J-S06019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RUSSELL R. REHRIG
Appellant No. 894 MDA 2015
Appeal from the PCRA Order May 5, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000108-2006
CP-54-CR-0000109-2006
CP-54-CR-0000110-2006
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED MARCH 22, 2016
Appellant, Russell R. Rehrig, appeals from the May 5, 2015 order,
dismissing, as untimely, his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.
We recount the procedural circumstances of this case as follows. On
August 26, 2005, Appellant was charged in three criminal complaints with
numerous offenses, stemming from allegations of his sexual abuse of three
minor children. On March 17, 2006, the Commonwealth, pursuant to
Pennsylvania Rule of Criminal Procedure 582, served notice of consolidation
of the three cases for trial. The matter proceeded to jury selection on
August 29, 2007. A jury was empaneled for trial, which was scheduled to
*Former Justice specially assigned to the Superior Court.
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commence September 3, 2007. Appellant failed to appear for trial, and he
was tried in abstentia on September 4, 2007. The jury found Appellant
guilty of multiple offenses at all three consolidated cases. 1 In consequence
of his continued absence, the trial court sentenced Appellant in abstentia on
January 2, 2008. The trial court imposed an aggregate sentence of 42 to 84
years’ incarceration. No post-sentence motion or direct appeal was filed.
Appellant was apprehended in September 2008. Appellant, represented
by trial counsel, appeared before the trial court on September 11, 2008 to
answer the bench warrant. Based, inter alia, on Appellant’s admissions, the
trial court determined Appellant’s absence from his trial and sentencing was
willful and voluntary. N.T., 9/11/08, at 6-7. The trial court then advised
Appellant of the basis for its decision to try Appellant in abstentia, the
sentences imposed, Appellant’s Megan’s Law designation, and the post-
verdict and appeal rights Appellant would have had, if the time for exercising
them had not expired. Id. at 7-13. At that hearing, Appellant asserted he
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1
Specifically, at CR-108-2006, the jury found Appellant guilty of ten counts
of rape, four counts of involuntary deviate sexual intercourse (IDSI), five
counts of statutory sexual assault, two counts of aggravated indecent
assault, two counts of indecent assault, four counts of corruption of minors,
and one count of terroristic threats; 18, Pa.C.S.A. §§ 3121(c), 3123(b),
3122.1, §3125(7), 3126(a)(7), 6301(a)(1), and 2706(a)(1), respectively. At
CR-109-2006 the jury found Appellant guilty of three counts of rape, four
counts of statutory sexual assault, five counts of corruption of minors, and
one count of terroristic threats. At CR-110-2006 the jury found Appellant
guilty of two counts of rape, two counts of IDSI, four counts of statutory
sexual assault, five counts of corruption of minors, and one count of
terroristic threats.
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wanted to appeal because trial counsel provided inadequate representation.
Id. at 14, 16. In response the trial court advised Appellant, “if you want to
challenge the effectiveness of your counsel, the [trial c]ourt will appoint
someone to represent you in that regard….” Id. at 16. By order entered
September 11, 2008, the trial court appointed Thomas Pellish, Esquire to
represent Appellant, who entered his appearance that same day.2
Attorney Pellish consulted with Appellant and advised him that there
were no viable meritorious issues to be raised either on direct appeal or in
post-conviction collateral proceedings. N.T., 3/12/15, 41-42. Rather than
seek to withdraw, however, Attorney Pellish advised Appellant he would
continue to monitor the case in the event any change in the law or new
information afforded an avenue for relief. Id. at 30, 41. On October 15,
2013, Appellant filed a pro se request for transcripts, which the trial court
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2
We recognize that a trial court has inherent authority to appoint counsel to
represent indigent defendants at any time in the interest of justice.
Pa.R.Crim.P. 122(A)(3). However, with respect to Appellant’s right to
counsel, the trial court’s appointment of Attorney Pellish was premature. We
note “[t]here is no requirement that a PCRA petition be on any particular
form.” Commonwealth v. Jerman, 762 A.2d 366, 368, (Pa. Super. 2000).
Instantly, although Appellant orally expressed a desire to challenge the
effectiveness of his trial counsel, some form of written petition is
nevertheless required to initiate post-conviction collateral relief proceedings.
See Pa.R.Crim.P. 901. Only upon such a filing is Appellant’s rule-based right
to appointed counsel triggered. See id. at 904(C). Instantly, Attorney
Pellish was appointed and entered his appearance in the case when there
was no pending matter before the trial court.
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denied on October 18, 2013, noting that there was no pending action before
it. On October 21, 2013, Appellant filed a demand for appointment of
counsel.3
On November 11, 2013, Appellant filed a notice of appeal from the
October 18, 2013 order denying his request for transcripts. Appellant
petitioned this Court for appointment of counsel, which we granted, noting
Appellant’s filing should have been considered a pro se PCRA petition, and
directed the PCRA court to appoint counsel. Commonwealth v. Rehrig,
1995 MDA 2013, Per Curiam Order, 11/14/13. On November 22, 2013, the
PCRA court appointed current counsel to represent Appellant. On May 1,
2014, upon Appellant’s request, we discontinued the appeal. 4 Id. Per
Curiam Order, 5/1/14.
On February 18, 2015, Appellant filed a counselled PCRA petition.5
The PCRA court held a hearing on Appellant’s petition on March 12, and
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3
Appellant had initiated complaints of Attorney Pellish’s inaction to the
Pennsylvania Disciplinary Board, during which inquiry, Attorney Pellish
requested Appellant be provided new counsel as he had, for some time
since, joined the District Attorney’s office. However, Attorney Pellish never
petitioned to withdraw his appearance in the case.
4
On December 2, 2013, the PCRA court had granted Appellant’s request for
transcripts.
5
In addition to asserting the applicability of the newly-discovered fact
exception to the PCRA timeliness requirement under Section 9545(b)(1)(ii),
the petition incorporated by reference numerous claims of trial counsel
ineffectiveness raised in an earlier December 5, 2013 pro se filing made by
(Footnote Continued Next Page)
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March 26, 2015, at which Appellant, Attorney Pellish, and Appellant’s wife,
Janice Horvath testified. On May 5, 2015, the PCRA court filed an opinion
and order dismissing Appellant’s PCRA petition as untimely. On May 26,
2015, Appellant filed a timely notice of appeal.6
On appeal, Appellant raises the following issues for our review.
[1.] Whether the [PCRA] court committed error
when it denied Appellant’s post conviction relief as
being untimely, where the uncontroverted evidence
is that [] Appellant filed his appeal within sixty (60)
days of discovering that he had been abandoned by
his prior counsel?
[2.] Whether the [PCRA] court committed error
when it denied Appellant’s post conviction relief,
where the evidence established that [A]ppellant’s
court-appointed counsel failed to diligently pursue a
PCRA petition against his trial counsel, thereby
denying Appellant the opportunity to be heard on the
issue of whether he was denied effective
representation by his trial counsel?
Appellant’s Brief at 9.
We initially restate our long-established standard of review. “Our
standard of review of [an] order granting or denying relief under the PCRA
requires us to determine whether the decision of the PCRA court is
_______________________
(Footnote Continued)
Appellant in connection with the withdrawn appeal. See PCRA petition,
2/18/15, at 3 ¶¶ 18, 22.
6
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. In its Rule 1925(a) opinion filed on June 25,
2015, the PCRA court referenced its May 5, 2015 opinion as containing the
basis for its ruling.
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supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Melendez-Negron,
123 A.3d 1087, 1090 (Pa. Super. 2015) (citation omitted). The timeliness of
Appellant’s petition is our threshold issue “because 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. Cristina, 114 A.3d
419, 421 (Pa. Super. 2015) (citations omitted), vacated on other grounds, --
- A.3d ---, 2016 WL 593950 (Pa. 2016). “Under the PCRA, any petition for
post-conviction relief… must be filed within one year of the date the
judgment of sentence becomes final, unless one of the exceptions set forth
in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies.” Id.
Appellant first claims his PCRA petition, although concededly filed
beyond the one-year filing deadline, is subject to the newly-discovered fact
exception under Section 9545(b)(1)(ii).7 Appellant’s Brief at 16-17.
Specifically, citing Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007)
for the proposition that abandonment of counsel can be a newly-discovered
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7
For the purpose of this discussion, we deem the date of filing of Appellant’s
first PCRA petition to be October 15, 2013, when he filed his pro se request
for transcripts. Appellant concedes this date is facially untimely as his
judgment of sentence became final on February 1, 2008, thirty days
following the imposition of sentence. See generally 42 Pa.C.S.A. §
9545(b)(3). Accordingly, a timely PCRA petition would have been due by
February 2, 2009, as February 1, 2009 fell on a Sunday. See generally id.
§ 9545(b)(1); 1 Pa.C.S.A. § 1908.
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fact for the purposes of Section 9545(b)(1)(ii), Appellant asserts “[t]he
irrefutable evidence is that [Appellant] did file his petition immediately upon
discovering that he was abandoned by counsel. As such, [Appellant] meets
the timeliness exception under the PCRA.” Appellant’s Brief at 19.
In Bennett, the petitioner had filed a first PCRA petition and was
appointed counsel. The PCRA court dismissed the petition and the petitioner
appealed. The appeal was dismissed when counsel failed to file a brief.
Upon learning of the dismissal of his appeal and counsel’s failure to file a
brief, the petitioner filed a new PCRA petition seeking reinstatement of his
PCRA appeal. Therein, Appellant asserted the abandonment of his counsel
constituted an after-discovered fact, which entitled him to application of the
exception under Section 9545(b)(1)(ii). On appeal from the denial of his
new PCRA petition, our Supreme Court acknowledged prior precedent that
held a claim of ineffective assistance of counsel cannot constitute an “after-
discovered fact” for the purposes of Section 9545(b)(1)(ii). Bennett, supra
at 1275. However, the Bennett Court held the principle did not apply to
situations where counsel abandoned the petitioner on appeal, depriving
petitioner the review to which he was entitled.8 Id.
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8
Furthermore, in Bennett, the Court was satisfied Appellant demonstrated
due diligence in discovering counsel’s abandonment and filed his petition
within 60 days of his discovery. Bennett, supra at 1272 n.11; see also
generally 42 Pa.C.S.A. § 9545(b)(2).
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Instantly, the PCRA court found that counsel did not abandon
Appellant, because no appeal or PCRA petition was ever initiated. PCRA
Court Opinion, 5/5/15, at 4. “Attorney Pellish reviewed the trial record and
advised [Appellant] that there were no grounds on which to appeal or to file
a PCRA petition. [Appellant] never specifically asked [Attorney] Pellish to
file anything, before or after hearing [Attorney] Pellish’s evaluation of his
legal status.” Id. The PCRA court acknowledged that Attorney Pellish did
not then withdraw his appearance, but rather told Appellant that he would
continue to monitor the case for any change in the law that might afford
Appellant relief. The PCRA court noted this fact did not entitle Appellant to
any particular action, concluding “[Attorney] Pellish did not abandon
Appellant; he could not find anything to do for him.” Id. We agree.
At the time of Attorney Pellish’s appointment, the time for Appellant to
file a direct appeal had expired, and his absconding status did not entitle him
to an extension. See Commonwealth v. Doty, 997 A.2d 1184, 1188 (Pa.
Super. 2010) (noting “a fugitive who returns to court should be allowed to
take the system of criminal justice as he finds it upon his return: if time for
filing has elapsed, he may not file; if it has not, he may”) (emphasis
omitted, citation omitted). Moreover, as noted supra in footnote 1, no PCRA
petition had been filed. We conclude the record supports the PCRA court’s
findings that Attorney Pellish advised Appellant there was no discernable
basis for a direct appeal or a PCRA claim. N.T., 3/12/15, at 41-42. Likewise
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the record supports the PCRA court’s finding that Appellant never specifically
requested Attorney Pellish to file anything notwithstanding that advice. Id.
at 22, 30. Central to the holding in Bennett was the fact that a timely
appeal from the denial of Bennett’s PCRA petition had been filed, triggering
his right to representation and review. Bennett, supra at 1273-1274.
Instantly, no filing, activating such a right occurred. Therefore, we conclude
that, absent a specific representation from Attorney Pellish that he intended
to initiate a PCRA action, or a specific instruction from Appellant for him to
do so, Attorney Pellish’s inaction in this matter was not abandonment.
Accordingly, Appellant has not pled a newly-discovered fact, entitling
him to an exception to the timeliness provisions of the PCRA. Consequently,
the PCRA court and this Court are without jurisdiction to review the merits of
his PCRA claims.9 See Cristina, supra. Therefore, we conclude the PCRA
court did not err or abuse its discretion in dismissing Appellant’s PCRA
petition as untimely. Thus, we affirm the PCRA court’s May 5, 2015 order.
Order affirmed.
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9
The PCRA court additionally found that even if Attorney Pellish’s inaction
constituted an after-discovered fact of attorney abandonment, Appellant
failed to establish due diligence in ascertaining said abandonment or that he
filed his PCRA petition within 60 days of discovering the same. PCRA Court
Opinion, 5/5/15, at 4-5. We also note that Appellant did not present any
testimony or evidence relative to his substantive PCRA claims at the May 5,
2015 PCRA hearing. As a result, the PCRA court concluded Appellant
“identified no issue that could have been raised … or any viable basis for
showing ineffectiveness by counsel at trial. [Appellant’s] petition is both
untimely and without substance.” Id. at 5. In light of our disposition, we
need not address these issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2016
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Com. v. Rehrig, R.
Combined Opinion