J-S10032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARVIN DOZIER,

                            Appellant                No. 1130 EDA 2015


                   Appeal from the PCRA Order March 13, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0002656-2008


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 09, 2016

        Appellant, Marvin Dozier, appeals pro se from the order dismissing his

petition seeking relief pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541–9546, as untimely. Appellant chiefly maintains that his

petition should be considered timely because his pro se post-sentence

motion to withdraw his guilty plea should have been treated as a PCRA

petition. We disagree. Accordingly, we affirm.

        The PCRA court summarized the procedural and factual background of

the present appeal as follows:1

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  We accept the PCRA court’s findings and conclusions to the extent that
they are supported by the certified record. However, we are constrained to
(Footnote Continued Next Page)
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      I. PROCEDURAL BACKGROUND

            On August 27, 2008, [Appellant] Marvin Dozier pled guilty,
      pursuant to a negotiated plea agreement, to rape of a child (18
      Pa.C.S. § 3121(c)), endangering the welfare of a child (18
      Pa.C.S. § 4304(a)(1)) ("EWOC"), and corrupting the morals of a
      minor (18 Pa.C.S. § 6301(a)(1)) ("CMOM"). N.T. 08/27/2008 at
      19-20. After the plea was accepted, the [c]ourt imposed an
      aggregate sentence of one and a half to three years
      incarceration on the charges of EWOC and CMOM and deferred
      sentencing on the rape charge pending a Megan’s Law hearing
      pursuant to 42 Pa.C.S. § 9794.5(3). At the Megan’s Law hearing
      on March 5, 2010, [Appellant] was found not to be a Sexually
      Violent Predator ("SVP").         The [c]ourt then sentenced
      [Appellant] to three and a half to seven years[’] incarceration on
      the rape charge to run consecutive to the sentences previously
      imposed for an aggregate sentence equal to the negotiated
      sentence of five to ten years incarceration in state prison.
      [Appellant] filed a post-sentence motion to withdraw his guilty
      plea on March 16, 2010, and a supplemental post-sentence
      motion on March 23, 2010. The [c]ourt denied both on April 7,
      2010.
                       _______________________
(Footnote Continued)

note that the record before us is not a model of clarity, nor of orderliness.
We have attempted to verify each key event in the procedural history from
our own independent review of the record. In some instances, although
there is no support in the record, the parties do not dispute a filing or other
procedures. We accept these assertions without additional inquiry. Some
procedural steps, particularly the entries and the withdrawals of the various
counsel, are noted only in the docket entries, if at all.

      A significant portion of this confusion appears to have been
exacerbated, if not generated, by Appellant’s proclivity for filing various pro
se motions, etc. even when represented by counsel. It is well-settled, as
explained in the text of this memorandum, that Appellant has no right to
hybrid representation. His numerous disagreements with counsel, evident in
the record, do not justify any ad hoc deviation from this well-settled rule of
law. Nevertheless, where Appellant makes a procedural claim, and there is
no explanation or refutation of his claim in the record before us, we give him
the benefit of the doubt.        Conversely, where Appellant’s claims are
contradicted by the record, we reject them.




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             [Appellant] subsequently filed [a direct] appeal on April 12,
       2010.     On April 5, 2011, the Superior Court quashed
       [Appellant’s] appeal as untimely.[2] [Appellant’s] petition for
       allowance of appeal to the [Pennsylvania] Supreme Court was
       denied on May 15, 2012. [Appellant] then filed a pro se petition
       under the Post-Conviction Relief Act (“PCRA”) on June 14, 2012.
       Peter A. Levin, Esquire was appointed to represent [Appellant]
       on March 4, 2013.

             On February 1, 2015, pursuant to Commonwealth v.
       Finley, 550 A.2d 213 (Pa. Super. 1988), Mr. Levin filed a letter
       stating that the petition was untimely and that there was no
       arguable merit to [Appellant’s] claims for collateral relief. See
       Finley Letter of Peter A. Levin, filed 2/01/2015 (“Finley
       Letter”).  On February 12, 2015, the [c]ourt issued notice
       pursuant to Pa.R.Crim.P. 907 (“907 Notice”) of its intent to
       dismiss Appellant’s PCRA Petition without an evidentiary hearing.
       On March 13, 2015, the [c]ourt formally dismissed Appellant’s
       PCRA Petition and granted Mr. Levin’s motion to withdraw his
       appearance.

             [Appellant] has now appealed the [c]ourt’s dismissal of his
       PCRA Petition, alleging that: 1) the [c]ourt erred in dismissing
       the PCRA petition as untimely as [Appellant’s] initial post-
       sentence motion filed on March 16, 2010 should have been
       treated as a PCRA petition; and 2) the [c]ourt lacked jurisdiction
       to impose sentence on March 5, 2010. Statement of Matters
       Complained of on Appeal ("Statement of Errors") at ¶¶ 1 -2. . . .

              II. FACTUAL BACKGROUND

             The factual background of this matter is set forth in [this]
       [c]ourt’s 1925(a) Opinion filed in [Appellant’s] direct appeal.

                Between January 1, 1998, and December 31, 2000,
          [Appellant] had a sexual relationship with E.S. who was
          then between eleven and thirteen years old and was living
____________________________________________


2
  (See Commonwealth v. Dozier, No. 997 EDA 2010, unpublished
memorandum at *8 (Pa. Super. filed April 5, 2011), appeal denied, 44 A.3d
1160 (Pa. 2012)).



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           with [Appellant's] sister. [Appellant] had sex with E.S.
           while his sister was not home and [Appellant] was the
           adult in charge. [Appellant] paid for E.S. to have an
           abortion after he impregnated her in 1998 when she was
           eleven or twelve years old and [Appellant] was about
           thirty-six years old. On February 11, 2000, [Appellant]
           confessed to police that he had sexual contact with E.S.
           while he knew she was less than thirteen years old and
           that he paid for her abortion after he learned that she was
           pregnant.

        Trial Court Opinion, dated June 18, 2010.3

(PCRA Court Opinion, 5/12/15, at 1-3).

        We supplement the PCRA court’s history with several additional

observations, based on our independent review of the record.             First, on

March 17, 2010,4 although still represented by counsel (by now the Defender

Association of Philadelphia),5 Appellant filed a purported pro se motion to

____________________________________________


3
    Record citations and footnote omitted.
4
  For clarity and completeness, Appellant dated the motion “3/16/10”; the
clerk of quarter sessions time-stamped the motion “Mar[ch] 17, 2010”; and
the motion was docketed on March 24, 2010.
5
  Docket entries confirm that for his plea and sentencing, Appellant was
represented by retained counsel, Joseph Santaguida, Esq. (and Santaguida’s
associate or partner, Brendan McGuigan, Esq.). (See docket; see also N.T
Hearing, Volume 2, 5/21/09, at 3-5).         The court relieved Attorney
Santaguida from further representation on October 9, 2009. On October 16,
2009, the court appointed the Defender Association to represent Appellant.
The Defender Association petitioned to withdraw from representation on
October 21, 2011. The court granted the Defender Association’s petition to
withdraw on November 9, 2011. David S. Rudenstein, Esq. appears to have
entered his appearance to represent Appellant on November 10, 2011.
Although there is no order in the record, a docket entry indicates that the
court confirmed his appointment, on December 1, 2011. Even though the
(Footnote Continued Next Page)


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J-S10032-16


withdraw guilty plea. On appeal, this motion to withdraw his guilty plea is

the post-sentence motion he claims should have been treated as a PCRA

petition. (See Appellant’s Brief, at 4-5).

      Additionally, Appellant’s post-plea counsel (the Defender Association)

filed a “Post Sentence Motion Nunc Pro Tunc,” on March 16, 2010, and a

“Supplemental Post Sentence Motion Nunc Pro Tunc,” on March 23, 2010.

Counsel did not request leave of court to file either purported nunc pro tunc

motion. As the PCRA court notes, sitting as the trial court, it denied both of

the motions on April 7, 2010.            The Defender filed a notice of appeal for

Appellant and a statement of errors. As already noted, this Court quashed

the appeal, as untimely. (See Dozier, supra at *6-8).

      Docket entries confirm that after the Defender Association filed a

petition for allowance of appeal, our Supreme Court remanded for the

appointment of new counsel and to permit the Defender Association counsel


                       _______________________
(Footnote Continued)

docket entry notes that Attorney Rudenstein was appointed to “handle
further [a]ppellate matters,” correspondence in the record presented by
Appellant suggests that Mr. Rudenstein told Appellant he was appointed for a
limited purpose only, no longer represented Appellant, and advised Appellant
to file a pro se PCRA petition to protect his right to PCRA relief. Appellant’s
pro se PCRA petition followed. Peter A. Levin, Esq. entered his appearance
on behalf of Appellant on March 4, 2013. As previously noted, Attorney
Levin did not file an amended petition; instead he filed a “no merit” letter on
February 1, 2015. The court denied Appellant’s pro se PCRA petition and
permitted Attorney Levin to withdraw in the same order. (See Order,
3/13/15).




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J-S10032-16


to file a motion to withdraw. The trial court granted permission to withdraw

on November 9, 2011.

       After our Supreme Court denied allowance of appeal, Appellant filed

the instant PCRA petition, pro se.             While the record is not clear when

Attorney Rudenstein was permitted to withdraw, the PCRA court accepted

Appellant’s pro se PCRA petition filed on June 14, 2012.6

       After the PCRA court’s dismissal of the PCRA petition on March 13,

2015, Appellant filed a pro se notice of appeal, on April 8, 2015.          (See

Notice of Appeal, dated April 4, 2015, and docketed April 8, 2015). On the

same day (April 8), the court ordered a statement of errors, on penalty of

waiver.    (See Order, 4/08/15); see also Pa.R.A.P. 1925(b).          There is no

statement of errors in the certified record, and no corresponding docket

entry.    However, the PCRA court references the statement of errors in its

Rule 1925(a) opinion.        (See, e.g., PCRA Court Opinion, 5/12/15, at 2).7



____________________________________________


6
  The record confirms that Appellant apparently relied on correspondence
from Attorney Rudenstein purportedly disclaiming any continuing
representation, and advising Appellant to file a pro se PCRA petition to
protect his appeal rights. (See Appellant’s Letter to Peter A. Levin, Esq.,
8/09/13, Exhibit D, Letter from David Rudenstein, Esq. to Appellant [“aka
Roger Boyd”], 5/25/12). We give Appellant the benefit of the doubt and
treat his instant pro se PCRA petition as validly filed.
7
  We also observe that the issues mentioned by the PCRA court are
substantially the same as the issues Appellant raised on appeal.




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J-S10032-16


And the PCRA court has helpfully provided us with a copy of Appellant’s

statement.8

        On appeal, Appellant presents two questions for our review:

               I. Whether the PCRA [court] erred as a matter of law and
        constitution in dismissing [Appellant’s] PCRA petition as
        [untimely], where his initially filed post-sentence motion on
        March 16, 2010, according to Pennsylvania law should have been
        treated as a PCRA petition, if it was untimely filed since issues
        relating to an illegal sentence are cognizable under the PCRA?

               II. Whether [Appellant’s] sentence imposed [on] March 5,
        2010, is illegal because the trial court lack[ed] jurisdiction to
        impose a sentence after the thirty (30) day appeal period, in
        violation of [Appellant’s] due process, equal protection and cruel
        and unusual punishment under both the Pennsylvania and United
        States [C]onstitution and the due process clauses and under 42
        Pa.C.S.A. [§] 5505?

(Appellant’s Brief, at 4) (some capitalization omitted).9

        Our standard and scope of review for the denial of a PCRA petition is

well-settled.

           [A]n appellate court reviews the PCRA court’s findings of
           fact to determine whether they are supported by the
           record, and reviews its conclusions of law to determine
           whether they are free from legal error. The scope of
           review is limited to the findings of the PCRA court and the
____________________________________________


8
  Appellant sent his statement to the Office of Judicial Records, which
apparently forwarded it to the PCRA court’s judicial chambers.           Thus,
Appellant appears to have made a good-faith effort to comply with the PCRA
court’s order. Accordingly, even though the statement is not in the certified
record, we will give Appellant the benefit of the doubt and decline to dispose
of his claims on the basis of waiver for non-compliance with Pa.R.A.P.
1925(b).
9
    The Commonwealth did not file a brief in this appeal.



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J-S10032-16


        evidence of record, viewed in the light most favorable to
        the prevailing party at the trial level.

     Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations

and internal quotation marks omitted).

     Initially, we must determine whether Appellant’s petition is untimely.

     The filing mandates of the PCRA are jurisdictional in nature and
     are strictly construed. Commonwealth v. Stokes, 598 Pa.
     574, 959 A.2d 306, 309 (2008). The question of whether a
     petition is timely raises a question of law. See Commonwealth
     v. Fahy, 598 Pa. 584, 959 A.2d 312, 316 (2008). Where the
     petitioner raises questions of law, our standard of review is de
     novo and our scope of review plenary. Commonwealth v.
     Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010). An untimely
     petition renders this Court without jurisdiction to afford relief.
     Commonwealth v. Gandy, 38 A.3d 899 (Pa. Super. 2012).

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).

Furthermore,

     Pennsylvania law makes clear no court has jurisdiction to hear
     an untimely PCRA petition. Commonwealth v. Robinson, 575
     Pa. 500, 508, 837 A.2d 1157, 1161 (2003). Statutory time
     restrictions are mandatory and jurisdictional in nature, and may
     not be altered or disregarded to reach the merits of the claims
     raised in the petition. Commonwealth v. Murray, 562 Pa. 1,
     4, 753 A.2d 201, 203 (2000) (holding court lacks jurisdiction to
     hear merits of PCRA claim where petition is filed in untimely
     manner and no exception to timeliness requirements is properly
     alleged and proved; timeliness requirements do not depend on
     nature of violations alleged).    A PCRA petition, including a
     second or subsequent petition, must be filed within one year of
     the date the underlying judgment becomes final. 42 Pa.C.S.A.
     § 9545(b)(1). See Commonwealth v. Bretz, 830 A.2d 1273
     (Pa. Super. 2003); Commonwealth v. Vega, 754 A.2d 714 (Pa.
     Super. 2000). A judgment is deemed final “at the conclusion of
     direct review, including discretionary review in the Supreme
     Court of the United States and the Supreme Court of
     Pennsylvania, or at the expiration of time for seeking review.”
     42 Pa.C.S.A. § 9545(b)(3); Pollard, supra.

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J-S10032-16



           The three statutory exceptions to the timeliness provisions
     in the PCRA allow for very limited circumstances under which the
     late filing of a petition will be excused. 42 Pa.C.S.A.
     § 9545(b)(1). To invoke an exception, a petition must allege
     and the petitioner must prove:

              (i) the failure to raise a claim previously was the
        result of interference by government officials with the
        presentation of the claim in violation of the Constitution or
        laws of this Commonwealth or the Constitution or laws of
        the United States;

              (ii) the facts upon which the claim is predicated were
        unknown to the petitioner and could not have been
        ascertained by the exercise of due diligence; or

              (iii) the right asserted is a constitutional right that
        was recognized by the Supreme Court of the United States
        or the Supreme Court of Pennsylvania after the time period
        provided in this section and has been held by that court to
        apply retroactively.

     42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).        The PCRA specifically
     provides that a petitioner raising one of the statutory exceptions
     to the timeliness requirements must affirmatively plead and
     prove the exception.       Id.    See also Commonwealth v.
     Beasley, 559 Pa. 604, 741 A.2d 1258 (1999) (stating
     petitioner’s burden is to plead and prove exception applies when
     PCRA is untimely). The statutory exceptions to the timeliness
     requirements of the PCRA are also subject to a separate time
     limitation and must be asserted within sixty (60) days of the
     date the claim could have been first presented. 42 Pa.C.S.A.
     § 9545(b)(2). “As such, when a PCRA is not filed within one
     year of the expiration of direct review, or not eligible for one of
     the exceptions, or entitled to one of the exceptions, but not filed
     within 60 days of the date that the claim could have been first
     brought, the trial court has no power to address the substantive
     merits of a petitioner’s PCRA claims.”        Commonwealth v.
     Gamboa–Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

Commonwealth v. Taylor, 933 A.2d 1035, 1038-39 (Pa. Super. 2007),

appeal denied, 951 A.2d 1163 (Pa. 2008).

                                    -9-
J-S10032-16


        Preliminarily, we note that at the time Appellant filed his purported

post-sentence motion he was still represented by counsel, as confirmed by

the docket entries and is obvious by counsel’s filing of post-sentence

motions several days later.

        It is well-settled that “there is no constitutional right to hybrid

representation either at trial or on appeal.” Commonwealth v. Jette, 23

A.3d 1032, 1038 (Pa. 2011) (quoting Commonwealth v. Ellis, 626 A.2d

1137, 1139 (Pa. 1993)). Our Supreme Court explained, in part, that adding

pro se briefs to counseled briefs “would overwhelm an already overburdened

court.” Ellis, supra at 1140.10 Because Appellant was still represented by

counsel at the time he filed his pro se post-sentence motion, under Jette

and Ellis, that pro se filing was (and remains) a legal nullity.

        Additionally, this Court has already ruled that Appellant’s direct appeal

was untimely. (See Dozier, supra at *6-8). Thus, our legal review of the

timeliness of Appellant’s filings is subject to the law of the case and the

coordinate jurisdiction rule.
____________________________________________


10
     The Ellis Court also observed:

        Tails should not wag dogs. Merely because an appellant believes
        that the irrelevant is relevant is no reason to turn the system on
        its head and solemnly contemplate the wisdom of a person who
        does not have the sense to be guided by experts in an area
        where he himself possesses no expertise.

Ellis, supra at 1140.




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J-S10032-16


        [T]his Court has long recognized that judges of coordinate
        jurisdiction sitting in the same case should not overrule each
        others’ decisions.      This rule, known as the “coordinate
        jurisdiction rule,” is a rule of sound jurisprudence based on a
        policy of fostering the finality of pre-trial applications in an effort
        to maintain judicial economy and efficiency.

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (citations

omitted).

        The law of the case doctrine refers to a family of rules which
        embody the concept that a court involved in the later phases of
        a litigated matter should not reopen questions decided by
        another judge of that same court or by a higher court in the
        earlier phases of the matter. . . . The various rules which make
        up the law of the case doctrine serve not only to promote the
        goal of judicial economy . . . but also operate (1) to protect the
        settled expectations of the parties; (2) to insure uniformity of
        decisions; (3) to maintain consistency during the course of a
        single case; (4) to effectuate the proper and streamlined
        administration of justice; and (5) to bring litigation to an end.

Commonwealth v. McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005),

(quoting Starr, supra at 1331), appeal dismissed as improvidently granted,

933 A.2d 650 (Pa. 2007).

        Here, consistent with our application of the law of the case, and the

coordinate jurisdiction rule, we find that Appellant’s judgment of sentence,

imposed on March 5, 2010, became final on Monday, April 5, 2010.11

Accordingly, Appellant had until April 5, 2011 to file a timely PCRA petition.



____________________________________________


11
     April 4, 2010 fell on a Sunday. See 1 Pa.C.S.A. § 1908.




                                          - 11 -
J-S10032-16


Therefore, his pro se petition, filed on June 14, 2012, over fourteen months

later, is untimely on its face.

        Appellant    mistakenly    assumes     that   claims   alleging   illegality   of

sentence can never be waived, even on collateral review. (See Appellant’s

Brief, at 10).      “Although legality of sentence is always subject to review

within the PCRA, claims must still first satisfy the PCRA’s time limits or one

of the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999) (citation omitted).

        Appellant raises no other cognizable exceptions to the time-bar. (See

Appellant’s Brief, at 4-22).12 Appellant’s petition is untimely, with none of

the statutory exceptions to the time-bar pleaded or proven.

        Because Appellant’s claim of an earlier PCRA petition is frivolous, and

his current PCRA petition is untimely, we lack jurisdiction to review his other

claims.13

        Order affirmed.



____________________________________________


12
     On independent review, we find none.
13
   We also note, for completeness, that in his actual (current) PCRA petition,
Appellant conceded that he did not file a previous PCRA petition, as he now
contends on appeal. (See PCRA Petition, 6/14/12, at 4 ¶ 7 (b) (stating no
previous post-conviction petitions filed)). Accordingly, Appellant’s argument
that his pro se post-sentence motion constituted a timely PCRA petition is
legally frivolous. Furthermore, because Appellant did not raise this issue
with the PCRA court, his claim is waived on appeal. See Pa.R.A.P. 302(a).



                                          - 12 -
J-S10032-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




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