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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DALLAS RAY VAVRA, :
:
Appellant. : No. 3918 EDA 2017
Appeal from the Order, November 3, 2017,
in the Court of Common Pleas of Northampton County,
Criminal Division at No(s): CP-48-CR-0000809-2011.
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 20, 2018
Dallas Ray Vavra appeals from the order denying his serial petition
under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 2010, following a bench trial, Vavra was convicted of theft by failure
to make required disposition of funds and receiving stolen property. The trial
court sentenced him to nine to twenty-three months of incarceration. Vavra
filed a timely appeal to this Court. On August 2, 2012, we affirmed his
judgment of sentence. Commonwealth v. Vavra, 60 A.3d 555 (Pa. Super.
2012) (unpublished memorandum). Vavra did not seek further review.
On December 26, 2012, Vavra filed a pro se PCRA petition. The PCRA
court appointed counsel, who subsequently filed an amended PCRA petition.
The PCRA court held a hearing on April 1, 2013, and the court denied the
petition on May 3, 2013. Vavra filed an appeal to this Court (No. 1668 EDA
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2013). During the pendency of that appeal, on January 13, 2014, Vavra filed
a subpoena for appellate counsel, who he claimed was ineffective. The court
quashed the subpoena on February 4, 2014. On February 18, 2014, Vavra
filed a pro se motion for reconsideration, which the trial court denied on
February 19, 2014. On February 21, 2014, Vavra filed a notice of appeal from
the order quashing his subpoena (No. 717 EDA 2014). On March 18, 2014,
Vavra another notice of appeal from the order denying his motion for
reconsideration (No. 924 EDA 2014).
This Court found that Vavra’s appeal at No. 924 EDA 2014 was
duplicative of his appeal at No. 717 EDA 2014, which involved the underlying
order quashing the subpoena. On July 18, 2014 this Court had dismissed the
appeal at No. 717 EDA 2014 without prejudice, because it, in turn, was
duplicative of Vavra’s pending appeal from the denial of his PCRA petition at
No. 1668 EDA 2013. Thu, this Court dismissed the appeal at No. 924 EDA
2014. We further stated:
[S]ince 2011, [Vavra] has filed 57 notices of appeal in
five criminal cases from Monroe and Northampton counties.
[Vavra] has also filed more than 126 motions resulting in
this Court’s Prothonotary having to file, process, and docket
more than 277 [additional] documents. Thus, we hereby
prohibit [Vavra] from submitting any additional
filings for relief in this case without prior permission
from this Court. We further direct the Prothonotary to
assess appropriate costs against [Vavra] in connection with
the instant appeal. See Pa.R.A.P. 2744 (stating appellate
court may assess costs if it determines appeal is frivolous).
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Commonwealth v. Vavra, 2015 WL 6957472 (Pa. Super. 2015),
unpublished judgment order at 3 (footnote omitted).
On July 22, 2016, this Court affirmed the order denying Vavra’s PCRA
petition at No. 1668 EDA 2013. Commonwealth v. Vavra, 2016 WL4743874
(Pa. Super. 2016). We affirmed because “Vavra has completed his sentence
and is therefore no longer eligible for PCRA relief.” See id., unpublished
judgment order at 2-3. In addition, we noted that “Vavra has been prohibited
from submitting ‘any additional filing for relief’ in this appeal . . . without
permission from this Court. Id., unpublished judgment order at 3, n.2. The
Pennsylvania Supreme Court denied Vavra’s petition for allowance of appeal
on March 14, 2017. Commonwealth v. Vavra, 169 A.3d 7 (Pa. 2017).
Vavra did not heed our directives. On August 22, 2017, Vavra filed a
“Motion for Habeas Corpus—Praecipe for Entry of an Adverse Order of the
Court.” The court denied this petition on August 31, 2017. Thereafter, Vavra
filed two notices of appeal from this order (No. 3229 EDA 2017 and No. 3232
EDA 2017).
On October 30, 2017, Vavra filed “Defendant’s Pro-Se Habeas Corpus—
Motion to Have All of the Court’ Orders and Proceedings Vacated, From the
Date of July 29th, 2011 Up to and Including the Present Date; for Lack of
Jurisdiction Pursuant to the Still [Pending] Appeal on Defendant’s Speedy Trial
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Rights.”1 The PCRA court denied this petition on November 3, 2017. This
appeal followed (No. 3918 EDA 2017). On December 15, 2017, the court
entered an order directing Vavra to file a Concise Statement of Errors
Complained of on Appeal within twenty-one days. See Pa.R.A.P. 1925. Vavra
failed to timely comply with this order. Instead, Vavra filed “Appellant’s
Statement Nunc Pro Tunc” on June 7, 2018.2
Before addressing the issues Vavra raises in this appeal, we must first
determine if this appeal is properly before us.
Initially, we note that Vavra’s latest filing should have been treated as
a petition for post-conviction relief. See Commonwealth v. Descardes, 136
A.3d 493, 503 (Pa. 2016) (explaining that, when a petitioner’s claim is
cognizable under the PCRA, the PCRA is the only method of obtaining collateral
review). This Court’s standard of review regarding an order dismissing a
petition under the PCRA is to ascertain whether “the determination of the PCRA
court is supported by the evidence of record and is free of legal error. The
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1 Vavra filed a similar motion on September 22, 2017. There is no indication
in the record that the court ruled on it.
2 Additionally, Vavra has subsequently filed three applications for relief with
this Court. In an Order dated August 16, 2018 we denied each application
and further stated: “This Court prohibits [Vavra] from submitting any
additional filings for relief or notice of appeal in the Northampton Court of
Common Pleas and the Prothonotary of this Court, involving trial court docket
number CP-48888-CR0000809-2011, without prior permission from this
Court.”
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PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,
191-92 (Pa. Super. 2013) (citations omitted).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, that he meets an
exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii).3 A PCRA petition invoking one of these statutory
exceptions must “be filed within 60 days of the date the claims could have
been presented.” See Commonwealth v. Hernandez, 79 A.3d 649, 651-
52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).
Asserted exceptions to the time restrictions for a PCRA petition must be
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3 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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)(i), (ii), and (iii).
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included in the petition, and may not be raised for the first time on appeal.
Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).
Here, because Vavra did not seek further review following our decision
affirming his judgment of sentence, for PCRA purposes, his judgment of
sentence became final thirty days thereafter, or on September 4, 2012.4 See
42 Pa.C.S.A. § 9543(b)(3). Thus, for purposes of the PCRA’s time bar, Vavra
had to file his PCRA petition by September 4, 2013. Vavra filed his latest
petition on November 3, 2017. Thus, the petition is untimely, unless Vavra
satisfied his burden of pleading and proving that one of the enumerated
exceptions applies. See Hernandez, supra.
Vavra has not acknowledged the PCRA’s time bar, let alone pled or
proven any exception thereto. Thus, the PCRA court lacked jurisdiction to
consider the merits of Vavra’s serial petition. We could affirm on this basis
alone. See 42 Pa.C.S.A. § 9543(b)(3). See Commonwealth v. Doty, 48
A.3d 451, 456 (Pa. Super. 2012) (explain this Court is not bound by the PCRA
court’s rationale, but may affirm on any basis).
Nevertheless, we echo the holding of our previous judgment order that
Vavra is ineligible for post-conviction relief because he had completed serving
his sentence at the above docket number. Although Vavra may still be on
probation for convictions in another county, see Vavra’s Reply Brief at 6, the
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4This date takes into account that the thirtieth day fell on a Saturday, as
well as the Labor Day holiday. See 1 Pa.C.S.A. § 1908.
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PCRA specifically provides that to be eligible for relief the petitioner must be
still serving a sentence for the crime for which he seeks relief. See 42
Pa.C.S.A. § 9543(a)(1)(i) (providing that, to be eligible for relief under the
PCRA, a petitioner must plead and prove by a preponderance of the evidence
that he “has been convicted of a crime under the laws of this Commonwealth
and is at the time relief is granted . . . currently serving a sentence of
imprisonment, probation or parole for the crime”) (emphasis added).
Contrary to Vavra’s claim that he is still under supervision for payment
of fees, Vavra’s Reply Brief at 6, a PCRA petitioner is ineligible for post-
conviction relief when the only component of his sentence outstanding is the
payment of restitution, Commonwealth v. James, 771 A.2d 33 (Pa. Super.
2001), or when the only component outstanding is the payment of a fine.
Commonwealth v. Fisher, 703 A.2d 714 (Pa. Super. 1997).
Moreover, we note that the Commonwealth claims that all of his
appellate issues are waived on appeal because he failed to timely comply with
the PCRA court’s request for a Pa.R.A.P. 1925(b) statement. See
Commonwealth’s Brief at 6. We agree. See Pa.R.A.P. 1925(b)(3)(i);
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), reaffirmed in
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (establishing
bright line rule that in order to preserve claims for appellate review, the
appellant must comply whenever the trial court orders them to file a Pa.R.A.P.
1925(b) statement; any issues not raised in the statement are deemed
waived).
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In response, Vavra avers that the PCRA court lacked jurisdiction to enter
the order requiring a Rule 1925(b) statement, as well as all previous orders,
due to an “UNADJUDICATED PRO SE appeal” which he had filed as part of
his direct appeal on July 29, 2011. Vavra’s Brief at 19 (emphasis in original).
This jurisdictional challenge is the essential element of most of the claims he
raises on appeal. Vavra is mistaken, as no notice of appeal remains pending.
Following his conviction and sentence, Vavra filed a pro se notice of
appeal, even though he was still represented by counsel. In Vavra’s direct
appeal we explained:
Neither [Vavra] nor his counsel filed a post-sentence
motion, but on July 29, 2011, [Vavra] filed a pro se timely
notice of appeal. Although there was no certificate of
service, the trial court docket entry for the notice of appeal
indicates that copies were provided to [Vavra’s] counsel and
the Commonwealth. Criminal Docket at 6. On August 5,
2011, the court ordered a statement pursuant to Pa.R.A.P.
1925(b). Neither the order nor the docket state[s] on whom
service was made, but [Vavra’s] counsel complied on August
26, 2011. Although the record does not include any
petitions for extension of time, the trial court stated that
[Vavra] filed such pro se requests. The court entered two
orders . . . granting [Vavra] an additional fifteen days.
[Vavra] subsequently filed a pro se twenty-three page
1925(b) statement on October 7, 2011. Trial Ct. Op.,
11/15/12, at 1.
Vavra, unpublished memorandum at 3-4.
This Court then noted Pennsylvania’s long-standing policy which
precludes “hybrid representation,” that is, instances where a pro se appellant
continues to file documents regarding his appeal, even though his counsel is
filing similar items on his behalf. See generally, Commonwealth v. Jette,
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23 A.3d 1032 (Pa. 2011). We then discussed other cases that explained that
the purpose behind this prohibition was “driven primarily by the problems of
competing filings from an appellant and his counsel.” Vavra, unpublished
memorandum at 5-6 (citing Commonwealth v. Glacken, 32 A.3d 750, 753
(Pa. Super. 2011). In Glacken, a represented defendant filed a pro se notice
of appeal, Rule 1925(b) statement and appellate brief with this Court, while
his counsel did not file “anything.” Glacken, 32 A.3d at 752. Under the
circumstances, we distinguished Jette, and did not quash the appeal on this
basis because there were no “competing filings.” Id., at 753.
In Vavra’s direct appeal, this Court also recognized that there were no
“competing filings” between Vavra and his counsel:
Instantly, no post-sentence motion was left outstanding
by [Vavra’s] pro se notice of appeal, counsel complied with
the court’s 1925(b) order, and counsel filed an appellate
brief. Because there are no competing filings, by [Vavra]
and his counsel, we decline to quash this appeal. See
[Glacken, 32 A.3d at 752-53]. We do note that the trial
court erred in accepting and ruling on [Vavra’s] pro se
petitions for extension of time to file a Rule 1925(b)
statement. See Commonwealth v. Ali, 10 A.3d 282, 293
(Pa. 2010) (holding that because defendant was
represented by counsel on appeal, his pro se Pa.R.A.P.
1925(b) statement was a legal nullity). Nevertheless,
because the counseled brief does not address any issue
raised in [Vavra’s] pro se 1925(b) statement, we need not
consider the propriety of any issues presented by [Vavra]
therein.
Vavra, unpublished memorandum at 6. We then addressed and rejected
Vavra’s two issues argued in his counseled brief.
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As this Court noted above, Vavra’s filing of a pro se notice of appeal,
and counsel’s later filing of a Rule 1925(b) statement and brief, complemented
each other rather than competed against other. In other words, there was no
need for counsel to file a counseled notice of appeal. 5 In addition, we note
that, although Vavra claims he only filed the notice of appeal to challenge the
denial of his Rule 600 motion, his pro se filing actually preserved his appeal
of any preserved issues regarding his conviction and sentencing. This Court
disposed of all issues raised on his direct appeal in the unpublished
memorandum dated August 2, 2012. See Vavra, supra.
Finally, Vavra asserts that the PCRA court also lacked jurisdiction
because of his two other pending appeals at this docket number. We find no
merit to this claim, and note that each of these appeals have been disposed
of administratively. See Commonwealth v. Vavra, No. 3232 EDA 2017
(dismissing appeal as duplicative); Commonwealth v. Vavra, No. 3229 EDA
2017 (dismissing appeal for failure to file a brief).
In sum, for all of the above reasons, we conclude that the PCRA court
properly denied Vavra’s latest PCRA petition. The petition was untimely. The
PCRA court had jurisdiction to order the Rule 1925(b) statement, and Vavra
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5Had counsel done so, the notice of appeal would have been likely quashed
by this Court as duplicative. See generally, Commonwealth v. Cooper, 27
A.3d 994 (Pa. 2011).
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did not comply. We therefore affirm the PCRA court’s order denying post-
conviction relief.6
Order affirmed.
Judge Bowes joins the Memorandum.
Judge Olson files a Concurring Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/18
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6 We remind Vavra of this Court’s previous orders prohibiting him from filing
additional applications for relief or notices of appeal relating to his convictions
at CP-48-000809-2011. Should Vavra continue to disobey this prohibition we
will not hesitate to impose additional costs on him. See Pa.R.A.P. 2744.
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