J-S50030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT E. MILLER, JR., :
:
Appellant : No. 309 WDA 2014
Appeal from the PCRA Order Entered January 24, 2014,
In the Court of Common Pleas of Westmoreland County,
Criminal Division, at No. CP-65-CR-0001710-2001.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 08, 2014
Appellant, Robert E. Miller, Jr., appeals pro se from the order denying
his petition for collateral relief filed pursuant to the Post Conviction Relief Act
9546. We vacate and remand.
of this case as follows:
Appellant, on February 12, 2002, pleaded guilty to all
charges brought against him, stemming from his seven-year
relationship with the minor victim. The minor victim was eight
years old in 1988 when the incidents began, and [A]ppellant
admits to having raped her four times and to engaging in
involuntary deviate sexual intercourse with her on five occasions
from 1988 to 1995, all while maintaining a relationship with the
pre-sentence report, [A]ppellant was sentenced on May 9, 2002,
to serve a total term of incarceration of from twenty to forty
years. The trial court denied a postsentence motion to
reconsider the sentence, by order dated June 20, 2002[.]
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Commonwealth v. Miller, 295 WDA 2003, 839 A.2d 1158 (Pa. Super. filed
October 17, 2003) (unpublished memorandum at 2). After reviewing
affirmed the judgment of sentence on October 17, 2003. Id. at 6. The
Pennsylvania Supreme Court denied
6, 2004. Commonwealth v. Miller, 847 A.2d 1281 (Pa. 2004).
Appellant filed a pro se petition for a writ of habeas corpus on January
29, 2013, in which he claimed that the trial court lacked subject matter
jurisd
creating the crimes to which he pled guilty. Petition, 1/29/13, at ¶ A.
hearing on January 24, 2014, then denied the petition as time-barred.
Order of Court, 1/24/14, at 1 (citing 42 Pa.C.S.A. § 9545(b)(1) and (2)).
This appeal followed. The PCRA court did not direct Appellant to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On appeal, Appellant raises three issues, which we reproduce verbatim
as follows:
I. COUNSEL WAS INEFFECTIVE FOR GIVING BAD
ADVISE/MISINFORMING DEFENDANT PERTAINING PLEA
OFFER.
II. COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
THE INTRODUCTION OF DEFENDANTS INVOLUNTARY
CONFESSION DUE TO CONDITIONS OF COERCION.
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III. COUNSEL WAS INEFFECTIVE FOR NOT BRINGING INTO
INTRODUCTION NOR INVESTIGATING BIOLOGICAL
EVIDENCE (DNA).
1
Initially, we must determine whether this matter is properly before us.
We begin by considering whether the PCRA court accurately considered
habeas corpus to be a PCRA petition. The
scope of the PCRA is explicitly defined as follows:
This subchapter provides for an action by which persons
convicted of crimes they did not commit and persons serving
illegal sentences may obtain collateral relief. The 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, including habeas corpus and coram
nobis. This subchapter is not intended to limit the availability of
remedies in the trial court or on direct appeal from the judgment
of sentence, to provide a means for raising issues waived in prior
proceedings or to provide relief from collateral consequences of a
criminal conviction.
42 Pa.C.S.A. § 9542 (emphasis added).
The plain language of the statute demonstrates that the General
Assembly intended that claims that could be brought under the PCRA must
be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235
1
pellant has
waived his claims of ineffective assistance of counsel by failing to raise them
in his petition for writ of habeas corpus before the PCRA court.
Commonwealth v. Santiago, 855 A.2d
tting a PCRA petitioner to append new claims
to the appeal already on review would wrongly subvert the time limitations
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cognizable under the PCRA, the common law and statutory remedies now
Id.
(citations omitted). Thus, it is well settled that any collateral petition raising
issues with respect to remedies offered under the PCRA will be considered a
PCRA petition. Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super.
2001).
In his petition, Appellant claimed that the trial court lacked jurisdiction
to prosecute him due to defects in the enactment of the crimes code.
Petition, 1/29/13, at ¶ A. The question arises whether this particular claim
is one available to him under the PCRA. The relevant portion of the PCRA
provides as follows:
(a) General rule.--To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
* * *
(2) That the conviction or sentence resulted from
one or more of the following:
* * *
(viii) A proceeding in a tribunal without
jurisdiction.
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42 Pa.C.S.A. § 9543(a)(2)(viii). Thus, the statute in this matter is clear that
claims attacking the jurisdiction of the court are cognizable under the PCRA.
42 Pa.C.S.A. § 9543(a)(2)(viii).
Because such a claim is cognizable under the PCRA regardless of the
caption of the petition, the PCRA court properly considered it to be filed
under the PCRA. Consequently, the PCRA court had no authority to
entertain the claim except under the strictures of the PCRA.
We note that this is -
based right to counsel. Commonwealth v. Figueroa, 29 A.3d 1177, 1180
(Pa. Super. 2011); Pa.R.Crim.P. 904(C).2
post-conviction practice, it is intended that counsel be appointed in every
case in which a defendant has filed a petition for post-conviction collateral
relief for the first time and is unable to afford counsel or otherwise procure
that a first-time PCRA petitioner whose petition appears untimely on its face
is entitled to representation for assistance in determining whether the
petition is timely or whether any exception to the normal time requirements
is applicable. Commonwealth v. Ramos, 14 A.3d 894, 895 (Pa. Super.
2
defendant satisfies the judge that the defendant is unable to afford or
otherwise procure counsel, the judge shall appoint counsel to represent the
-conviction collateral
See also Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super.
2014) (surveying history of rule-based right to effective PCRA counsel).
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2011) (citing Commonwealth v. Guthrie, 749 A.2d 502, 504 (Pa. Super.
2000), and Commonwealth v. Stout, 978 A.2d 984, 988 (Pa. Super.
2009)). Although a PCRA petition appears to be untimely and the petitioner
overcome both of those hurdles through an examination of all of the relevant
Ramos, 14 A.3d at 896.
Here, Appellant is before us pro se, which gives rise to the question:
Did he knowingly, intelligently, and voluntarily waive PCRA counsel? The
record does not provide an answer.
The Pennsylvania Supreme Court expressly required in
Commonwealth v. Grazier
waiver of the right to counsel is sought at the post-conviction and appellate
stages, an on-the-record determination should be made that the waiver is a
Id.
incumbent upon the trial court rather than defense counsel to ensure that a
proper waiver-of- Commonwealth v.
Robinson, 970 A.2d 455 (Pa. Super. 2009) (en banc) (citing
Commonwealth v. Davido, 868 A.2d 431, at 437 438 (Pa. 2005)).
Nothing in the record before us indicates that the PCRA court
conducted a Grazier colloquy to determine if Appellant knowingly,
intelligently, and voluntarily relinquished his right to PCRA counsel.
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for the PCRA court to conduct a Grazier colloquy utilizing Pa.R.Crim.P.
121(A)(2)(a), (d), (e) and (f).3 Given our disposition, we will not address
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2014
3
Pursuant to Rule 904(C), should Appellant request PCRA counsel, the trial
court shall appoint counsel if satisfied that Appellant has no means to
procure counsel.
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