Opinion
J. S58015/17 No. 278 MDA 2017
10-13-2017
COMMONWEALTH OF PENNSYLVANIA v. DENNIS JAY MACCOLL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, January 11, 2017, in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0002834-2013 BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E. JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:
Dennis Jay MacColl appeals, pro se , from the order of January 11, 2017, dismissing his PCRA petition without a hearing and allowing appointed counsel to withdraw. We affirm.
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
The history of this case was set forth at length in the PCRA court's comprehensive March 17, 2017 opinion. (Docket #28.) To summarize, appellant entered a negotiated guilty plea on July 10, 2013 to multiple counts of simple assault and terroristic threats and received the agreed-upon sentence of 6 to 23 months' incarceration followed by 5 years of probation. Appellant's sentence was below the mitigated range of the guidelines. Appellant did not take a direct appeal. On August 28, 2015, appellant appeared for a parole/probation violation hearing. Following the hearing, parole and probation were revoked, and appellant was resentenced on November 10, 2015 to 2½ to 5 years' incarceration. Post-sentence motions were denied, and appellant filed a timely appeal. On September 9, 2016, this court affirmed the judgment of sentence. Commonwealth v. MacColl , 158 A.3d 173, 2016 WL 5886755 (Pa.Super. Sept. 9, 2016) (unpublished memorandum).
A timely pro se PCRA petition was filed on November 7, 2016. Counsel was appointed and filed a petition to withdraw and Turner / Finley "no-merit" letter addressing the issues raised in appellant's petition. On December 13, 2016, the PCRA court issued 20-day notice of intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907(a). Appellant filed a pro se response on January 5, 2017; and on January 11, 2017, the PCRA court dismissed appellant's petition and granted PCRA counsel leave to withdraw. This timely appeal followed. Appellant complied with Pa.R.A.P. 1925(b), and the PCRA court has filed a Rule 1925(a) opinion.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) ( en banc ).
The PCRA court ordered appellant to file a Rule 1925(b) statement within 21 days "of the date Defendant receives this Order." (Docket #26.) The Rule 1925 order was filed on February 3, 2017, and mailed to appellant at SCI-Laurel Highlands via first-class mail and certified mail. ( Id.) Appellant's Rule 1925(b) statement is dated Sunday, February 26, 2017 and bears a postmark of Monday, February 27, 2017. (Docket #27.) Ordinarily, appellant's concise statement would be considered untimely because it was not placed in the prison mail within 21 days of the PCRA court's order. Nevertheless, we will not find waiver since the PCRA court explicitly provided that the Rule 1925(b) statement shall be filed within 21 days of the date appellant "receives" the order, and presumably, it took at least 1-2 days for the order to arrive at SCI-Highlands and be placed into appellant's hands. --------
Although the PCRA court erroneously concluded in its Rule 1925(a) opinion that appellant's PCRA petition was untimely filed, it nevertheless addressed the issues appellant raised on the merits. We determine that the merits review of the Honorable Donald R. Totaro's 22-page Rule 1925(a) opinion ably and comprehensively disposes of the matter, discussing each of the issues raised in appellant's PCRA petition and on appeal with appropriate citation to relevant authority and without legal error. Therein, Judge Totaro thoroughly explains why all of appellant's issues are either waived, previously litigated, or wholly meritless and no purpose would be served by further proceedings. In addition, appellant has cited no authority for the proposition that appointed PCRA counsel was required to interview him prior to filing a withdrawal petition and Turner / Finley letter. We will affirm the order dismissing appellant's PCRA petition on the basis of the merits review contained in Judge Totaro's March 17, 2017 opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/13/2017
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