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Tavern shooter denied appeal

Three-member panel that reviewed appeal was split on decision

A Clearfield County man sentenced to a state prison term of 7.5 to 15 years for shooting into a tavern more than five years ago has lost his attempt to withdraw his guilty plea because it was not filed on a timely basis, according to a Superior Court opinion handed down last week.

However, the three-member panel that reviewed the appeal was split on the decision.

Judges Mary P. Murray and John T. Bender upheld a ruling by Cambria County Judge David J. Tulowitzki dismissing the appeal filed by an attorney for Russell S. Shick, 61, of Beccaria Township, Clearfield County.

Judge Jacqueline O. Shogan in a dissenting opinion concluded differently, stating there was “a complete breakdown in the operation of the court,” thereby depriving Shick of his appeal rights. She thought the court should hear his appeal.

Shick’s case was filed in Cambria County because the charges against him stemmed from a drive-by shooting on Oct. 16, 2013, at George’s Tavern along Route 53 in Dysart.

The defendant had been asked to leave the tavern earlier in the day, allegedly after being belligerent and using vulgarities toward a female bartender and her husband.

Just before midnight a car pulled up to the bar and a patron heard several “pops” and saw muzzle flashes from the outside.

At least four shots entered the bar, including one that struck the 30-year-old patron in the hip. He was transported to UPMC Altoona.

Shick was initially charged with four counts of aggravated assault, serious bodily injury, aggravated assault with a deadly weapon (police found two 9 mm pistols in his possession), and one count of discharging a firearm into an occupied structure.

He was sentenced by Tulowitzki on March 29, 2016, after pleading to one count of aggravated assault. The judge ordered Shick’s sentence not be modified to include house arrest, electronic monitoring or early release.

State court records show he is confined to the State Correctional Institution at Albion.

He stated in his preliminary hearing that he was not trying to kill anyone, only trying to “mess” with them.

After entering his guilty plea, Shick representing himself on April 20, 2016, filed a timely request to withdraw the plea.

On April 28, 2016, the judge permitted his attorney to withdraw and denied his request to with withdraw his guilty plea.

No appeal was taken from that decision, and his sentence became “final” as of May 31, 2016.

It wasn’t until Aug. 5, 2016, he filed a motion stating his constitutional rights had been violated, his sentence was illegal and charging his counsel was ineffective.

This petition was denied as untimely because his sentence became “final” as of May 31.

On Nov. 1, 2017, he filed a post conviction petition asking to withdraw his guilty plea and requested his direct appeal rights be reinstated.

His request to reinstate his direct appeal was denied.

That led to his latest appeal before the Superior Court.

In Murray’s opinion, it was noted that under Pennsyl­vania law “no court has the jurisdiction to hear an untimely (post-conviction) petition unless one of three exceptions is recognized.

The opinion stated Shick had until a year after his sentence became final — May 31, 2017 — to file a post-conviction petition. It wasn’t filed until Nov. 1, 2017.

Shick does not cite any of the three exceptions to the untimeliness of his appeal, it was pointed out, meaning the appeals court lacks jurisdiction to hear the case. Murray and Bender rejected a further hearing.

Judge Jacqueline O. Shogan filed a dissenting opinion in which she argued Shick filed numerous petitions since his sentencing yet the trial judge treated them as motions to appeal rather than as valid post-conviction petitions that were timely.

Shogan stated Shick had until May 31, 2017, to file a timely post-conviction petition, and she concluded the multiple documents he filed “should have been deemed PCRA petitions requiring the appointment of counsel.”

Shick’s petitions were ignored, forcing him to proceed on his own without the help of counsel, Shogan said.

“The trial court’s errant disregard of (Shick’s) rights and its failure to treat prior filings as (post-conviction) petitions constitute a complete breakdown in the operation of the court,” she stated.

“Accordingly, I conclude that this court should not quash the appeal; rather, we should address its merits. Therefore, I respectfully dissent,” Shogan concluded.

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