Com. v. Liebensperger

• Decision Date: 14 July 2006
• Citation: 904 A.2d 40
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Frank LIEBENSPERGER, Appellant.
• Court: Pennsylvania Superior Court

904 A.2d 40

COMMONWEALTH of Pennsylvania, Appellee, v. Frank LIEBENSPERGER, Appellant.

Superior Court of Pennsylvania.

Submitted May 8, 2006.

Filed July 14, 2006.

COPYRIGHT MATERIAL OMITTED

Kent D. Watkins, St. Clair, for appellant.

Frank R. Cori, Asst. Dist. Atty., Orwigsburg, for Com., appellee.

BEFORE: JOYCE, BENDER and JOHNSON, JJ.

OPINION BY JOYCE, J.:

¶ 1 Appellant, Frank Liebensperger, purports to appeal from the August 31, 2005, order entered in the Court of Common Pleas of Schuylkill County, denying his first petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 ("PCRA"), as untimely. Contemporaneously with this appeal, counsel has filed a motion for leave to withdraw, in accordance with Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc). Upon review, we affirm the order denying Appellant relief and grant counsel's request to withdraw.

¶ 2 On April 30, 2003, Appellant entered a negotiated plea of guilty but mentally ill to a series of charges stemming from the events of October 16, 2002, on which date Appellant set fire to the Alpha Mills Distribution Center in Schuylkill County, where he was formerly employed. The charges against Appellant included: arson endangering another person, arson endangering property, reckless burning, risking catastrophe, criminal mischief, burglary, criminal trespass, theft, receiving stolen property, and recklessly endangering another person.¹ On May 30, 2003, the trial court sentenced Appellant to a total of seven to sixteen years' incarceration, with time served credit of forty days. Additionally, Appellant was ordered to pay restitution to the Alpha Mills Distribution Center in the amount of $16,014.15 and to Ohio Casualty Insurance in the amount of $223,771.77. Appellant did not file a post-sentence motion with the trial court or a direct appeal with the Superior Court.

¶ 3 On April 26, 2005, Appellant filed a pro se motion for post-conviction collateral relief. In the petition, Appellant acknowledged the petition's facial untimeliness, but asserted that the Supreme Court of Pennsylvania's decision in Commonwealth v. Cruz, 578 Pa. 325, 852 A.2d 287 (2004) allowed him to invoke an exception to the timing requirements of the PCRA. See 42 Pa.C.S.A. § 9545(b). The following day the court granted Appellant In Forma Pauperis status and appointed Attorney Christopher Riedlinger to represent Appellant. The Commonwealth filed a motion to dismiss Appellant's PCRA petition on June 16, 2005, alleging both that the petition was untimely and that the after discovered evidence exception should not apply to Appellant's case. On June 21, 2005, pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure, the PCRA court issued an order notifying Appellant of its intent to dismiss his petition without a hearing and also notifying Appellant of the twenty day period during which Appellant could attempt to allege sufficient facts in order to necessitate a hearing. Pa.R.Crim.P. 907(1). On July 13, 2005, twenty-one days after its prior order, the PCRA court had not received a response from Appellant and therefore dismissed Appellant's petition as untimely.

¶ 4 Later, on August 9, 2005, counsel for Appellant submitted a motion to schedule a hearing on Appellant's PCRA petition to determine whether Cruz afforded Appellant an opportunity to invoke the after discovered evidence exception to the time requirements for filing a PCRA petition. Cruz, supra; 42 Pa.C.S.A. § 9545(b). Also on August 9, 2005, Appellant submitted an answer to the Commonwealth's motion to dismiss, making a similar argument. These documents were submitted over three weeks after the PCRA court issued its July 13, 2005, order denying Appellant's petition. On August 30, 2005, Attorney Kent Watkins was appointed to replace Attorney Riedlinger. On August 31, 2005, the PCRA court issued an order denying Appellant's motion to schedule a hearing and granting the Commonwealth's motion to dismiss Appellant's PCRA petition, together with an opinion explaining its rationale. On September 30, 2005, Appellant filed a counseled appeal with this Court. On October 5, 2005, the PCRA court issued an order explaining that "[t]he Opinion of August 31, 2005 is the Court's 1925 Opinion." PCRA Court Order, Certified Record, at 25. The record indicates that Appellant was not directed to, and did not, file a statement pursuant to Pa.R.A.P. 1925(b). Appellant's present counsel, Attorney Watkins, has filed a Turner-Finley "no-merit" letter on appeal.

¶ 5 Before we will consider counsel's petition to withdraw or whether the PCRA court erred in dismissing Appellant's petition as untimely, we must determine whether we have jurisdiction to hear the instant appeal. See Commonwealth v. Green, 862 A.2d 613, 615 (Pa.Super.2004) (en banc) appeal denied, 584 Pa. 692, 882 A.2d 477 (2005), citing Commonwealth v. Yarris, 557 Pa. 12, 24, 731 A.2d 581, 587 (1999) (appellate courts may raise the issue of jurisdiction sua sponte). "Jurisdiction is vested in the Superior Court upon the filing of a timely notice of appeal." Green, 862 A.2d at 615, citing Commonwealth v. Miller, 715 A.2d 1203, 1205 (Pa.Super.1998). "An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal." Pa.R.Crim.P. 910. "A final order is one that ends the litigation or disposes of the entire case." Commonwealth v. Harper, 890 A.2d 1078, 1081 (Pa.Super.2006), citing Commonwealth v. Nicodemus, 431 Pa.Super. 342, 636 A.2d 1118 (1993); Pa.R.A.P. 341(a). An appellant has a period of thirty days after the entry of an order during which an appeal on that order can be taken. See Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa.Super.2000); Pa.R.A.P. 903(a).

¶ 6 In the instant case, the record indicates that the PCRA court gave notice on June 21, 2005, pursuant to Rule 907(1) of the Pennsylvania Rules of Criminal Procedure of its intent to dismiss Appellant's petition. Order, Domolakes, J., Certified Record, at 18. Twenty-one days later, on July 13, 2005, the PCRA court entered an order denying Appellant's petition. Order, Domolakes, J., Certified Record, at 19. Appellant did not file the instant appeal until September 30, 2005, forty-nine days beyond the deadline. Consequently, the instant appeal appears untimely.

¶ 7 Notwithstanding Appellant's forty-nine day delay in filing a notice of appeal, inadequacies in the PCRA court's order of July 13, 2005, require our further consideration. Rule 907 provides that when a PCRA court denies a petition without a hearing, the court shall issue an order to that effect that also advises the petitioner of his right to appeal from the final order disposing of his petition, and of the time in which an appeal must be taken. Pa.R.Crim.P. 907(4). The PCRA court's order of July 13, 2005, failed to inform the defendant of his right to appeal its decision, and of the time within which that appeal must have been taken. Order, Domolakes, J., Certified Record, at 18. This Court has refrained from quashing an appeal as untimely where the trial court failed to properly advise the appellant of his appellate rights. See Commonwealth v. Wright, 846 A.2d 730, 735 (Pa.Super.2004). Therefore, pursuant to Wright, we will entertain the instant appeal.

¶ 8 In so stating, we note that the record indicates that additional irregularities in the PCRA court proceedings may have led to Appellant filing a notice of appeal from the PCRA court's order of August 31, 2005. Section 5505 of the Judicial Code provides a thirty day period after an order in which a court may modify or rescind that order.² 42 Pa.C.S.A. § 5505. If a court does not modify an order within this period, the court loses the authority to do so. Commonwealth v. LeBar, 860 A.2d 1105, 1111 (Pa.Super.2004), quoting Commonwealth v. Walters, 814 A.2d 253, 255-56 (Pa.Super.2002). In the instant case, Appellant filed, and the PCRA court apparently entertained a motion to schedule a hearing on Appellant's PCRA petition on August 9, 2005, over three weeks after the PCRA court entered a final order denying Appellant's PCRA petition. See Order, Domolakes, J., Certified Record, at 19. Later, on August 31, 2005, the PCRA court issued an order granting the Commonwealth's motion to dismiss Appellant's petition, and denying Appellant's motion to schedule a hearing. The PCRA court's orders and opinion of August 31, 2005, coming forty-nine days after its final order dismissing Appellant's PCRA petition as untimely, are beyond the period during which a court may, pursuant to Section 5505, modify or rescind an order. Additionally, the record does not indicate that the PCRA court explicitly vacated the order of July 13, 2005, within the thirty day period. 42 Pa.C.S.A. § 5505. Consequently, the orders post-dating the July 13, 2005, order are a legal nullity and cannot form the basis of an appeal.

¶ 9 Upon considering a PCRA court's denial of relief, our standard of review is limited to a determination of whether the PCRA court's findings are supported by the record and free from legal error. Commonwealth v. Merritt, 827 A.2d 485, 487 (Pa.Super.2003). Further, when seeking leave to withdraw counsel must submit a "no-merit" letter that details the nature and extent of counsel's review, lists each issue the petitioner wishes to review, and explains why those issues lack merit. Id. After counsel has met these requirements, the court must conduct its own independent review of the record. Id. If, upon this review, the court agrees that the petition lacks merit, counsel's request to withdraw may be granted. Id.

¶ 10 In his "no-merit" letter, counsel states that he has conducted an exhaustive review of the record, and that he has reviewed "the pleadings, discovery information, record papers, and...