Opinion
305 MDA 2023 J-A02037-24
01-12-2024
COMMONWEALTH OF PENNSYLVANIA v. JOSEPH W. PILCHESKY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered January 30, 2023 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001075-2013
BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.
MEMORANDUM
SULLIVAN, J.
Joseph Pilchesky ("Pilchesky") appeals from the dismissal of his petition for writ of habeas corpus, which the court below deemed a petition for relief pursuant to the Post Conviction Relief Act ("PCRA"). We dismiss and strike the case from the argument list.
The facts relevant to this appeal are as follows. In 2011, Pilchesky, who was not licensed to practice law in Pennsylvania, offered legal advice and drafted legal documents for three people. In February 2013, the Commonwealth charged him with multiple counts of unauthorized practice of law. Pilchesky elected to proceed pro se but later elected to be represented by counsel.
In August 2015, Pilchesky filed a petition for writ of habeas corpus asserting that the charges should be dismissed for lack of a prima facie case because the Commonwealth did not establish that he practiced law in a manner to "convey the impression he is a practitioner of law." The trial court granted Pilchesky's petition. On the Commonwealth's appeal, this Court reversed and held the quoted language addressed only one of three alternative bases for liability. See Commonwealth v. Pilchesky, 151 A.3d 1094, 1098-1100 (Pa. Super. 2016) ("Pilchesky I"). The Supreme Court denied allocatur, 174 A.3d 1028 (Pa. 2017), and the United States Supreme Court denied a writ of certiorari. See Pilchesky I at *3 n.4. Pilchesky sought, as was granted, the right to proceed pro se.
In relevant part, the statute that prohibits unauthorized practice of law provides a non-attorney shall not "practice law," "hold himself out to the public as being entitled to practice law," or use or advertise the title of lawyer "in such manner as to convey the impression that he is a practitioner of law. . .." 42 Pa.C.S.A. § 2524(a).
Pilchesky filed a series of pre-trial motions, which the court denied. At trial, a jury convicted Pilchesky of the charged offenses. In January 2019, the trial court imposed a sentence of two years of probation and a fine. After the court denied his post-sentence motions, Pilchesky appealed. This Court affirmed his judgment of sentence. We rejected Pilchesky's claims that 42 Pa.C.S.A. § 2524(a) violates the United States constitution, and the evidence was insufficient to prove his guilt. See Commonwealth v. Pilchesky, 237 A.3d 1036 (Pa. Super. 2020) (unpublished memorandum at *3) ("Pilchesky II"). The Pennsylvania Supreme Court denied Pilchesky's allocatur petition on March 10, 2021. See 250 A.3d 474 (Pa. 2021). Pilchesky completed his term of probation on January 11, 2021.
In August 2022, Pilchesky filed a "petition in habeas corpus," challenging his conviction based on this Court's "illogical and unreasonable" interpretation of 42 Pa.C.S.A. § 2524(a), and its unconstitutional interpretation of the statute. See Petition in Habeas Corpus, 8/5/22, at 3, 17.
The PCRA court issued a notice of intent to dismiss the petition pursuant to Pa.R.A.P. 907, and subsequently dismissed it. Pilchesky timely appealed, and he and the court complied with Pa.R.A.P. 1925.
The PCRA court's Opinion incorporated the reasoning of its Notice of Appeal Pursuant to Pa.R.Crim.P. 907. See 1925 Opinion, 1/30/23, at 2.
On appeal, Pilchesky presents the following issues for our review:
1. Did the trial court err at law or abuse its discretion when it ruled that it did not have jurisdiction over [Pilchesky's] petition in habeas corpus because it deemed it to be an untimely[-]filed PCRA Petition?
2. Did the trial court err at law or abuse its discretion when it ruled that [Pilchesky's] petition in habeas corpus was a PCRA petition?
3. Did the trial court err at law or abuse its discretion in dismissing [Pilchesky's] petition in habeas corpus for want of jurisdiction?
4. Should the trial court have vacated Pilchesky's convictions due to the unconstitutional nature of the Superior Court's . . . interpretation of [the unlawful practice of law statute]?Pilchesky's Brief at 4 (unnecessary capitalization omitted, italics added).
Pilchesky's claims implicate the availability of the writ of habeas corpus to address his post-conviction challenges to his convictions for unlawful practice of law.
Regardless of how a litigant titles his post-conviction petition, the petition is regarded as a PCRA petition if it seeks relief contemplated by the PCRA. See Commonwealth v. Fantauzzi, 275 A.3d 986, 995 (Pa. Super. 2022); see also Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (holding where the PCRA could provide a potential remedy, it subsumes the writ of habeas corpus). A challenge to the constitutionality of a statute is cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(i). Additionally, to be timely, a PCRA petition must be filed within one year of the date the judgment becomes final unless the petitioner pleads and proves the application of one of the three PCRA time-bar exceptions. See 42 Pa.C.S.A. § 9545(b)(1). Under the PCRA, a claim is previously litigated and unreviewable if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." See 42 Pa.C.S.A. § 9544(a)(2); 9543(a)(3).
The writ of habeas corpus is further limited to those who are "restrained of [their] liberty." See 42 Pa.C.S.A. § 6503(a).
The PCRA court held Pilchesky's petition was properly viewed as a PCRA petition. Because Pilchesky conceded he was no longer serving his probationary sentence, see Petition in Habeas Corpus, 8/5/22 at 2, and his petition was untimely, the PCRA court held that it did not have jurisdiction. See Notice pursuant to Pa.R.Crim.P. 907, 1/6/23, at 4. It subsequently dismissed the petition. See Order, 1/30/23.
Pilchesky filed a response to the Rule 907 notice.
We affirm the dismissal of Pilchesky's petition on multiple jurisdictional grounds. The court properly regarded Pilchesky's filing as a PCRA petition because a challenge to the constitutionality of a statute is cognizable under the PCRA, see 42 Pa.C.S.A. § 9543(a)(2)(i), and Pilchesky provides no authority to show a sufficiency challenge raised by an unincarcerated personis the proper subject of a habeas corpus petition. Pilchesky is thus not eligible for PCRA relief. See 42 Pa.C.S.A. § 9543(a)(1); Fantauzzi, 275 A.3d at 995; Commonwealth v. Kirwan, 221 A.3d 196, 200 (Pa. Super. 2019) (holding that PCRA relief is unavailable to a petition who is no longer serving a sentence). Second, the Court lacks jurisdiction because Pilchesky did not timely file the petition. Pilchesky's judgment of sentence became final on June 9, 2021, ninety days after the Pennsylvania Supreme Court denied allocatur because Pilchesky did not file a petition for a writ of certiorari. See 42 Pa.C.S.A. § 9545(b)(3); United States Supreme Court Rule 13.1. Pilchesky filed the petition on August 5, 2022, more than one year after his sentence became final, and did not allege that any of the enumerated exceptions to the jurisdictional time-bar applied. See 42 Pa.C.S.A. §9545(b)(1). The petition was therefore untimely and unreviewable. See id.; Commonwealth v. Wharton, 263 A.3d 561, 570-71 (Pa. 2021).
Pilchesky concedes that he is not currently serving a sentence of imprisonment, probation, or parole for the crime. See Petition in Habeas Corpus, 8/5/22, at 2.
Additionally, we note a third jurisdictional defect relating to Pilchesky's petition. On direct appeal, Pilchesky asserted the unauthorized practice of law statute was unconstitutional and the evidence was insufficient to support his convictions, and this Court denied those claims on their merits. See Pilchesky II at 10-11, 13-15. In the instant petition, Pilchesky asserted the same claims. Thus, his claims were previously litigated and not cognizable under the PCRA. See 42 Pa.C.S.A. §§ 9544(a)(2); 9543(a)(3); Commonwealth v. Jones, 811 A.2d 994, 1000 (Pa. 2002) (holding an issue previously litigated is not cognizable under the PCRA).
This court may affirm a decision on any proper basis, whether or not cited by the lower court. See Commonwealth v. Pridgen, __ A.3d__, __, 2023 WL 6979481 at *3 (Pa. Super. 2023).
Pilchesky separately filed an application to transfer this case to the Pennsylvania Supreme Court pursuant to 42 Pa.C.S.A. § 722(8), which gives that court exclusive jurisdiction where matters relating to the right to practice law is drawn in direct question. Even were that statute relevant to non-lawyer's practice of law, this is a PCRA appeal and there is no "direct question" concerning the right to practice law. Therefore this application is denied.
Appeal dismissed. Applications denied. Case stricken from argument list.
In light of our disposition, we deny as moot the Commonwealth's motion to clarify argument notice, filed 12/14/23.
Judge Nichols joins this memorandum.
Judge King concurs in the result.