Opinion
881 MDA 2021
04-05-2022
COMMONWEALTH OF PENNSYLVANIA v. REYNALDO FLORES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered May 24, 2021 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0000723-2020
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J. [*]
MEMORANDUM
NICHOLS, J.
Appellant Reynaldo Flores appeals from the judgment of sentence entered after a jury found him guilty of possession of contraband-controlled substance by inmate, possession of controlled substance, and possession of drug paraphernalia. For the reasons that follow, we conclude that Appellant's counsel failed to file a timely notice of appeal, and we are constrained to quash this appeal.
In light of our disposition, we do not restate the facts of Appellant's convictions. Briefly, we note that the jury found Appellant guilty of the above-mentioned offenses on April 6, 2021. On May 24, 2021, the trial court entered an order sentencing Appellant in absentia to an aggregate two to four years' imprisonment consecutive to any sentence currently being served by Appellant. Appellant did not file post-sentence motions.
Appellant did not include a copy of a sentencing hearing transcript. The trial court, however, stated:
At the sentencing hearing on May 24, 2021, the [c]ourt was informed that [Appellant] was currently in Florida. Counsel for [Appellant] appeared. Sara Dudley, a Schuylkill County Adult Probation Officer, testified that she knows [Appellant], that she attempted to contact [Appellant] to get information from him for his [p]re-[s]entence investigation report ("PSI"), that she was unable to do so because [Appellant] was currently in Osceola County, Florida and that Florida was not going to extradite him. She testified that after the trial in the within matter, [Appellant] absconded and Berks County, where [Appellant] was serving probation, issued a bench warrant and [Appellant] was picked up in Florida.Trial Ct. Op., 8/31/21, at 7.
The record contains a counseled notice of appeal that Appellant's counsel dated June 16, 2021. An envelope attached to the notice of appeal also bears a postmark dated June 16, 2021. The clerk of the court apparently stamped the notice of appeal as received on June 29, 2021, and the clerk docketed the notice of appeal that same day.
On August 13, 2021, this Court issued a rule to show cause why this appeal should not be quashed as untimely filed. Appellant's counsel answered on August 23, 2021.
In his answer to the rule to show cause, Appellant's counsel asserted that (1) Appellant's detentions in Florida and Berks County hindered communication with Appellant, (2) Appellant was unable to inform counsel of his desire to appeal until two weeks after sentencing, and (3) counsel drafted and sent the notice of appeal to the clerk of the court's office on June 16, 2021, by mail. Counsel asserted that "[t]he notice was sent in a timely manner to the clerk's office," and that he "does not know why it took nearly two weeks" for the clerk of the court to docket the notice of appeal. Answer to Rule to Show Cause, 8/23/21, at 2. Counsel concluded that he sent the notice of appeal in a timely manner and that the clerk of the court "should have received [it] in advance of the appeal deadline." Id.
Neither the trial court nor the Commonwealth have discussed the timeliness of Appellant's notice of appeal.
On September 16, 2021, this Court discharged the rule to show cause. That order referred the issue concerning the timeliness of the appeal to this panel.
"It is well settled that the timeliness of an appeal implicates our jurisdiction and may be considered sua sponte. Jurisdiction is vested in the Superior Court upon the filing of a timely notice of appeal." Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) (citations and quotation marks omitted).
Generally, an appellant must file a notice of appeal within thirty days of the entry of the order being appealed. See Pa.R.A.P. 903(a). In a criminal case where no post-sentence motion is filed, the notice of appeal must be filed within thirty days of the imposition of the sentence in open court. See Pa.R.A.P. 903(c)(3).
In a counseled criminal appeal, filing occurs when the clerk of the court receives a mailed notice of appeal, stamps it, and enters the date of receipt on the docket. Compare Pa.R.A.P. 905(a)(3) (stating, in part, that "upon receipt of the notice of appeal, the clerk shall immediately stamp it with the date of receipt, and that date shall constitute the date when the appeal was taken . . . ." (emphasis added)), with Pa.R.A.P. 1101 (discussing appeals deemed filed as of the date of mailing); Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019) (reiterating that a pro se prisoner's document is deemed filed when it is delivered to prison authorities for mailing). Mailing delays do not excuse the untimely receipt of a counseled notice of appeal by the clerk of the court. See Pa.R.A.P. 905(a)(3); see also Pa.R.A.P. 902, note (indicating that the current procedures permitting the filing of a notice of appeal in a local court house "eliminate[s] the time lost in transmission of the appeal by mail"); Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001) (noting that "delays in the U.S. mail are both foreseeable and avoidable").
Instantly, the trial court sentenced Appellant on May 24, 2021, and he did not file a post-sentence motion. Therefore, the time for filing a timely notice of appeal ended on June 23, 2021. See Pa.R.A.P. 903(a), (c)(3).
As noted above, Appellant's counsel apparently mailed the notice of appeal on June 16, 2021, one week before the thirty-day period to file a timely notice of appeal ended. However, the clerk of the court apparently received the notice of appeal and docketed it on June 29, 2021, six days after the time for taking an appeal ended. Based on the foregoing, counsel's filing was facially untimely because the clerk of the court did not receive and docket the notice of appeal until after the time for appeal expired. See Pa.R.A.P. 905(a)(3).
We acknowledge that the thirteen-day delay between the date of mailing and the apparent date of receipt is unusually long and raises the possibility that a breakdown in the operation of the trial court occurred that would excuse the facial untimeliness of the notice of appeal. See Commonwealth v. Alaouie, 837 A.2d 1190, 1192 (Pa. Super. 2003) (reiterating that the duty of the clerk of the court is to stamp a notice of appeal when it is received); see also Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super. 2004) (discussing duty of the trial court to inform an appellant of his right to appeal at sentencing). However, Appellant's counsel makes no attempt to establish a breakdown, nor has he provided this Court with a record sufficient to determine that a breakdown occurred. See Answer to Rule to Show Cause at 2; see also supra note 1. For these reasons, we are constrained to conclude that counsel failed to establish any excuse or exception to find that he timely filed Appellant's notice appeal, and the delay, therefore, was attributable to counsel as a mailing delay. See Criss, 781 A.2d at 1160. Accordingly, we quash this appeal.
Our disposition does not preclude Appellant's ability to seek reinstatement of his direct appeal rights under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, based on counsel's failure to file a timely notice of appeal. See Commonwealth v. Hall, 771 A.2d 1232, 1236 (Pa. 2001) (holding that the PCRA provides the sole means for obtaining collateral relief including the restoration of direct appeal rights).
[*] Retired Senior Judge assigned to the Superior Court.