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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHRISTOPHER STEELE :
:
Appellant : No. 848 WDA 2022
Appeal from the PCRA Order Entered June 8, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001105-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED: MARCH 7, 2023
Christopher Steele appeals, pro se, from the order, entered in the Court
of Common Pleas of Erie County, dismissing his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.1
In December 2018, Steele was sentenced to an aggregate sentence of
66-180 months’ incarceration after being found guilty by a jury of aggravated
assault, reckless endangerment, possession of an instrument of crime, and
criminal use of a communication facility. Steele filed a timely motion for
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1 On December 7, 2022, our Court granted the Commonwealth’s application
for an extension of time within which to file its brief. We ordered that the brief
be filed on or before January 4, 2023. To date, the Commonwealth has not
filed a brief.
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reconsideration asserting an Apprendi2 issue as well as an excessiveness of
sentence claim. While his motion was pending, Steele filed a direct appeal3
and a pro se PCRA petition, a motion to proceed in forma pauperis, and a
motion for the appointment of PCRA counsel.4 On February 7, 2019, the trial
court denied Steele’s motion to reconsider. On February 28, 2019, the trial
court dismissed, “as prematurely filed,” Steele’s pro se PCRA petition and
motions, due to his pending direct appeal.5 See Order, 2/28/19.6 On July 6,
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2 See Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding every factor
necessary to defendant’s punishment must either be admitted or found by
jury beyond reasonable doubt).
3 Technically, our Court should have quashed Steele’s appeal as premature.
See Commonwealth v. Borrero, 692 A.2d 158, 159-60 (1997) (if post-
sentence motions filed, judgment of sentence does not become final for
purposes of appeal until trial court disposes of motion or motion deemed
denied by operation of law; Court required to quash appeal “[b]ecause we are
precluded from exercising jurisdiction over appeals from non[-]final orders or
judgments.”); see also Pa.R.Crim.P. 720, Comment (“No direct appeal may
be taken by a defendant while his or her post-sentence motion is pending.”).
4 The Erie County Clerk of Records forwarded these pro se motions to counsel-
of-record, Robert Barbato Jr., Esquire. See Pa.R.Crim.P. 576(A)(4). See also
Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011) (petitioner’s pro se
motion filed while petitioner represented by counsel is impermissible hybrid
representation). “[I]ndeed, [such] pro se motion[s] have no legal effect, and,
therefore, are legal nullities.” See Commonwealth v. Williams, 151 A.3d
621, 623 (Pa. Super. 2016).
5 The pro se petition alleged ineffectiveness of trial counsel, a constitutional
violation, after-discovered evidence, and an illegality of sentence claim.
6 On March 5, 2019, counsel filed a motion to reinstate Steele’s appellate
rights nunc pro tunc due to counsel’s failure to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. On March 12, 2019, this Court
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2020, our Court reversed Steel’s criminal use conviction on the basis of
insufficient evidence, affirmed his remaining convictions, and remanded for
resentencing. See Commonwealth v. Steele, 234 A.3d 840 (Pa. Super.
2020). Steele was resentenced on August 18, 2020, to an aggregate term of
57-180 months of incarceration, followed by a three-year probationary tail.
On August 21, 2020, Steele filed a pro se PCRA petition. On September
2, 2020, the trial court appointed PCRA counsel, who filed a “supplement” to
Steele’s PCRA petition.7 On October 20, 2020, the PCRA court gave Steele
Pa.R.Crim.P. 907 notice of its intention to dismiss his petition without a
hearing. Steele did not file a response. On December 3, 2020, the PCRA court
denied the petition. Steele filed a timely collateral appeal. Our Court affirmed
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granted the motion to reinstate Steele’s appellate rights nunc pro tunc and
ordered Steel to file his Rule 1925(b) statement by March 25, 2019. However,
on May 7, 2019, our Court dismissed the appeal due to counsel’s failure to file
an appellate brief. See Order, 5/7/19. On July 22, 2019, counsel filed a
motion to reconsider dismissal of the appeal, alleging that he had recently
been appointed to represent Steele and “had not been able to obtain the case
file for th[e] matter” by the briefing deadline. See Motion To Reconsider,
7/22/19. Subsequently, Steele filed a pro se application for relief seeking
appointment of new counsel. On August 2, 2019, our Court entered an order
reinstating Steele’s appeal, directing the trial court to determine whether
counsel has abandoned Steele and to “take further action as the court may
deem necessary.” Order, 8/2/19. On remand, the trial court held a hearing
and determined that Steele’s new attorney “will comply with all necessary
requirements pursuant to [Steele’s] pending appeal.” Trial Court Order,
8/29/19.
7Steele alleged trial counsel was ineffective for failing to seek enforcement
of a plea agreement that was purportedly reached at the magisterial level.
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the PCRA court’s order. Commonwealth v. Steele, 270 A.3d 1152 (Pa.
Super. 2021) (Table).
On April 14, 2022, Steel filed the instant pro se PCRA petition. On April
20, 2022, the PCRA court issued notice of its intent to dismiss the petition
without a hearing, pursuant to Rule 907. Steele filed a pro se response to the
court’s Rule 907 notice and, on June 8, 2022, the PCRA court dismissed
Steele’s petition.
Steele filed a timely pro se notice of appeal and court-ordered Rule
1925(b) statement. On appeal, Steele presents the following issues for our
consideration:
(1) Whether the [PCRA court] abused [its] discretion and
committed reversible error in denying [Steele’s] PCRA
petition without an evidentiary hearing . . . where disputed
issues of factual matters exist involving [d]ue [p]rocess and
[d]ouble [j]eopardy violations of the United States and
Pennsylvania Constitutions that entitle [Steele] to [PCRA]
relief[.]
(2) Whether the [trial judge] failed to find that Magistrate Paul
A. Bizzarro erred and abused his discretion when he failed
to record the terms of the original plea agreement arrived
at before him in [c]ourt [which] substantially prejudiced
[Steele] and violated [his] [d]ue [p]rocess [rights.]
(3) Whether the [PCRA court erred by] fail[ing] to find that the
Magistrate Paul A. Bizzarro erred and abused his discretion
when he failed to conduct a colloquy record of [Steele’s]
original plea of guilt [which] substantially prejudice[d
Steele] and violat[ed Steele’s] [d]ue [p]rocess [rights.]
(4) Whether the [PCRA court erred by] fail[ing] to find that the
Magistrate Paul A. Bizzarro erred and abused his discretion
when he arbitrarily cancelled [Steele’s] original
disposition/[Steele’s] original plea of guilt [and] violated
[Steele’s] [d]ue [p]rocess and [d]ouble [j]eopardy [rights.]
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(5) Whether the [PCRA court erred by] fail[ing] to find that the
District Judge John A. Bozza erred and abused his discretion
in failing to make the necessary determination to conduct
an adequate search into the ambiguities with the plea
agreement [and] violate[d Steele’s] [d]ue [p]rocess
[rights.]
(6) Whether the Hon[orable] John J. Mead failed to find that the
[Honorable] John J. Gerhart erred and abused his discretion
when he failed to remain fair and impartial towards [Steele]
before, during, and after trial [and, thus,] violat[ed Steele’s]
[d]ue [p]rocess and [d]ouble [j]eopardy [rights.]
(7) Whether the [PCRA court erred by] fail[ing] to find that the
totality of the Commonwealth’s conduct substantially
prejudiced [Steele] before, during, and after trial [and,
thus,] violated [Steele’s] [d]ue [p]rocess and [d]ouble
[j]eopardy [rights.]
(8) Whether the [PCRA court] failed to find that all [of Steele’s]
prior counsel prejudiced [him] in their combined layered
ineffective assistance of counsel [by] failing to provide
[Steele] with meaningful counsel[.]
(9) Whether the [a]ppellate [c]ourt erred and abused its
discretion in denying [Steele’s] (1st) PCRA [a]ppeal attempt
when it made its determination based upon a self-serving
statement from ineffective counsel[,] rather than
independently investigating the record . . . especially where
there was no record[.]
(10) Whether the [PCRA court] erred and abused [its] discretion
when he failed to find that [Steele’s] current (2nd) PCRA
petition should be an extension of [his] (1st) PCRA appeal
attempt since [Steele] was prejudiced by ineffective
assistance of counsel on his (1st) PCRA attempt[.]
Appellant’s Brief, at x-xii.
When reviewing an order denying PCRA relief, we must "determine
whether it is supported by the record and is free of legal error."
Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017). Furthermore,
we note:
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[T]he PCRA court has discretion to dismiss a petition without a
hearing when the court is satisfied “there are no genuine issues
concerning any material fact, the defendant is not entitled to post-
conviction collateral relief, and no legitimate purpose would be
served by further proceedings. To obtain reversal of a PCRA
court’s decision to dismiss a petition without a hearing, an
appellant must show that he raised a genuine issue of fact which,
if resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing.”
Id. at 297 (citations and some punctuation omitted).
Before we may address Steele’s issues on appeal, we must first
determine whether the PCRA court had jurisdiction to consider his PCRA
petition. Generally, a petition for PCRA relief, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final. See 42 Pa.C.S.A. § 9545(b)(3); see also
Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997). There are,
however, exceptions to the time requirement, set forth at 42 Pa.C.S.A. §§
9545(b)(1)(i),(ii), and (iii). Where the petition alleges, and the petitioner
proves, that an exception to the time for filing the petition is met, the petition
will be considered timely. These exceptions include interference by
government officials in the presentation of the claim, after-discovered facts or
evidence, and an after-recognized constitutional right. Id. See
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). A PCRA
petition invoking one of these exceptions must “be filed within one year of the
date the claims could have been presented.” Id.; see also 42 Pa.C.S.A. §
9545(b)(2). The timeliness requirements of the PCRA are jurisdictional in
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nature and, accordingly, a PCRA court cannot hear untimely petitions.
Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003).
Here, Steele’s judgment of sentence became final on September 18,
2020, when the time expired for him to file a direct appeal. See Pa.R.A.P.
902. Thus, Steele had until September 18, 2021, to file a timely PCRA
petition. The current petition, filed on April 14, 2022, is, therefore, patently
untimely. Thus, unless Steele pleads and proves a timeliness exception to the
PCRA time-bar, the PCRA court had no jurisdiction to consider the merits of
his petition. See Commonwealth v. Jackson, 30 A.3d 845 (Pa. 2012) (if
PCRA petition deemed untimely and no exception pled and proven, petition
must be dismissed without hearing because court lacks jurisdiction to consider
merits of petition).
Because Steele’s petition does not plead, let alone prove, any PCRA
timeliness exception, his petition is time-barred. See Commonwealth v.
Brown, 111 A.3d 171 (Pa. Super. 2015) (where petitioner neither
acknowledged untimeliness of petition nor alleged any exception to PCRA
time-bar, petitioner failed to “plead and prove” any section 9545(b)(1)
exception); see also Commonwealth v. Wharton, 886 A.2d 1120, 1126
(Pa. 2005) (“Exceptions [to the PCRA jurisdictional time-bar] cannot be raised
for the first time on appeal[.]”). Thus, the trial court properly dismissed
Steele’s petition. Cousar, supra.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2023
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