J-S72009-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID BRIAN SCHRUM, JR.,
Appellant No. 136 WDA 2014
Appeal from the PCRA Order Entered December 30, 2013
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0000764-2007
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 08, 2014
Appellant, David Brian Schrum, Jr., appeals from the trial court’s
December 30, 2013 order denying his petition for relief filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant
argues that the trial court imposed an illegal sentence, as the court did not
provide him credit for time served on his original sentence of incarceration
when it revoked his probation and imposed a new sentence.1 Additionally,
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*
Retired Senior Judge assigned to the Superior Court.
1
We note that Appellant’s brief does not include a statement of questions
involved. Consequently, Appellant has failed to comply with Pa.R.A.P
2111(a)(4) and 2116(a). As we are able to ascertain the claim raised by
Appellant, however, his failure to comply with the Rules of Appellate
Procedure does not impede our review of this issue on appeal. Thus, we will
address his argument on the merits. See Savoy v. Savoy, 641 A.2d 596,
598 (Pa. Super. 1994) (stating where an appellant “fails to provide a
(Footnote Continued Next Page)
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Appellant’s counsel, Kenneth R. Harris, Jr., Esquire, seeks permission to
withdraw his representation of Appellant pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 479
A.2d 568 (Pa. Super. 1984). We affirm.
On July 11, 2007, Appellant entered a negotiated plea of guilty to one
count of incest. Pursuant to that plea agreement, on August 24, 2007, he
was sentenced to a term of 12 to 24 months’ incarceration followed by 72
months’ probation. No appeal was filed from this judgment of sentence.
Appellant’s probation was subsequently revoked following a hearing on
January 18, 2011, and a new term of 18 to 54 months’ incarceration
imposed. On February 7, 2011, Appellant filed a notice of appeal, and this
Court affirmed Appellant’s judgment of sentence on February 13, 2012. See
Commonwealth v. Schrum, 46 A.3d 816 (Pa. Super. 2012) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal with
the Pennsylvania Supreme Court.
Appellant filed a pro se petition for time credit on June 25, 2012. On
June 26, 2012, the court issued an order stating that it construed Appellant’s
petition as a PCRA petition, and appointing Appellant counsel. An amended
counseled PCRA petition was filed on August 6, 2013. The court issued a
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(Footnote Continued)
separate [s]tatement of the [q]uestions [i]nvolved,” but that noncompliance
“does not impede our ability to review the issues, we will address the merits
of [the] appeal.”).
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Pa.R.Crim.P. 907 notice of its intent to dismiss on September 25, 2013.
The PCRA court dismissed Appellant’s petition on December 30, 2013.
Appellant filed a timely notice of appeal on January 21, 2014. In addition,
Appellant filed a timely concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
On July 10, 2014, Attorney Harris filed a motion with this Court to
withdraw his representation of Appellant. Appellant subsequently filed a pro
se brief with this Court.
In Turner, our Supreme Court “set forth the appropriate procedures
for the withdrawal of court-appointed counsel in collateral attacks on
criminal convictions[.]” Turner, 544 A.2d at 927. The traditional
requirements for proper withdrawal of PCRA counsel, originally set forth in
Finley, were updated by this Court in Commonwealth v. Friend, 896 A.2d
607 (Pa. Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d
875 (Pa. 2009),2 which provides:
(1) As part of an application to withdraw as counsel, PCRA
counsel must attach to the application a “no-merit” letter[;]
(2) PCRA counsel must, in the “no-merit” letter, list each claim
the petitioner wishes to have reviewed, and detail the nature
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2
In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such
issue.” Pitts, 981 A.2d at 879. In this case, Attorney Harris filed his
petition to withdraw and no-merit letter with this Court and, thus, our
Supreme Court’s holding in Pitts is inapplicable.
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and extent of counsel's review of the merits of each of those
claims[;]
(3) PCRA counsel must set forth in the “no-merit” letter an
explanation of why the petitioner's issues are meritless[;]
(4) PCRA counsel must contemporaneously forward to the
petitioner a copy of the application to withdraw, which must
include (i) a copy of both the “no-merit” letter, and (ii) a
statement advising the PCRA petitioner that, in the event the
trial court grants the application of counsel to withdraw, the
petitioner has the right to proceed pro se, or with the assistance
of privately retained counsel;
5) the court must conduct its own independent review of the
record in the light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA
counsel to withdraw; and
6) the court must agree with counsel that the petition is
meritless.
Friend, 896 A.2d at 615 (footnote omitted).
“Once counsel for the petitioner determines that the issues raised
under the PC[R]A are ‘meritless,’ and the PC[R]A court concurs, counsel will
be permitted to withdraw and the petitioner may proceed on his own or with
the aid of private counsel to pursue a review of the ruling entered, if he/she
so wishes.” Finley, 550 A.2d 215. The preceding sentence assumes that
counsel filed the no-merit letter with the trial court. However, counsel “may
withdraw at any stage of collateral proceedings if he, in the exercise of his
professional judgment, determines that the issues raised in those
proceedings are meritless,” Commonwealth v. Bishop, 645 A.2d 274, 275
(Pa. Super. 1994), and “the initial court before whom the request to
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withdraw is pleaded would logically be the tribunal making the ruling,”
Finley, 550 A.2d at 215 n.4. Attorney Harris has filed his petition to
withdraw with our Court; accordingly, we must determine whether he has
complied with the Turner/Finley requirements.
First, we have received Attorney Harris’s petition to withdraw and no-
merit letter. Therefore, he meets the first prong of the above-stated test.
On pages 1 through 2 of his no-merit letter, Attorney Harris sets forth the
issue Appellant seeks to raise on appeal and provides an explanation,
accompanied by citations to relevant case law, detailing why that issue is
without merit. Additionally, in his petition, Attorney Harris has sufficiently
evidenced the nature and extent of his review. Thus, we conclude that he
has met the second and third prongs of the revised Finley test as set forth
in Friend.
Fourth, Attorney Harris has forwarded to Appellant a copy of his
petition to withdraw and no-merit letter. He has also sent a letter to
Appellant explaining that he concluded that Appellant’s claim is meritless
and advising Appellant that he has the right to proceed with his appeal pro
se or hire new counsel.3 Accordingly, Attorney Harris has satisfied the fourth
prong of the revised test set forth in Friend.
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3
We note that Attorney Harris, in this letter, did not describe Appellant’s
rights correctly, stating, “I am also required to inform you that the Superior
Court will be contacting you with a briefing schedule….” Counsel’s letter,
(Footnote Continued Next Page)
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Next, this Court must conduct its own independent review of the issue
presented in Appellant’s PCRA petition. We begin by noting that 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). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001).
Before addressing the substance of Appellant’s issue, we must confront
the timeliness of his petition, as the PCRA time limitations implicate our
jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may
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(Footnote Continued)
7/9/14, at 1. However, despite this incorrect statement of rights concerning
a briefing schedule, Appellant demonstrably understood his rights, as he
subsequently filed a pro se request for an extension of time to file a brief for
appellant, and filed his pro se brief after receiving an extension. Therefore,
despite this error, we do not conclude that counsel failed to meet the
requirements for proper withdrawal on this basis.
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not be altered or disregarded to address the merits of the petition);
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)
(holding the Superior Court lacks jurisdiction to reach merits of an appeal
from an untimely PCRA petition).
Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final. Appellant’s judgment of sentence
became final at the conclusion of his appellate review on March 14, 2012.
See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes
final at the conclusion of direct review or the expiration of time for seeking
the review); Pa.R.A.P. 1113(a) (providing 30 days for the filing of a petition
of allowance of appeal to the Pennsylvania Supreme Court following the
entry of an order by this Court.) The instant petition was timely filed on
June 25, 2012. As such, this Court possesses jurisdiction to address
Appellant’s claims on the merits.
In his brief, Appellant argues that his current sentence of incarceration
is illegal. Specifically, he maintains that the trial court erred in failing to
properly apply credit for time served toward his sentence. Appellant was
initially sentenced to a term of 12 to 24 months’ incarceration, followed by
72 months’ probation. After his probation was revoked, a new sentence of
18 to 54 months’ incarceration was imposed. Appellant believes that he is
due credit for the time he served on his sentence of 12 to 24 months’
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incarceration toward his new probation revocation sentence of 18 to 54
months’ incarceration. As explained by the PCRA court,
[Appellant] pleaded guilty to one count of incest, a felony of the
second degree. Under 18 [Pa.C.S.] § 1103, a person convicted
of a felony of the second degree may be sentenced to undergo
imprisonment for a term of not more than ten years. Under
Commonwealth v. Williams, 662 A.2d 658 (Pa. Super. []
1995), [Appellant] would have undoubtedly been entitled to
receive credit on his revocation sentence for time served on his
original sentence if the combined amount of incarceration
imposed exceeded the statutory maximum. That is not the case
here. The combined incarceration sentences in this case amount
to 78 months less one day. That is well within the statutory
maximum of ten years. … [U]nder Commonwealth v.
Bowser, 783 A.2d 348 (Pa. Super. [] 2001), since the combined
incarceration[] sentences do not exceed the statutory maximum,
[Appellant’s] revocation sentence is not illegal. [Appellant],
therefore, is not entitled to relief under the Post Conviction Relief
Act.
PCRA Court Opinion and Order, 9/25/13, at 4. We agree that the trial court
did not err in declining to grant Appellant this time credit, as Appellant was
not entitled to it. As such, we conclude Appellant’s claim is meritless.
As we have found no other claims of arguable merit that Attorney
Harris could have raised on appeal, we affirm the PCRA court’s order denying
Appellant’s petition, and we grant Attorney Harris’s petition to withdraw as
counsel pursuant to Turner/Finley.
Order affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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