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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

LINDSAY P. SHULER

Appellant No. 1213 MDA 2015

Appeal from the PCRA Order July 1, 2015

in the Court of Common Pleas of Dauphin County Criminal Division

at No(s): CP-22-CR-0000323-2003

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

LINDSAY P. SHULER

Appellant No. 1955 MDA 2015

Appeal from the Order Entered October 22, 2015

in the Court of Common Pleas of Dauphin County Criminal Division

at No(s): CP-22-CR-0000323-2003

BEFORE: MUNDY, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 12, 2016

Pro se Appellant, Lindsay P. Shuler, appeals from the order dismissing 

his third Post Conviction Relief Act (“PCRA”) petition. Appellant also appeals 

from the order denying his fourth PCRA petition, which was filed after he 

appealed from his third PCRA petition. We affirm the July 1, 2015 order at 

docket 1213 MDA 2015 and vacate the October 22, 2015 order at docket 

 

*

Former Justice specially assigned to the Superior Court.
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1955 MDA 2015, as the PCRA court lacked jurisdiction to entertain 

Appellant’s fourth PCRA petition while his third PCRA petition was on appeal. 

We adopt the facts and procedural history set forth in this Court’s 

decision resolving Appellant’s first PCRA petition:

On January 21, 2003, [Appellant] was charged with 

rape of a person less than thirteen years old, two

counts of involuntary deviate sexual intercourse, 

aggravated indecent assault of an individual less 

than thirteen years old, indecent assault of a person 

less than thirteen years old, corruption of minors, 

unlawful contact with a minor, indecent exposure,

and open lewdness. On February 14, 2003, 

[Appellant] pled guilty to all charges. [Appellant’s] 

guilty plea was later withdrawn and a new plea of 

nolo contendere was entered. [Appellant] was 

sentenced on July 3, 2003 to a combined total of 6 

to 12 years of incarceration, followed by 10 years of 

probation. [Appellant appealed to this Court, which 

affirmed, and filed a petition for allowance of appeal 

to our Supreme Court, which denied it on August 9, 

2004. Appellant’s first] Petition for Post Conviction

relief was filed February 7, 2005. After several years 

and numerous changes of counsel, [a] Supplemental 

Petition . . . was filed [on] October 21, 2009. [An] 

Amendment to [the] Supplemental Petition . . . was 

filed November 30, 2009.

Commonwealth v. Shuler, 1121 MDA 2011, at 2 (Pa. Super. Mar. 6, 2012) 

(quoting PCRA court’s opinion). This Court affirmed the dismissal of 

Appellant’s first PCRA petition on March 6, 2012, and Appellant did not file a 

petition for allowance of appeal with our Supreme Court.

On March 14, 2012, the court docketed Appellant’s second PCRA 

petition, which was dismissed. Appellant appealed, but his appeal was 

dismissed for failure to file a brief. 
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On April 2, 2015, the PCRA court docketed Appellant’s pro se motion 

to correct an illegal split sentence, which the court construed as Appellant’s 

third PCRA petition. On April 14, 2015, the court issued a Pa.R.Crim.P. 907 

notice, and the court docketed Appellant’s response on May 4, 2015. On 

June 1, 2015, the court docketed its order dismissing Appellant’s third PCRA 

petition. On July 13, 2015, the court docketed Appellant’s notice of appeal 

and simultaneously filed a Pa.R.A.P. 1925(b) statement.1 The court did not 

file a responsive Rule 1925(a) opinion. 

Meanwhile, on June 24, 2015, the court docketed Appellant’s pro se

motion to vacate a mandatory sentence nunc pro tunc.

2

 On October 22, 

2015, the court purported to deny by operation of law Appellant’s motion 

pursuant to Pa.R.Crim.P. 720. Appellant timely appealed from this order and 

the court did not order Appellant to comply with Rule 1925(b). 

 

1 The docket indicates the dismissal order was allegedly served on June 2, 

2015. This Court issued a Rule to Show Cause as to why Appellant’s appeal 

should not be quashed because of an apparently untimely July 13, 2015 

notice of appeal. Appellant responded by enclosing documentation 

purportedly establishing that the June 1, 2015 order was not served on him 

until July 1, 2015. This Court then discharged the rule. Out of an 

abundance of caution, we presume a breakdown in court operations occurred 

and conclude Appellant timely appealed. 

2 We construe Appellant’s motion as a fourth PCRA petition. See 

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (noting, 

“any motion filed after the finality of a sentence that raises an issue that can 

be addressed under the PCRA is to be treated as a PCRA petition.”). 

Appellant’s motion sought to vacate his mandatory sentence as illegal, and 

thus requested relief within the scope of the PCRA. See id. The motion also 

did not seek amendment of his third PCRA petition.
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Subsequently, on November 5, 2015, the PCRA court vacated its October 22, 

2015 order and denied without prejudice Appellant’s June 24, 2015 motion. 

The PCRA court issued a Pa.R.A.P. 1925(a) decision recommending that this 

Court vacate the PCRA court’s October 22nd order as it lacked jurisdiction 

due to the outstanding appeal.3

With respect to his third PCRA petition, Appellant raises the following 

issues:

Whether the court erred by not complying to the general 

provisions set forth in 42 Pa.C.S. § 9721(a.1)?

Whether the court abused [its] discretion and authority 

when it imposed a sentence of probation where a 

mandatory minimum sentence has been provided by law?

Whether the court committed an error of law by refusing to 

correct the illegal split-sentence?

Whether the court erred when it refused to use [its] 

inherent power to amend/correct the mistake in sentencing 

after the lapse of thirty (30) days?

Appellant’s Brief, 1213 MDA 2013, at 3.

Before addressing the merits of Appellant’s claims, we examine 

whether we have jurisdiction to entertain the underlying PCRA petition. See 

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). “Our standard of 

review of a PCRA court’s dismissal of a PCRA petition is limited to examining 

 

3 The decision also noted that on October 2, 2015, the PCRA court docketed 

another motion to vacate a mandatory sentence nunc pro tunc from 

Appellant. 
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whether the PCRA court’s determination is supported by the evidence of 

record and free of legal error.” Commonwealth v. Wilson, 824 A.2d 331, 

333 (Pa. Super. 2003) (en banc) (citation omitted). A PCRA petition “must 

normally be filed within one year of the date the judgment becomes final . . . 

unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition 

is filed within 60 days of the date the claim could have been presented.” 

Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations 

and footnote omitted). To preserve a claim for an illegal sentence, the PCRA 

must be timely filed. See Fahy, 737 A.2d at 223 (holding, “Although 

legality of sentence is always subject to review within the PCRA, claims must 

still first satisfy the PCRA’s time limits or one of the exceptions thereto.” 

(citation omitted)).

Instantly, Appellant’s judgment of sentence became final on Monday, 

November 8, 2004, ninety-one days after the Pennsylvania Supreme Court 

denied his petition for allowance of appeal. See 1 Pa.C.S. § 1908 (stating 

last day of time-period cannot fall on weekend or legal holiday). The PCRA 

court docketed the instant third PCRA petition on April 2, 2015, over ten 

years later. Thus, this Court must discern whether the PCRA court erred by 

holding Appellant did not plead and prove one of the three timeliness 

exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Copenhefer, 941 A.2d at 

648. After careful review of Appellant’s petition, we are satisfied he failed to 

plead and prove any of the three timeliness exceptions. As our Supreme 
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Court observed, even an illegal sentence claim must be raised in a timely 

PCRA petition. See Fahy, 737 A.2d at 223. Accordingly, we discern no 

legal error and affirm the order dismissing Appellant’s third PCRA petition. 

See Wilson, 824 A.2d at 333.

Having resolved Appellant’s third PCRA petition, we turn to the issues 

raised by Appellant in his fourth PCRA petition:

Did the court violate Appellant’s right to assigned appellate 

counsel, for its failure to address the Appellant’s verified 

application for assignment of counsel pursuant [to] 

Pa.R.Crim.P. Rule 122 and 123?

Did the court violate Appellant’s due process rights, for its 

failure to address the Appellant’s motion to vacate 

mandatory sentence, nunc pro tunc, which was denied by 

operation of law pursuant [to] Pa.R.Crim.P. Rule 720?

Did the court commit an error of law by not applying 

Appellant’s case retroactively, when his case was still 

under appeal at the time “Alleyne [v.] U.S., 133 S. Ct. 

2151 (2013) was decided, Appellant’s case became final on 

8-19-2013?

Did the court impose an illegal mandatory minimum 

sentence pursuant 42 § [sic] 9718, which is facialy [sic] 

void pursuant [to] “Alleyne [v.] U.S., 133 S. Ct. 2151 

(2013) and Com. [v.] Newman, 99 A.3d 86, [sic] (Pa. 

Super. 2014)?

Appellant’s Brief, 1955 MDA 2015, at 3 (some capitalization omitted).

As a prefatory matter, we ascertain whether the PCRA court had 

jurisdiction to rule on Appellant’s fourth PCRA petition while an appeal was 

pending from his third PCRA petition. In Commonwealth v. Lark, 746 

A.2d 585, 588 (Pa. 2000), our Supreme Court held “that when an appellant’s 
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PCRA appeal is pending before a court, a subsequent PCRA petition cannot 

be filed until the resolution of review of the pending PCRA petition by the 

highest state court in which review is sought, or upon the expiration of the 

time for seeking such review.” Id. Instantly, Appellant filed his fourth PCRA 

petition during the pendency of his appeal from his third PCRA petition. 

Thus, we agree with the PCRA court: because the PCRA court lacked 

jurisdiction to entertain Appellant’s fourth PCRA petition, we discern an error 

of law and vacate the court’s October 22 and November 5, 2015 orders 

addressing Appellant’s fourth PCRA petition.4 See id.; Wilson, 824 A.2d at 

333. We also strike Appellant’s fourth PCRA petition without prejudice to 

refile pursuant to Lark.

5

 See Lark, 746 A.2d at 588.

Order appealed from at 1213 MDA 2015 affirmed. Order appealed 

from at 1955 MDA 2015 vacated.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/12/2016

 

4 Regardless, we held in Commonwealth v. Riggle, 119 A.3d 1059, 1067 

(Pa. Super. 2015), that Alleyne does not apply retroactively for the 

purposes of post-conviction collateral relief.

5 We also strike, without prejudice to refile, Appellant’s October 2, 2015 

motion to vacate a mandatory sentence nunc pro tunc, as Appellant’s appeal 

was still pending before this Court. See Lark, 746 A.2d at 588.