J-S36006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK KEVIN ANDREWS
Appellant No. 1433 MDA 2015
Appeal from the Order June 23, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003479-2011
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK KEVIN ANDREWS
Appellant No. 1434 MDA 2015
Appeal from the Order August 4, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003479-2011
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED JULY 13, 2016
In these consolidated appeals, Appellant, Mark Kevin Andrews, appeals
from two orders entered June 23, 2015 and August 4, 2015, respectively,
each denying one of Appellant’s similar motions for relief. After careful
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*
Former Justice specially assigned to the Superior Court.
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review, we affirm, albeit on different grounds than those relied on by the
trial court.
Our review of the certified record discloses the following procedural
history of this case. On July 12, 2011, Appellant was charged with one
count of robbery employing a threat of immediate serious bodily injury.1 On
April 5, 2012, a jury convicted Appellant of the sole charge. On May 30,
2012, the trial court sentenced Appellant to a term of 72 to 144 months’
incarceration plus a $1,000.00 fine. Appellant filed a timely post-sentence
motion, which the trial court denied on July 10, 2012. Appellant filed a
timely notice of appeal on August 8, 2012. Subsequently, Appellant filed a
praecipe with this Court to discontinue his appeal, which this Court certified
on September 6, 2012.
In the meantime, on August 31, 2012, Appellant filed a premature pro
se petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. Following the withdrawal of Appellant’s direct appeal, the
PCRA court appointed counsel to represent Appellant in the ripened PCRA
action. On December 24, 2012, counsel filed a combined motion to
withdraw and Turner/Finley2 letter. On February 6, 2013, in compliance
with Pennsylvania Rule of Criminal Procedure 907, the PCRA court filed a
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1
18 Pa.C.S.A. § 3701(a)(1)(ii).
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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notice of its intent to dismiss Appellant’s pro se PCRA petition without a
hearing and to grant counsel’s motion to withdraw. Appellant did not file
any response to counsel’s motion to withdraw or the PCRA court’s notice of
intent to dismiss. The PCRA court dismissed Appellant’s pro se PCRA petition
on March 4, 2013. Appellant filed a pro se notice of appeal on April 4, 2013.
On May 1, 2014, this Court dismissed Appellant’s appeal because he failed to
file a brief.
On May 11, 2015, Appellant filed a pro se “Motion for Relief Due to the
Use of Psychotropic Drugs and for the Mental Side Effects.” The
Commonwealth filed a response to the motion on June 17, 2015.3
Thereafter, on June 23, 2015, the trial court dismissed the motion.
Appellant filed a timely pro se notice of appeal on July 23, 2015.4 On July
27, 2015, Appellant refiled a copy of his May 11, 2015 motion. On August 4,
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3
In its response, the Commonwealth argued Appellant’s issues “could have
been addressed in a timely post-sentence motion or in filing a direct
appeal….” Commonwealth’s Response, 6/17/15, at 2, ¶ 5. The
Commonwealth urged the trial court to dismiss Appellant’s motion as an
untimely post-sentence motion. Id. at 2, ¶ 6. This was the basis upon
which the trial court relied in dismissing Appellant’s motion. Trial Court
Statement in Lieu of Memorandum Opinion, 9/3/15, at 2.
4
In his notice of appeal, Appellant inadvertently misstates the date of the
order appealed from as being July 17, 2015. In addition, the same day
Appellant filed his notice of appeal, Appellant filed a pro se “(Post Verdict)
Motion for Relief Due to the Use of Psychotropic Drugs and the Mental Side
Effects.” On July 30, 2015, the trial court denied the motion. Appellant has
not appealed that decision. We also note that, although entered into the
trial court docket and included in the clerk of court’s list of documents
transmitted, the July 30, 2015 order is absent from the certified record.
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2015, the trial court entered orders denying Appellant’s July 27, 2015 refiled
motion. Appellant filed a notice of appeal from the August 4, 2015 order on
August 12, 2015.5
On September 2, 2015, the trial court ordered Appellant to file, within
21 days, a concise statement of errors complained of on appeal in
accordance with Pennsylvania Rule of Appellate Procedure 1925(b). The trial
court did not specify to which notice of appeal its order was directed. On
September 3, 2015, the trial court filed a “Statement in Lieu of
Memorandum Opinion,” addressing its reasons for denying all of Appellant’s
motions. Appellant filed a Rule 1925(b) statement, which was received and
filed on September 28, 2015.6
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5
Appellant, again, inadvertently misstates the date of the order appealed
from as being August 10, 2015. This Court sua sponte consolidated the
appeals on September 9, 2015. See generally Pa.R.A.P. 513.
6
In its brief, the Commonwealth urged this Court to deem all of Appellant’s
issues waived for the late filing of his Rule 1925(b) statement.
Commonwealth’s Brief at 6-7. The Commonwealth acknowledges the
prisoner mailbox rule.
[The Superior[ Court] has held that “[u]nder the
prisoner mailbox rule, we deem a pro se document
filed on the date it is placed in the hands of prison
authorities for mailing.” Commonwealth v.
Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011).
For the prisoner mailbox rule to apply, a litigant
must supply proof regarding the date of mailing the
document. Commonwealth v. Little, 716 A.2d
1287, 1288 (Pa. Super. 1998).
(Footnote Continued Next Page)
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On appeal, Appellant raises the following issues for our review.
I. Trial [court] [d]idn’t ask [A]ppellant, nor his
Public Defender, was [A]ppellant [c]ompetent to
stand trial.
II. No psychiatric or mental examinations were
done on [A]ppellant by the [trial court].
III. The [P]ublic Defendaer[sic], Joe Gavazzo knew
that [A]ppellant was on many psychotropic drugs,
and failed to tell the [trial court], while [A]ppellant
was on trial.
IV. On [A]ppellants m[]otion for [r]elief do [sic] to
the use of psychotropic drugs, and mental side
effects the [trial court] gave his decision from the
District A[]ttorney Opinion, not given by him on the
order he sent [A]ppellant.
V. [A]ppellant[’s] [c]ase was in the Superior
Court, and the [trial c]ourt [] made a[n] order for
[A]ppellant to do a 1925(b).
Appellant’s Brief at 4.
Before we can address Appellant’s issues, we must clarify the proper
procedural posture of this case. Although, in his various motions for relief,
Appellant referenced Pennsylvania Rule of Criminal Procedure 720
(pertaining to post-sentence motions), we have repeatedly held that a filing
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(Footnote Continued)
Id. at 7. In his reply brief to this Court, Appellant invokes the prisoner
mailbox rule and supplied a copy of a monthly account statement, and a
cash slip from the Department of Corrections, showing submission for
mailing to the prison authorities on September 22, 2015. Accordingly, we
deem Appellant’s Rule 1925(b) statement timely filed.
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by a defendant seeking relief, after his judgment of sentence is final, should
be considered a petition for PCRA relief.
In Commonwealth v. Fowler, 930 A.2d 586 (Pa.
Super. 2007), the learned Judge[] collected cases
and reiterated that all motions filed after a judgment
of sentence is final are to be construed as PCRA
petitions. Id. at 591 (citing Commonwealth v.
Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002));
Commonwealth v. Evans, 866 A.2d 442 (Pa.
Super. 2005); Commonwealth v. Beck, 848 A.2d
987, 989 (Pa. Super. 2004); Commonwealth v.
Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000).
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)
(determining the lower court erred in treating Appellant’s filing as an
untimely post-sentence motion, and noting “[u]nless the PCRA could not
provide a potential remedy, the PCRA statute subsumes the writ of habeas
corpus”). “There is no requirement that a PCRA petition be on any particular
form,” and Appellant’s characterization of his filing is not determinative.
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000). That
Appellant’s unartfully expressed claims may be considered previously
litigated or waived does not remove his motion from being considered a
PCRA petition. Taylor, supra. We therefore conclude the trial court should
have treated Appellant’s May 11, 2015 motion as his second PCRA petition. 7
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7
Appellant’s July 23, 2015, and July 27, 2015 motions would be considered
premature serial PCRA petitions, which, because his second PCRA petition
was pending on appeal, the PCRA court did not have authority to consider.
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).
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Notwithstanding the foregoing, we also conclude the trial court was
correct to dismiss Appellant’s motion even when treated as a PCRA petition. 8
“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
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,
131 A.3d 419 (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.”9 Id. “The period for filing a PCRA petition is
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8
We note the trial court did not issue a notice of intent to dismiss as
required by Pa.R.Crim.P. 907. However, Appellant has not challenged that
non-compliance and any issue regarding the lack of notice is waived.
Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007), appeal
denied, 932 A.2d 74 (Pa. 2007). Additionally, we are not obliged to reverse
or remand for a proper notice if the petition itself is untimely. See
Commonwealth v. Davis, 916 A.2d 1206, 1207-1208 (Pa. Super. 2007),
citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000).
9
The statute sets forth those exceptions as follows.
(Footnote Continued Next Page)
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not subject to the doctrine of equitable tolling; instead, the time for filing a
PCRA petition can be extended only if the PCRA permits it to be extended.”
_______________________
(Footnote Continued)
§ 9545. Jurisdiction and proceedings
…
(b) Time for filing petition.—
(1) Any petition under this subchapter,
including a second or subsequent petition, shall
be filed within one year of the date the
judgment becomes final, unless the petition
alleges and the petitioner proves that:
(i) the failure to raise the claim
previously was the result of interference
by government officials with the
presentation of the claim in violation of
the Constitution or laws of this
Commonwealth or the Constitution or
laws of the United States;
(ii) the facts upon which the claim is
predicated were unknown to the
petitioner and could not have been
ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional
right that was recognized by the
Supreme Court of the United States or
the Supreme Court of Pennsylvania after
the time period provided in this section
and has been held by that court to apply
retroactively.
…
42 Pa.C.S.A. § 9545(b)(1).
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Commonwealth v. Miller, 102 A.3d 988, 992-993 (Pa. Super. 2014)
(internal quotation marks and citation omitted).
In this case, Appellant’s judgment of sentence became final on
September 6, 2012, when he voluntarily discontinued his direct appeal. See
Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)
(noting, “judgment of sentence final for PCRA purposes when appeal is
discontinued voluntarily”), citing Commonwealth v. Conway, 706 A.2d
1243 (Pa. Super 1997); see also generally 42 Pa.C.S.A. § 9545(b)(3).
Accordingly, Appellant had until September 6, 2013, to file a timely PCRA
petition unless he could plead and prove the application of one of the listed
exceptions. See id. § 9545(b)(1). Therefore, Appellant’s May 11, 2015 pro
se PCRA petition is facially untimely, and it became incumbent upon him to
plead and prove the applicability of one or more of the enumerated
exceptions in order to invoke the jurisdiction of the PCRA court. See
Cristina, supra.
Instantly, Appellant makes no assertion or argument that any of the
enumerated exceptions applies. We acknowledge that Appellant makes a
superficial claim in his brief of after-discovered evidence as justifying an
issue to be raised in a post-trial motion. Appellant’s Brief at 13, citing
Pa.R.Crim.P. 720(C). Appellant does not identify that evidence. His chief
contention is that he was taking various prescribed psychotropic medications
during critical periods of his case. Appellant’s Brief at 9-10. “[T]he general
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rule remains that mental illness or psychological condition, absent more, will
not serve as an exception to the PCRA’s jurisdictional time requirements.”
Commonwealth v. Monaco, 996 A.2d 1076, 1081 (Pa. Super. 2010)
(citation omitted), appeal denied, 20 A.3d 1210 (Pa. 2011).
In light of the foregoing, we conclude the trial court properly dismissed
Appellant’s May 11, 2015 motion, albeit for different reasons than those
expressed by the trial court. We conclude Appellant’s motion is an untimely
second PCRA petition, and that the trial court and this Court lack jurisdiction
to address its merits. Therefore, we affirm the trial court’s June 23, 2015
order. Additionally, we affirm the trial court’s August 4, 2015 order as a
dismissal of a premature serial PCRA petition.10
Orders affirmed. Motion for special relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2016
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10
On October 20, 2015, Appellant filed a motion for special relief with this
Court. Appellant’s application appears merely to be a reiteration of the
merits of his issues presented to the trial court and on appeal. In light of
our disposition above, we deny Appellants Motion as moot.
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