Commonwealth v. Scheer

1

COMMONWEALTH OF PENNSYLVANIA v. JUSTIN SCHEER, Appellant

No. 786 WDA 2022

No. J-S05010-23

Superior Court of Pennsylvania

April 28, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered June 14, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s) CP-02-CR-0012731-2009

Joseph D. Seletyn, Esq.

BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM

BENDER, P.J.E.

Justin Scheer, Appellant, appeals from the post-conviction court's order denying as untimely his motion for collateral relief. We affirm.

Appellant entered a guilty plea to two counts of robbery and two firearms violations after negotiating a plea agreement with the Commonwealth. Appellant, who was sixteen years old at the time of the incident, was initially charged with seven counts pertaining to a shooting. The victim, who was on friendly terms with Appellant, was taking a shortcut through a cemetery to a friend's house when Appellant and an unnamed individual approached. Appellant demanded that the victim give him everything he was carrying. When the victim refused and began to walk away, Appellant pulled out a revolver and fired two shots. One of the bullets struck the victim in his buttocks. Appellant pleaded guilty to the four charges specified above, with the Commonwealth agreeing to withdraw the remaining counts. Appellant was facing a mandatory minimum sentence of five to ten years' incarceration at the robbery counts, and the Commonwealth agreed to request an aggregate sentence of five to ten years' incarceration. The parties made no agreement as to probation.

On September 9, 2010, the trial court accepted the plea and sentenced Appellant to the agreed-upon term of incarceration, as well as a consecutive period of five years' probation to be supervised by the Board of Probation and Parole ("Board"). Appellant did not file post-sentence motions or a direct appeal.

It is not entirely clear when Appellant was paroled. The certified record establishes that on or about April 26, 2011, Appellant accepted state supervision of his probation. On July 16, 2019, the trial court issued a bench warrant for Appellant's arrest due to a probation violation. This violation was apparently cleared. Appellant was detained again sometime in 2020 due to an arrest on unrelated charges. He filed a pro se motion to lift his detainer in August of 2020, followed by a pro se petition for habeas corpus relief in September, and another pro se motion in December of 2021. The court did not rule on those motions. On January 26, 2022, the Commonwealth requested that the court appoint counsel as Appellant was seeking relief available under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. The court appointed counsel and directed the filing of an amended petition or an advisement that no further amendment was necessary.

On April 21, 2022, Appellant filed a pleading captioned as a petition for relief under the PCRA and/or a motion to enforce plea agreement, and/or a petition for writ of habeas corpus. With respect to PCRA claims, Appellant sought to challenge the voluntariness of his guilty plea and, as discussed in detail below, argued that an exception to the time-bar applied. Regarding his claims for enforcement of his plea bargain, Appellant maintained that this request for relief may be filed outside the PCRA and argued that the Commonwealth violated its agreement when the Board imposed certain probationary conditions. He thus sought to have those probation conditions invalidated. Finally, Appellant argued that, if the claims were deemed to be untimely under the PCRA, they could be addressed as a writ of habeas corpus. See generally Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007) (holding that a claim concerning deportation from Canada to face the death penalty may be raised outside the PCRA; "this Court has never held that habeas corpus cannot provide a separate remedy, in appropriate circumstances").

The PCRA court determined that the claim for contractual enforcement failed as the probation conditions were imposed at a separate case. The court construed the voluntariness-of-the-guilty-plea claim as a request for relief under the PCRA and determined that the cited time-bar exception did not apply. As such, the court entered an order denying Appellant's petition.

Thereafter, Appellant filed a timely notice of appeal. He complied with the PCRA court's order to file a Pa.R.A.P. 1925(b) concise statement, and the court authored an opinion in support pursuant to Rule 1925(a). Appellant raises the following points for our review:

I. The [c]ourt had jurisdiction to rule on [Appellant]'s Motion to Enforce Plea Agreement and Petition for Writ of Habeas Corpus because these motions do not fall under the timeliness provisions of the [PCRA].

II. The [c]ourt had jurisdiction to rule on [Appellant]'s Amended PCRA Petition because it fell within an exception to the timeliness provisions of the [PCRA] where [Appellant] filed within one (1) year of discovering that he suffers from lead poisoning, which caused an unknowing[ -] and therefore illegal[ -] guilty plea.

III. [Appellant] is entitled to the benefit of the plea bargain he entered, and to the terms explained to him as part of the plea agreement.

Appellant's Brief at 5.

"Our standard of review of a PCRA court's dismissal of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the record evidence and free of legal error." Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016). All PCRA petitions, including second or subsequent petitions, "shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves" one of three statutory exceptions. See 42 Pa.C.S. § 9545(b)(1)(i-iii). "The General Assembly's determination that a PCRA petition must be filed within one year of when a petitioner's judgment of sentence becomes final is statutorily described as a jurisdictional limitation." Scott v. Pennsylvania Bd. of Prob. & Parole, 284 A.3d 178, 187 (Pa. 2022). Our Supreme Court has held that this jurisdictional requirement implicates subject-matter jurisdiction, id., and the timeliness of a petition is "a threshold question implicating our subject matter jurisdiction and ability to grant the requested relief." Commonwealth v. Whitney, 817 A.2d 473, 478 (Pa. 2003), overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020).

Additionally, "both the PCRA and the state habeas corpus statute contemplate that the PCRA subsumes the writ of habeas corpus in circumstances where the PCRA provides a remedy for the claim." Commonwealth v. Hackett, 956 A.2d 978, 985-86 (Pa. 2008). Our Supreme Court has interpreted the PCRA to reflect a legislative judgment that "claims that could be brought under the PCRA must be brought under that Act. No other statutory or common law remedy 'for the same purpose' is intended to be available; instead, such remedies are explicitly 'encompassed' within the PCRA." Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (emphasis in original).

Initially, we address Appellant's claim that some or all of his claims are not subject to the PCRA. Beginning with the voluntariness of his plea, it is well-settled that "to be valid, a guilty plea must be knowingly, voluntarily and intelligently entered." Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003). If a challenge to the voluntariness of the plea is premised on some defect or inadequacy in the court's colloquy, those claims must be raised during the direct appeal process. See Commonwealth v. Fears, 86 A.3d 795, 808 (Pa. 2014) (examining, on collateral review, whether the underlying guilty plea was voluntarily entered as filtered through ineffective assistance of direct appellate counsel for failing to litigate that claim). While Appellant is not challenging the voluntariness of his plea by reference to counsel's performance or any defect in the colloquy, he asserts that newly-discovered facts support the pursuit of the involuntariness claim. Appellant's challenge to his guilty plea could be brought under the PCRA and is therefore subject to its time constraints. See Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) (holding that a pro se petition challenging the validity of a guilty plea must be treated as a PCRA).

Appellant acknowledges that the petition is patently untimely. Nevertheless, he claims that he meets the timeliness exception set forth in Section 9545(b)(1)(ii). See 42 Pa.C.S. § 9545(b)(1)(ii) (providing an exception to the PCRA's one-year time bar when "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"). Specifically, Appellant submits that, in January of 2022, "he obtained copies of his [s]ister's blood tests, which were performed when she was approximately … 1 year old, which revealed that she had high levels of lead in her system." Amended Petition for Relief, 4/21/22, at 9. Appellant states that he and his sister grew up together and argues that the test proves that he was exposed to the same toxins. If the time-bar is satisfied, Appellant wishes to pursue a claim that the asserted lead poisoning rendered his plea invalid "and he should be permitted to withdraw it through a showing of prejudice that rises to the level of manifest injustice." Id. (quoting Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011)).

The PCRA court disposed of Appellant's claim as follows:

Appellant alleges subsection (ii) applies to him. Appellant is incorrect. Appellant's "new fact" is his sister's January

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