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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT RAYNOVICH,
Appellant No. 1018 WDA 2015
Appeal from the PCRA Order June 9, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004603-2000, CP-02-CR-0004605-
2000, CP-02-CR-0004849-2000, CP-02-CR-0004852-2000, CP-02-CR-
0004854-2000, CP-02-CR-0004857-2000
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 5, 2016
Appellant, Robert Raynovich, appeals pro se from the order denying
his pro se “motion for modification of sentence” and pro se “motion for
reconsideration for newly sexually violent predator hearing.” We affirm in
part and quash in part.
A prior panel of this Court summarized the factual and partial
procedural history of this case as follows:
In 2001, Raynovich was convicted of numerous counts of
crimes involving sexual contact with multiple minor girls.
Pursuant to the requirements of Megan’s Law II, Raynovich was
evaluated by a member of the Sexual Offenders Assessment
Board and following a hearing, the trial court found Raynovich to
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*
Former Justice specially assigned to the Superior Court.
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be an [Sexually Violent Predator (“SVP”)]. The trial court then
sentenced him to an aggregate term of 29 to 62 years of
incarceration. On direct appeal, this Court affirmed Raynovich’s
judgment of sentence. The Pennsylvania Supreme Court denied
Raynovich’s petition for allowance of appeal in January 2005.
Raynovich filed a pro se [Post Conviction Relief Act, 42
Pa.C.S. §§ 9541-9546 (“PCRA”)] petition in March 2005.
Counsel was appointed and an amended PCRA petition was filed
in December 2005. The PCRA court held an evidentiary hearing
in March 2006, following which it denied Raynovich’s petition.
Although Raynovich appealed from that determination, this Court
found all claims waived because of his failure to file a timely
statement of matters complained of on appeal.
Raynovich filed a PCRA petition pro se in July 2009.
Counsel was appointed and an amended petition was filed in
January 2010, arguing for the reinstatement of Raynovich’s
appellate rights with regard to his previous PCRA petition.
Following a hearing in April 2010, the PCRA court denied the
petition, but this Court reversed and remanded, finding that
counsel’s failure to timely file the statement of matters
complained of in the appeal from the denial of his first PCRA
petition constituted abandonment by counsel, pursuant to our
Supreme Court’s decision in Commonwealth v. Bennett. See
Commonwealth v. Raynovich, 30 A.2d 532 (Pa. Super. 2011)
(unpublished memorandum).
In June 2011, the PCRA court entered an order reinstating
Raynovich’s appellate rights with regard to his first PCRA
petition. Raynovich filed a timely statement of matters
complained of on appeal raising three issues, and the PCRA court
subsequently issued an opinion addressing those issues.
Commonwealth v. Raynovich, 1193 WDA 2011, 47 A.3d 1245 (Pa. Super.
filed March 15, 2012) (unpublished memorandum at 1-3).
On March 15, 2012, a panel of this Court denied relief.
Commonwealth v. Raynovich, 1193 WDA 2011, 47 A.3d 1245 (Pa. Super.
filed March 15, 2012) (unpublished memorandum at 1-3). Appellant filed a
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petition for allowance of appeal with the Supreme Court, which was denied
on November 28, 2012. Commonwealth v. Raynovich, 127 WAL 2012,
57 A.3d 69 (Pa. filed November 28, 2012).
On January 8, 2013, Appellant, pro se, filed a “motion for modification
of sentence,” seeking to have his sentences imposed concurrently rather
than consecutively. On September 19, 2014, Appellant filed a pro se
“motion for reconsideration for newly sexually violent predator hearing.”
Attorney Charles R. Pass, III, was appointed to represent Appellant on these
matters. Attorney Pass sought to withdraw from the case pursuant to
Turner/Finley.1 The common pleas court issued a notice of intent to
dismiss both motions pursuant to Pa.R.Crim.P. 907 on April 16, 2015, and
permitted Attorney Pass to withdraw. On June, 9, 2015, the common pleas
court issued an order dismissing Appellant’s pleadings.
Appellant filed a notice of appeal on June 25, 2015.2 Both Appellant
and the common pleas court complied with the requirements of Pa.R.A.P.
1925.
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
We note that in addition to filing the notice of appeal in this matter,
Appellant also filed a petition for allowance of appeal to this Court. Petition
for Permission to Appeal, 6/18/15. Because the petition seeking allowance
of appeal to this Court was duplicative and unnecessary, this Court issued an
order dated August 3, 2015, dismissing Appellant’s petition seeking
permission to appeal. Order, filed 8/3/15, at 41 WDM 2015.
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Appellant presents the following issues, which we reproduce verbatim,
for our review:
1. Was the sexual violent predator report complete?
2. Did Dr. Berstein do the report himself?
3. Did Dr. Berstein check the report for the facts?
4. Did Dr. Berstein show bias in his opinion of sex offenders?
5. Is the Diagnostic and Statistical Manual of Mental Disorder
4th Edition 1995 the correct manual to use?
Appellant’s Brief at 3.
We first note that the common pleas court treated both pro se motions
filed by Appellant as PCRA petitions. Additionally, the issues listed in
Appellant’s statement of questions involved all relate to various aspects of
the SVP-determination process as raised in Appellant’s pro se “motion for
reconsideration for newly sexually violent predator hearing.” Despite the
treatment of these pleadings as such by the common pleas court, however,
this Court has held that claims challenging the process by which a convicted
defendant is determined to be an SVP is not cognizable under the PCRA.
Commonwealth v. Masker, 34 A.3d 841, 843-844 (Pa. Super. 2011). See
also Commonwealth v. Price, 876 A.2d 988, 994 (Pa. Super. 2005)
(holding that a challenge to the sufficiency of the evidence to support an SVP
classification was not cognizable under the PCRA.) Thus, the common pleas
did not abuse its discretion in declining to grant Appellant relief under the
PCRA.
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Additionally, we note that Appellant’s claims regarding the SVP hearing
process are not cognizable outside of the PCRA framework as petitions for
state habeas corpus relief. This Court has explained the following with
regard to relief under habeas corpus:
Under Pennsylvania statute, habeas corpus is a civil remedy
which lies solely for commitments under criminal process.
Habeas corpus is an extraordinary remedy and may only be
invoked when other remedies in the ordinary course have been
exhausted or are not available. If a petitioner is in custody by
virtue of a judgment of sentence of a court of competent
jurisdiction, the writ generally will not lie. Pennsylvania law
explicitly states that in cases where a person has been
restrained by virtue of sentence after conviction for a criminal
offense, the writ of habeas corpus shall not be available if a
remedy may be had by post conviction hearing proceedings
authorized by law. See 42 Pa.C.S.A. § 6503(b) (Right to apply
for a Writ of Habeas Corpus). Issues are not cognizable
under the statutory remedy of habeas corpus if they could
have been considered and corrected in the regular course
of appellate review or by post-conviction proceedings
authorized by law.
Commonwealth v. McNeil, 665 A.2d 1247, 1249-50 (Pa. Super. 1995)
(some internal citations omitted) (emphasis added). Furthermore, “[the]
conviction cannot be put aside lightly, and it becomes stronger the longer
the judgment stands. Consequently, habeas corpus generally is not
available to review a conviction which has been affirmed on appeal.”
Commonwealth v. Wolfe, 605 A.2d 1271, 1273 (Pa. Super. 1992)
(internal citations omitted).
Here, Appellant challenged the sufficiency of the evidence supporting
the trial court’s determination that he was a sexually violent predator in his
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direct appeal. Commonwealth v. Raynovich, 873 WDA 2001, 849 A.2d
609 (Pa. Super. filed February 18, 2004) (unpublished memorandum at 2).
Thus, the specific challenges in the appeal before us were known to
Appellant then and could have been raised at that time. McNeil, 665 A.2d
at 1249-1250. Moreover, Appellant’s conviction has been affirmed on
appeal.3 Wolfe, 605 A.2d at 1273. Accordingly, the common pleas court
was correct in declining to accord habeas corpus relief.
In summary, Appellant is entitled to no relief on his claims related to
the SVP-determination process. The trial court properly denied Appellant
relief under the PCRA, and Appellant cannot demonstrate that the alternative
remedy of habeas corpus is available to him. Thus, Appellant’s claims
related to the SVP-determination process warrant no relief.
We further note that while not included in the statement of questions
involved, Appellant does include in the body of his brief a challenge to the
discretionary aspects of his sentence. Pursuant to Appellate Rule 2116(a),
Appellant’s claim is waived for failure to list it in the Statement of Questions
Involved. Pa.R.A.P. 2116(a) (“No question will be considered unless it is
stated in the statement of question involved or is fairly suggested
thereby.”).
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3
Commonwealth v. Raynovich, 873 WDA 2001, 849 A.2d 609 (Pa. Super.
filed February 18, 2004) (unpublished memorandum).
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Even if we decline to find this contention waived for failure to include it
in his statement of questions involved, however, we conclude that such
claim affords Appellant no relief. Appellant’s issue implicates the
discretionary aspects of sentence. See Commonwealth v. Moury, 992
A.2d 162, 169 (Pa. Super. 2010) (claim that imposition of consecutive
sentences was an abuse of discretion was a challenge the discretionary
aspects of sentencing); Commonwealth v. Marts, 889 A.2d 608, 611 (Pa.
Super. 2005) (holding that challenge to the trial court’s imposition of
consecutive sentences is a challenge to the discretionary aspects of a
sentence); Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005)
(the imposition of consecutive rather than concurrent sentences lies within
the sound discretion of the sentencing court.) Requests for relief with
respect to the discretionary aspects of sentence are not cognizable in PCRA
proceedings. Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa.
Super. 2006). Thus, because Appellant’s pro se filing does not request relief
contemplated by the PCRA, the pleading is a post-sentence motion and not a
PCRA petition. See Commonwealth v. Lutz, 788 A.2d 993, 996 n.7 (Pa.
Super. 2001) (holding that a filing which requests relief outside the PCRA
will not be treated as a collateral petition).
Because this post-sentence motion was filed years after sentencing, it
is untimely. See Pa.R.Crim.P. 720(A)(1) (stating that post-sentence
motions must be filed within ten days of sentencing). As the motion was
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late, it did not toll Appellant’s direct appeal period. Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 n.1 (Pa. Super. 2003). Therefore, his time
for filing a direct appeal expired thirty days after he was sentenced in 2001.
Pa.R.Crim.P. 720(A)(3). Consequently, this appeal is late and we lack
jurisdiction to hear it. Commonwealth v. Millisock, 873 A.2d 748, 751
(Pa. Super. 2005). Lacking jurisdiction, quashal is appropriate.
Commonwealth v. Dreves, 839 A.2d 1122, 1129 (Pa. Super. 2003)
(quashing untimely appeal for lack of jurisdiction).
Order denying Appellant’s “motion for reconsideration for newly
sexually violent predator hearing” affirmed. Appeal from denial of
Appellant’s motion for modification of sentence quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2016
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