J. A11026/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA        :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                v.                  :
                                    :
JASON MERSCHAT,                     :         No. 958 WDA 2013
                                    :
                     Appellant      :


              Appeal from the Order Entered May 16, 2013,
           in the Court of Common Pleas of Allegheny County
            Criminal Division at No. CP-02-CR-0012256-2009


COMMONWEALTH OF PENNSYLVANIA        :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                v.                  :
                                    :
JASON MERSCHAT,                     :        No. 1452 WDA 2013
                                    :
                     Appellant      :


            Appeal from the Order Entered August 21, 2013,
           in the Court of Common Pleas of Allegheny County
            Criminal Division at No. CP-02-CR-0012256-2009


COMMONWEALTH OF PENNSYLVANIA        :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                v.                  :
                                    :
JASON MERSCHAT,                     :        No. 1687 WDA 2013
                                    :
                     Appellant      :


           Appeal from the PCRA Order, September 30, 2013,
           in the Court of Common Pleas of Allegheny County
            Criminal Division at No. CP-02-CR-0012256-2009
J. A11026/14

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 12, 2014

      This matter involves three consolidated appeals from orders entered

by the Honorable Kathleen Durkin in the Court of Common Pleas of

Allegheny County.

HISTORY OF THE CASE

      This case stems from a traffic stop which was initiated after appellant

was observed speeding and a state trooper noticed appellant exhibiting

various physical signs of being drunk and failing multiple field sobriety tests.

Appellant was arrested and transported to the hospital for testing of his BAC,

which was determined to be 0.195%.          Appellant was charged with two

counts of driving under the influence of alcohol, 75 Pa.C.S.A. § 3802(c) and

§ 3802(a)(1), as well as one summary count of failing to drive within a

single lane, two summary counts of exceeding the maximum speed limits,

one summary count of careless driving, and one summary count of failing to

use the safety belt system.

      Before trial, appellant, through Gary Gerson, Esq., filed an omnibus

motion asking the court to suppress evidence, which was denied, and a jury

trial was held on July 30, 2010.     The jury found appellant guilty of both

counts of DUI, and Judge Durkin found appellant guilty of all summary traffic

violations with the exception of failing to use the safety belt system.      On

November 3, 2010, he was sentenced at the first DUI count to a period of


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confinement of 90-180 days and a 4-year period of probation, with

alternative housing and work release approved.

     Appellant filed a motion for reconsideration, which was denied.      A

timely notice of appeal was filed, and on February 8, 2012, a panel of this

court affirmed judgment of sentence.        Commonwealth v. Merschat, 46

A.3d 811 (Pa.Super. 2012). Appellant’s petition for allowance of appeal was

denied on July 17, 2012. Commonwealth v. Merschat, 48 A.3d 1248 (Pa.

2012).   The procedural history concerning the three appeals which have

been consolidated for our review follows.

Appeal at No. 958 WDA 2013 - Motion for Early Termination of

Probation

     On February 19, 2013, appellant, through new counsel Jenna Rose

Thorne, Esq., filed a motion for early termination of probation.1 The motion

was denied on May 16, 2013. (Docket #40.) Thereafter, on June 7, 2013,

current counsel, Arnold P. Bernard, Jr., entered his appearance and, on that

same date, filed a notice of appeal from the denial of appellant’s motion.

Appellant complied with the trial court order to file a concise statement of

matters complained of on appeal, and the trial court has filed an opinion.

(See Docket #44, 45, 46.)




1
 On November 8, 2012, appellant had filed a petition for early parole; the
motion was denied.


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Appeal at No. 1452 WDA 2013 - Illegal Sentence

      On August 8, 2013, Attorney Bernard filed a motion to vacate illegal

sentence. The motion was denied on August 21, 2013. A notice of appeal

from this order was filed. Appellant argues that despite his pending appeal

from the order denying termination of probation, the trial court had

jurisdiction to correct the patent and obvious error.

Appeal at No. 1687 WDA 2013 - Dismissal of PCRA Petition

      Prior to the consolidation, on August 19, 2013, while the appeal at

No. 958 WDA 2013 was pending and the appeal at No. 1452 WDA 2013 had

yet to be taken, appellant filed a counseled petition, pursuant to the Post

Conviction Relief Act (“PCRA”) through Michael Steven Sherman, Esq.

Appellant’s petition presented three issues relating to the ineffective

assistance of his trial counsel.   On August 21, 2013, Judge Durkin filed

notice of the court’s intention to dismiss appellant’s PCRA petition, stating

that the court lacked jurisdiction to consider the petition due to appellant’s

pending appeal at No. 958 WDA 2013.           The petition was dismissed on

September 30, 2013.       On October 17, 2013, appellant filed a notice of

appeal from this order.




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ANALYSIS

     We will address the appeals in chronological order and first turn to the

appeal at No. 958 WDA 2013, which concerns the motion for early

termination of probation.2

           Sentencing is a matter vested in the sound discretion
           of the sentencing judge, and a sentence will not be
           disturbed on appeal absent a manifest abuse of
           discretion. An abuse of discretion is more than just
           an error in judgment and, on appeal, the trial court
           will not be found to have abused its discretion unless
           the record discloses that the judgment exercised was
           manifestly unreasonable, or the result of partiality,
           prejudice, bias, or ill-will.

Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super. 2002),

appeal denied, 820 A.2d 703 (2003) (citations omitted).

     Appellant argues that the trial court erred in denying his motion for

early termination of his probation.   He claims he has been successfully

rehabilitated and the aims of probation have been fulfilled.        Appellant

presented information to the court regarding his personal situation and his

demonstrated good behavior and exemplary adjustment.         In her opinion,

Judge Durkin specifically noted that the statute expressly states that the

court “may at any time terminate continued supervision or lessen or

increase the conditions upon which an order of probation has been

imposed.” 42 Pa.C.S.A. § 9771(a) (emphasis added). Judge Durkin did not



2
  We disagree with the Commonwealth and find this was a final, appealable
order under Pa.R.A.P. 341.


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find appellant’s arguments persuasive, and noted that appellant had not

served “even a quarter of his probation” at the time he applied for early

termination. Following our review, we cannot find that Judge Durkin abused

her discretion in denying appellant’s motion.

      The second appeal before this panel is at No. 1452 WDA 2013 and

concerns the denial of appellant’s motion to vacate his allegedly illegal

sentence. Appellant averred that pursuant to Commonwealth v. Musau,

69 A.3d 754 (Pa.Super. 2013), the court was precluded from sentencing

appellant to a penalty greater than 6 months for a second DUI conviction,

and thus, his sentence of six months’ confinement followed by a 4-year

period of probation was illegal.3 The trial court denied the motion, finding

that it lacked jurisdiction due to the pending appeal at No. 958 WDA 2013.

(Trial court opinion, 10/23/2013 at 2.)

      At the outset, we note that this petition should have been treated as a

PCRA petition; the PCRA is the sole means by which a defendant may obtain

collateral relief.   42 Pa.C.S.A. § 9542; Commonwealth v. Johnson, 803

A.2d 1291, 1293 (Pa.Super. 2002) (“We have repeatedly held that . . . any

petition filed after the judgment of sentence becomes final will be treated as



3
  Although Musau was decided after appellant’s sentencing hearing, because
it involved a first-time question of statutory interpretation, it is not a new
rule of law, and generally would apply retroactively. Fiore v. White, 757
A.2d 842, 848 (Pa. 2000) (“when we have not yet answered a specific
question about the meaning of a statute, our initial interpretation does not
announce a new rule of law”).

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J. A11026/14

a PCRA petition.”); Commonwealth v. Lutz, 788 A.2d 993, 996 n.7

(Pa.Super. 2001) (holding that, generally, a filing that raises issues

cognizable    under   the   PCRA   will   be   considered   a   PCRA   petition);

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa.Super. 2000)

(appellant’s “motion to correct illegal sentence” must be treated as PCRA

petition).4   The lawfulness of a probationary sentence, i.e., whether it

exceeds the legal maximum, can be challenged via the PCRA. 42 Pa.C.S.A.

§ 9543(a)(1)(i); 42 Pa.C.S.A. § 9543(a)(2)(vii).

      Judge Durkin dismissed the motion to vacate illegal sentence filed by

Attorney Bernard for lack of jurisdiction due to the pending appeal before

this court at No. 958 WDA 2013. Appellant’s August 19, 2013 PCRA petition

filed by Attorney Sherman was also dismissed by Judge Durkin for the same

reason.   Given that we have resolved the first appeal, we vacate these




4
  Because appellant’s claim is cognizable under the PCRA, appellant must
comply with the time requirements of Section 9545. Appellant’s judgment of
sentence became final for purposes of the PCRA on Monday, October 15,
2012, 90 days after the Pennsylvania Supreme Court denied review, and
appellant did not seek an appeal with the United States Supreme Court.
See 42 Pa.C.S.A. § 9545(b)(3); Rule 13, Rules of the United States
Supreme Court (“a judgment becomes 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 the review.”). Thus, appellant’s counseled petition filed on
August 8, 2013, was timely filed.


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orders and remand the matter to the trial court. This remand shall permit

appellant to file an amended petition.5

      Order denying appellant’s motion for early termination of probation is

affirmed. Order dismissing appellant’s motion to vacate illegal sentence is

vacated. Order dismissing appellant’s PCRA petition vacated. Remanded for

proceedings consistent with this Memorandum.         Appellant’s motion to

correct/modify record pursuant to Pa.R.A.P. 1926 is denied as moot.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2014




5
 For the sake of clarity, nothing in this Memorandum should be interpreted
as deciding the merits of appellant’s substantive claims regarding the
appeals at No. 1452 WDA 2013 and No. 1687 WDA 2013.


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