eller, 807 A.2d 838,
845 (Pa. 2002) (rejecting claim of entitlement to nunc pro tunc appeal
outside PCRA framework). Because our supreme court denied appellant’s
petition for allowance of appeal on April 1, 2019, we shall consider this issue
moot.
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