from the PCRA Order September 26, 2016 In the Court of Common
Pleas of Erie County Criminal Division at No(s):
BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD
Robert Michael McGarry, appeals from the September 26, 2016
Order entered in the Erie County Court of Common
Pleas dismissing his first Petition filed under the Post
Conviction Relief Act ("PCRA"), 42 Pa.C.S.
§§ 9541-9546. After careful review, we vacate the
portion of the Order that denied relief on the issue of
whether trial counsel was ineffective for failing to file a
direct appeal and remand for a hearing solely on this issue.
We affirm the remaining portion of the Order.
fall of 2014, Appellant was arrested for two drunk-driving
incidents and charged at two separate dockets. The first
incident occurred on October 31, 2014 and is docketed at No.
CP-25-CR-0003569-2014. The Commonwealth charged Appellant
with one count of Driving Under the Influence
("DUI"), a first-degree misdemeanor, and one count
of Trespass by Motor Vehicle, a summary
offense. When arrested, the Appellant refused
testing of his breath. Also, this was Appellant's second
DUI within ten years and thus, if convicted, he was subject
to an increased penalty for refusing breath testing. In such
a case, he was subject to the mandatory minimum term of 90
days' imprisonment and a $1, 500 fine. 75 Pa.C.S. §
3804(c)(2). See also N.T., 7/20/15, at 8.
was then charged for another DUI incident on November 30,
2014, docketed at No. CP-25-CR-0003564-2014. The Commonwealth
charged Appellant with one count of DUI, a first-degree
misdemeanor, and one count of Duties at Stop Sign, a summary
offense. Appellant again refused testing of his
breath. Since this was Appellant's third DUI within ten
years and he again refused testing of his breath, he was
subject to the mandatory minimum term of one years'
imprisonment and a $2, 500 fine. 75 Pa.C.S. §
3804(c)(3). See also N.T., 7/20/15, at 8.
20, 2015, Appellant entered an open guilty plea to the two
counts of DUI. On November 23, 2015, the trial court
sentenced Appellant to an aggregate term of 3 to 6 years'
imprisonment. On both counts of DUI, the trial court
applied the mandatory minimum sentencing provisions for
recidivists who refuse chemical testing, including breath
testing, as set forth in 75 Pa.C.S. §§ 3804(c)(2)
and (c)(3). See N.T., 11/23/15, at 11.
did not file a post-sentence motion or a direct appeal.
Appellant's Judgment of Sentence, therefore, became final
on December 23, 2015. See 42 Pa.C.S. §
9545(b)(3); Pa.R.A.P. 903(a).
2, 2016, Appellant filed a pro se Petition for
Correction of Sentence, which the trial court treated as a
pro se PCRA Petition, his first, challenging the
legality of his sentence. The PCRA court appointed counsel,
but counsel did not file an Amended PCRA
Petition or seek permission to withdraw pursuant to
28, 2016, Appellant amended his PCRA Petition pro se
to include a Birchfield claim, which the Clerk of
Courts docketed and forwarded to Appellant's
court-appointed counsel. Appellant also filed a
to Proceed Pro Se on August 5, 2016, which the Clerk
of Courts again docketed and forwarded to Appellant's
court-appointed counsel. The PCRA court did not conduct a
Grazier hearing or otherwise permit Appellant to
proceed pro se at this time.
August 19, 2016, the PCRA court filed a notice of its intent
to dismiss Appellant's PCRA Petition without a hearing
pursuant to Pa.R.Crim.P. 907. As previously noted, Appellant
filed a premature Notice of Appeal on September 9, 2016,
which was perfected when the PCRA court dismissed the
Petition on September 26, 2016. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
January 9, 2017, following this Court's decision to
remand to clarify Appellant's pro se status on
appeal, the PCRA court conducted a Grazier hearing
and confirmed Appellant's desire to proceed pro
presents four issues for our review:
I. Whether there is deficient subject matter jurisdiction
over this constructive trust case  resulting in unlawful
adjudication of constitutional rights?
[II.] Whether the PCRA court erred in [its] determination of
the legality of Appellant's guilty plea as knowing and
[III.] Whether the PCRA court erred in [its] determination of
the applicability of amended state statutes in violation of
state and federal constitutional law?
[IV.] Whether the PCRA court erred by not reinstating the
Appellant's direct appeal rights due to counsel's
failure to file one, after being presented with documentary
evidence to support the fact that Appellant did in fact
request him to do so, thereby waiving meritorious issues for
Brief at 3 (reordered for convenience).
review the denial of a PCRA Petition to determine whether the
record supports the PCRA court's findings and whether its
Order is otherwise free of legal error. Commonwealth v.
Fears, 86 A.3d 795, 803 (Pa. 2014). To be eligible for
relief pursuant to the PCRA, Appellant must establish,
inter alia, that his conviction or sentence resulted
from one or more of the enumerated errors or defects found in
42 Pa.C.S. § 9543(a)(2). Appellant must also establish
that the issues raised in the PCRA petition have not been
previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).
An allegation of error "is waived if the petitioner
could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal[, ] or in a prior
state postconviction proceeding." 42 Pa.C.S. §
first challenges this Court's subject matter jurisdiction
over the instant appeal. Appellant's Brief at 8-16.
Appellant essentially argues that he is a "sovereign
citizen" and, therefore, is not subject to the laws of
the Commonwealth of Pennsylvania. Appellant's Brief at
pertaining to jurisdiction are pure questions of law, and an
appellate court's scope of review is plenary. Questions
of law are subject to a de novo standard of
review." In re J.A., 107 A.3d 799, 813 n. 15
(Pa. Super. 2015) (citation omitted). A subject matter
jurisdiction challenge cannot be waived. Commonwealth v.
Jones, 929 A.2d 205, 210 (Pa. 2007).
relates to the court's power to hear and decide the
controversy presented. All courts of common pleas have
statewide subject matter jurisdiction in cases arising under
the Crimes Code [pursuant to 42 Pa.C.S. § 931]."
Commonwealth v. Gross, 101 A.3d 28, 32 (Pa. 2014)
(internal citation, quotation marks, and alteration omitted).
There are two requirements for subject matter jurisdiction as
it relates to criminal defendants: competency of the court to
hear the case, and formal and specific notice to the
defendant. Jones, supra.
in this Commonwealth and various Federal Courts of Appeals
have rejected sovereign citizen claims, identical to those
raised here in a handful of unpublished decisions, as
frivolous. See, e.g., United States v. Himmelreich,
481 Fed.Appx. 39, 40 n.2 (3d Cir. 2012) (per curiam)
(citing with approval United States v. Benabe, 654
F.3d 753, 767 (7th Cir. 2011)); Charlotte v. Hanson,
433 Fed.Appx. 660, 661 (10th Cir. 2011) ("an
individual's belief that her status as a sovereign
citizen puts her beyond the ...