J-S12042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GILES W. WITHERSPOON                       :
                                               :
                       Appellant               :   No. 1860 EDA 2019

                  Appeal from the Order Entered May 30, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000086-2000


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                 FILED JUNE 30, 2020

        Appellant, Giles W. Witherspoon, pro se, appeals from the May 30, 2019

order of the Court of Common Pleas of Delaware County, that dismissed

Appellant’s petition as a third untimely petition filed pursuant to the Post

Conviction Relief Act (PCRA).1 We find that the trial court should have treated

Appellant’s petition as an untimely post-sentence motion.          We, therefore,

affirm but on grounds different than the trial court.2

        The facts underlying this appeal are not relevant to its disposition. After

a jury trial, Appellant was found guilty of rape, kidnapping, aggravated

assault, and simple assault.3 On December 4, 2001, Appellant was sentenced
____________________________________________


1   42 Pa.C.S. §§ 9541–9546.

2See Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010)
(Superior Court can affirm trial court order on any basis).

3   18 Pa.C.S. §§ 3121, 2901, 2702, and 2701, respectively.


*Retired Senior Judge assigned to the Superior Court.
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to an aggregate term of 13.5 to 27 years’ incarceration plus five consecutive

years’ of probation. Appellant filed a direct appeal, this Court affirmed his

judgment of sentence and the Pennsylvania Supreme Court denied allowance

of appeal on September 30, 2003. See Commonwealth v. Witherspoon,

828 A.2d 405 (Pa. Super. 2003) (table), appeal denied, 832 A.2d 436 (Pa.

2003) (table).

      Appellant filed a first petition pursuant to the PCRA on April 14, 2005.

The PCRA court dismissed the petition and Appellant filed a notice of appeal

with this Court. This Court remanded to the PCRA court and determined that

the PCRA court should treat a previously filed, but undocumented, petition as

a timely PCRA petition. See Commonwealth v. Witherspoon, 929 A.2d

250 (Pa. Super. 2007) (table). The PCRA court permitted Appellant to proceed

pro se and subsequently dismissed the petition. Appellant filed a notice of

appeal, which was docketed at 307 EDA 2011, but discontinued that appeal.

Appellant filed a petition for a writ of extraordinary relief to the Pennsylvania

Supreme Court, which was denied. Witherspoon v. Del. Cnty. Court of

Common Pleas, 2 MM 2011 (Pa. filed August 3, 2011). The Supreme Court

of the United States denied Appellant's petition for a writ of certiorari on

January 9, 2012. Witherspoon v. Del. Cnty. Court of Common Pleas, 565

U.S. 1126 (2012).

      On December 9, 2013, Appellant filed a second petition pursuant to the

PCRA.   The PCRA court dismissed the petition.      Appellant filed a notice of

appeal and this Court affirmed the PCRA court’s order. See Commonwealth

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v. Witherspoon, 2015 WL 6828199 (Pa. Super. 2015). The Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal.         See

Commonwealth v. Witherspoon, 130 A.3d 1290 (Pa. 2016) (table).

       On February 14, 2019, Appellant, pro se, filed the petition at issue in

this appeal, titled “Petition for Correction of Sentence Nunc Pro Tunc.” On

April 26, 2019, the Commonwealth filed an answer. The trial court treated

the petition as a third, untimely, petition filed pursuant to the PCRA and on

April 29, 2019, filed notice of intent to dismiss the petition without a hearing

pursuant to Pa.R.Crim.P. 907 (907 Notice). On May 6, 2019, Appellant filed

a pro se “Request for Extension of Time to Traverse,” and on May 28, 2019,

Appellant filed a response to the trial court’s 907 Notice. On May 30 2019,

the trial court entered an order dismissing the petition. On June 12, 2019,

Appellant filed this timely pro se notice of appeal.4

       Appellant presents the following issues for our review:

          1. Whether the Common Pleas Court’s portrayal and
             dismissal of Witherspoon’s Petition for Correction of
             Sentence, Nunc Pro Tunc, as a Post-Conviction Relief Act
             Petition was in error?


____________________________________________


4 The trial court dated the order May 28, 2019, but the order was not mailed
to Appellant and the Commonwealth until May 30, 2019. See Pa.R.A.P.
108(a)(1) (day of entry of order shall be the date the clerk of court mails or
delivers copies of the orders to the parties). Appellant filed a Pa.R.A.P.
1925(b) statement of errors complained of on appeal (Rule 1925(b)
statement) on June 12, 2019, however, the trial court did not order Appellant
to file a Rule 1925(b) statement. We note that the issues in Appellant’s Rule
1925(b) statement are identical to the issues in his Statement of Questions
Presented portion of his brief to this Court.

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         2. Whether the Court committed error in accepting the
            Commonwealth’s argument that the issue of the wrongful
            calculation of the sentence had been previously litigated
            pursuant to 42 Pa. C.S.A. § 9544 ?

         3. Whether the lower court had jurisdiction to
            recalculate/correct Witherspoon’s sentence which was
            erroneously arrived at by the sentencing court in a
            manifestly unreasonable application of improper
            element(s), resulting in a prior record score being
            improperly increased from (2) to (4) points?

         4. Whether Witherspoon’s sentence which was increased by
            up to (9) years due to the consideration of improper
            element(s), contrary to specific statutory provisions
            contained in the Pennsylvania Sentencing Guidelines,
            204 Pa. Code § 303.1 (c) and the United States
            Sentencing Guidelines Manual § 4A.1.1 (a)?

Appellant’s Brief at vii (suggested answers omitted).

      In Appellant’s first issue, he argues that the trial court erred in

identifying his petition as a PCRA petition. Appellant contends that his motion

was a post-sentence motion and that he qualified for relief because there were

several breakdowns in the operations of the courts.

      “The content of the motion-just exactly what is pled and requested

therein—is relevant to deciding whether to treat the motion as a collateral

petition.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)

(citing Wrecks I, 931 A.2d 717 (Pa. Super. 2007)).       “Misdesignation of a

pleading does not preclude a court from deducing the proper nature of a

pleading.” See Commonwealth v. Porter, 35 A.3d 4, 12 (citation omitted).

“[I]f the PCRA offers a remedy for an appellant’s claim, it is the sole avenue




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of relief and the PCRA time limitations apply.” Commonwealth v. Wyatt,

115 A.3d 876, 879 (Pa. Super. 2015) (citation omitted).

      In order to determine the nature of Appellant’s pleading, we must look

to what Appellant pleaded.    In his petition, Appellant argued that the trial

court erred in calculating his prior record score by including a 1981 burglary

conviction that he argued should not have been included. Appellant states

that many mistakes have occurred in his direct appeal and prior PCRA

proceedings that have resulted in this sentencing claim having never been

reviewed. He contends that errors in sentencing cannot be waived and that

this Court should recalculate his prior record score and that he should be

resentenced according to the correct prior record score.

      Appellant’s argument in his petition, that the trial court erred in

calculating his prior record score, is a challenge to the discretionary aspects

of the sentence. In Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa.

Super. 2007), ten years after he was sentenced, appellant filed a “Motion to

Modify and Reduce Sentence” in which he argued that the sentencing court

“failed to consider, and deviated, from the sentencing guidelines.”      Id. at

1288-89.

         Requests for relief with respect to the discretionary aspects
         of the sentence are not cognizable in PCRA proceedings.
         Thus, because [a]ppellant’s pro se filing does not request
         relief contemplated by the PCRA, the trial court was correct
         to treat Appellant’s filing as a post-sentence motion and not
         a PCRA petition.




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Wrecks, 934 A.2d at 1289.5 Similarly, as Appellant’s claims in his petition

pertain to the discretionary aspects of his sentence and are not cognizable

under the PCRA, the trial court should have treated his petition as an untimely

post sentence motion. Id.; See also Commonwealth v. Torres, 223 A.3d

715, 716-17 (Pa. Super. 2019) (appellant filed a motion to modify sentence

ten years after the imposition of sentence, and argued trial court failed to

consider mitigating circumstances, which is a challenge to the discretionary

aspects of sentence, his motion is an untimely post-sentence motion and not

PCRA petition, following Wrecks).6

       In Appellant’s third issue, he contends that the trial court had

jurisdiction to correct his sentence. Appellant argues that several events have

precluded the issue of his prior record score from being addressed and,

____________________________________________


5 We note that Taylor criticized Wrecks and appeared to suggest that this
Court should not follow Wrecks. This Court’s panel in Taylor articulated that
the Wrecks panel ignored prior decisions of this Court that stated that any
motion filed after judgment of sentence becomes final are to be treated as a
PCRA petition. Taylor, 65 A.3d at 466-67. The Taylor panel held that the
petition at issue in that appeal should be treated as a PCRA petition, however,
the panel admitted it need not rely on Wrecks because the claim at issue in
the petition was an illegal sentence claim, which is cognizable under the PCRA.
Id. At 467. This Court is still bound by Wrecks. “[P]recedent (stare decisis)
requires us to adhere to a ruling of this Court until it is reversed either by our
Supreme Court or an en banc panel of Superior Court. Commonwealth v.
Crowley, 605 A.2d 1256, 1257 (1992). To the extent that the Taylor panel
stated that stare decisis is not meant to be a “vehicle for perpetuating error,”
Taylor, 65 A.3d at 467 (citation omitted), we find no error in the reasoning
of Wrecks.
6 We need not discuss Appellant’s second issue in this Court because of this
determination. Appellant’s second issue was whether the calculation of his
prior record score was previously litigated under the PCRA.

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therefore, these are breakdowns that permit nunc pro tunc relief. Appellant

asserts that the alleged breakdowns consist of: the trial courts’ use of an

erroneous prior record score in determining his sentence; the delay in

scheduling his PCRA hearing pursuant to his first PCRA petition; his counsel

abandoning his claim as to the prior record score on appeal; and the trial court

erroneously determining that the claim was previously litigated.      Appellant

also argues that “[t]he breakdown(s) in the court’s process triggered the

discretionary aspects of sentencing and created substantial question(s) which

must invoke the jurisdiction of this [C]ourt.” Appellant’s brief at 9. Appellant

relies on Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) to support

his proposition. Id.

      Appellant was required to file his post-sentence motion within 10 days

of imposition of sentence. Pa.R.Crim.P. 720(A)(1). His motion, filed over 10

years after imposition of sentence, is untimely.

         The courts of this Commonwealth have held that a court
         breakdown occurred in instances where the trial court, at
         the time of sentencing, either failed to advise Appellant of
         his post-sentence and appellate rights or misadvised him.
         We have also found a breakdown where the clerk of courts
         did not enter an order notifying the appellant that his post-
         sentence motion was denied by operation of law. In each
         of the aforementioned instances, the “breakdown” occurred
         when the trial court or the clerk of courts departed from the
         obligations specified in current Rules 704 and 720 of the
         Pennsylvania Rules of Criminal Procedure.

Commonwealth v. Patterson, 940 A.2d 493, 498–99 (Pa. Super. 2007)

(citations omitted); See also Commonwealth v. Torres, 223 A.3d 715, 717


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(Pa.   Super.   2019)   (finding   appellant’s   argument   that   extraordinary

circumstances, namely, that the trial court failed to advise him of his appellate

and post-sentence rights as required by Pa.R.Crim.P. 704 and 720 did not

constitute a breakdown in court operations justifying the filing of a post-

sentence motion ten years after imposition of sentence where the record

demonstrated that appellant was advised of his post-sentence motion rights

and signed a document stating same).

       Appellant’s attempt to establish a breakdown in the courts’ operation is

unavailing. Appellant’s claims of “breakdowns” are actions of his counsel and

alleged errors in prior court decisions, not any act or omission of the court

that misled him as to the deadlines for filing a post-sentence motion or that

prevented him from timely filing a post-sentence motion at the time of

sentencing. In fact, the record demonstrates that Appellant was advised of

his right to file a post-sentence motion by his attorney and signed a document

informing him of his rights.        Post-Sentence Document, 12/4/2001, at

unnumbered pages 1-2. These allegations, therefore, do not fall within the

scope of a “breakdown” of court operations to excuse the untimeliness of his

post-sentence motion. See Patterson, 940 A.2d at 498–99.

       Appellant’s argument that this Court, nonetheless, has jurisdiction to

review his claim as to the discretionary aspect of his sentence is unavailing.

Appellant’s reliance on Mouzon is misplaced. In Mouzon, the appellant filed

a timely post-sentence and direct appeal from his judgment of sentence. The

issue was whether this Court erred in determining that appellant did not raise

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a substantial question. Appellant’s reliance is misplaced because Appellant’s

appeal comes to this Court from a motion for nunc pro tunc relief filed ten

years after imposition of sentence. We have determined that Appellant’s post-

sentence motion was untimely and the trial court did not have jurisdiction to

address the merits of his petition.      As such, this Court does not have

jurisdiction to address the merits of his petition, namely his challenge to the

discretionary aspects of his sentence.

      Lastly, Appellant argues that the imposition of his sentence was contrary

to the statutory provisions of the Sentencing Guidelines, because the trial

court was precluded from including a 1981 conviction in his prior record score,

as that conviction predated the sentencing guidelines. Appellant, in his brief,

relied on Commonwealth v. Provenzano, 50 A.3d 148 (Pa. Super. 2012),

for the proposition that this Court has previously remanded for resentencing

based on a trial court’s use of an erroneous prior record score. Appellant’s

reliance on Provenzano is misplaced. The appellant in that case filed a timely

direct appeal from his judgment of sentence. Here, Appellant is filing this

post-sentence motion over ten years after his judgment of sentence. As the

trial court did not have jurisdiction to review Appellant’s claim on the merits

due to the untimeliness of his motion, we, likewise, lack jurisdiction to review

Appellant’s claim on the merits.

      Order affirmed.




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     Judge McCaffery Concurs in the Result.

     Judge Shogan files a Concurring Memorandum that Judge McCaffery and

     Judge Colins join.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2020




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