J-A13044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN J. HAMILTON :
:
Appellant : No. 1325 MDA 2022
Appeal from the PCRA Order Entered August 30, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000099-2013
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 26, 2023
Appellant Shawn J. Hamilton appeals from the order of the Court of
Common Pleas of Luzerne County dismissing his petition pursuant to the Post-
Conviction Relief Act (PCRA).1 After careful review, we affirm.
This Court summarized the procedural history of this case in a decision
denying Appellant’s first PCRA petition:
On October 24, 2012, Appellant was charged at CP–40–CR–
0003751–2012 (3751–2012) with three counts of criminal
homicide, one count of criminal attempt homicide, and four counts
of robbery for his involvement in an incident that occurred on July
7, 2012. On December 10, 2012, the Commonwealth filed notice
of its intent to seek the death penalty against Appellant, and this
case was consolidated with that of Appellant's brother and co-
defendant, Sawud Davis.
Subsequently, on December 13, 2012, Appellant was
charged at CP-40–CR–0000099–2013 (99–2013) with one count
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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of criminal homicide in connection with a shooting that occurred
on July 6, 2012.
***
On December 20, 2013, Appellant entered into a plea
agreement with respect to both cases. Specifically, at 3751–2012,
Appellant pled guilty to three counts of criminal homicide and one
count of criminal attempt homicide and, at 99–2013, he pled guilty
to one count of criminal homicide. In exchange, the
Commonwealth agreed to withdraw the remaining charges at both
criminal informations and indicated it would not seek the death
penalty in either case. Appellant waived his right to a pre-sentence
investigation and proceeded immediately to sentencing. [On
December 20, 2013,] [t]he trial court imposed four consecutive
life sentences at each criminal homicide count, and a consecutive
term of twenty to forty years' imprisonment at the criminal
attempt homicide charge.
Commonwealth v. Hamilton, 1072 MDA 2015, 2016 WL 2908260, at *1
(Pa.Super. May 17, 2016) (unpublished memorandum). Appellant did not file
a direct appeal.
On April 24, 2014, Appellant filed a pro se PCRA petition. The PCRA court
appointed counsel, who subsequently filed an amended petition. After an
evidentiary hearing, the PCRA court denied Appellant’s petition on May 18,
2015. After Appellant filed an appeal, his counsel filed a petition to withdraw
and a Turner-Finley no-merit letter.2 On May 17, 2016, this Court affirmed
the denial of Appellant’s first PCRA petition and permitted counsel to withdraw.
From the beginning of 2020, Appellant filed numerous documents with
the Luzerne County Court of Common Pleas, including but not limited to PCRA
____________________________________________
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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petitions, requests for discovery, objections to the dismissals of his petitions,
and notices of appeal. All such filings were dismissed.
On March 24, 2022, Appellant filed the PCRA petition, which the PCRA
court characterized as his eighth petition. In this filing, Appellant alleged that
his initial PCRA counsel was ineffective for failing to appeal the 2015 denial of
his first petition. Appellant asked that his appellate rights be reinstated at
docket number 99-2013.
The PCRA court indicates that it sent Appellant a notice of intent to
dismiss this petition pursuant to Pa.R.Crim.P. 907 on August 1, 2022. 3 The
PCRA court denied Appellant’s petition as untimely filed on August 30, 2022.4
This timely appeal followed. On September 26, 2022, the PCRA court
filed an order which provided in relevant part:
IT IS HEREBY ORDERED AND DIRECTED that [Appellant] shall file
of record a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b) and serve a copy of same upon the
Luzerne County District Attorney and this Court pursuant to
Pa.R.A.P. 1925(b)(1). The Statement shall concisely identify each
ruling or error [Appellant] intends to challenge with sufficient
detail to identify all pertinent issues for the Judge. Service upon
____________________________________________
3 The docket does not reflect that a Rule 907 notice was filed. However, as
Appellant has not challenged the lack of a Rule 907 notice, he has waived
appellate review of this issue. Commonwealth v. Taylor, 65 A.3d 462, 468
(2013) (citing Commonwealth v. Boyd, 923 A.2d 513, 514 n. 1 (Pa.Super.
2007) (providing that “[t]he failure to challenge the absence of a Rule 907
notice constitutes waiver”)).
4 While this PCRA petition was pending, on August 10, 2022, Appellant filed a
petition for leave to file a petition for allowance of appeal nunc pro tunc with
the Pennsylvania Supreme Court, attempting to challenge this Court’s May 17,
2016 decision. The Supreme Court denied Appellant’s request on November
29, 2022.
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this Court shall be made at the Luzerne County Courthouse, Third
Floor, 200 North River Street, Wilkes-Barre, Pennsylvania 18711.
Any issue not properly included in this statement timely filed and
served pursuant to 1925(b) shall be deemed waived.
The Statement shall be filed within twenty-one (21) days of the
date of this order. …
Order, 9/26/22, at 1 (emphasis in original).
On October 7, 2022, Appellant filed a Rule 1925(b) statement along with
a certificate of service indicating he served the District Attorney and the Clerk
of Courts. In an opinion dated November 3, 2022, the PCRA court indicated
that it had not been served with Appellant’s 1925(b) statement. Thus, the
PCRA court found that all of Appellant’s arguments were waived on appeal.
We recognize that an appellant’s “[n]on-compliance with Rule
1925(b)(1), including lack of service, shall result in automatic waiver of all
appellate issues.” Commonwealth v. Eldred, 207 A.3d 404, 407 (Pa.Super.
2019) (citing Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005)
(“[F]ailure to comply with the minimal requirements of Pa.R.A.P. 1925(b)(3)
will result in automatic waiver of the issues raised”)).
Our courts have consistently held that “in order to preserve their
claims for appellate review, appellants must comply whenever the
trial court orders them to file a Statement of Matters Complained
of on Appeal pursuant to Pa.R.A.P. 1925.” Commonwealth v.
Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting
Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309
(1999)). In Forest Highlands Community Ass'n v. Hammer,
879 A.2d 223, 229 (Pa.Super. 2005), this Court found that the
appellant waived her issues on appeal by failing to serve the trial
judge with her court-ordered Rule 1925(b) statement. This Court
held that the service requirements in Rule 1925(b) are not
satisfied when the appellant simply mails his 1925(b) to the
presiding judge of the court or merely files the statement with the
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prothonotary, emphasizing that it is not the trial court's
responsibility to manually search the prothonotary's files. Id.
Rahn v. Consol. Rail Corp., 254 A.3d 738, 745–46 (Pa.Super. 2021).
In evaluating whether an appellant’s noncompliance with Rule 1925
warrants the waiver of his issues on appeal, it is necessary to review the trial
court’s order which “triggers an appellant’s obligation” to comply with Rule
1925. Id. (quoting Greater Erie Indus. Dev. Corp. v. Presque Isle
Downs, Inc., 88 A.3d 222, 225 (Pa.Super. 2014) (citations omitted)).
Rule 1925(b) sets forth specific requirements for a trial court’s order
requiring the filing of a concise statement:
(b) Direction to file statement of errors complained of on
appeal; instructions to the appellant and the trial court. If
the judge entering the order giving rise to the notice of appeal
(“judge”) desires clarification of the errors complained of on
appeal, the judge may enter an order directing the appellant to
file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal (“Statement”).
(1) Filing and service. The appellant shall file of record the
Statement and concurrently shall serve the judge. Filing of record
shall be as provided in Pa.R.A.P. 121(a) and, if mail is used, shall
be complete on mailing if the appellant obtains a United States
Postal Service Form 3817, Certificate of Mailing, or other similar
United States Postal Service form from which the date of deposit
can be verified in compliance with the requirements set forth in
Pa.R.A.P. 1112(c). Service on the judge shall be at the location
specified in the order, and shall be either in person, by mail, or by
any other means specified in the order. Service on the parties shall
be concurrent with filing and shall be by any means of service
specified under Pa.R.A.P. 121(c).
(2) Time for filing and service.
(i) The judge shall allow the appellant at least 21 days from the
date of the order's entry on the docket for the filing and service of
the Statement. Upon application of the appellant and for good
cause shown, the judge may enlarge the time period initially
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specified or permit an amended or supplemental Statement to be
filed.
***
(3) Contents of order. The judge's order directing the filing and
service of a Statement shall specify:
(i) the number of days after the date of entry of the judge's order
within which the appellant must file and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge pursuant to
paragraph (b)(1) and both the place the appellant can serve the
Statement in person and the address to which the appellant can
mail the Statement. In addition, the judge may provide an email,
facsimile, or other alternative means for the appellant to serve the
Statement on the judge; and
(iv) that any issue not properly included in the Statement timely
filed and served pursuant to subdivision (b) shall be deemed
waived.
Pa.R.A.P. 1925(b)(3) (emphasis added).
In this case, the trial court’s order directs Appellant to “serve a copy of
same upon the Luzerne County District Attorney and this Court pursuant to
Pa.R.A.P. 1925(b)(1).” Order, 9/26/22, at 1 (emphasis added). The order
provides the address at which Appellant was to serve the trial judge, requires
Appellant to file and serve his concise statement of record within twenty-one
days of the entry of its order, and indicates that any issues not properly
included in the statement timely filed and served will be waived.
In Rahn and Commonwealth v. Jones, 193 A.3d 957, 962 (Pa.Super.
2018), this Court held that an order specifying that an appellant was required
to “file and serve the statement of record with the court” was ambiguous as it
did not distinguish between the Court of Common Pleas and the judge
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presiding over the matter. In this case, Appellant mistakenly served the Clerk
of Courts at the address provided in the order for service of the trial judge.
However, the order specified that Appellant was to serve the statement
on the trial court pursuant to Pa.R.A.P. 1925(b)(1), which repeatedly states
that the statement shall be served on the judge. Thus, while it would have
been preferable for the order to indicate that the statement should be served
on the judge, the order’s language adequately informed Appellant of his
obligations under Rule 1925(b). Thus, we agree with the trial court that
Appellant failed to properly serve his Rule 1925(b) statement and his issues
should be considered waived.
Even assuming that waiver did not apply, Appellant has failed to show
that he has filed a timely PCRA petition. We acknowledge that “the PCRA's
timeliness requirements are jurisdictional in nature and must be strictly
construed; courts may not address the merits of the issues raised in a petition
if it is not timely filed.” Commonwealth v. Walters, 135 A.3d 589, 591
(Pa.Super. 2016) (citations omitted).
Generally, a PCRA petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment of sentence becomes
final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at
the conclusion of direct review or the expiration of the time for seeking the
review. 42 Pa.C.S.A. § 9545(b)(3).
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However, Pennsylvania courts may consider an untimely PCRA petition
if the petitioner explicitly pleads and proves one of the three exceptions
enumerated in Section 9545(b)(1), which include: (1) the petitioner's inability
to raise a claim as a result of governmental interference; (2) the discovery of
previously unknown facts or evidence that would have supported a claim; or
(3) a newly-recognized constitutional right that has been held to apply
retroactively by the Supreme Court of the United States or the Supreme Court
of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
In this case, Appellant was sentenced on December 20, 2013. As
Appellant did not file a direct appeal, the judgment of sentence became final
on January 20, 2014, after the expiration of the time period to file an appeal
to this Court. See Pa.R.A.P. 903(a). Thus, Appellant had to file a PCRA petition
by January 20, 2015. As Appellant did not file this petition until March 24,
2022, the instant petition is facially untimely.
In his petition, Appellant claims he is entitled to an evidentiary hearing
before the PCRA court to determine whether he is entitled to raise one of the
exceptions to the PCRA timeliness bar. Appellant asserts that his PCRA counsel
who appealed the May 18, 2015 dismissal of his first PCRA petition was
ineffective as he did not include all relevant docket numbers in his notice of
appeal.
However, Appellant fails to develop any argument to show that any of
the three exceptions is applicable in this case to allow for review of the instant
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petition, which was filed more than eight years after his judgment of sentence
became final.
Accordingly, the trial court did not err in dismissing Appellant’s petition
as untimely filed.
Order affirmed.
Judge Lazarus joins the memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2023
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