Com. v. Price

• Decision Date: 27 May 2005
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert Daniel PRICE, Appellant.
• Court: Pennsylvania Superior Court

876 A.2d 988

COMMONWEALTH of Pennsylvania, Appellee v. Robert Daniel PRICE, Appellant.

Superior Court of Pennsylvania.

Submitted May 10, 2004.

Filed May 27, 2005.

Robert J. Hollister, Montrose, for appellant.

Jason J. Legg, Asst. Dist. Atty., Montrose and Jerome T. Foerster, Office of the Atty. Gen., Harrisburg, for Com., appellee.

Ronald Attarian, Erdenheim, Amicus Curiae.

Before: LALLY-GREEN, GANTMAN, and KELLY, JJ.

GANTMAN, J.

¶ 1 Appellant, Robert Daniel Price, appeals from the order which denied his petition brought pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Specifically, Appellant challenges the sufficiency of the evidence to support his sexually violent predator classification, and seeks removal of his lifetime registration, notification, and counseling requirements under Megan's Law II, 42 Pa.C.S.A. §§ 9791-9799. After careful review, we hold the court lacked jurisdiction to consider the substance of Appellant's petition. We further hold Appellant's issue fails to raise a cognizable claim under the PCRA and lacks merit in any event. We also determine Appellant has waived his remaining issues. Accordingly, we affirm the order which denied his petition for PCRA relief.

¶ 2 The relevant facts and procedural history of this appeal are as follows. In late 2000 and early 2001, Appellant, who was twenty-one years of age, sexually molested his six-year-old male cousin. In January 2001, the victim disclosed the incidents to his parents. The victim's parents contacted the police. The police questioned Appellant, who admitted sexually assaulting the victim five or six times. The assaults included oral contact and anal penetration. The police charged Appellant with numerous sexual offenses. In exchange for the Commonwealth's agreement to voluntarily withdraw the remaining charges, Appellant entered an open guilty plea to one count of aggravated indecent assault.¹

¶ 3 The court directed the preparation of a sexually violent predator (SVP) assessment by the sexual offenders assessment board and scheduled a hearing to determine Appellant's SVP status. The board evaluator completed the assessment and provided expert opinion testimony that Appellant was a SVP. Appellant's expert, on the other hand, opined Appellant was not a SVP. Appellant's expert conceded he did not consider a number of required statutory factors in his assessment. On November 30, 2001, the court classified Appellant as a SVP under Megan's Law II. On December 20, 2001, the court sentenced Appellant to 4 to 10 years' incarceration and informed him of his lifetime registration, notification, and counseling requirements. Appellant did not file post-sentence motions or a direct appeal. Appellant had been represented at all stages of proceedings to that point by counsel from the Susquehanna County Public Defender's Office.

¶ 4 On January 15, 2003, Appellant filed pro se a "[Petition] for Special Relief From 42 Pa.C.S.A. § 9795.4," asking the court to vacate his SVP classification. The petition alleged the evidence at the SVP hearing had been "insufficient to sustain a determination that [Appellant] is a sexually violent predator." (Appellant's [Petition] for Special Relief, filed 1/15/03, at 2). On January 24, 2003, the court entered an order denying Appellant's petition to vacate his SVP classification. The order stated the court lacked jurisdiction to consider the petition as a post-sentence motion under Pa. R.Crim.P. 720. Moreover, the order stated Appellant's claim of error and requested relief were not cognizable under the PCRA. Importantly, Appellant did not seek reconsideration of the court's denial of his petition for special relief or appeal that decision.

¶ 5 On March 4, 2003, Appellant filed a PCRA petition pro se. The petition alleged 1) Megan's Law II is unconstitutional, 2) Appellant's lifetime registration requirement is an illegal sentence of perpetual probation, 3) counsel rendered ineffective assistance for failing to object to the allegedly unconstitutional nature of the statutory SVP assessment procedure, and 4) counsel rendered ineffective assistance for failing to file a direct appeal challenging the constitutionality of Megan's Law II and the sufficiency of the evidence to support Appellant's SVP classification.

¶ 6 On March 11, 2003, the court appointed counsel to assist Appellant in the prosecution of his PCRA petition. On March 26, 2003, the Commonwealth filed a motion to dismiss Appellant's PCRA petition as untimely. On March 27, 2003, the court entered an order giving notice of its intent to dismiss Appellant's petition as untimely. The order provided Appellant 20 days within which to file a response.

¶ 7 On April 14, 2003, Appellant filed a response which denied his petition was untimely as follows:

6. Denied. It is specifically denied that [Appellant] filed his first Post Conviction Relief Act petition on March 4, 2003. By way of further answer it is averred [Appellant], acting pro se, filed his first Post Conviction Relief Act petition on or about January 15, 2003, albeit improperly [titled] Motion for Special Relief. Said filing on or about January 15, 2003, was timely as per the one year time frame. By way of further answer, it is averred that this petition was done pro se and was dismissed by the Court without [a] hearing.

(Appellant's Answer to Motion to Dismiss, filed 4/14/03, at ¶ 6). Appellant concurrently filed a motion to supplement his PCRA petition.

¶ 8 The court issued a rule returnable for the Commonwealth to show cause why Appellant's requested relief should not be granted. The rule returnable hearing took place on May 2, 2003. That date, the court entered an order denying the Commonwealth's motion to dismiss Appellant's PCRA petition as untimely and permitted Appellant to supplement his petition. The court concluded it should have considered Appellant's January 15th petition for special relief as a PCRA petition. Thus, the court determined Appellant's March 4th petition was a timely amendment. On May 22, 2003, Appellant filed a supplemental PCRA petition claiming the Department of Corrections was improperly deducting and withholding monies from Appellant's inmate account.

¶ 9 The court conducted a PCRA hearing on June 6, 2003. Appellant's guilty plea counsel and SVP/sentencing counsel each testified that Appellant had not asked them to file post-sentence motions or a direct appeal. Appellant testified he had agreed to be interviewed by the board evaluator for SVP assessment purposes. Appellant testified he had not discussed the filing of post-sentence motions or a direct appeal with counsel. He maintained he had been unaware he could appeal the propriety of his SVP classification and his resultant registration requirements without challenging his judgment of sentence. The court took the matter under advisement. It ordered transcription of the SVP hearing testimony and directed the parties to file briefs within 20 days of their receipt and review of the notes of testimony. On October 22, 2003, the court issued an opinion and order denying Appellant's PCRA petition claims of ineffectiveness of counsel and illegal sentence. The court transferred Appellant's claims regarding deductions from his inmate account to the Commonwealth Court. Appellant filed a timely notice of appeal.

¶ 10 On appeal, Appellant raises the following issues for our review:

WHETHER THE [PCRA] COURT ERRED IN DETERMINING [APPELLANT] TO BE A SEXUALLY VIOLENT PREDATOR?

WHETHER THE [PCRA] COURT ERRED IN FAILING TO FIND MEGAN'S LAW [II] INAPPLICABLE TO THE PRESENT CASE?

WHETHER THE [PCRA] COURT ERRED IN NOT FINDING MEGAN'S LAW [II] UNCONSTITUTIONAL PER SE?

WHETHER THE [PCRA] COURT ERRED IN ORDERING THE TRANSFER OF THE ISSUE CONCERNING [APPELLANT'S] INMATE ACCOUNT TO THE COMMONWEALTH COURT?

(Appellant's Brief at 4).

¶ 11 As a prefatory matter, we first determine whether the court had jurisdiction to reconsider and effectively reverse its January 24th order denying Appellant's petition for special relief on the ground the claim raised and relief requested were not cognizable under the PCRA. This inquiry necessitates review of the interplay between the power of the court to reconsider the merits of an order more than thirty days after its entry, the eligibility for relief and timeliness requirements of the PCRA, and the right to counsel of an indigent petitioner on a first PCRA petition.

¶ 12 Generally, a post-sentence motion must be filed within 10 days after imposition of sentence. Pa.R.Crim.P. 720. The trial court ordinarily has no jurisdiction to entertain a post-sentence motion filed more than 30 days after the imposition of sentence. Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super.2003) (en banc). In general, the trial court's jurisdiction over any matter ceases thirty days after the entry of a final order. Commonwealth v. Robinson, 575 Pa. 500, 508-509, 837 A.2d 1157, 1162 (2003) (stating: "Far from continuing into perpetuity, the trial court's jurisdiction over a matter generally ends once an appeal is taken from a final order or, if no appeal is taken, thirty days elapse after the final order") (citing 42 Pa.C.S.A. § 5505).

¶ 13 This Court recently re-affirmed that an untimely pro se petition for reconsideration of sentence may be considered a petition for relief under the PCRA as follows:

In [Commonwealth v. Hockenberry, 455 Pa.Super. 626, 689 A.2d 283 (Pa.Super.1997), appeal denied, 548 Pa. 645, 695 A.2d 784 (1997)], appellant filed pro se a "Motion for Reduction/Modification of Sentence to correct Illegal Sentence." Id. at 287. We noted, at the outset, that a motion to modify sentence must be filed within ten days and an appeal from a sentence must be filed within thirty days. See id. at 288. In Hockenberry, however, appellant filed his motion more than nine months after sentence was imposed. See id. Noting that the issues of sentence legality raised by appellant were

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