J-S60010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WARREN GERBER :
:
Appellant : No. 424 MDA 2018
Appeal from the PCRA Order January 30, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0005110-2006
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 24, 2018
Appellant, Warren Gerber, appeals pro se from an order entered on
January 30, 2018, denying his motion to amend a previously filed Post
Conviction Relief Act (“PCRA”)1 petition. After review, we affirm.
The PCRA court summarized the facts and procedural history of this case
as follows:
This matter comes before the [c]ourt pursuant to
Appellant’s appeal from this [c]ourt’s dismissal of Appellant’s
motion for leave to amend a 2009 PCRA petition. By way of a quick
review, the Appellant filed a PCRA in 2009 and a second PCRA in
2010 while the first was pending. In February 2014, the PCRA
matter was dismissed upon motion of Appellant’s court appointed
counsel. In March of 2017, Appellant attempted to amend the
2009 PCRA that was denied by the [c]ourt [on January 30,] 2018.
Appellant filed a Notice of Appeal on February 23, 2018, which
gives rise to the instant opinion.
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1 42 Pa.C.S. §§ 9541-9546.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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The procedural history regarding this matter is somewhat
detailed.
Initially, on May 3, 2007, the case was assigned to the
former Judge Michael T. Toole for adjudication.1 Appellant plead
guilty to Theft by Unlawful Taking or Disposition, 18 Pa. C.S.A.
§3921 (a), (F3), forty-one (41) counts; Receiving Stolen Property,
18 Pa. C.S.A. §3925 (a), (F3), six (6) counts; Burglary, 18 Pa.
C.S.A. §3502, (F2), two (2) counts; and Criminal Conspiracy to
commit §3925 Receiving Stolen Property, 18 Pa. C.S.A. §903
(a)(1)(2), (F3), (1) count. On April 14, 2008, former Judge
Michael Toole sentenced the Appellant.
1 Former Judge Michael T. Toole served as a Judge for
the Luzerne County Court of Common Pleas from
January 2004 until his resignation in December 2009.
On April 23, 2008, Appellant filed a post-sentence motion
and on May 1, 2008, Appellant’s post-sentence motion was
granted and Appellant’s prior sentence was vacated and he was
resentenced as follows:
Count 1: 24 months to 48 months at a State
Correctional Institute;
Counts 2-41: 24-48 months concurrent to Count
1;
Count 42: 24 months to 48 months
consecutive to Count 1;
Count 43[-46]: []24 months to 48 months
concurrent to Count 2;
Count 47: 24 months to 48 months
consecutive to Count 42 and 1;
Count 48: 24 months to 48 months
consecutive to 47, 42 and 1; and
Count 49: 24 months to 48 months
consecutive to Count 48, 47, 42 and
1
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The [c]ourt further ordered all sentences to run
consecutive to Criminal Information 2006-2537 and
2006-2538 for a total aggregate sentence of 10-20
years.
On May 14, 2009, Appellant filed a pro se PCRA Petition that
was assigned to former Judge Michael Toole. While Appellant’s
first PCRA was pending, Judge Michael Toole resigned in
December 2009. Thereafter, on September 16, 2010, Appellant
filed a second PCRA Petition that was assigned to, Judge Joseph
Van Jura for adjudication.2 Judge Van Jura appointed Jeffrey A.
Yelen, Esquire as conflict PCRA counsel. A hearing was scheduled
for October 25, 2010. Thereafter the court issued an order on May
20, 2011, allowing for supplements to the pending PCRA matters
and allowed [Appellant] to request an evidentiary hearing by June
20, 2011. On July 18, 2011, Judge Van Jura issued another order
wherein he again allotted time for supplements to the PCRA
petition and allowed [Appellant] to request an evidentiary hearing
by August 31, 2011. Judge Van Jura’s appointment to the bench
expired on December 31, 2012.
2 Judge Joseph J. Van Jura, retired, was confirmed by
the Pennsylvania State Senate to serve as a Court of
Common Pleas Judge in Luzerne County on March 16,
2010 and his term expired on January 2, 2012.
Ultimately, the pending PCRA matters were reassigned to
this [c]ourt. Neither the 2009 or the 2010 PCRA petitions were
adjudicated at that time.3 In order to quickly schedule and move
the long outstanding matter forward, the [c]ourt re-appointed
Jeffrey A. Yelen, Esquire to handle the pending PCRA matters on
February 6, 2014. It should be noted that Attorney Yelen was
originally appointed by Judge Van Jura in 2010.
3 The Appellant filed several matters in federal court
including a pro se Petition for Habeas Corpus on or
about May 4, 2012.
Thereafter, on February 19, 2014, Appellant filed a motion
to withdraw the PCRA matters. Thereafter, on February 26, 2014,
an Order was signed and filed, based upon the motion of
Appellant, granting the Motion to Withdraw noting the pending
matters were dismissed without prejudice. The court was unaware
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of any objections by [Appellant] to the motion to withdraw at the
time the order was signed. In that same order, Attorney Yelen was
permitted to withdraw as counsel.
In review, the pending PCRA matters were adjudicated and
dismissed as of February 26, 2014. The Appellant did not appeal
the withdrawal or file a PCRA petition as to his assigned counsel
and complaints of ineffectiveness. Rather, he filed a series of
documents and letters. The [t]rial [c]ourt did receive Petitioner’s
Supplemental Objections to Counsel’s Motion to Withdraw PCRA
Submission that was filed on July 22, 2014. This document was
filed almost five (5) months after the Order dismissing the pending
PCRA issues was filed. The docket went silent until March of 2017.
On March 13, 2017, Appellant filed a Motion for Leave to
Amend PCRA, pro se, that included Appellant’s
supplement/amendment to the PCRA Petition. In this petition, the
Appellant was attempting to amend and supplement the first PCRA
Petition that he filed on May 14, 2009.
On April 18, 2017, Paul Galante, Esquire was appointed as
counsel for Appellant and a hearing date was scheduled regarding
the filing. After several continuances were granted on behalf of
the Appellant, a hearing was held on January 30, 2018. At that
time, the Commonwealth argued that the request to amend the
petition was moot in that there were no matters pending before
the court. The Commonwealth maintained that [Appellant] could
not supplement a PCRA that was dismissed previously.
The [c]ourt reviewed the record and found that Appellant’s
PCRA matters were denied and dismissed on February 26, 2014,
therefore, a PCRA Petition was not currently pending before the
[c]ourt. At the hearing on January 30, 2018, [Appellant] stated
that he knew his 2010 PCRA was untimely and that he should
never have been appointed a lawyer. (N.T. 1/30/2018 p. 43). The
[c]ourt then pointed out that the Order appointing Attorney Yelen
in February 2014 appointed him as PCRA counsel and [did not]
specifically state it was for the 2010 PCRA only. The appointment
was as PCRA counsel.
Further, at the time of the hearing and after review of the
status of this matter, Appellant was told that if a warranted motion
was filed, the [c]ourt would entertain the motion at that time
regarding the PCRA matters.
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At that time, [o]n January 30, 2018, Appellant also argued
that he no longer wanted [c]ourt appointed counsel and that he
wanted to pursue his legal matters pro se. Based upon the request
of the Appellant, a Grazier[2] hearing was held and after an
extensive colloquy of record, Appellant’s counsel was allowed to
withdraw from the case in order for Appellant to represent himself.
Thereafter, on February 23, 2018, Appellant filed a Notice
of Appeal. On March 1, 2018, an order was entered by the [c]ourt
directing that Appellant file a Concise Statement of Errors
Complained of on Appeal pursuant to Pa. R.A.P. § 1925(b). On
March 19, 2017, Appellant filed a Concise Statement of Matters
Complained on Appeal.
PCRA Court Opinion, 5/16/18, at 1-5.
On May 5, 2018, this Court issued a Rule to Show Cause why this appeal
should not be dismissed as untimely filed. Appellant filed a response, and the
rule was discharged on May 30, 2018. As noted above, the order denying
Appellant’s motion was filed on January 30, 2018. Accordingly, Appellant had
thirty days in which to file a timely appeal. Pa.R.A.P. 903(a). Appellant’s
notice of appeal was docketed in the PCRA court on March 5, 2018, which
makes it facially untimely. However, the record reveals that Appellant’s notice
of appeal was dated February 23, 2018.3 Pursuant to the prisoner mailbox
rule, a pro se prisoner’s document is deemed filed on the date he delivers it
to prison authorities for mailing. Commonwealth v. Jordan, 182 A.3d 1046,
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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3February 23, 2018, is the date that the PCRA court deemed Appellant’s notice
of appeal filed. PCRA Court Opinion, 5/16/18, at 1 and 5.
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1048 n.3 (Pa. Super. 2018). Thus, Appellant’s notice of appeal was timely if
it was delivered to prison authorities on February 23, 2018, the date that is
on the document, and the date that was accepted by the PCRA court.
Moreover, in Appellant’s response to our Rule to Show Cause, he appended a
mail receipt that revealed the appeal was postmarked February 26, 2018, and
received by the Luzerne County Clerk of Courts on March 1, 2018.
Additionally, the PCRA court stated in its March 1, 2018 order directing
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), that it had received Appellant’s notice of
appeal, i.e., it was filed on or before March 1, 2018. We are satisfied that
Appellant filed his notice of appeal, at the latest, on February 26, 2018, as
reflected by the postmark.4 Accordingly, Appellant’s notice of appeal was
timely.
On appeal, Appellant raises the following issues:
I. Whether Appellant’s supplemental PCRA petition should be
remanded to the PCRA court, and his PCRA rights restored,
because the current PCRA was an amendment to his first petition
which was lost and improperly dismissed by the PCRA court, when
Appellant was entitled to the assistance of competent counsel to
frame, in a legally intelligible fashion, the issues presented in his
pro se first PCRA petition and supplement thereto? To wit:
a. Where counsel was ineffective per se, when
Attorney Jeffery Yelen abandoned Appellant’s PCRA
since 2010, was then reappointed by the PCRA court
in 2014 to represent the same PCRA he had previously
____________________________________________
4 Even if the notice of appeal was not filed until March 1, 2018, the same day
that the PCRA court issued its Pa.R.A.P. 1925(b) order, the appeal was timely.
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abandoned, and was then further permitted by the
PCRA court to withdraw the Appellant’s PCRA petition
over Appellant’s objections?
b. Where the PCRA court failed to respond to
Appellant’s objections to Attorney Yelen’s withdrawal
of his PCRA petition, failed to inform Appellant of his
right to appeal the 2014 Order dismissing his PCRA
pursuant to Pa.R.Crim.P. 907(4), and failed to appoint
counsel to execute an appeal from the 2014 Order
pursuant to Pa.R.Crim.P. 904(F)(2), when Appellant
requested, and was entitled to counsel?
c. Where recent PCRA counsel, Paul A. Galante, left
Appellant effectively un-counseled, when he failed to
supplement Appellant’s PCRA to include the collective
prejudice caused by the abandonment, then
reappointment of initial PCRA counsel in conflict of
Appellant’s interests, and the complete breakdown in
due process by the PCRA court, requiring Appellant’s
PCRA rights, if lost, to be restored nunc pro tunc,
thereby establishing jurisdiction of the PCRA court to
entertain Appellant’s petition?
2. Whether, on remand, recusal is necessary to assure that due
process of law, as guaranteed-by-the-Fourteenth Amendment to
the constitution of-the United States arising from the appearance
of bias on the part of the PCRA judge’s decisions to, and frequency
of, absolving appointed ‘PCRA counsel of their obligation to take
affirmative steps to competently discharge their duties pursuant
to established PCRA rules and decisional laws? To wit:
a. Where the court reappointed Attorney Yelen in
2014 when the record indicated counsel had
previously abandoned Appellant’s PCRA since 2010,
and failed to meaningfully participate, and/or amend
Appellant’s PCRA petition in violation of the
representation requirement, and further permitted
counsel to withdraw his petition “without prejudice,”
ignoring Appellant’s objections, when prejudice was
inherent by the PCRA’s (1) year timeliness
requirement, thereby, forever barring Appellant from
filing a future petition?
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b. Where the court failed to advise Appellant of his
right to appeal from the 2014 Order dismissing his
PCRA petition pursuant to Pa.R.Crim.P. 907(4), and
failed to appoint counsel to execute an appeal from
the 2014 Order pursuant to Pa.R.Crim.P. 904(F)(2),
when Appellant requested, and was entitled to counsel
throughout the appeal process?
c. Where the court clarified its 2014 Order dismissing
Appellant’s PCRA, to mean that it dismissed both
Appellant’s (lost) 2009 and 2010 petitions, when the
Order was ambiguous, the record indicated
Appellant’s PCRA rights were violated for over (8)
years, and the Commonwealth interpreted the Order
to mean the 2009 petition “has never been”1 ruled on,
thereby, providing the court with the opportunity to
protect Appellant’s PCRA rights, and interpret the
Order in a manner establishing jurisdiction to
entertain his supplemental PCRA, without further
delay, and cost of appellate court intervention?
1 See Record, Doc. 30, exhibit A,
3/13/2017 PCRA Supplement, Appendix
3, Commonwealth’s federal response,
pg.6, “Technically, the motion was never
decided because Gerber elected to file
another Motion for PCCR in 2010 (and that
motion was clearly untimely). The
February 24, 2014 Order of the Luzerne
County Court of Common Pleas does not
impact the analysis of the statute of
limitations issue. The court simply
dismissed the 2010 Motion for PCCR as
requested by Attorney Yelen. There has
never been a ruling that the 2009 motion
was improperly filed.”
d. Where the court ordered, but never enforced,
recent PCRA counsel, Attorney Galante, to
supplement Appellant’s PCRA petition, where the
issues of breakdown in the process of the court, and
jurisdiction to entertain the PCRA petition could have
been properly raised?
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e. Where the circumstances of this case are eerily
similar to that of Commonwealth v. Cherry, 155 A.3d
1080 (Pa. Super. 2017), where this court again
appointed Attorney Yelen who failed and refused to
represent his PCRA client competently, and on the
basis of stare decisis, where the court is shirking its
duties and refusing to comport to precedent?
Appellant’s Brief at 4-6.
Before we endeavor to address the merits of the issues that Appellant
purports to raise on appeal, we reiterate that the order on appeal is not an
order denying a PCRA petition; it is an “appeal [from] an order of court that
simply denied [Appellant’s] request to supplement a 2009 PCRA Petition in
March of 2017.” PCRA Court Opinion, 5/16/18, at 6.
As noted above, the PCRA court concluded that Appellant filed a timely
PCRA petition in 2009, and it was assigned to Judge Michael Toole, who
resigned from the bench in December of 2009. Although the 2009 PCRA
petition was docketed, the petition was never included in the record.
However, on September 16, 2010, Appellant filed a second PCRA petition.
That petition was assigned to Judge Van Jura, who appointed Attorney Jeffrey
Yelen. Judge Van Jura’s appointment expired on December 31, 2012, and this
matter was reassigned to the Honorable Tina Polachek Gartley, the current
PCRA court judge. After this case languished for over two years, the PCRA
court reappointed Attorney Yelen to represent Appellant on the pending PCRA
matters on February 6, 2014.
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On February 19, 2014, Attorney Yelen filed a motion asserting that after
consulting with Appellant, Appellant decided not to pursue any PCRA matters
and asked to withdraw the PCRA petition. On February 26, 2014, the PCRA
court granted Appellant’s motion to withdraw the petition and permitted
counsel to withdraw.
Five months later, on July 22, 2014, Appellant filed pro se objections to
counsel’s motion to withdraw his PCRA petition. Once again, the case went
dormant, and for nearly three years, nothing was filed in the PCRA court.5
On March 13, 2017, Appellant filed a pro se motion for leave to amend
his PCRA petition. In this motion, Appellant sought to amend his 2009 PCRA
petition.
In an abundance of caution, the PCRA court appointed Attorney Paul
Galante to represent Appellant in litigating the motion to amend his 2009
PCRA petition on April 19, 2017. Between the April 19, 2017 appointment,
and the January 30, 2018 hearing, Attorney Galante did not file any additional
pleadings or seek to file a supplemental or amended PCRA petition.
Accordingly, the PCRA court ruled as follows: “At this hearing – [the c]ourt
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5 We note that in this intervening period, Appellant pursued habeas corpus
relief in the federal courts. On February 23, 2017, the Honorable Jon E. Jones,
III, ordered, after proceedings in the United States District Court for the Third
Circuit, Count 38 in the underlying criminal information in the Luzerne County
Court of Common Pleas was to be vacated. As noted above, the sentence at
Count 38 ran concurrently with Count 1, and therefore, Judge Jones’s order
did not impact Appellant’s aggregated sentence. Moreover, the district court’s
ruling had no effect on the PCRA proceedings.
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finds that nothing is pending before the court. If [Appellant] files a warranted
motion, the [c]ourt will entertain said motion.” Order, 1/30/18.
After review, we agree with the PCRA court that there was no
substantive issue upon which the court could have ruled. As noted, Appellant
filed a timely PCRA petition in 2009, which appears to have been lost, and
therefore, there was no ruling on that petition. However, Appellant filed a
subsequent PCRA petition on September 16, 2010, and the PCRA court
appointed counsel. At that juncture, and facing a finding of waiver,6 Appellant
and his counsel had the opportunity to raise any issues for the PCRA court’s
consideration, including the PCRA court’s failure to rule on the 2009 petition
and failure to appoint counsel for that first petition.7
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6 See 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter, an issue is
waived if the petitioner could have raised it but failed to do so before trial,
during unitary review, on appeal or in a prior state postconviction
proceeding.”).
7 We agree with the Commonwealth’s argument on this point:
The misplacement of the timely-filed 2009 petition is
certainly unfortunate and lamentable and the Commonwealth
does not make light of that circumstance at all. However, 15
months later, [Appellant] was afforded counsel who, if [Appellant]
had wished, could have pursued a quest for PCRA relief, possibly
relying upon the governmental interference exception to the PCRA
time-bar to argue that the PCRA court had jurisdiction to consider
[Appellant’s] claims. However, although disputed by [Appellant]
after the fact, counsel withdrew that petition at [Appellant’s]
direction.
Commonwealth’s Brief at 18-19.
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It is true that PCRA courts are vested with the discretion to permit
amendments to a pending, timely-filed PCRA petition. Commonwealth v.
Flanagan, 854 A.2d 489, 499-500 (Pa. 2004). However, when Appellant filed
his 2017 motion to amend, his 2009 PCRA petition was not pending. As noted,
Appellant’s 2009 PCRA petition was docketed but never entered in the record.
In 2010, Appellant filed a second PCRA petition, counsel was appointed, and
Appellant had the opportunity to raise any issues cognizable under the PCRA.
However, Appellant moved to withdraw not only his 2010 petition, but also
affirmatively stated that he “did not want to pursue any possible PCRA
issues.” Motion to Withdraw PCRA Petition, 2/19/14, at ¶3 (emphasis added).
After the motion was granted, there were no PCRA petitions or PCRA matters
“pending.” Moreover, we note that Appellant did not file an appeal from the
order granting his motion to withdraw his PCRA petition and did not pursue
PCRA relief challenging counsel’s motion to withdraw and forgo PCRA relief.
Accordingly, we affirm the PCRA court’s order denying Appellant’s
motion to amend his PCRA petition, and we do not reach the merits of the
issues raised by Appellant on appeal. These issues were never raised before
or decided by the PCRA court as there was nothing pending at the time of the
January 30, 2018 hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2018
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