Opinion
J-S40004-19 No. 1225 WDA 2018
09-26-2019
SARAH MANGAN, Appellee v. JOHN REZNICKCHECK, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered March 15, 2018
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 16-1448 BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, John Reznickcheck, appeals from the post-conviction court's March 15, 2018 order denying his timely-filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant challenges the legality of the court's imposition of a suspended sentence of an aggregate term of six months' incarceration. After careful review, we affirm.
The PCRA court summarized the pertinent facts and procedural history of this case, as follows:
The instant matter involves three indirect criminal contempt petitions that stemmed from three separate PFA violations committed by [Appellant] regarding the plaintiff, Sarah Mangan. [Appellant] admitted to conduct that violated the conditions of the PFA when on September 17, 2016, [Appellant] was seen at the plaintiff's workplace peering into a window[, and] stopping a random person and asking that person if he was the plaintiff's new
boyfriend. [Appellant] was also seen peering into the plaintiff's bedroom window. Additionally, in early August 2016, [Appellant] made repeated phone calls and sent text messages to the plaintiff.PCRA Court Opinion (PCO), 1/17/19, at 2 (unnumbered; citations to the record omitted).
[Appellant], through counsel, negotiated an agreement with the plaintiff's attorney (The Allegheny County District Attorney's Office) for three concurrent[,] six-month suspended sentences and a three-year extension of the underlying PFA. The underlying conditions of the PFA include, most importantly, no contact, directly or indirectly, with the [p]laintiff, amongst a host of other supervisory conditions.
On November 18, 2016, Appellant entered his guilty plea to indirect criminal contempt and the court imposed his suspended, aggregate sentence of six months' incarceration. The court also ordered the final PFA order to extend until November 18, 2019. Appellant did not file a direct appeal.
Instead, he filed a timely PCRA petition. Counsel was appointed and filed an amended petition on Appellant's behalf. On January 19, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing. Appellant filed a timely response, but the court issued an order dismissing his petition on March 15, 2018.
In his petition, Appellant challenged the legality of the suspended sentence of incarceration imposed by the court. See Commonwealth v. Joseph , 848 A.2d 934, 941 (Pa. Super. 2004) (characterizing a challenge to the imposition of a suspended sentence as a legality of sentencing issue where there is no statutory authority for such a sentence); 23 Pa.C.S. § 6114(b) (setting forth the sentencing options for contempt offenses, which do not include suspended sentences). Legality of sentencing claims are cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(vii); see also Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999). We also conclude, for the reasons set forth by the PCRA court in its opinion that we adopt infra, that the suspended sentence imposed upon Appellant is akin to a term of probation, which Appellant is currently serving. Thus, Appellant satisfied the eligibility requirement of the PCRA set forth in 42 Pa.C.S. § 9543(a)(1)(i).
Appellant did not file a timely appeal. However, on July 20, 2018, he filed a second PCRA petition seeking the right to appeal from the court's March 15, 2018 order nunc pro tunc. On August 10, 2018, the PCRA court granted Appellant's petition. He filed a timely notice of appeal, and he also filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The PCRA court filed its responsive opinion on January 17, 2019.
We recognize that Appellant's July 20, 2018 petition was untimely under 42 Pa.C.S. § 9545 (requiring that any petition be filed within one year of the date the judgment of sentence becomes final, unless the petition alleges and the petitioner proves the applicability of a timeliness exception set forth in section 9545(b)(1)(i)-(iii)). However, in the July petition, Appellant contended that he met the timeliness exception set forth in section 9545(b)(1)(i) because the government had interfered with his right to file an appeal from the March 15, 2018 order by not providing him with notice of that order until May 23, 2018. Appellant filed his petition seeking the reinstatement of his appeal rights within 60 days of receiving notice of the March 15, 2018 order. See 42 Pa.C.S. § 9545(b)(2) (requiring, at the time Appellant filed his 2018 petition, that any petition invoking an exception be filed within 60 days of the date the claim could have first been presented). The court concluded that Appellant met the timeliness exception and reinstated his right to appeal from the March 15, 2018 order denying his first petition. The Commonwealth did not appeal from that order, and it raises no challenge herein to the court's reinstating Appellant's right to file the present appeal.
Herein, Appellant sets forth one issue for our review: "Whether the [PCRA] [c]ourt committed legal error when it dismissed ... [A]ppellant's [PCRA] petition as ... [his] six month suspended sentence was illegal?" Appellant's Brief at 3.
Our standard of review regarding an order denying post-conviction relief under the PCRA is whether the determination of the court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. Commonwealth v. Touw , 781 A.2d 1250, 1252 (Pa. Super. 2001).
In this case, Appellant contends that the trial court's imposition of a 6-month suspended sentence is illegal. He maintains that his sentence is similar to the one this Court deemed illegal in Joseph , and unlike the suspended sentences we approved of in Commonwealth v. Duffy , 681 A.2d 219 (Pa. Super. 1996), and Commonwealth v. Harrison , 398 A.2d 1057 (Pa. Super. 1979).
We have reviewed Appellant's argument and the cases on which he relies, as well as the Commonwealth's position that his sentence is legal. Additionally, we have examined the well-reasoned opinion of the Honorable David L. Spurgeon of the Family Division of the Court of Common Pleas of Allegheny County. We conclude that Judge Spurgeon adequately explains why Duffy and Harrison control and Joseph is distinguishable. See PCO at 3-5 (unnumbered). Consequently, we adopt Judge Spurgeon's opinion as our own and deem Appellant's suspended sentence legal. Thus, the court did not err in dismissing his PCRA petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/26/2019
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