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Commonwealth v. McGarry

Superior Court of Pennsylvania

October 13, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT MICHAEL MCGARRY, Appellant

         Appeal from the PCRA Order September 26, 2016 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003564-2014, CP-25-CR-0003569-2014

          BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.[*]

          OPINION

          DUBOW, J.

         Appellant, Robert Michael McGarry, appeals from the September 26, 2016 Order[1] 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.

         In the 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.[2] 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.

         Appellant 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.[3] 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.

         On July 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.[4] 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.

         Appellant 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).

         On May 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[5] or seek permission to withdraw pursuant to Turner/Finley.[6]

         On July 28, 2016, Appellant amended his PCRA Petition pro se to include a Birchfield[7] claim, which the Clerk of Courts docketed and forwarded to Appellant's court-appointed counsel. Appellant also filed a

         Petition 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[8] hearing or otherwise permit Appellant to proceed pro se at this time.

         On 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.

         On 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 se.

         Appellant 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 voluntarily entered?
[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 direct review?

         Appellant's Brief at 3 (reordered for convenience).

         We 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. § 9544(b).

         Appellant 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 16.

         "Issues 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).

         "Jurisdiction 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.

         Courts 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 ...


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