Opinion
J. S72017/16 No. 785 MDA 2016
01-19-2017
REGINALD C. SCOTT, Appellant v. JOHN KERESTES, EDWARD M. MARSICO JR., KATHLEEN KANE, Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 22, 2013
In the Court of Common Pleas of Dauphin County
Civil Division at No.: 2013-CV-1243-MP BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY DUBOW, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Reginald C. Scott, appeals from the February 22, 2013 Order entered in the Dauphin County Court of Common Pleas dismissing his "Writ of Habeas Corpus Ad Subjiciendum." We affirm.
The Commonwealth Court described the tortured procedural history of the instant case, so we need not repeat it here. See Scott v. Kersetes , No. 1123 C.D. 2015 (Pa. Cmwlth. Jan. 5, 2016) (unpublished memorandum). In summary, Appellant is serving a life sentence following his conviction by a jury in 1975 for Second-Degree Murder and Robbery. Appellant filed the instant Petition, which he titled as a Writ of Habeas Corpus Ad Subjiciendum, on February 12, 2013. The trial court denied Appellant's Petition on February 22, 2013. Relevant for our purposes, the Commonwealth Court concluded that Appellant filed a timely Notice of Appeal on March 5, 2013. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
We direct the parties to attach a copy of the Commonwealth Court's January 5, 2016 memorandum to all future filings. We attach a copy of the Commonwealth Court's memorandum to this memorandum.
As an initial matter, we must address the proper nature of Appellant's Writ of Habeas Corpus Ad Subjiciendum and the instant appeal. The trial court concluded Appellant's Writ constituted an improper attempt to circumvent the PCRA's timeliness requirements and denied Appellant's Writ without treating the filing as a PCRA Petition. We agree in part and address Appellant's filing fundamentally challenging the legality of his sentence as a PCRA Petition rather than a Writ of Habeas Corpus Ad Subjiciendum. See Commonwealth v . Taylor , 65 A.3d 462, 466 (Pa. Super. 2013) (holding that "a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus.").
We note that the Appellee's Brief filed by District Attorney Edward M. Marsico, Jr. characterizes Appellant's filing as a PCRA Petition, while the Appellee's Brief filed by the Pennsylvania Department of Corrections characterizes Appellant's filing as a Petition for Writ of Habeas Corpus Ad Subjiciendeum.
The Commonwealth Court did not resolve the issue or opine on the nature of Appellant's filing.
Insofar as one aspect of Appellant's sentencing claim is arguably properly presented as a Writ of Habeas Corpus—his issue alleging the "lack of sentencing order"—we direct Appellant to Joseph v. Glunt , 96 A.3d 365, 372 (Pa. Super. 2014) (holding that the fact that the Department of Corrections did not possess sentencing order did not entitle prisoner to habeas relief).
Appellant presents the following four issues on appeal, reordered for ease of disposition:
(1) Did the trial court abuse [its] discretion where on record evidence for purposes of United States Constitution, Fifth Amendment Double Jeopardy Clause, clearly shows that Appellant's conviction and sentence are patently illegal and as a question of federal law entitled [A]ppellant to relief?Appellant's Brief at 3.
(2) Does the trial court's failure to conduct a proper hearing upon the Supreme Court's grant of original process constitute contempt of an order of the court?
(3) Does the trial court's reopening of this case through an Order for settlement, arbitration, trial[,] or other disposition and subsequent failure to follow [its] own mandate/instructions constitute a second issue of contempt?
(4) Does the trial court's failure to render a proper opinion pursuant to [Pa.R.A.P.] 1925(a) constitute an abdication of duty or abuse of discretion?
We review the denial of a PCRA Petition to determine whether the record supports the PCRA court's findings and whether its Order is otherwise free of legal error. Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014). There is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court can determine from the record that there are no genuine issues of material fact. Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008).
In his first issue, Appellant claims that his sentence is illegal and he presents a Brady claim. Before addressing the merits of Appellant's claims, we must first determine whether we have jurisdiction to entertain the underlying PCRA Petition. See Commonwealth v. Hackett , 956 A.2d 978, 983 (Pa. 2008) (explaining that the timeliness of a PCRA Petition is a jurisdictional requisite).
Brady v. Maryland , 373 U.S. 83 (1963).
Under the PCRA, any Petition "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes 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 the expiration of time for seeking the review." 42 Pa.C.S. § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht , 994 A.2d 1091, 1093 (Pa. 2010).
It is well-settled that the PCRA is intended to be the "sole means of achieving post-conviction relief." 42 Pa.C.S. § 9542; see also Commonwealth v. Peterkin , 722 A.2d 638, 640 (Pa. 1998). So long as the PCRA provides a potential remedy to a given claim, "the PCRA statute subsumes the writ of habeas corpus." Commonwealth v . Taylor , 65 A.3d 462, 465-66 (Pa. Super. 2013) (citation omitted).
A challenge to the legality of sentence is cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(2)(vii); see also Commonwealth v. Beck , 848 A.2d 987, 989 (Pa. Super. 2004). Similarly, a Brady claim is also cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(2) (vi); see also Commonwealth v. Simpson , 66 A.3d 253, 264 (Pa. 2013). When raising a challenge to the legality of his sentence, "a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus." Commonwealth v . Taylor , 65 A.3d 462, 466 (Pa. Super. 2013).
Here, Appellant presents two claims that are cognizable under the PCRA. Appellant conceded in his initial Petition that the trial court sentenced Appellant to a term of life imprisonment on June 23, 1975. Appellant did not file a direct appeal, thus, his Judgment of Sentence became final on July 23, 1975. In order to be timely, Appellant needed to submit any PCRA Petition by July 23, 1976. 42 Pa.C.S. § 9545(b)(3). Appellant filed this Petition on February 12, 2013, more than 36 years after the one-year deadline. Thus, Appellant's Petition is facially untimely.
Pennsylvania courts may consider an untimely PCRA petition, however, if the appellant pleads and proves one of the three exceptions set forth in 42 Pa.C.S. § 9545(b), which provides the following:
(b) Time for filing petition.
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(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 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. § 9545(b)(1)-(2). See , e.g., Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the claim had been timely raised within 60-day timeframe).
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
As long as this Court has jurisdiction over the matter, a legality of sentencing issue is reviewable and cannot be waived. Commonwealth v. Jones , 932 A.2d 179, 182 (Pa. Super. 2007). However, a legality of sentencing issue must be raised in a timely filed PCRA Petition. See 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999) ("Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the exceptions thereto.").
After concluding that Appellant failed to plead and prove the applicability of one of the timeliness exceptions, the PCRA court properly dismissed this aspect of Appellant's Writ as an untimely PCRA Petition without a hearing. The PCRA court's dismissal is supported by the evidence of record and free of legal error. His attempts to obtain relief by titling his filing a Writ of Habeas Corpus, thus, fail.
In his second issue on appeal, Appellant argues that the trial court abused its discretion when it failed to conduct a hearing after the Pennsylvania Supreme Court granted his "Application for Leave to File Original Process" on September 4, 2013.
Appellant misconstrues our Supreme Court's Order. On September 4, 2013, our Supreme Court issued a per curiam Order that granted Appellant's Application for Leave to File Original Process and denied Appellant's Petition for Writ of Habeas Corpus on the merits. See Scott v. Kerestes , No. 82 MM 2013 (Pa. filed September 4, 2013) (per curiam). Since the Supreme Court denied his Petition on the merits, Appellant could not return to the trial court to relitigate his Petition because the Supreme Court issued a final Order rejecting his claims completely. Cf. Garwood v. Court of Common Pleas Philadelphia County , 88 A.3d 969 (Pa. 2014) (per curiam) (granting "Application for Leave to File Original Process[,]" granting "Petition for Writ of Mandamus and/or Extraordinary Relief [to the extent the Petition] requests mandamus relief[,]" and directing the trial court "to adjudicate Petitioner's pending petition for writ of habeas corpus within 90 days of this order.").
In his third issue, Appellant avers that the trial court improperly refused to hold a contempt hearing or impose any sanctions for opposing counsel's failure to comply with the trial court's April 8, 2015 Order directing the parties to submit a "Joint Status Report."
A trial court always retains inherent contempt powers to ensure compliance with its orders. See Lachat v. Hinchcliffe , 769 A.2d 481, 488 (Pa. Super. 2001) ("The purpose of a civil contempt proceeding is remedial. ... Judicial sanctions are employed to coerce the defendant into compliance with the court's order").
Here, the trial court's April 8, 2015 Order directed the parties to file a Joint Status Report and proposed Case Management Order after observing "there has been no docket activity for at least two years." Trial Court Order, 4/8/15, at 1. The Order stated, in relevant part:
Failure of each counsel for a party and/or pro se parties to fully and meaningfully participate in the filing of a comprehensive Joint Status Report will result in such party and/or counsel being compelled to attend a formal Sanctions/Contempt Hearing to determine appropriate civil sanctions including fines, sanction fees, preclusion orders, disciplinary referral, case dismissal, etc.Id. at 2.
First, Appellant never filed a Petition for Contempt, so Appellant arguably waived this issue. 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."). Second, the trial court was not obligated to impose sanctions based on the plain terms of the Order. Rather, the trial court simply left open the door to contempt proceedings to ensure compliance with its Order. The Order served to clarify the court's expectations and to put the parties on notice that sanctions exist to ensure compliance with the trial court's Order "to fully and meaningfully participate" in filing a Joint Status Report. Trial Court Order, 4/8/15, at 2. The trial court retained the discretion to decide whether the parties complied with the Order, and if not, whether sanctions would be appropriate.
We discern no error of law regarding the trial court's refusal to conduct contempt proceedings or impose sanctions, particularly where Appellant failed to file a Petition for Contempt stating how any party failed to comply with the Order. Accordingly, Appellant's third issue is meritless.
In his fourth issue, Appellant complains that the trial court failed to submit a Pa.R.A.P. 1925(a) Opinion, which "constitute[d] an abdication of duty [and an] abuse of discretion." Appellant's Brief at 3.
Pa.R.A.P. 1925(a) states, in relevant part, as follows:
(a) Opinion in support of order.
(1) General rule.--Except as otherwise prescribed by this rule, upon receipt of the notice of appeal, the judge who entered the
order giving rise to the notice of appeal, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found.Pa.R.A.P. 1925 (emphasis added).
The trial court filed its Rule 1925(a) Opinion on June 14, 2016, which incorporated its February 22, 2013 Order and stated "the issues raised by Appellant ... are adequately addressed in the February 22, 2013 Order, and no additional opinion will be filed." Trial Court Opinion, filed 6/14/16, at 1.
The trial court's formal Pa.R.A.P. 1925(a) Opinion directed this Court to the place in the record where the reasons for the Order may be found, namely, the February 22, 2013 Order. Accordingly, Appellant's claim is frivolous, unsupported by the record, and merits no relief.
In sum, Appellant's PCRA Petition was facially untimely and he did not plead and prove the applicability of any of the three statutory timeliness exceptions. Accordingly, the PCRA court properly dismissed Appellant's PCRA Petition. We, thus, affirm the denial of PCRA relief.
Order affirmed.
President Judge Gantman joins the memorandum.
Judge Strassburger concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/19/2017
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