J-S10032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARVIN DOZIER,

Appellant No. 1130 EDA 2015

Appeal from the PCRA Order March 13, 2015

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0002656-2008

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED FEBRUARY 09, 2016

Appellant, Marvin Dozier, appeals pro se from the order dismissing his 

petition seeking relief pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541–9546, as untimely. Appellant chiefly maintains that his 

petition should be considered timely because his pro se post-sentence 

motion to withdraw his guilty plea should have been treated as a PCRA 

petition. We disagree. Accordingly, we affirm.

The PCRA court summarized the procedural and factual background of 

the present appeal as follows:1 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 We accept the PCRA court’s findings and conclusions to the extent that 

they are supported by the certified record. However, we are constrained to 

(Footnote Continued Next Page)
J-S10032-16

- 2 -

I. PROCEDURAL BACKGROUND 

On August 27, 2008, [Appellant] Marvin Dozier pled guilty, 

pursuant to a negotiated plea agreement, to rape of a child (18 

Pa.C.S. § 3121(c)), endangering the welfare of a child (18 

Pa.C.S. § 4304(a)(1)) ("EWOC"), and corrupting the morals of a 

minor (18 Pa.C.S. § 6301(a)(1)) ("CMOM"). N.T. 08/27/2008 at 

19-20. After the plea was accepted, the [c]ourt imposed an 

aggregate sentence of one and a half to three years 

incarceration on the charges of EWOC and CMOM and deferred 

sentencing on the rape charge pending a Megan’s Law hearing 

pursuant to 42 Pa.C.S. § 9794.5(3). At the Megan’s Law hearing 

on March 5, 2010, [Appellant] was found not to be a Sexually 

Violent Predator ("SVP"). The [c]ourt then sentenced 

[Appellant] to three and a half to seven years[’] incarceration on 

the rape charge to run consecutive to the sentences previously 

imposed for an aggregate sentence equal to the negotiated 

sentence of five to ten years incarceration in state prison. 

[Appellant] filed a post-sentence motion to withdraw his guilty 

plea on March 16, 2010, and a supplemental post-sentence 

motion on March 23, 2010. The [c]ourt denied both on April 7, 

2010.

(Footnote Continued) _______________________

note that the record before us is not a model of clarity, nor of orderliness. 

We have attempted to verify each key event in the procedural history from 

our own independent review of the record. In some instances, although 

there is no support in the record, the parties do not dispute a filing or other 

procedures. We accept these assertions without additional inquiry. Some 

procedural steps, particularly the entries and the withdrawals of the various 

counsel, are noted only in the docket entries, if at all. 

A significant portion of this confusion appears to have been 

exacerbated, if not generated, by Appellant’s proclivity for filing various pro 

se motions, etc. even when represented by counsel. It is well-settled, as 

explained in the text of this memorandum, that Appellant has no right to 

hybrid representation. His numerous disagreements with counsel, evident in 

the record, do not justify any ad hoc deviation from this well-settled rule of 

law. Nevertheless, where Appellant makes a procedural claim, and there is 

no explanation or refutation of his claim in the record before us, we give him 

the benefit of the doubt. Conversely, where Appellant’s claims are 

contradicted by the record, we reject them. 
J-S10032-16

- 3 -

[Appellant] subsequently filed [a direct] appeal on April 12, 

2010. On April 5, 2011, the Superior Court quashed 

[Appellant’s] appeal as untimely.[2] [Appellant’s] petition for 

allowance of appeal to the [Pennsylvania] Supreme Court was 

denied on May 15, 2012. [Appellant] then filed a pro se petition 

under the Post-Conviction Relief Act (“PCRA”) on June 14, 2012. 

Peter A. Levin, Esquire was appointed to represent [Appellant] 

on March 4, 2013.

On February 1, 2015, pursuant to Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988), Mr. Levin filed a letter 

stating that the petition was untimely and that there was no 

arguable merit to [Appellant’s] claims for collateral relief. See 

Finley Letter of Peter A. Levin, filed 2/01/2015 (“Finley

Letter”). On February 12, 2015, the [c]ourt issued notice 

pursuant to Pa.R.Crim.P. 907 (“907 Notice”) of its intent to 

dismiss Appellant’s PCRA Petition without an evidentiary hearing. 

On March 13, 2015, the [c]ourt formally dismissed Appellant’s 

PCRA Petition and granted Mr. Levin’s motion to withdraw his 

appearance.

[Appellant] has now appealed the [c]ourt’s dismissal of his 

PCRA Petition, alleging that: 1) the [c]ourt erred in dismissing 

the PCRA petition as untimely as [Appellant’s] initial postsentence motion filed on March 16, 2010 should have been 

treated as a PCRA petition; and 2) the [c]ourt lacked jurisdiction 

to impose sentence on March 5, 2010. Statement of Matters 

Complained of on Appeal ("Statement of Errors") at ¶¶ 1 -2. . . . 

II. FACTUAL BACKGROUND

The factual background of this matter is set forth in [this] 

[c]ourt’s 1925(a) Opinion filed in [Appellant’s] direct appeal. 

Between January 1, 1998, and December 31, 2000, 

[Appellant] had a sexual relationship with E.S. who was 

then between eleven and thirteen years old and was living 

____________________________________________

2

(See Commonwealth v. Dozier, No. 997 EDA 2010, unpublished 

memorandum at *8 (Pa. Super. filed April 5, 2011), appeal denied, 44 A.3d 

1160 (Pa. 2012)). 
J-S10032-16

- 4 -

with [Appellant's] sister. [Appellant] had sex with E.S. 

while his sister was not home and [Appellant] was the 

adult in charge. [Appellant] paid for E.S. to have an 

abortion after he impregnated her in 1998 when she was 

eleven or twelve years old and [Appellant] was about 

thirty-six years old. On February 11, 2000, [Appellant] 

confessed to police that he had sexual contact with E.S. 

while he knew she was less than thirteen years old and 

that he paid for her abortion after he learned that she was 

pregnant. 

Trial Court Opinion, dated June 18, 2010.3

(PCRA Court Opinion, 5/12/15, at 1-3). 

We supplement the PCRA court’s history with several additional 

observations, based on our independent review of the record. First, on 

March 17, 2010,4although still represented by counsel (by now the Defender 

Association of Philadelphia),5 Appellant filed a purported pro se motion to 

____________________________________________

3 Record citations and footnote omitted.

4

For clarity and completeness, Appellant dated the motion “3/16/10”; the 

clerk of quarter sessions time-stamped the motion “Mar[ch] 17, 2010”; and 

the motion was docketed on March 24, 2010. 

5 Docket entries confirm that for his plea and sentencing, Appellant was 

represented by retained counsel, Joseph Santaguida, Esq. (and Santaguida’s 

associate or partner, Brendan McGuigan, Esq.). (See docket; see also N.T 

Hearing, Volume 2, 5/21/09, at 3-5). The court relieved Attorney 

Santaguida from further representation on October 9, 2009. On October 16, 

2009, the court appointed the Defender Association to represent Appellant. 

The Defender Association petitioned to withdraw from representation on 

October 21, 2011. The court granted the Defender Association’s petition to 

withdraw on November 9, 2011. David S. Rudenstein, Esq. appears to have 

entered his appearance to represent Appellant on November 10, 2011. 

Although there is no order in the record, a docket entry indicates that the 

court confirmed his appointment, on December 1, 2011. Even though the 

(Footnote Continued Next Page)
J-S10032-16

- 5 -

withdraw guilty plea. On appeal, this motion to withdraw his guilty plea is 

the post-sentence motion he claims should have been treated as a PCRA 

petition. (See Appellant’s Brief, at 4-5). 

Additionally, Appellant’s post-plea counsel (the Defender Association) 

filed a “Post Sentence Motion Nunc Pro Tunc,” on March 16, 2010, and a 

“Supplemental Post Sentence Motion Nunc Pro Tunc,” on March 23, 2010. 

Counsel did not request leave of court to file either purported nunc pro tunc

motion. As the PCRA court notes, sitting as the trial court, it denied both of 

the motions on April 7, 2010. The Defender filed a notice of appeal for 

Appellant and a statement of errors. As already noted, this Court quashed 

the appeal, as untimely. (See Dozier, supra at *6-8). 

Docket entries confirm that after the Defender Association filed a 

petition for allowance of appeal, our Supreme Court remanded for the 

appointment of new counsel and to permit the Defender Association counsel 

(Footnote Continued) _______________________

docket entry notes that Attorney Rudenstein was appointed to “handle 

further [a]ppellate matters,” correspondence in the record presented by 

Appellant suggests that Mr. Rudenstein told Appellant he was appointed for a 

limited purpose only, no longer represented Appellant, and advised Appellant 

to file a pro se PCRA petition to protect his right to PCRA relief. Appellant’s 

pro se PCRA petition followed. Peter A. Levin, Esq. entered his appearance 

on behalf of Appellant on March 4, 2013. As previously noted, Attorney 

Levin did not file an amended petition; instead he filed a “no merit” letter on 

February 1, 2015. The court denied Appellant’s pro se PCRA petition and 

permitted Attorney Levin to withdraw in the same order. (See Order, 

3/13/15). 
J-S10032-16

- 6 -

to file a motion to withdraw. The trial court granted permission to withdraw 

on November 9, 2011. 

After our Supreme Court denied allowance of appeal, Appellant filed 

the instant PCRA petition, pro se. While the record is not clear when 

Attorney Rudenstein was permitted to withdraw, the PCRA court accepted 

Appellant’s pro se PCRA petition filed on June 14, 2012.6 

After the PCRA court’s dismissal of the PCRA petition on March 13, 

2015, Appellant filed a pro se notice of appeal, on April 8, 2015. (See

Notice of Appeal, dated April 4, 2015, and docketed April 8, 2015). On the 

same day (April 8), the court ordered a statement of errors, on penalty of 

waiver. (See Order, 4/08/15); see also Pa.R.A.P. 1925(b). There is no 

statement of errors in the certified record, and no corresponding docket 

entry. However, the PCRA court references the statement of errors in its 

Rule 1925(a) opinion. (See, e.g., PCRA Court Opinion, 5/12/15, at 2).7 

____________________________________________

6 The record confirms that Appellant apparently relied on correspondence 

from Attorney Rudenstein purportedly disclaiming any continuing 

representation, and advising Appellant to file a pro se PCRA petition to 

protect his appeal rights. (See Appellant’s Letter to Peter A. Levin, Esq., 

8/09/13, Exhibit D, Letter from David Rudenstein, Esq. to Appellant [“aka 

Roger Boyd”], 5/25/12). We give Appellant the benefit of the doubt and 

treat his instant pro se PCRA petition as validly filed. 

7 We also observe that the issues mentioned by the PCRA court are 

substantially the same as the issues Appellant raised on appeal.
J-S10032-16

- 7 -

And the PCRA court has helpfully provided us with a copy of Appellant’s 

statement.8 

On appeal, Appellant presents two questions for our review:

I. Whether the PCRA [court] erred as a matter of law and 

constitution in dismissing [Appellant’s] PCRA petition as 

[untimely], where his initially filed post-sentence motion on 

March 16, 2010, according to Pennsylvania law should have been 

treated as a PCRA petition, if it was untimely filed since issues 

relating to an illegal sentence are cognizable under the PCRA?

II. Whether [Appellant’s] sentence imposed [on] March 5, 

2010, is illegal because the trial court lack[ed] jurisdiction to 

impose a sentence after the thirty (30) day appeal period, in 

violation of [Appellant’s] due process, equal protection and cruel 

and unusual punishment under both the Pennsylvania and United 

States [C]onstitution and the due process clauses and under 42 

Pa.C.S.A. [§] 5505?

(Appellant’s Brief, at 4) (some capitalization omitted).9

Our standard and scope of review for the denial of a PCRA petition is 

well-settled. 

[A]n appellate court reviews the PCRA court’s findings of 

fact to determine whether they are supported by the 

record, and reviews its conclusions of law to determine 

whether they are free from legal error. The scope of 

review is limited to the findings of the PCRA court and the 

____________________________________________

8 Appellant sent his statement to the Office of Judicial Records, which 

apparently forwarded it to the PCRA court’s judicial chambers. Thus, 

Appellant appears to have made a good-faith effort to comply with the PCRA 

court’s order. Accordingly, even though the statement is not in the certified 

record, we will give Appellant the benefit of the doubt and decline to dispose 

of his claims on the basis of waiver for non-compliance with Pa.R.A.P. 

1925(b). 

9 The Commonwealth did not file a brief in this appeal. 
J-S10032-16

- 8 -

evidence of record, viewed in the light most favorable to 

the prevailing party at the trial level.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations 

and internal quotation marks omitted). 

Initially, we must determine whether Appellant’s petition is untimely.

The filing mandates of the PCRA are jurisdictional in nature and 

are strictly construed. Commonwealth v. Stokes, 598 Pa. 

574, 959 A.2d 306, 309 (2008). The question of whether a 

petition is timely raises a question of law. See Commonwealth 

v. Fahy, 598 Pa. 584, 959 A.2d 312, 316 (2008). Where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review plenary. Commonwealth v. 

Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010). An untimely 

petition renders this Court without jurisdiction to afford relief. 

Commonwealth v. Gandy, 38 A.3d 899 (Pa. Super. 2012).

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013). 

Furthermore, 

Pennsylvania law makes clear no court has jurisdiction to hear 

an untimely PCRA petition. Commonwealth v. Robinson, 575 

Pa. 500, 508, 837 A.2d 1157, 1161 (2003). Statutory time 

restrictions are mandatory and jurisdictional in nature, and may 

not be altered or disregarded to reach the merits of the claims 

raised in the petition. Commonwealth v. Murray, 562 Pa. 1, 

4, 753 A.2d 201, 203 (2000) (holding court lacks jurisdiction to 

hear merits of PCRA claim where petition is filed in untimely 

manner and no exception to timeliness requirements is properly 

alleged and proved; timeliness requirements do not depend on 

nature of violations alleged). A PCRA petition, including a 

second or subsequent petition, must be filed within one year of 

the date the underlying judgment becomes final. 42 Pa.C.S.A. 

§ 9545(b)(1). See Commonwealth v. Bretz, 830 A.2d 1273 

(Pa. Super. 2003); Commonwealth v. Vega, 754 A.2d 714 (Pa. 

Super. 2000). A judgment is deemed final “at the conclusion of 

direct review, including discretionary review in the Supreme 

Court of the United States and the Supreme Court of 

Pennsylvania, or at the expiration of time for seeking review.” 

42 Pa.C.S.A. § 9545(b)(3); Pollard, supra. 
J-S10032-16

- 9 -

The three statutory exceptions to the timeliness provisions 

in the PCRA allow for very limited circumstances under which the 

late filing of a petition will be excused. 42 Pa.C.S.A. 

§ 9545(b)(1). To invoke an exception, a petition must allege 

and the petitioner must prove:

(i) the failure to raise a claim previously was the 

result of interference by government officials with the 

presentation of the claim in violation of the Constitution or 

laws of this Commonwealth or the Constitution or laws of 

the United States;

(ii) the facts upon which the claim is predicated were 

unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that 

was recognized by the Supreme Court of the United States 

or the Supreme Court of Pennsylvania after the time period 

provided in this section and has been held by that court to 

apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). The PCRA specifically 

provides that a petitioner raising one of the statutory exceptions 

to the timeliness requirements must affirmatively plead and 

prove the exception. Id. See also Commonwealth v. 

Beasley, 559 Pa. 604, 741 A.2d 1258 (1999) (stating 

petitioner’s burden is to plead and prove exception applies when 

PCRA is untimely). The statutory exceptions to the timeliness 

requirements of the PCRA are also subject to a separate time 

limitation and must be asserted within sixty (60) days of the 

date the claim could have been first presented. 42 Pa.C.S.A. 

§ 9545(b)(2). “As such, when a PCRA is not filed within one 

year of the expiration of direct review, or not eligible for one of 

the exceptions, or entitled to one of the exceptions, but not filed 

within 60 days of the date that the claim could have been first 

brought, the trial court has no power to address the substantive 

merits of a petitioner’s PCRA claims.” Commonwealth v. 

Gamboa–Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

Commonwealth v. Taylor, 933 A.2d 1035, 1038-39 (Pa. Super. 2007), 

appeal denied, 951 A.2d 1163 (Pa. 2008).
J-S10032-16

- 10 -

Preliminarily, we note that at the time Appellant filed his purported 

post-sentence motion he was still represented by counsel, as confirmed by 

the docket entries and is obvious by counsel’s filing of post-sentence 

motions several days later. 

It is well-settled that “there is no constitutional right to hybrid 

representation either at trial or on appeal.” Commonwealth v. Jette, 23 

A.3d 1032, 1038 (Pa. 2011) (quoting Commonwealth v. Ellis, 626 A.2d 

1137, 1139 (Pa. 1993)). Our Supreme Court explained, in part, that adding 

pro se briefs to counseled briefs “would overwhelm an already overburdened 

court.” Ellis, supra at 1140.10 Because Appellant was still represented by 

counsel at the time he filed his pro se post-sentence motion, under Jette

and Ellis, that pro se filing was (and remains) a legal nullity. 

Additionally, this Court has already ruled that Appellant’s direct appeal 

was untimely. (See Dozier, supra at *6-8). Thus, our legal review of the 

timeliness of Appellant’s filings is subject to the law of the case and the 

coordinate jurisdiction rule. 

____________________________________________

10 The Ellis Court also observed:

Tails should not wag dogs. Merely because an appellant believes 

that the irrelevant is relevant is no reason to turn the system on 

its head and solemnly contemplate the wisdom of a person who 

does not have the sense to be guided by experts in an area 

where he himself possesses no expertise.

Ellis, supra at 1140.
J-S10032-16

- 11 -

[T]his Court has long recognized that judges of coordinate 

jurisdiction sitting in the same case should not overrule each 

others’ decisions. This rule, known as the “coordinate 

jurisdiction rule,” is a rule of sound jurisprudence based on a 

policy of fostering the finality of pre-trial applications in an effort 

to maintain judicial economy and efficiency. 

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (citations 

omitted).

The law of the case doctrine refers to a family of rules which 

embody the concept that a court involved in the later phases of 

a litigated matter should not reopen questions decided by 

another judge of that same court or by a higher court in the 

earlier phases of the matter. . . . The various rules which make 

up the law of the case doctrine serve not only to promote the 

goal of judicial economy . . . but also operate (1) to protect the 

settled expectations of the parties; (2) to insure uniformity of 

decisions; (3) to maintain consistency during the course of a 

single case; (4) to effectuate the proper and streamlined 

administration of justice; and (5) to bring litigation to an end.

Commonwealth v. McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005), 

(quoting Starr, supra at 1331), appeal dismissed as improvidently granted,

933 A.2d 650 (Pa. 2007).

Here, consistent with our application of the law of the case, and the 

coordinate jurisdiction rule, we find that Appellant’s judgment of sentence, 

imposed on March 5, 2010, became final on Monday, April 5, 2010.11 

Accordingly, Appellant had until April 5, 2011 to file a timely PCRA petition. 

____________________________________________

11 April 4, 2010 fell on a Sunday. See 1 Pa.C.S.A. § 1908.
J-S10032-16

- 12 -

Therefore, his pro se petition, filed on June 14, 2012, over fourteen months 

later, is untimely on its face. 

Appellant mistakenly assumes that claims alleging illegality of 

sentence can never be waived, even on collateral review. (See Appellant’s 

Brief, at 10). “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.” Commonwealth v. Fahy, 737 A.2d 214, 223 

(Pa. 1999) (citation omitted). 

Appellant raises no other cognizable exceptions to the time-bar. (See

Appellant’s Brief, at 4-22).12 Appellant’s petition is untimely, with none of 

the statutory exceptions to the time-bar pleaded or proven.

Because Appellant’s claim of an earlier PCRA petition is frivolous, and 

his current PCRA petition is untimely, we lack jurisdiction to review his other 

claims.13 

Order affirmed. 

____________________________________________

12 On independent review, we find none. 

13 We also note, for completeness, that in his actual (current) PCRA petition, 

Appellant conceded that he did not file a previous PCRA petition, as he now 

contends on appeal. (See PCRA Petition, 6/14/12, at 4 ¶ 7 (b) (stating no 

previous post-conviction petitions filed)). Accordingly, Appellant’s argument 

that his pro se post-sentence motion constituted a timely PCRA petition is 

legally frivolous. Furthermore, because Appellant did not raise this issue 

with the PCRA court, his claim is waived on appeal. See Pa.R.A.P. 302(a). 
J-S10032-16

- 13 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/9/2016