J-S06019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RUSSELL R. REHRIG

                        Appellant                   No. 894 MDA 2015


                  Appeal from the PCRA Order May 5, 2015
             In the Court of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0000108-2006
                                        CP-54-CR-0000109-2006
                                        CP-54-CR-0000110-2006


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                           FILED MARCH 22, 2016

      Appellant, Russell R. Rehrig, appeals from the May 5, 2015 order,

dismissing, as untimely, his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.      After careful review, we

affirm.

      We recount the procedural circumstances of this case as follows. On

August 26, 2005, Appellant was charged in three criminal complaints with

numerous offenses, stemming from allegations of his sexual abuse of three

minor children.   On March 17, 2006, the Commonwealth, pursuant to

Pennsylvania Rule of Criminal Procedure 582, served notice of consolidation

of the three cases for trial.   The matter proceeded to jury selection on

August 29, 2007. A jury was empaneled for trial, which was scheduled to

*Former Justice specially assigned to the Superior Court.
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commence September 3, 2007. Appellant failed to appear for trial, and he

was tried in abstentia on September 4, 2007.           The jury found Appellant

guilty of multiple offenses at all three consolidated cases. 1 In consequence

of his continued absence, the trial court sentenced Appellant in abstentia on

January 2, 2008. The trial court imposed an aggregate sentence of 42 to 84

years’ incarceration. No post-sentence motion or direct appeal was filed.

    Appellant was apprehended in September 2008. Appellant, represented

by trial counsel, appeared before the trial court on September 11, 2008 to

answer the bench warrant. Based, inter alia, on Appellant’s admissions, the

trial court determined Appellant’s absence from his trial and sentencing was

willful and voluntary.      N.T., 9/11/08, at 6-7.   The trial court then advised

Appellant of the basis for its decision to try Appellant in abstentia, the

sentences imposed, Appellant’s Megan’s Law designation, and the post-

verdict and appeal rights Appellant would have had, if the time for exercising

them had not expired. Id. at 7-13. At that hearing, Appellant asserted he

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1
  Specifically, at CR-108-2006, the jury found Appellant guilty of ten counts
of rape, four counts of involuntary deviate sexual intercourse (IDSI), five
counts of statutory sexual assault, two counts of aggravated indecent
assault, two counts of indecent assault, four counts of corruption of minors,
and one count of terroristic threats; 18, Pa.C.S.A. §§ 3121(c), 3123(b),
3122.1, §3125(7), 3126(a)(7), 6301(a)(1), and 2706(a)(1), respectively. At
CR-109-2006 the jury found Appellant guilty of three counts of rape, four
counts of statutory sexual assault, five counts of corruption of minors, and
one count of terroristic threats. At CR-110-2006 the jury found Appellant
guilty of two counts of rape, two counts of IDSI, four counts of statutory
sexual assault, five counts of corruption of minors, and one count of
terroristic threats.


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wanted to appeal because trial counsel provided inadequate representation.

Id. at 14, 16. In response the trial court advised Appellant, “if you want to

challenge the effectiveness of your counsel, the [trial c]ourt will appoint

someone to represent you in that regard….”             Id. at 16. By order entered

September 11, 2008, the trial court appointed Thomas Pellish, Esquire to

represent Appellant, who entered his appearance that same day.2

       Attorney Pellish consulted with Appellant and advised him that there

were no viable meritorious issues to be raised either on direct appeal or in

post-conviction collateral proceedings.          N.T., 3/12/15, 41-42. Rather than

seek to withdraw, however, Attorney Pellish advised Appellant he would

continue to monitor the case in the event any change in the law or new

information afforded an avenue for relief.           Id. at 30, 41. On October 15,

2013, Appellant filed a pro se request for transcripts, which the trial court

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2
  We recognize that a trial court has inherent authority to appoint counsel to
represent indigent defendants at any time in the interest of justice.
Pa.R.Crim.P. 122(A)(3). However, with respect to Appellant’s right to
counsel, the trial court’s appointment of Attorney Pellish was premature. We
note “[t]here is no requirement that a PCRA petition be on any particular
form.” Commonwealth v. Jerman, 762 A.2d 366, 368, (Pa. Super. 2000).
Instantly, although Appellant orally expressed a desire to challenge the
effectiveness of his trial counsel, some form of written petition is
nevertheless required to initiate post-conviction collateral relief proceedings.
See Pa.R.Crim.P. 901. Only upon such a filing is Appellant’s rule-based right
to appointed counsel triggered. See id. at 904(C).          Instantly, Attorney
Pellish was appointed and entered his appearance in the case when there
was no pending matter before the trial court.




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denied on October 18, 2013, noting that there was no pending action before

it.   On October 21, 2013, Appellant filed a demand for appointment of

counsel.3

       On November 11, 2013, Appellant filed a notice of appeal from the

October 18, 2013 order denying his request for transcripts.        Appellant

petitioned this Court for appointment of counsel, which we granted, noting

Appellant’s filing should have been considered a pro se PCRA petition, and

directed the PCRA court to appoint counsel.      Commonwealth v. Rehrig,

1995 MDA 2013, Per Curiam Order, 11/14/13. On November 22, 2013, the

PCRA court appointed current counsel to represent Appellant.      On May 1,

2014, upon Appellant’s request, we discontinued the appeal. 4        Id. Per

Curiam Order, 5/1/14.

       On February 18, 2015, Appellant filed a counselled PCRA petition.5

The PCRA court held a hearing on Appellant’s petition on March 12, and


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3
  Appellant had initiated complaints of Attorney Pellish’s inaction to the
Pennsylvania Disciplinary Board, during which inquiry, Attorney Pellish
requested Appellant be provided new counsel as he had, for some time
since, joined the District Attorney’s office. However, Attorney Pellish never
petitioned to withdraw his appearance in the case.
4
  On December 2, 2013, the PCRA court had granted Appellant’s request for
transcripts.
5
  In addition to asserting the applicability of the newly-discovered fact
exception to the PCRA timeliness requirement under Section 9545(b)(1)(ii),
the petition incorporated by reference numerous claims of trial counsel
ineffectiveness raised in an earlier December 5, 2013 pro se filing made by
(Footnote Continued Next Page)

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March 26, 2015, at which Appellant, Attorney Pellish, and Appellant’s wife,

Janice Horvath testified. On May 5, 2015, the PCRA court filed an opinion

and order dismissing Appellant’s PCRA petition as untimely.        On May 26,

2015, Appellant filed a timely notice of appeal.6

      On appeal, Appellant raises the following issues for our review.

             [1.] Whether the [PCRA] court committed error
             when it denied Appellant’s post conviction relief as
             being untimely, where the uncontroverted evidence
             is that [] Appellant filed his appeal within sixty (60)
             days of discovering that he had been abandoned by
             his prior counsel?

             [2.] Whether the [PCRA] court committed error
             when it denied Appellant’s post conviction relief,
             where the evidence established that [A]ppellant’s
             court-appointed counsel failed to diligently pursue a
             PCRA petition against his trial counsel, thereby
             denying Appellant the opportunity to be heard on the
             issue of whether he was denied effective
             representation by his trial counsel?

Appellant’s Brief at 9.

      We initially restate our long-established standard of review.      “Our

standard of review of [an] order granting or denying relief under the PCRA

requires us to determine whether the decision of the PCRA court is

                       _______________________
(Footnote Continued)
Appellant in connection with the withdrawn appeal. See PCRA petition,
2/18/15, at 3 ¶¶ 18, 22.
6
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. In its Rule 1925(a) opinion filed on June 25,
2015, the PCRA court referenced its May 5, 2015 opinion as containing the
basis for its ruling.



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supported by the evidence of record and is free of legal error.          The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.”        Commonwealth v. Melendez-Negron,

123 A.3d 1087, 1090 (Pa. Super. 2015) (citation omitted). The timeliness of

Appellant’s petition is our threshold issue “because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.”         Commonwealth v. Cristina, 114 A.3d

419, 421 (Pa. Super. 2015) (citations omitted), vacated on other grounds, --

- A.3d ---, 2016 WL 593950 (Pa. 2016). “Under the PCRA, any petition for

post-conviction relief… must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies.” Id.

       Appellant first claims his PCRA petition, although concededly filed

beyond the one-year filing deadline, is subject to the newly-discovered fact

exception    under     Section 9545(b)(1)(ii).7    Appellant’s   Brief   at   16-17.

Specifically, citing Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007)

for the proposition that abandonment of counsel can be a newly-discovered

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7
  For the purpose of this discussion, we deem the date of filing of Appellant’s
first PCRA petition to be October 15, 2013, when he filed his pro se request
for transcripts. Appellant concedes this date is facially untimely as his
judgment of sentence became final on February 1, 2008, thirty days
following the imposition of sentence.       See generally 42 Pa.C.S.A. §
9545(b)(3). Accordingly, a timely PCRA petition would have been due by
February 2, 2009, as February 1, 2009 fell on a Sunday. See generally id.
§ 9545(b)(1); 1 Pa.C.S.A. § 1908.


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fact for the purposes of Section 9545(b)(1)(ii), Appellant asserts “[t]he

irrefutable evidence is that [Appellant] did file his petition immediately upon

discovering that he was abandoned by counsel. As such, [Appellant] meets

the timeliness exception under the PCRA.” Appellant’s Brief at 19.

       In Bennett, the petitioner had filed a first PCRA petition and was

appointed counsel. The PCRA court dismissed the petition and the petitioner

appealed.     The appeal was dismissed when counsel failed to file a brief.

Upon learning of the dismissal of his appeal and counsel’s failure to file a

brief, the petitioner filed a new PCRA petition seeking reinstatement of his

PCRA appeal. Therein, Appellant asserted the abandonment of his counsel

constituted an after-discovered fact, which entitled him to application of the

exception under Section 9545(b)(1)(ii).          On appeal from the denial of his

new PCRA petition, our Supreme Court acknowledged prior precedent that

held a claim of ineffective assistance of counsel cannot constitute an “after-

discovered fact” for the purposes of Section 9545(b)(1)(ii). Bennett, supra

at 1275.    However, the Bennett Court held the principle did not apply to

situations where counsel abandoned the petitioner on appeal, depriving

petitioner the review to which he was entitled.8 Id.




____________________________________________
8
 Furthermore, in Bennett, the Court was satisfied Appellant demonstrated
due diligence in discovering counsel’s abandonment and filed his petition
within 60 days of his discovery. Bennett, supra at 1272 n.11; see also
generally 42 Pa.C.S.A. § 9545(b)(2).


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      Instantly, the PCRA court found that counsel did not abandon

Appellant, because no appeal or PCRA petition was ever initiated.        PCRA

Court Opinion, 5/5/15, at 4. “Attorney Pellish reviewed the trial record and

advised [Appellant] that there were no grounds on which to appeal or to file

a PCRA petition.   [Appellant] never specifically asked [Attorney] Pellish to

file anything, before or after hearing [Attorney] Pellish’s evaluation of his

legal status.” Id. The PCRA court acknowledged that Attorney Pellish did

not then withdraw his appearance, but rather told Appellant that he would

continue to monitor the case for any change in the law that might afford

Appellant relief. The PCRA court noted this fact did not entitle Appellant to

any particular action, concluding “[Attorney] Pellish did not abandon

Appellant; he could not find anything to do for him.” Id. We agree.

      At the time of Attorney Pellish’s appointment, the time for Appellant to

file a direct appeal had expired, and his absconding status did not entitle him

to an extension. See Commonwealth v. Doty, 997 A.2d 1184, 1188 (Pa.

Super. 2010) (noting “a fugitive who returns to court should be allowed to

take the system of criminal justice as he finds it upon his return: if time for

filing has elapsed, he may not file; if it has not, he may”) (emphasis

omitted, citation omitted). Moreover, as noted supra in footnote 1, no PCRA

petition had been filed. We conclude the record supports the PCRA court’s

findings that Attorney Pellish advised Appellant there was no discernable

basis for a direct appeal or a PCRA claim. N.T., 3/12/15, at 41-42. Likewise


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the record supports the PCRA court’s finding that Appellant never specifically

requested Attorney Pellish to file anything notwithstanding that advice. Id.

at 22, 30.     Central to the holding in Bennett was the fact that a timely

appeal from the denial of Bennett’s PCRA petition had been filed, triggering

his right to representation and review.          Bennett, supra at 1273-1274.

Instantly, no filing, activating such a right occurred. Therefore, we conclude

that, absent a specific representation from Attorney Pellish that he intended

to initiate a PCRA action, or a specific instruction from Appellant for him to

do so, Attorney Pellish’s inaction in this matter was not abandonment.

       Accordingly, Appellant has not pled a newly-discovered fact, entitling

him to an exception to the timeliness provisions of the PCRA. Consequently,

the PCRA court and this Court are without jurisdiction to review the merits of

his PCRA claims.9       See Cristina, supra. Therefore, we conclude the PCRA

court did not err or abuse its discretion in dismissing Appellant’s PCRA

petition as untimely. Thus, we affirm the PCRA court’s May 5, 2015 order.

       Order affirmed.
____________________________________________
9
   The PCRA court additionally found that even if Attorney Pellish’s inaction
constituted an after-discovered fact of attorney abandonment, Appellant
failed to establish due diligence in ascertaining said abandonment or that he
filed his PCRA petition within 60 days of discovering the same. PCRA Court
Opinion, 5/5/15, at 4-5. We also note that Appellant did not present any
testimony or evidence relative to his substantive PCRA claims at the May 5,
2015 PCRA hearing. As a result, the PCRA court concluded Appellant
“identified no issue that could have been raised … or any viable basis for
showing ineffectiveness by counsel at trial. [Appellant’s] petition is both
untimely and without substance.” Id. at 5. In light of our disposition, we
need not address these issues.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/2016




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