Opinion
J-S08010-16 No. 822 WDA 2015
05-12-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. ASHLEY MCBRYDE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 13, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No: MD 2261-2015 BEFORE: STABILE, DUBOW, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.:
Appellant, Ashley McBryde, appeals pro se from the order the Court of Common Pleas of Allegheny County entered on May 13, 2015 dismissing her petition to appeal nunc pro tunc a summary conviction. We affirm.
According to the pleadings, Appellant was found guilty of the summary offense of driving without a license on September 10, 2009. Appellant filed a petition to appeal nunc pro tunc from said conviction on April 29, 2015. On the same day, the trial court entered an order setting a hearing on the petition for May 13, 2015. On the day set for the hearing, Appellant failed to appear. As a result, the trial court dismissed the petition. Specifically, the trial court noted that it denied the petition due to Appellant's failure to attend the hearing and her failure to provide an excuse for her absence. On appeal, Appellant argues she had an emergency preventing her from attending the hearing and that she called the chambers of the presiding judge to inform the court of the situation. Appellant also argues she never had a chance to challenge the conviction because she was unaware of the summary conviction and because of her inability to attend the nunc pro tunc hearing.
Appeals from a summary conviction must be filed within 30 days of the entry of the guilty plea or conviction. See Pa.R.Crim.P. 460.
In an appeal from the denial of a petition to appeal nunc pro tunc, this Court has stated our standard of review as follows:
[A]llowance of appeal nunc pro tunc is within the sound discretion of the trial court, and our scope of review of a decision of whether to permit an appeal nunc pro tunc is limited to a determination of whether the trial court has abused its discretion or committed an error of law. Orders granting or denying [a] petition to appeal nunc pro tunc are reversible [only] in instances where the court abused its discretion or where the court drew an erroneous legal conclusion.Commonwealth v. Yohe , 641 A.2d 1210, 1211 (Pa. Super. 1994) (internal citations and quotation marks omitted) (alterations in original).
Here, Appellant did not file an appeal within 30 days of her conviction. Therefore, the only way Appellant could attack the conviction was obtaining relief through a petition to appeal nunc pro tunc.
A party seeking leave to appeal from a summary conviction nunc pro tunc has the burden of demonstrating two things: (1) that the delay in filing his appeal was caused by extraordinary circumstances involving fraud or a wrongful or negligent act of a court official resulting in injury to that party and (2) that upon learning of the existence of the grounds relied upon for nunc pro tunc relief, he acted promptly to seek such relief.Id. at 1212 (citation omitted).
In the instant case, the trial court never had the opportunity to address whether Appellant met the above requirements because Appellant failed to appear at the nunc pro tunc hearing, and consequently failed to explain her basis for nunc pro tunc relief. Because Appellant failed to provide any fact on the record, we are constrained to agree with the trial court that Appellant is not entitled to relief. Accordingly, the trial court did not abuse its discretion in denying Appellant's petition for nunc pro tunc relief. See Yohe , supra.
Appellant states she was unable to attend the hearing due an emergency involving her son. Appellant's Brief at 4. There is no record of a request for a continuance by Appellant, nor any evidence of the alleged emergency. Again, on this record, we are constrained to agree with the trial court that Appellant failed to provide an excuse for absence at the hearing on her petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/12/2016