Commonwealth v. Kuperschmidt
Decision Date | 23 December 2021 |
Docket Number | 874 EDA 2021 |
Citation | 270 A.3d 1160 (Table) |
Parties | COMMONWEALTH of Pennsylvania, Appellee v. Dimitry KUPERSCHMIDT, Appellant |
Court | Pennsylvania Superior Court |
Appellant, Dimitry Kuperschmidt, appeals from the order entered in the Pike County Court of Common Pleas, which dismissed his first petition filed under the Post Conviction Relief Act ("PCRA").1 We dismiss the appeal.
The PCRA court set forth the relevant facts and procedural history as follows:
[Appellant] was charged with two hundred seventeen (217) counts related to a fraudulent voting scheme in a 2014 election held by the Wild Acres Community Association. In particular, the fraudulent acts involved filling out election ballots of S.Q.S. property owners in the community. Following trial, the jury returned a verdict of guilty on one hundred ninety (190) counts. Appellant was found not guilty on twenty-seven (27) counts for the offenses of identity theft, tampering with records or identification, and forgery. Appellant's original sentencing took place on September 8, 2016, during which he received a total aggregate sentence of not less than twelve (12) months not more than twenty-nine (29) months of incarceration in a state prison.
(PCRA Court Opinion, filed 7/20/21, at 1).
On direct appeal, this Court reversed the conviction for criminal use of a communication facility, vacated the judgement of sentence and remanded the matter for resentencing. See Commonwealth v. Kuperschmidt , 185 A.3d 1093 (Pa.Super. 2018) (unpublished memorandum), appeal denied , 647 Pa. 313, 189 A.3d 378 (2018). On November 1, 2018, the trial court resentenced Appellant and imposed the same aggregate sentence of 12 to 29 months’ imprisonment. Once again, Appellant appealed and this Court vacated the judgment of sentence and remanded for resentencing, holding that the trial court imposed an illegal sentence on one count of attempted identity theft, where the minimum sentence for that crime exceeded one-half of the maximum sentence. See Commonwealth v. Kuperschmidt , 221 A.3d 312 (Pa.Super. 2019) (unpublished memorandum), appeal denied , ––– Pa. ––––, 234 A.3d 400 (2020). The trial court resentenced Appellant on July 17, 2020, maintaining an aggregate sentence of 12 to 29 months’ imprisonment.
Appellant filed a timely counseled PCRA petition on February 25, 2021. On March 9, 2021, the PCRA court issued notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P. 907. Specifically, the court noted that Appellant was not serving a sentence of imprisonment, probation, or parole at the time the notice was issued and ineligible for PCRA relief. Appellant did not respond to the Rule 907 notice and the court dismissed the PCRA petition on March 29, 2021.2
On April 26, 2021, Appellant timely filed a pro se notice of appeal. On the same day, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied on May 14, 2021. Appellant's counsel filed a motion to withdraw on August 2, 2021, which the court granted on September 1, 2021. On October 12, 2021, Appellant filed a pro se appellate brief with this Court.3
Preliminarily, we recognize:
[A]ppellate briefs and reproduced records must materially conform to the requirements of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. This Court may quash or dismiss an appeal if the appellant fails to conform to the requirements set forth in the Pennsylvania Rules of Appellate Procedure. Id. ; Commonwealth v. Lyons , 833 A.2d 245 (Pa.Super. 2003) [, appeal denied , 583 Pa. 695, 879 A.2d 782 (2005) ]. Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. Id. at 252. To the contrary, any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing. Commonwealth v. Rivera , 685 A.2d 1011 ([Pa.Super.] 1996).
In re Ullman , 995 A.2d 1207, 1211-12 (Pa.Super. 2010), appeal denied , 610 Pa. 600, 20 A.3d 489 (2011) (quoting Commonwealth v. Adams , 882 A.2d 496, 497-98 (Pa.Super. 2005) ). The applicable rules of appellate procedure mandate that an appellant's brief shall consist of the following matters, separately and distinctly entitled and in the following order:
Pa.R.A.P. 2101 (emphasis added). See also Pa.R.A.P. 2114 - 2119 ( ).
Regarding the statement of questions involved section of an appellate brief, Rule 2116(a) states:
Pa.R.A.P. 2116(a) (emphasis added). Additionally, Rule 2119(a) provides:
Pa.R.A.P. 2119(a). Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa.Super. 2007), appeal denied , 596 Pa. 703, 940 A.2d 362 (2008) (internal citations omitted). "This Court will not act as counsel and will not develop arguments on behalf of an appellant." Id. If a deficient brief hinders this Court's ability to address any issue on review, we shall consider the issue waived. Commonwealth v. Gould , 912 A.2d 869, 873 (Pa.Super. 2006) ( ). See also In re R.D. , 44 A.3d 657 (Pa.Super. 2012), appeal denied , 618 Pa. 677, 56 A.3d 398 (2012) ( ).
Additionally, to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that he is currently serving a sentence of imprisonment, probation or parole at the time that relief is granted. See 42 Pa.C.S.A. § 9543(a).
[S]ection 9543 requires that a petitioner be serving a sentence of incarceration at the time relief is granted; if they are not, they are ineligible for post-conviction relief. See Commonwealth v. Ahlborn , 548 Pa. 544, 699 A.2d 718, 720 (1997) ... (section 9543(a)(1)(i) requires that a petitioner be serving a sentence of incarceration at the time when relief is granted) that the plain language of ; Commonwealth v....
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