Com. v. Berger, A. (memorandum)

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J-S29026-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ANDREW JUSTIN BERGER Appellant No. 2103 MDA 2013 Appeal from the PCRA Order of September 12, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No.: CP-36-CR-0003596-2009 BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.* MEMORANDUM BY WECHT, J.: FILED JUNE 18, 2014 Andrew Justin Berger appeals from the September 12, 2013 order that dismissed his petition for collateral relief pursuant to the Post Conviction -46. As the Commonwealth The underlying facts of this case are not in dispute. On July 25, 2009, the New Holland Borough Police Department encountered Berger as the police were en route to respond to a citizen complaint of someone discharging a firearm in a field at night. After confronting Berger, the officers discovered that he was in possession of a 20-gauge sawed-off ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S29026-14 shotgun and live ammunition. By virtue of a juvenile delinquency adjudication for robbery, see 18 Pa.C.S. § 3701(a)(1), Berger is prohibited from possessing a firearm pursuant to 18 Pa.C.S. § 6105(a)(1). Berger was charged with persons not to possess a firearm, possession of a prohibited offensive weapon, paraphernalia.1 public Ultimately, drunkenness, the and Commonwealth possession of drug withdrew the drug paraphernalia and public drunkenness charges. On September 1, 2011, Berger filed a motion seeking to suppress the shotgun, as well as various statements he made to police at the time of his suppression motion. Prior to the suppression hearing, the parties reached a plea agreement. On September 14, 2011, Berger entered a negotiated guilty plea. In exchange for Berger pleading guilty to one count of persons not to possess a firearm, the Commonwealth nolle prossed remaining offensive weapons charge. See 9/14/2011, at 2. On the agreed charge, graded as a second-degree felony, He also was directed to pay a fine and the costs of prosecution. Id. at 16. ____________________________________________ 1 18 Pa.C.S. §§ 6105(a)(1), 908(a), 5505, and 35 P.S. § 780113(a)(32), respectively. -2- J-S29026-14 2 Upon the advice of Ber the court delayed the start of on October 21, 2011. Berger did not file a direct appeal from his guilty plea. On October 11, 2012, Berger filed a timely PCRA petition, his first. Berger asserted various claims in his PCRA petition, including that trial counsel was ineffective in a the PCRA court granted Berger leave to proceed in forma pauperis and appointed counsel to represent him. Turner/Finley 3 informing him intent to dismiss notice of intention to dismiss. On September 12, 2013, the PCRA court petition to withdraw. ____________________________________________ 2 s right ankle 3 (Pa. See Commonwealth v. Turner, 544 A.2d 927 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). -3- 1988); J-S29026-14 On October 15, 2013, Berger filed a pro se notice of appeal. The next day, the PCRA court ordered Berger to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On November 6, 2013, Berger timely complied. On December 3, 2013, the PCRA court issued its Rule 1925(a) opinion. Berger has raised two issues for our consideration: A. 11, 2013? B. -]year prison sentence exceed the lawful maximum for a violation of 18 Pa.C.S. § 6105(c)(7), and did the PCRA [c]ourt err when it found Brief for Berger at 4. As Berger apparently has anticipated, we must begin by assessing the timeliness of his notice of appeal. Pennsylvania law sets forth a thirty-day period in which petitioners must file a notice of appeal. See me limitations on the taking of appeals are strictly Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (citing Commonwealth v. Hottinger, 537 A.2d 1, 3 (Pa. Super. 1987)). Notwithstanding this bright- [W]hen the appellant is (a) acting pro se and (b) incarcerated at the time he or she seeks to file an appeal, justice requires the appe deposits the appeal with prison authorities and/or places it in the prison mailbox. The appellant bears the burden of proving that -4- J-S29026-14 he or she in fact delivered the appeal within the appropriate time pe rule. Commonwealth v. Jones, 700 A.2d 423, 425-26 (Pa. 1997) (citing Houston v. Lack, 487 U.S. 266, 270-71 (1988); Smith v. Penna. Bd. of Probation & Parole, 683 A.2d 278, 279-81 (Pa. 1996)). Commonwealth v. Little are inclined to accept any reasonably verifiable evidence of the date that the prisoner deposits t Perez, 799 A.2d at 851 (citing Jones, 700 A.2d at 426) (emphasis added). Instantly, Berger had thirty days from the September 12, 2013 dismissal of his PCRA petition to file a timely notice of appeal. We calculate that the last day of that period fell on October 12, 2013, which is a Saturday. Therefore, Berger actually had until Monday, October 14, 2013, to file a timely notice of appeal, or to avail himself of the benefit of the prisoner mailbox rule. See 1 Pa.C referred to in any statute, such period in all cases . . . shall be computed so as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, . . . such day stamped as having been filed on October 15, 2013, at 10:11 a.m., and the -5- J-S29026-14 relevant documents are dated as having been submitted to the prison mail system on October 11, 2013. on or about the end of the applicable period (October 14, 2013). The only the prison mail system would be if Berger sent his notice of appeal to the clerk of courts on the same day that the clerk of courts filed it (October 15, 2013). Because the notice of appeal was date-stamped at 10:11 a.m. on deposited in the prison mail system on the morning of October 15, 2013, and arrived at the clerk of courts for filing before 10:11 a.m. Given the inherent delay in transferring letters through any mail system, it would defy logic to suppose that the clerk of courts would have been physically capable that Berger putatively deposited it in the prison mail system. Accordingly, we conclude that Berger must have deposited his letter in the prison mail system by October 14, 2013, at the latest, and we will consider his notice of appeal timely pursuant to the Jones, supra. part, Berger argues that his sentence is illegal. However, it is actually the -6- J-S29026-14 4 that presents the most succinct statement of this issue: [Berger] was charged with persons not to possess a firearm, [18 Pa.C.S. § 6105(a)(1)], based on an ineligibility that resulted from a juvenile adjudication. There is no specific grading provision for individuals who are prohibited from possessing a offense should have been graded as a [first-degree three nor more than ten year Brief for Commonwealth at 4. Our standard of review in this context is well-established: calls for us to determine whether the ruling of the PCRA court is s Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. disturbed unless there is no support for the findings in the Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (internal quotation marks and citation to deference, but its legal determinations are subject to our Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (internal quotation marks and citations omitted). Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal citations modified). ____________________________________________ 4 The PCRA court argues in its Rule 1925(a) opinion that Berge PCRA Court Opinion, 12/3/2013, at 21925(b) statement clearly identifies, and cogently describes, the dispositive issue in this case. See -3 ¶3. We conclude that Berger adequately has preserved this issue, and we decline to find waiver. -7- J-S29026-14 The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be standard of review is plenary and is limited to determining whether the trial court committed an error of law. Commonwealth v. Poland, 26 A.3d 518, 523-24 (Pa. Super. 2011) (citing Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009)). Commonwealth v. Vasquez, 744 A.2d 1280, 1284 (Pa. 2000) (citing Commonwealth v. Smith, 598 A.2d 268, 270 (Pa. 1991)). Instantly, Berger pleaded guilty to violating subsection 6105(a)(7) of the Uniform Fir illegal possession of a firearm, 18 Pa.C.S. § 6105(a)(1), which he was prohibited from doing pursuant to his juvenile adjudication for burglary. See ons shall be subject to the prohibition of subsection (a): . . . (7) A person who was adjudicated delinquent by a court pursuant to 42 Pa.C.S. § 6341 (relating to adjudication) . . . as a result of conduct which if committed by an adult would constitute an was graded as a second-degree felony, and he was sentenced to a term of sentencing courts to grade a violation of subsection 6105(a)(1) as a seconddegree felony reads, in pertinent part, as follows: -8- J-S29026-14 § 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms. * (a.1) * * Penalty. (1) A person convicted of a felony enumerated under subsection (b) or a felony under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, . . . who violates subsection (a) commits a felony of the second degree. 18 Pa.C.S. § 6105 (emphasis added). Berger was not convicted of an offense pursuant to subsection any crimes when adjudication in a proceeding under this chapter is not a conviction of crime ... see Commonwealth v. Hale, 85 A.3d 570, Rather, Berger was adjudicated delinquent pursuant to 18 Pa.C.S. § 3701, which is one of the predicate offenses listed under subsection terms of subsection 6105(a.1)(1) reproduced above. This is the same conclusion that a panel of this Court announced in Hale: Consistent with both the technical and popular meaning of a conviction, juvenile adjudications are ordinarily not considered convictions. . . . [T]he Juvenile Act explicitly denotes juvenile delinquency adjudications are not convictions. Hence, juveniles are not convicted of delinquent acts. -9- J-S29026-14 * * * The legislature itself in [section] 6105 distinguished between convictions and juvenile adjudications. See 18 Pa.C.S. § 6105(c). Thus, the General Assembly was aware of the difference between a person adjudicated delinquent and a inclusion of juvenile adjudications subjecting a person to violations of the persons not to possess a firearm crime would be unnecessary if convictions under subsection (b) subsumed delinquent acts. Accordingly, under the plain language of the statue, juvenile adjudications are not convictions that trigger the grading provision of subsection [6105](a.1)(1). 85 A.3d at 582 (emphasis added, footnote omitted). In the absence of the grading provision at subsection 6105(a.1)(1), there is no specific grading provision provided for violations of subsection 6105(a)(1) based upon a prior juvenile adjudication at illegally possessing a firearm is subject to the catch-all grading provision of offense under this subchapter constitutes a misdemeanor of the first degree In the instant case, Berger was charged with a violation of subsection 6105(a)(1), graded as a second-degree felony. See Information, to subsection 6105(a)(1) as a second-degree felony). Moreover, the sentencing court 6105(a)(1) graded as a second-degree felony. - 10 - N.T. at 16 (same). Given J-S29026-14 the foregoing discussion, this was error. In the absence of a triggering conviction under subsection 6105(b), the sentencing court erred in using offense as a second-degree felony under subsection 6105(a.1)(1). Hale, supra Commonwealth v. Musau, 69 A.3d 754, 757 (Pa. Super. 2013) (citing 18 Pa.C.S. § 106(b)(6), illegal. resentencing consistent with this memorandum. On remand, we direct the 6105(a)(1) when crafting the new sentence. However, we make no determination is committed to the sound discretion of the sentencing court. See Hale more harshly due to his prior juvenile record, but it must do so within the confines of a misdemeanor of the firstOrder reversed. Judgment of sentence vacated. Case remanded for resentencing consistent with this memorandum. Jurisdiction relinquished. - 11 - J-S29026-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/18/2014 - 12 -

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