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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER CHARLES FAUST

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 950 EDA 2022

Appeal from the PCRA Order Entered February 1, 2022 In the Court of Common Pleas of Delaware County

Criminal Division at CP

- 23

- CR

- 0002079

- 2008

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY MURRAY, J.: FILED JUNE 9, 2023

C hristoph er Charles Faust (Appellant) appeals pro se from the order

denying his first Post Conviction Relief Act (PCRA) 1 petition following

resentencing . We affirm.

On September 9, 2010, the trial court found A ppellant guilty of third

degree murder, atte mpted murder

, and related offenses

. 2 Appellant ’ s

convictions resulted from the February 24, 2008 shooting death of Anthony

Dunn (Dunn) and attempted murder of Yahshaw Humphrey (Humphrey)

. O n

November 3, 2010, the trial court sentenced A ppellant to an aggregate prison

term of 22 to 50 years , followed by 4 years of probation. T his C ourt affirmed

_________________ __________ ______ ____ _______

1 42 Pa.C.S.A. §§ 9541

- 9546.

2 See 1 8 Pa.C.S.A. §§ 2502(c), 901.J

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A ppellant ’ s judgment of sentence ; our Supreme Court denied allowance of

appeal. See Commonwealth v. Faust

, 64 A.3d 11 (Pa. Super. 2012)

(unpublished memorandum)

, appeal denied

, 74 A.3d 1030 (Pa. 2013).

Appellant timely filed a first PCRA petition, which the PCRA court

d ismissed without a hearing on November 2, 2015. 3 On April 18, 2017, this

Court reversed the PCRA court ’ s order

, in part

. We vacated Appellant ’ s

judgment s of sentence for attempted murder and third

- degree murder and

remanded f or resentencing in accordance with Alleyne v. United States

, 570

U.S. 99 (2013)

. See Commonwealth v. Faust

, 169 A.3d 1176 (Pa. Super.

2017) (unpublished memorandum at 3

- 4). O n remand, the trial court

appointed new counsel for Appellant. Following a hearing, the court

resentenced Appellant to 17

– 35 years in prison for third

- degree murder, and

a consecutive 5

– 10 years in prison for attempted murder. Sentence,

9/19/17.

On October 3, 2017, counsel filed an untimely post

- sentence motion on Appellant ’ s behalf. That same day, counsel filed a petition for leave to withdraw. The court conducted a hearing on

the post

- sentence motion on October 19, 2017. At the conclusion of the hearing, the court denied the post

- sentence motion as untimely and without merit . In a separate order entered that same day, the court permitted counsel to withdraw. Appellant

filed a p ro se notice of appeal on October 30, 2017, which this Court quashed for lack of jurisdiction. Appellant subsequently filed a petition for allowance of appeal, which our Supreme Court denied on January 7, 2020.

_________________ __________ ______ ____ _______

3 The PCRA court permitted counsel to withdraw pursuant to Commonwealth

v. Turner

, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley

, 550

A.2d 213 (Pa. Super. 1988) ( en banc ).J

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On March 2, 2020, Appellant filed a pro se PCRA petition, alleging ineffective assistance of prior counsel in conjunction with the resentencing proceedings. The petition also averred that Appellant remained indigent, and it explicitly requested the appointment of counsel. ( See PCRA Petition, filed 3/2/20, at 8(B)). The PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing on April 22, 2020. Appellant timely filed a pro se response to the Rule 907 notice, but the PCRA court dismissed his p etition on May 27, 2020. Appellant timely filed a pro se notice of appeal on June 19, 2020

....

Commonwealth v. Faust , 245 A.3d 1034 (Pa. Super. 2020) (unpublished

memorandum at 3) (emphasis added ; footnote omitted)

.

On appeal, this Court vacated the PCRA court’s order and remanded for

appointment of counsel. Id. (unpublished memorandum at 6). We concluded

,

“ Appellant ’ s current petition effectively amounts to a ‘ first ’ petition challenging

his resentencing[.] ” Id. (unpublished memorandum at 5).

On remand, the PCRA court appointed counsel for Appellant , who filed

an amended PCRA petition claim ing resentencing counsel rendered ineffective

assistance . Amended PCRA Pet ition, 3/31/21, ¶ 26. Appellant requested an

evidentiary hearing and reinstatement of his post

- re sentencing and direct

appeal rights nunc pro tunc

. Id.

, ¶¶ 2 7

- 28. On December 10, 2021, the PCRA

court filed Pa.R.Crim.P. 907 notice of intent to dismiss Appellant ’ s amended

PCRA petition. Appellant filed counseled and pro se responses to the Rule 907

notice. On February 1, 2022, the PCRA court dismissed Appellant ’ s amended

PCRA petition

. A ppellant timely appealed.J

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Appellant also filed a pro se petition to dismiss PCRA counsel and

proceed pro se

. Motion to Dismiss Counsel, 3/2/22. The PCRA court

forwarded the motion to PCRA counsel , and dism issed Appellant ’ s pro se

motion for lack of jurisdiction. Order, 4/13/22. On April 22, 2022, PCRA

co unsel filed a petition to withdraw from representation in this Court . Petition

to Withdraw, 4/22/22.

On May 17, 2022, this Court remand ed the matter to the PCRA court to

conduct a hear ing “ as to whether Appellant ’ s waiver of counsel is knowing,

intelligent and voluntary, pursuant to Commonwealth v. Grazier , 713 A.2d

81 (Pa. 1998) [.] ” Commonwealth v. Faust

, 590 EDA 2022 (Pa. Super.

5/17/22) (order). The PCRA court conducted a hearing

, after which it

permitted Appellant to proceed pro se with his appeal. PCRA Court Order,

6/30/22. The appeal is now before us for review.

Appellant presents the following issues:

I. Whether PCRA counsel was ineffective for failing to raise, in her

Amen ded PCRA Petition, whether the resentencing court abused its discretion by failing to give reasons why it mechanically reimposed Appellant ’ s previous (22) year sentenc e.

II. Whether the PCRA court erred for failing to comply with

Pa.R.Crim.P. 720(A) , whi ch constituted a breakdown that excuses the untimely filing of Appellant ’ s direct appeal.

Appellant ’ s Brief at 4 (punctuation modified)

.

Before addressing Appellant ’ s issues, we must ascertain whether

Appellant timely filed his PCRA petition. T he timeliness of a PCRA petition is

jurisdictional ; if the petition is untimely, courts lack jurisdiction and cannotJ

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grant relief. Commonwealth v. Wharton

, 886 A.2d 1120, 1124 (Pa.

2005); see also Commonwealth v. Callahan

, 101 A.3d 118, 121 (Pa.

Super. 2014) ( recognizing courts do not have jurisdiction over an untimely

PCRA petition). A PCRA petition must either (1) be filed within one year of

the judgment of sentence becoming final, or (2) plead and prove a timeliness

exception. 42 Pa.C.S.A. § 9545(b). The one

- year time limit is jurisdictional

,

and a court has no power to address the substantive merits of an untimely

petition. Commonweal th v. Abu

- Jamal , 833 A.2d 719, 723

- 24 (Pa. 2003);

Commonwealth v. Gamboa

- Taylor , 753 A.2d 780, 783 (Pa. 2000).

The three exceptions to the one

- year filing requirement are for newly

discovered facts, interference by a government official, and a newly

rec ognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)

- (iii). Any

petition asserting an exception must also establish that the exception was

raised within one year of the date the claim could have been first presented.

42 Pa.C.S.A. § 9545(b)(2).

Instantly, t he trial court resentenced Appellant on September 19, 2017.

Appellant ’ s counsel filed untimely post

- sentence motions which did not stay

the 30

- day appeal period. See Pa.R.Crim.P. 720(A)(3) ( “ If the defendant

does not file a timely post

- sentence motion, the defendant ’ s notice of appeal

shall be filed within 30 days of imposition of sentence .... ” ). Although Appellant

filed a direct appeal , this Court quashed the appeal for lack of jurisdiction ; on

January 7, 2020, the Pennsylvania Supreme Court denied allowance of appeal

.J

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Commonwealth v. Faust

, 217 A.3d 378 (Pa. Super. 2019) (unpublished

memorandum at 8)

, appeal denied

, 222 A.3d 1133 (Pa. 2020). Thus,

Appellant ’ s judgment of sentence became final on Thursday, October 19,

2017. See Pa.R.A.P. 903(a) ( “ the notice of appeal ... shall be filed within 30

days after the entry of the order from which the appeal is taken. ” ). Appellant

was required to file a PCRA petition within one year, or by October 19, 2018.

Appellant filed the instant PCRA petition, his first after resentencing, on

March 2, 2020

. Appellant ’ s p etition is facially untimely under the PCRA

.

However, i n his amended petition, Appellant allege d he was abandoned by

post

- sentence counsel a nd on appeal. Amended Petition, 3/31/21, ¶¶ 8

- 10.

Appellant claimed resentencing counsel did not communicate with him

“ relative to the legality of filing untimely post

- sentence motion[s] and of

effectuating his direct appeal to the Superior Court. ” Id. ¶ 21. Appellant

a verred that he informed counsel he wished to challenge his sentence. Id.

¶ 22. Appellant filed his petition within one year of the Supre me Court’s denial

of allowance of appeal, after the appointment of counsel.

While “[i]t is well settled that allegations of ineffective assistance of

counsel [(‘IAC’)] will not overcome the jurisdictional timeliness requirements

of the PCRA[,]” Wharton

, 886 A.2d at 1127, this rule does not extend to

claims alleging abandonment of counsel. Commonwealth v. Bennett , 930

A.2d 1264, 1274 (Pa. 2007). As our review of the record confirms that counselJ

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abandoned Appellant

, and Appellant proceeded pro se with his direct appeal,

we address Appellant’s substantive claims.

Our review of the denial of PCRA relief “ is limited to examining whether

the PCRA court ’ s determination is supported by the evidence of record and

whether it is free of legal error. ” Commonwealth v. Sandusky , 203 A.3d

1033, 1043 (Pa. Super. 2019) (citation and internal quotation marks omitted).

“ The PCRA court ’ s credibility determinations, when supported by the record,

are binding on this Court; however, we apply a de novo standard of review to

the PCRA cour t ’ s legal conclusions. ” Commonwealth v. Mitchell , 105 A.3d

1257, 1265 (Pa. 2014) (citation omitted).

Appellant assert s ineffectiveness of counsel

. To be eligible for relief

based on a claim of ineffective assistance of counsel, a PCRA petitioner must

de monstrate, by a preponderance of the evidence, that (1) the underlying

claim is of arguable merit; (2) no reasonable basis existed for counsel’s action

or omission; and (3) there is a reasonable probability that the result of the

proceeding would have been different absent such error. Commonwealth v.

Steele , 961 A.2d 786, 796 (Pa. 2008).

Appellant first claims PCRA counsel was ineffective for not challenging

discretionary aspects of Appellant ’ s new sentence. Appellant ’ s Brief at 8. 4

_________________ __________ ______ ____ _______

4 Appellant claims ineffective assistance of counsel in his purported “ Pa.R.A.P. 2119(f) Statement of the Reasons to Allow an Appeal[.] ” Appellant ’ s Brief at

7.J

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Appellant argues his claim has merit because the resentencing court failed to

state on the record its reasons for imposing the same sentence, “ without

considering the sentencing criteria pursuant to 42 Pa.C.S.A. § 9781(d)[.] ” Id.

According to Appellant

, he asked PCRA counsel to challenge his sentence, but

counsel advised him to wait until federal proceedings. Id. at 9.

Appellant further contends the resentencing court failed to consider

mitigating evidence. 5 Id. at 8. Appellant repeats his challenge to the

discretionary aspects of his new sentence. 6 Id. at 12

- 2 5 . According to

Appellant, the PCRA court improperly denied his request to file a nunc pro tunc

post

- sentence motion. Id. at 25.

A discretionary sentencing claim is not cogniz able under the PCRA. See

42 Pa.C.S.A. § 9543(a)(2) ( setting forth the cognizable claims under the

PCRA). Thus

, PCRA counsel did not render ineffective assistance by not raising

this issue. See Steele , 961 A.2d at 796

.

To the extent Appellant presents a layered ineffectiveness claim based

on resentencing counsel ’ s failure to timely file a post

- sentence motion, a nd

_________________ __________ ______ ____ _______

5 Appellant a lso claim s his sentence i s illegal. Appellant’s Brief at 8. Appellant

does not develop this bald claim , stating that his sentence is “ manifestly excessive and clearly unreasonable under [42 Pa.C.S.A. §] 9781(c)(1) and (2) and (d). ” Id.

6 Appellant acknowledges the court resentenced him within the standard ranges of the sentencing guidelines , and appears to challenge the imposition

of consecutive rather than concurrent sentences

. Appellant’s Brief at 21.J

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PCRA counsel ’ s failure to present this claim, w e ob serve that p ost

- sentence

counsel sought reinstatement of Appellant ’ s post

- sentence rights nunc pro

tunc

. As t he PCRA court explained:

Following remand, Robert Turco, Esquire, was appointed to represent Appellant at the resentencing hearing, which was held on September 19, 2017. At the conclusion of the hearing, Appellant was resentenced to 17

- to

- 35 years ’ imprisonment for

third

- degree murder and a consecutive term of 5

– to

- 10 years ’ imprisonment for attempted murder. Appellant executed a statement of post sentence rights. [N.T., 9/19/2017

, p. 29]

.

On October 3, 2017, Attorney Turco filed a petition to

wi thdraw as counsel as well as an untimely Petition for

Reconsideration of Sentence from September 19, 2017. In the petition, Attorney Turco relayed that Appellant wrote him a letter dated September 19, 2017, requesting that a post

- sentence
motion be filed; however, the letter wa s not sent until September 27, 2017, and [counsel] did not receive the letter until the ten days to file a timely motion had expired

. [FN] T here was no documentation attached to the motion or provided by Appellant to

this [c] o urt or Attorney Turco to indicate when the letter was actually given to the prison authorities to be mailed. Following a hearing held on October 19, 2017, the motion to reconsider was denied as untimely but also without merit , indicating that this [c] ourt would not have changed Appellan t ’ s sentence even if timely filed. Attorney Turco was permitted to withdraw.

[FN] See Petition for Reconsideration of Re

- Sentence of September 19, 2017[,] filed on October 3, 2017.

* * *

The transcript from the resentencing hearing clearly evinces

that this [c] ourt provided Appellant adequate reasons for the new

sentence. Therefore, assuming arguendo [] that Attorney Turco had filed a timely post

- sentence petition, it would unquestionably

have been denied as meritless.J

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PCRA Court Opinion, 3/15/22, at 2

- 3 , 6 (footnote in original , emphasis added )

.

The record confirms the PCRA court ’ s account

. Further, the trial court

explained it

appointed counsel to represent Appellant at the re

- sentencing hearing. Both counsel for Appellant and counsel for the Commonwealth submitted sentencing memorandums which this [c ] ourt reviewed. [The c] ourt also reviewed the transcripts from the original s entencing, which included testimony from the

victim ’ s families. [The c] ourt heard from counsel for Appellant and Appellant at the hearing, in regard to Appellant ’ s upbringing, his remorse, and the actions he has taken while incarcerated in

order to better himself. [N.T., 9/17/2017 p. 9

- 12]. [ T he c] ourt also heard from Appellant ’ s friend, Randall Smith, who told [the c] ourt about Appellant ’ s good character [N.T., 9/17/2018 p. 17].

The Commonwealth recited to [the c]ourt the facts from trial, that Appell ant was chasing three victims down by Veteran ’ s Park in Chester, PA, all the way down the block while firing his weapon at them. [N.T., 9/17/2017 p. 18]. The Commonwealth also pointed out that Appellant has been misconduct free in prison for three

years but has been incarcerated for ten. [N.T., 9/17/2017 p. 20].

The guidelines for the re

- sentencing were Murder In the Third Degree, with deadly weapon enhancement, 90 [

- ] 240 months with a mitigated range of 78 months. For Criminal Attempt to Murder with no serious bodily injury, the standard range was 78 [

- ] 96 months with a mitigated range of 66 months. [N.T., 9/17/2017 p. 24].

The [c] ourt imposed the following sentence: Information A: Murder in the Third Degree, 204 [

- ] 420 months at SCI an d on Information G: Attempted Murder: 60 [

- ] 120 months consecutive
to Information A. Appellant was not RRRI eligible or boot camp eligible. All other conditions of the original sentence remained the

same.

....

... Appellant claims that [the resentencin g court] should have considered the mitigating facts that the original sentencing judge was unable to consider due to the mandatory minimum.J

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[The resentencing court] took into consideration everything Appellant detailed in his memorandum as well as his words at sentencing. Simply because [the c] ourt did not minimize his sentence does not mean they were not considered.

Secondly, Appellant claims that everything he has done in prison since the time of his incarceration, such as taking classes and good behavior, should be considered. This is wholly false and

an issue [] that would be considered at a parole board hearing. [The resentencing c] ourt was instructed to re

- sentence Appellant solely because of the mandatory minimum that was imposed at

the time of the original sentence. The rest of the sentencing

scheme was affirmed. [The c]ourt removed the mandatory minimum and sentenced Appellant accordingly. What Appellant has completed while in carcerated is of no bearing on re

sentencing Appellant.

See Trial Court Opinion, 2/7/18, at 2, 6

- 7.

Our review of the record confirms the above findings and conclusions,

and we discern no abuse of discretion. Because Appellant ’ s underlying claim

lacks arguable merit, a layer e d claim of ineffectiveness of counsel would fail.

See Steele , 961 A.2d at 796.

In his second issue, Appellant argue s the resentencing court violated

Pa.R.Crim.P. 720(A). Appellant ’ s Brief at 25. Appellant also claim s the PCRA

court erred by not allow ing him to file a post

- sentence motion nunc pro tunc

.

Id. Appellant assert s that noncompliance with Pa.R.Crim.P. 720(A ) deprived

him of the ability to file a post

- sentence motion. Id.

We address this claim to the extent it invokes the legality of Appellant’s

sentence

. See 42 Pa.C.S.A. § 4523(a)( 2) ( i) , (vii) (deeming cognizable a claim

challenging the legality of sentence ).

Pennsylvania Rule of Criminal Procedure 720(A) p rovides:J

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(1) Except as provided in paragraphs (C) and (D), a written post

sentence motion shall be filed no later than 10 days after imposition of sentence.

(2) If the defendant files a timely post

- sentence motion, the

notice of appeal shall be filed:

(a) within 30 days of the entry of the order deciding the motion;

(b) within 30 days of the entry of the order denying the

motion by operation of law in cases in which the judge

fails to decide the motion; or

(c) within 30 days of the entry of the order memorializing

the withdrawal in cases in which the defendant withdraws

the motion.

(3) If the defendant does not file a timely post

- sentence motion,

the defendant ’ s notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in paragraph (A)(4).

(4) If the Commonwealth files a timely motion to modify sentence pursuant to Rule 721, the defendant ’ s notice of appeal shall be

filed within 30 days of the entry of the order disposing of the

Commonwealth ’ s motion.

Pa.R.Crim.P. 720(A).

Appellant fails to demonstrate a ny error. There is no legal authority to

support Appellant’s claim that he was entitled to file a post

- sentence motion

nunc pro tunc

. Although Appellant argues the resentencing court should have

notified him of counsel ’ s untimely filing, R ule 720(A) does not require th e court

to do s o

. See id. As this issue lacks merit, a related ineffectiveness claim

would not warrant relief. See Steele , 961 A.2d at 796.

Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/9/2023