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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER STEELE

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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, d ismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541

- 954 6. 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

_________________ __________ ______ ____ _______
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 tha t the brief be filed on or before January 4, 2023. To date, the Commonwealth has not filed a brief.J

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reconsideration asserting an Apprendi 2 issue as well as an excessiveness of sentence claim . While his motion was pending , Steele filed a direct appeal 3
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, th e 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,

_________________ __________ ______ ____ _______ 2 See Apprendi v. New Jersey , 530 U.S. 466 ( 2000) (holding every factor necessary to defendant’s pun ishment 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. 7 20, 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 impermissibl e hybrid repres entation). “[ 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 f ailure to file a Pa.R.A.P. 1925(b) concise statement of errors co mplained of on appeal. On March 12, 2019, this CourtJ

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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 2 1, 2020, Steele fi led a pro se PCRA petition. On September 2, 2020, the trial court appointed PCRA c ounse l, 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 intent ion to dismiss his petition without a hearing. Steele did not file a response. On December 3, 2 020, the PCRA court denied the petition. Steele filed a timely collateral appeal. Our Court affirmed

_________________ __________ ______ ____ _______ 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 d ue 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 c ase 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 com ply with all necessary requirements pursuant to [Steele’s] pending appeal.” Trial Court Order, 8/29/19.

7 Stee le alleged trial counsel was ineffective for failing to seek enforcement of a plea agreement that was purportedly reached at the magisterial level.J

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the PCRA court’s order. Commonwealth v. Steele , 270 A.3d 1 152 (Pa. Super. 2021) (Table). On April 14, 2022, Steel filed the instant pro se PCRA petition. O n 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 respons e 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 considera tion : (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]our t [which] substantially prejudiced [Steele] and viola ted [his] [d]ue [p]rocess [rights

. ] (3) Whether the [ PCRA court erred by ] fai l[ing] to find that the Magistrate Paul A. Bizzarro erred and abused his discretion when h e failed to conduct a colloquy record of [Steele’s] original plea of guilt [which] substantia lly prejudic e [d Steele] and violat[ed Steele’s] [d]ue [p]rocess [rights

. ] (4) Whether the [ PCRA court erred by ] f ail [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.]J

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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 tot ality 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 co unsel 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] (1 st ) 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 (2 nd ) PCRA petition should be an extension of [his] (1 st ) PCRA appeal attempt since [Steele] was prejudiced by ineffective assistance of counsel on his (1 st ) PCRA attem pt[.] 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:J

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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 obt ain 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 discre tion 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 PCR A 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, excepti ons 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 ex ceptions include interference by government officials in the presentation of the claim, after

- discovered facts or evidence, and an after

- recognized constitutional right. Id. See
Co mmonwealth 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 inJ

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nature and, accordingly, a PCRA court cannot hear untimely petitions.
Co mmonwealth 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 unti l September 18, 2021, to file a timely PCRA petition. The current petition, filed on April 14, 2022 , is, therefore, patently untimely. Thus, unless S teele pleads and proves a timeliness exception to the
PCRA time

- bar, the PCR A 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 juri sdiction to consider merits of petition).
Because S teele ’s petitio n does no t plead, let alone prove, any PCRA timeliness exception, his p etition is time

- barred. See Commonwealth v.
Brown , 111 A.3d 171 (Pa. Super. 2015) (where petitioner neither acknowled ged 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 tim e - bar] cannot be raised for the first time on appeal[.]”). Thus, the trial court properly dismissed
S teele’s petition

. Cousar , supra
. Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/7/2023