Opinion
J-A05021-14 No. 947 EDA 2013
03-27-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. TYRICK WILLIAMS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal From Judgment Of Sentence June 15, 2010
In The Court of Common Pleas of Philadelphia County Criminal Division
At No(s). CP-51-CR-0009354-2007
BEFORE: ALLEN, JENKINS, and FITZGERALD, JJ. MEMORANDUM BY JENKINS, J.
Tyrick Williams has appealed from an order dated June 15, 2010 revoking his probation at CP-51-CR-0009354-2007 ("the 2007 case") and imposing a sentence of 2-4 years imprisonment consecutive to his sentence in another case (CP-51-0011069-2008) ("the 2008 case"). He contends in this appeal that the length of his sentence in the 2007 case is unreasonable. We quash this appeal, but we note that Williams will have the right to file another appeal when the clerk of the trial court takes the corrective measures detailed below.
On October 1, 2007, Williams entered into an open guilty plea in the 2007 case to simple assault and recklessly endangering another person. On January 30, 2008, the trial court sentenced Williams to * Former Justice specially assigned to the Superior Court. time served to 23 months imprisonment followed by two years probation.
On April 5, 2010, Williams entered into a negotiated guilty plea for possession with intent to deliver a controlled substance in the 2008 case and was sentenced to 3-6 years imprisonment. On June 15, 2010, the trial court found that Williams violated his probation in the 2007 case, revoked his probation, and sentenced him to 2-4 years imprisonment consecutive to his sentence in the 2008 case.
On June 25, 2010, Williams filed a timely motion for modification of sentence. On August 19, 2010, Williams filed a pro se PCRA petition seeking "reinstatement" of his right to appeal nunc pro tunc.
Williams' post-sentence motion was awaiting decision at the time he filed his PCRA petition. The trial court never made a decision, so on October 25, 2010, this motion was deemed denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a) (trial court has 120 days to decide post-sentence motions from their date of filing; if court does not act upon post-sentence motions within 120 days, they are deemed denied by operation of law).
The 120th day after the filing of post-sentence motions fell on Saturday, October 23, 2010. Consequently, the 120-day period for deciding his motion expired on Monday, October 25, 2010.
This rule has one exception: upon motion of the defendant within the 120-day period, for good cause shown, the court may grant one 30-day extension for deciding the motion. Williams did not file a motion for extension of time to decide his post-sentence motion.
On July 9, 2012, counsel for Williams filed an amended PCRA petition which again requested leave to appeal. On March 22, 2013, the trial court granted the amended PCRA petition and reinstated Williams' right to appeal nunc pro tunc. On March 27, 2013, Williams filed this appeal.
Williams' PCRA petition was premature and void ab initio. A PCRA petition is void if it is filed before the petitioner's judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1) (a PCRA petition "shall be filed within one year of the date the judgment becomes final"); Commonwealth v. Kubis, 808 A.2d 196, 198 n. 4 (Pa.Super.2002) ("the PCRA provides petitioners with a means of collateral review, but has no applicability until the judgment of sentence becomes final"). On August 19, 2010, the date Williams filed his PCRA petition, the 120 day period for deciding his post-sentence motion had not expired, thus preventing his judgment of sentence from becoming final. Commonwealth v. Claffey, 80 A.3d 780, 783 (Pa.Super.2013) (citing Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa.Super.1997)) ("when post-sentence motions are filed, the judgment of sentence does not become final until those motions are decided").
Since Williams' PCRA petition was premature, the trial court had no jurisdiction to act upon it, and all proceedings on this PCRA petition are null, including this appeal. Kubis, supra, 808 A.2d at 198 n. 4 ("appellant filed a premature PCRA petition in 1996 while his direct appeal was still pending. . . this premature petition does not constitute a first PCRA petition"); Commonwealth v. Santone, 757 A.2d 963, 966 (Pa.Super.2000) (citing Meritor Mortgage Corp. East v. Henderson, 421 Pa.Super. 339, 617 A.2d 1323 (1992)) ("where there is no jurisdiction, there is no authority to pronounce judgment"). Accordingly, we quash this appeal.
Despite our quashal, Williams will have the opportunity to appeal his sentence in the near future. Our review of the lower court's docket shows that the clerk of the lower court has never docketed an order denying Williams' post-sentence motion by operation of law. When the clerk dockets an order denying his post-sentence motion by operation of law, his right to file a direct appeal of his sentence will ripen. See Pa.R.Crim.P. 720(A)(2)(b) (when, as here, the defendant files timely post-sentence motions, he may file a notice of appeal "within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion"); see also Pa.R.Crim.P. 720(B)(3)(c) ("When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and, as provided in [Pa.R.Crim.P.] 114, forthwith shall serve a copy of the order on the attorney for the Commonwealth, the defendant's attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied. . .") Since we lack jurisdiction over the present appeal, we lack the authority to direct the clerk to take this ministerial step. We leave it to Williams to address this matter with the clerk and then to file a timely direct appeal.
Nor can we invoke Pa.R.A.P. 905(a)(5) to retain jurisdiction over this appeal pending the entry of an order below denying Williams' post-sentence motions. Pa.R.A.P. 905(a)(5) provides: "A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof." [Emphasis added]. In certain cases, this rule rescues appeals that otherwise might have been quashed as interlocutory. See, e.g., In Re N.W., 6 A.3d 1020, 1021 n. 1 (Pa.Super.2010) (although juvenile improperly filed appeal from order of adjudication, appellate jurisdiction was perfected when lower court entered order of disposition following filing of appeal).
In appeals where Rule 905(a)(5) applies, it might make sense for this Court to hold an appeal in abeyance pending perfection of appellate jurisdiction below via entry of a final order. Here, however, Rule 905(a)(5) does not apply, because there was no "announcement of a determination" upon the expiration of the 120day period for deciding Williams' postsentence motions. Instead, this time period expired unnoticed by the lower court.
Appeal quashed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary