J-S04002-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

SCOTT ALLEN CHAMBERLAIN,

                          Appellant                  No. 1124 WDA 2014


                 Appeal from the PCRA Order June 17, 2014
                In the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0000039-2011

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

SCOTT ALLEN CHAMBERLAIN,

                          Appellant                  No. 1125 WDA 2014


                 Appeal from the PCRA Order June 16, 2014
                In the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0001556-2010


BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 07, 2016

       Scott Allen Chamberlain appeals from PCRA orders denying him relief

at two criminal actions. We affirm.

       This appeal involves two sets of criminal charges, which were originally

consolidated but which were severed at Appellant’s request. At criminal case

*
    Retired Senior Judge assigned to the Superior Court.
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number 1556 of 2010, Appellant was charged with six counts of persons not

to possess a firearm, 18 Pa.C.S. § 6105(a)(2), based upon the following. On

July 21, 2009, State Trooper Charles Chaney was called to investigate an

incident of domestic violence and went to a women’s shelter in Altoona to

interview the victim, Melinda DeSalvo, who was the live-in girlfriend of

Appellant and the mother of his daughter. Ms. DeSalvo told Trooper Chaney

that she had gone to the women’s shelter “over a domestic situation” with

Appellant. N.T. Omnibus Pre-Trial Motion, 2/22/11, at 6. She reported that

she was concerned because Appellant was making methamphetamine and

had “several firearms and had made threats that he would kill her and

police.”   Id.   Ms. DeSalvo said that Appellant possessed several rifles,

including assault rifles, and always carried a weapon.   Ms. DeSalvo also told

Trooper Chaney that, during the preceding year, Appellant and his son,

Allen, made methamphetamine “at the little shed across the way on [his]

property.”   Id.   She reported that she knew Appellant and Allen were

making methamphetamine because she had purchased the ingredients to

make the drug and used it herself.

      Trooper Chaney did a criminal background check on Appellant and

discovered that he had pled guilty to felony burglary on February 24, 2003,

which rendered Appellant subject to the prohibition against possession of a

firearm. Trooper Chaney thereafter secured a search warrant for Appellant’s

home located on Hunter’s Lane, Rural Route 3, Box 85-A, Hollidaysburg. On

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July 23, 2009, while executing the warrant, police discovered ingredients for

making methamphetamine, firearms, and ammunition.

      After litigating an unsuccessful motion to suppress the weapons as the

fruit of an unlawful search, Appellant proceeded to a jury trial on September

15, 2011. The jury convicted him of possession of a Remington .16 gauge

shotgun, a Winchester .22 caliber rifle, an Aldo Uberti replica Colt Walker .44

cap and ball revolver, a black powder rifle, a Norinco 7.62 caliber

semiautomatic rifle, and a Romarm Cugir 7.62 caliber semiautomatic rifle.

On September 29, 2011, he was sentenced to an aggregate term of ten to

twenty years imprisonment.

      At criminal action number 39-2011, Appellant was charged with

manufacturing a controlled substance, manufacturing methamphetamine

with a child present, operating a methamphetamine laboratory, possession

of a controlled substance, and persons not to possess a firearm.         These

charges arose from the following events. On December 17, 2010, two state

troopers and two Hollidaysburg police officers responded to a domestic

violence call from Ms. DeSalvo, who had resumed living with Appellant on

Hunter’s Lane. The couple’s daughter was eleven years old at that time and

resided with her parents.

      After police responded to the call, they began to search for Appellant

outside the home.    They detected a strong chemical odor coming from a

room attached to the residence under the porch. Police also saw that the

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room had fans and electrical wiring emanating from it, and they asked Ms.

DeSalvo if Appellant was cooking methamphetamine in the room.             Ms.

DeSalvo admitted that Appellant had manufactured that drug in the past and

indicated that he might be conducting the same activity in the room as she

had detected the odor of methamphetamine in the house. Ms. DeSalvo also

reported that Appellant and his son built the room about a year beforehand

and that they and another individual conducted suspicious activities therein.

      On December 17, 2010, police secured another warrant for Appellant’s

Hunter Lane residence.      During that search, they found a functional

methamphetamine laboratory on the ground floor, including a gas generator,

acids, solvent, salts, and the equipment needed to cause the chemical

reactions that result in the production of methamphetamine.        They also

discovered approximately two grams of finished methamphetamine and a

.22 caliber revolver.

      After Appellant litigated an unsuccessful motion to suppress all the

incriminating items discovered pursuant to the December 17, 2010 search,

the weapons offense was severed from the drug charges.              Appellant

proceeded to a jury trial on the gun charge. Appellant’s defense was that

the gun found on December 17, 2010, was inoperable.

      Appellant adduced evidence that, at the request of police, a gunsmith

had examined the firearm. The gunsmith’s report indicated that the “bore is

pitted and beyond repair, the main spring is missing, the timing is extremely

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poor, the hammer does not match, [and] the lockup is extremely poor[.]”

N.T. Trial, 7/19/11, at 157.          His conclusion was that the gun was not

functional and could not be repaired.            Based on this report, Appellant

maintained to the jury that the gun was a “piece of scrap, it doesn’t

function, can’t shoot.” Id. at 46. He continued, “Now whenever I read

firearm and what the definition is I don’t see in there also to include a piece

of scrap.    So what you have to ask yourself is what’s the intent of this

statute.” Id.

       On July 20, 2011, after a two-day trial, the jury rejected this defense

and found Appellant guilty of the charge of persons not to possess a firearm.

Appellant was sentenced on this offense on September 29, 2011, to five to

ten years imprisonment.1           Our review of the sentencing transcript and

written sentencing order reveals that no mandatory minimum sentence was

invoked by the Commonwealth or imposed by the sentencing court.             The

court had the benefit of a presentence report.              The Commonwealth

introduced evidence of Appellant’s recorded jail conversations. Specifically,

State Trooper Edward A. Ostrowski testified as follows. He had reviewed a

number of prison tapes of calls that Appellant made to his mother and Ms.

DeSalvo.    Therein, Appellant said that he had other firearms and that “he
____________________________________________


1
  While Appellant was sentenced at case number 39-2011 on the same day
that he was sentenced at action number 1556-2010, the sentencing
proceedings were conducted separately.



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will always have firearms. Do not sell his firearms.” N.T. Sentencing (39-

2011), 9/29/11, at 3. During one conversation, Ms. DeSalvo said that she

had “gotten a cat and that particular conversation basically went, ‘I don’t like

cats; I will shoot animals: I will shoot cats; I will shoot police officers, for

that matter.’”    Id.   Based upon these statements, the Commonwealth

represented that Appellant was a threat to society and not a good candidate

for rehabilitation.

      Appellant countered that he was convicted of an offense that involved

possession “of a non-functioning firearm.”        Id. at 4.      Appellant, who

exercised his right to allocution, claimed that he did not know that he was

not allowed to possess the useless gun in question and that the weapons he

told his family not to relinquish were family heirlooms. Ms. DeSalvo testified

on Appellant’s behalf, claiming that he was a nonviolent person, and she

pled for clemency due to the fact that they had a minor child.

      The September 29, 2011 sentence of five to ten years in jail on the

weapons     charge    was   premised   upon   Appellant’s   extensive   criminal

background, his indication in his recorded jail conversations that he did not

intend to relinquish possession of any firearms to which he still had access,

and the fact that the jury’s verdict reflected a rejection of his claim that he

did not know that he was not permitted to possess the gun found on

December 17, 2010.




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      As to the pending drug charges filed at case number 39-2011, on

October   13,    2011,   Appellant   entered    a   negotiated   guilty    plea    to

manufacturing a controlled substance, manufacturing methamphetamine

with a child present, and operating a methamphetamine laboratory.                 The

Commonwealth      dismissed   the    charge    of   possession   of   a   controlled

substance, and it agreed to the imposition of a five to ten year term of

incarceration.   The written guilty plea colloquy establishes that Appellant

faced a potential twenty-seven year maximum term, as follows: 1) ten years

on the manufacturing methamphetamine; 2) ten years for operating a

methamphetamine laboratory with a child present; and 3) seven years for

operating a methamphetamine laboratory. The negotiated guilty plea was to

“5-10 years consecutive to the other 2 cases.” Written Guilty Plea colloquy

Form, 10/13/11, at ¶ 34.

      That same day, the court entered a sentencing order.            Therein, the

court indicated that it conducted an oral colloquy and was satisfied that the

guilty plea was knowing and voluntary. Given that the guilty plea was for a

negotiated sentence, Appellant waived preparation of a pre-sentence report.

Appellant was sentenced, in accordance with the plea, to five to ten years

imprisonment on the charge of manufacturing methamphetamine and two

concurrent sentences on the remaining charges.          The sentence was made

consecutive to the one imposed at case number 1556-2010 and the




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sentence previously imposed at action number 39-2011 on the weapons

conviction.

      Appellant did not file a direct appeal at either action. On September

28, 2012, Appellant filed a pro se request for PCRA relief at 39-2011 from

the judgment of sentence imposed on October 13, 2011. On July 22, 2013,

Appellant filed a pro se PCRA petition at 1556 of 2010 requesting relief from

the judgment of sentence imposed therein on September 29, 2011. Paul M.

Puskar, Esquire, was appointed as counsel for Appellant.    The PCRA court

held hearings in connection with both cases on January 17, 2014, and June

12, 2014.

      After conducting the hearings, the PCRA court concluded that

Appellant was not entitled to post-conviction relief in case number 39-2011

and that the PCRA petition filed at action number 1556 of 2010 was

untimely. PCRA counsel filed the present appeals, which were consolidated,

from the denial of PCRA relief. Thereafter, Appellant filed a petition asking

to proceed pro se, and this Court remanded for a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). The court held the

requisite colloquy, concluded that Appellant had knowingly and voluntarily

decided to proceed pro se, and allowed Mr. Puskar to withdraw. Appellant

raises these contentions on appeal:

            I. Whether the PCRA court erred as a matter of law and/or
      abused its discretion in denying appellant PCRA relief at docket
      no.: [39-2011] where the erroneous advice of Appellant's trial

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       counsel ultimately led to Appellant's rejection of a "global" guilty
       plea offer of 6 to 12 years' imprisonment?

             II. Whether Appellant is entitled to vacation of the 5-10
       year sentence as imposed at docket no.: [39-2011] where said
       sentence was imposed pursuant to the mandatory sentencing
       provisions of 18 Pa.C.S. §7508(a)(4)(iii) and 42 Pa.C.S.
       §9712.1?

            III. Whether the PCRA court erred as a matter of law
       and/or abused its discretion in dismissing Appellant's PCRA at
       docket no. [1556-2010] as untimely filed and failing to fall within
       any one of the exceptions set forth in 42 Pa.C.S. §9545(b)(1)?

Appellant’s brief at 4.

       Appellant’s first averment is that his trial counsel was ineffective for

advising him to reject a global guilty plea offer involving all charges at both

case numbers wherein Appellant could have tendered a plea in exchange for

a six to twelve year jail term; Appellant seeks to enforce the plea offer.2

Initially, we note that our “standard of review of the denial of a PCRA

petition is limited to examining whether the evidence of record supports the

court’s determination and whether its decision is free of legal error.”

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015).

Appellant avers that trial counsel was ineffective. “To plead and prove

ineffective assistance of counsel a petitioner must establish: (1) that the

____________________________________________


2
  Since, as analyzed in the text, infra, Appellant’s petition filed at case
number 1556 of 2010 is untimely, our discussion of this question is limited
to action number 39-2011, where Appellant was sentenced to a total of ten
to twenty years in jail.



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underlying issue has arguable merit; (2) counsel's actions lacked an

objective reasonable basis; and (3) actual prejudice resulted from counsel's

act or failure to act.”       Commonwealth v. Stewart, 84 A.3d 701, 706

(Pa.Super. 2013) (en banc). The failure to meet any of these aspects of the

ineffectiveness test results in the claim failing. Id. A determination as to

whether the facts asserted present a claim of arguable merit is a legal one.

Id.

       We conclude that Appellant’s claim is not of arguable merit since trial

counsel testified at the PCRA hearing that he emphatically and repeatedly

advised Appellant to accept the plea offer in question and that the only

reason that the offer was not accepted was due to Appellant’s refusal to

follow counsel’s advice. David Beyer, Esquire, represented Appellant at both

39-2011 and 1556 of 2010, when the two proceedings were first instituted

and were consolidated.3         He litigated Appellant’s suppression motion and

then successfully obtained severance of the two cases from each other as

well as severance of the weapons offense charged at case number 39-2011.

       Mr. Beyer testified as follows.         He had many discussions regarding

Appellant’s entry of a guilty plea. The district attorney first offered a deal to

“encompass all the cases for a plea of seven to fourteen years,” and the

____________________________________________


3
  Mr. Beyer was replaced by another lawyer after Appellant’s conviction of
the gun offense at number 39-2011.



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offer was made at the preliminary hearing. N.T. PCRA Hearing, 1/17/14, at

21.   That plea was reduced to writing and introduced as an exhibit.                 Mr.

Beyer       thereafter   negotiated    a    better   deal   for   Appellant,   and   the

Commonwealth agreed to reduce the negotiated sentence to six to twelve

years. At the time, the district attorney said that it was his “best offer; six

to twelve on all the cases.” Id. at 22.

        Mr. Beyers reported that he discussed the plea offer with Appellant.

He stated, “[M]any, many times to, you know, I said, [Appellant], you

gotta take this deal, I said if you get convicted on one and then another, it

could be consecutive, I said, you could be looking at a significant time; you

gotta take this deal.”          Id. at 23 (emphases added).            Mr. Beyer also

explained that he could not win all three of the cases and advised Appellant

that he was facing a lot more than six to twelve years imprisonment.

        In response to Mr. Beyer’s entreaties, Appellant continually responded,

“f      ‘em; he said, let’s make them spend their money and take me to

trial[.]”    Id. at 24. Mr. Beyer told Appellant, “[T]hat’s no way to think of

this; it’s not about them spending money; it’s about your life and whether --

-- how --- what period of time you’re going to be incarcerated. [Appellant]

just didn’t want to hear it.”         Id.    Mr. Beyer even solicited assistance on

several occasions from Ms. DeSalvo and Appellant’s mother, asking them to

help convince Appellant to accept the global plea offer of six to twelve years.




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They reported back to Mr. Beyer that Appellant refused to budge on the

matter.

      As to the gun charge leveled at action number 39-2011, Mr. Beyer

testified specifically that it “went to trial against my advice on the insistence

of my client[.]” Id. at 25. Forced to try the case, Mr. Beyer went with the

best defense possible, which was that the gun was a piece of scrap metal.

While aware that possession of an inoperable gun can still result in a

conviction for persons not to possess, Mr. Beyer hoped that the jury would

feel that the offense was not committed, explaining that sometimes “a jury

will do what they feel is right.” Id. at 33.

      On appeal, Appellant relies solely on his own testimony.       He asserts

that Mr. Beyer never explained to him that a conviction for persons not to

possess can be obtained despite the fact that a firearm is inoperable and

that he would have accepted the global plea offer if he had known about the

legal flaw in the proffered defense to the gun charge leveled at case number

39-2011.    However, the PCRA court specifically found Mr. Beyer to be

credible. Trial Court Opinion, 6/17/14, at 4. “The PCRA court's credibility

determinations, when supported by the record, are binding” for purposes of

appellate review.    Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa.

2014).

      The PCRA court’s credibility determination herein is amply supported

by the record. Mr. Beyer testified that he repeatedly and forcefully insisted

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that Appellant accept the plea offer, even enlisting the help of relatives. Mr.

Beyer reported that he discussed the chances of obtaining an acquittal in the

cases.   Mr. Beyer specifically addressed the viability of the defense to the

gun charge at case number 39-2011, stating that trial occurred on that

offense against his advice. Thus, the record supports the PCRA court’s

determination that the plea offer was rejected by Appellant in the face of

contrary advice by counsel and with knowledge of all possible consequences,

including conviction of the weapons charge revealed at case number 39-

2011. Hence, we reject Appellant’s first allegation of error.

      Appellant next suggests that the judgment of sentence entered at case

number 39-2011 was imposed in violation of the Supreme Court’s decision in

Alleyne v. United States, 133 S.Ct. 2151 (2013).           This averment was

raised for the first time on appeal, but, as it relates to the legality of the

sentence imposed, we conclude that it is not waived. Commonwealth v.

Ruiz, 2015 WL 96320892015, *5 (Pa.Super. Dec. 30, 2015) (“an Alleyne

claim is a non-waivable challenge to the legality of sentence”). In Alleyne,

the United States Supreme Court held that any fact, other than a prior

conviction, necessary to trigger application of a mandatory minimum

sentence must be submitted to a jury and proven beyond a reasonable

doubt.




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       In the present case, Appellant mistakenly4 asserts that he was

sentenced at action number 39-2011 under two mandatory minimum

sentencing provisions: 1) 42 Pa.C.S. §9712.1, which applies a mandatory

minimum sentence when guns are found in close proximity to drugs and

which was struck down due to Alleyne in Commonwealth v. Newman, 99

A.3d 86 (Pa.Super. 2014); and 2) 18 Pa.C.S. § 7508, which sets forth

various mandatory minimum sentences according to the weight of the drugs

involved in a case and which was ruled unconstitutional under Alleyne in

Commonwealth v. Mosley, 114 A.3d 1072 (Pa.Super. 2015).

       Our review of the record establishes conclusively that Appellant was

not sentenced at action number 39-2011 under either of the aforementioned

mandatory minimum sentencing statutes. While Appellant may have been

subject to one or both of them, they were not applied. At action number 39-

2011, Appellant first proceeded to trial on the charge of possession of a

firearm by a prohibited person, which does not involve a mandatory

minimum sentence. Appellant thereafter proceeded to enter a negotiated

guilty plea on three drug charges in exchange for five to ten years

imprisonment and dismissal of the remaining drug offense.           The three
____________________________________________


4
   Since it was not raised in the trial court proceedings, this contention was
not addressed by the PCRA court.           The Commonwealth is under the
impression that Alleyne is implicated in this matter; however, it did not
have the ability to review the record herein since the issue was raised for the
first time after this appeal was filed.



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charges to which Appellant pled guilty could have resulted in a twenty-seven

year maximum sentence.        That same day, the court simply entered a

sentencing order in compliance with the negotiated guilty plea.

      The record also contains a Department of Correction form 300B, called

a Court Commitment, State or Correctional Institution and dated December

9, 2011. It contains information about sentencing and pertains to the three

drug offenses. Form 300B was directed to the Department of Corrections,

and was executed by the sentencing judge.         It set forth the sentences

imposed as to the three drug offenses, and that form plainly states that a

mandatory sentence was not imposed with respect to the three drug

charges involved in the negotiated guilty plea. Hence, Appellant mistakenly

invokes Alleyne on appeal.      His sentence was entered pursuant to the

negotiated guilty plea agreement rather than under an infirm mandatory

minimum sentencing statute.

      Appellant’s final position involves action number 1556 of 2010.

Appellant avers that the PCRA court improperly found his PCRA petition

therein to be untimely. He asserts that he asked his counsel to file a direct

appeal and that counsel was ineffective for disregarding his request.     It is

settled law that “all requests for reinstatement of appellate rights . . . must

meet the timeliness requirements of the PCRA.” Commonwealth v.

Fairiror, 809 A.2d 396, 397 (Pa.Super. 2002) (citing Commonwealth v.

Lantzy, 736 A.2d 564 (Pa. 1999) (petition seeking restoration of appellate

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rights must be brought in a timely PCRA petition)).      If a PCRA petition is

untimely, this Court lacks jurisdiction over the petition. Commonwealth v.

Miller, 102 A.3d 988 (Pa.Super. 2014); see also Commonwealth v.

Chester, 895 A.2d 520 (Pa. 2006).

      Any PCRA petition, “shall be filed within one year of the date the

judgment becomes final” unless an exception to the one-year time

restriction applies. 42 Pa.C.S. § 9545(b)(1). “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.”           42 Pa.C.S. §

9545(b)(3). At action number 1556 of 2010, Appellant’s judgment of

sentence was imposed on September 29, 2011, and since Appellant did not

appeal, it became final thirty days thereafter, on October 29, 2011.

Appellant had until October 29, 2012, to file a timely petition, and

Appellant’s PCRA petition in that case was not filed until July 22, 2013.

      There are three exceptions to the one-year time bar:

       (i) the failure to raise the 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

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      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. § 9545(b)(1)(i-iii). “Any petition invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Appellant avers that his petition should be considered timely due to

ineffective assistance of counsel. It is beyond cavil in this Commonwealth

that “[a]llegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA.”     Commonwealth v.

Fowler, 930 A.2d 586, 591 (Pa.Super. 2007). Accordingly, the PCRA court

correctly concluded that the petition filed at case number 1556-2010 was

untimely.

      Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2016




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