J-S57034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRY LEE KUEHNER
Appellant No. 448 EDA 2014
Appeal from the PCRA Order entered December 31, 2013
In the Court of Common Pleas of Carbon County
Criminal Division at No: CP-13-CR-0000691-2005
BEFORE: DONOHUE, MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 05, 2014
Appellant Terry Lee Kuehner pro se appeals from an order of the Court
of Common Pleas of Carbon County, which dismissed as untimely his petition
for writ of habeas corpus, which the court treated as a petition for collateral
relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46.
For the reasons set forth below, we affirm.
The facts and procedural history underlying this case is undisputed.
Quoting the trial court’s opinion, we previously noted:
On October 2, 2008, [Appellant] entered into a guilty plea to
counts 2 and 5 of the information, which were aggravated
assault (F2) and simple assault charge (M2) respectively.[FN] As
part of his guilty plea, Appellant was sentenced to a term of
imprisonment [of] not less than eighteen (18) months nor more
than ten (10) years on the aggravated assault charge and to an
imprisonment term of not less than six (6) months nor more
than twelve (12) months on the simple assault charge. As the
signed stipulation stated, the sentence for the simple assault
was to run consecutive to the sentence of the aggravated
assault.
[FN: 18 Pa.C.S.A. §§ 2701(a) (1), (4).]
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Commonwealth v. Kuehner, No. 524 EDA 2012, unpublished
memorandum at 1-2 (Pa. Super. filed October 22, 2012) (citations omitted).
Appellant did not file a direct appeal. On August 15, 2011,
Appellant filed a pro se petition for writ of habeas corpus in
which Appellant alleged violations of the plea agreement.
Appellant alleged that his sentences should have been run
concurrently rather than consecutively. In furtherance of this
claim, Appellant alleged in the petition (and now alleges on
appeal from the denial of the petition) numerous theories by
which he seeks to obtain relief. Appellant claims the consecutive
sentencing scheme was the result of violations of due process,
ineffective assistance of counsel, and breach of contract. The
trial court dismissed Appellant’s petition for writ of habeas
corpus for want of subject matter jurisdiction.
Id. at 2. On appeal, we treated Appellant’s habeas petition as a PCRA
petition, and concluded that it was untimely and, as a result, the court did
not err in dismissing it for lack of jurisdiction. Despite the untimely nature
of the petition, we nonetheless concluded that, because it was Appellant’s
first attempt to challenge his sentence, the appointment of counsel was
necessary. Accordingly, we vacated the court’s order denying Appellant’s
habeas petition and remanded the matter to the court for the appointment
of counsel.
On February 19, 2013, the PCRA court appointed Joseph V. Sebelin Jr.,
Esquire as Appellant’s counsel. On August 12, 2013, Attorney Sebelin filed a
petition to withdraw, which the court denied based on the counsel’s failure to
file a no-merit letter. On August 26, 2013, Attorney Sebelin filed an
amended petition to withdraw, attaching as an exhibit the required no-merit
letter. In the amended petition to withdraw, Attorney Sebelin alleged that
he sought withdrawal as counsel “[a]s a result of [Appellant’s] refusal to
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communicate with [him], as well as [his] belief that [Appellant’s] claims lack
merit.” Amended Petition to Withdraw, 8/26/13, at ¶ 19. Moreover, in the
no-merit letter, Attorney Sebelin indicated that his review of the record and
his legal research led to the conclusion that Appellant’s habeas petition
treated as a PCRA petition was untimely and that Appellant failed to raise
any meritorious claims. On December 3, 2013, the PCRA court sent
Appellant a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition
without a hearing. Following receipt of Appellant’s response to the Rule 907
notice, on December 31, 2013, the court dismissed as untimely Appellant’s
habeas petition under the PCRA and granted Attorney Sebelin’s withdrawal
petition.
Appellant appealed to this Court. Following Appellant’s filing of a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal, the PCRA
court issued a Pa.R.A.P. 1925(a) opinion. In its opinion, the court concluded
that Appellant’s petition for relief had to be dismissed under the PCRA
because the petition was untimely and Appellant failed to satisfy an
exception to the PCRA’s timeliness requirement. PCRA Court Opinion,
2/18/14, at 7-8.
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On appeal,1 Appellant appears to challenge the dismissal of his
habeas petition under the PCRA.2 After careful review of the parties’ briefs,
the record on appeal, and the relevant case law, we conclude that the PCRA
court’s Rule 1925(a) opinion authored by the Honorable Roger N. Nanovic,
thoroughly and adequately disposes of Appellant’s challenge to the dismissal
of his petition. See PCRA Court Opinion, 2/18/14, at 5-8. We, therefore,
affirm the PCRA court’s order dismissing Appellant’s habeas petition as an
untimely PCRA petition.3 We direct that a copy of the PCRA court’s February
18, 2014 Rule 1925(a) opinion be attached to any future filings in this case.
Order affirmed.
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1
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
2
We note with disapproval that Appellant’s pro se brief fails to conform in
any way to the briefing requirements outlined in the Rules of Appellate
Procedure. See Pa.R.A.P. 2101-2135. Because of the deficiencies in
Appellant’s brief, we are unable to discern the exact nature of the
question(s) presented on appeal. Regardless, given the disposition of this
case on jurisdictional grounds, we need not address the merits of this case.
3
As we recently explained:
The PCRA’s time restrictions are jurisdictional in nature. Thus, if
a PCRA petition is untimely, 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. Statutory time limitations are mandatory and
interpreted literally; thus, a court has no authority to extend
filing periods except as the statute permits.
Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014) (internal
citation and quotation marks omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2014
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