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[U] Commonwealth v. Wilson

Superior Court of Pennsylvania

February 19, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DAVID J. WILSON, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order entered October 24, 2012 in the Court of Common Pleas of Delaware County, Criminal Division, at No(s): CP-23-CR-0001279-2010

BEFORE: BENDER, P.J., OTT, J. and STRASSBURGER, [*] J.

MEMORANDUM

STRASSBURGER, J.

David J. Wilson (Appellant) appeals pro se from the October 24, 2012 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We quash this appeal as prematurely filed.

After police officers observed Appellant drop an item on the ground, which turned out to be a gun, Appellant was charged with and convicted of persons not to possess firearms. Appellant was sentenced to four to eight years' imprisonment; and his sentence was affirmed by this Court on direct appeal. Commonwealth v. Wilson, 40 A.3d 196 (Pa.Super. 2011) (table).

On March 22, 2012, Appellant timely filed a pro se PCRA petition and brief in support thereof. The following day, the PCRA court appointed counsel and directed counsel to file an amended PCRA petition or no merit letter. On April 4, 2012, Appellant pro se filed a "'Partial' Amendment to Post Conviction Relief Petition, " pending amendment "in the future by appointed counsel."

On May 8, 2012, the PCRA court granted counsel's request for additional time to file an amended PCRA petition or a no merit letter. On June 28, 2012, counsel filed an application to withdraw and a no merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Therein, counsel addressed the issues raised in Appellant's initial PCRA petition and the reasons why none had merit. On June 29, 2012, the PCRA court filed a notice of intent to dismiss Appellant's PCRA petition without a hearing for the reasons set forth in counsel's Turney/Finley letter.

On July 13, 2012, Appellant filed a response to counsel's no merit letter and requested an evidentiary hearing, raising additional issues. The PCRA court forwarded Appellant's response to counsel. Counsel sent a letter to the PCRA court indicating "my legal analysis as outlined in my 6/28/12 Finley letter remains unchanged." Letter from Counsel to PCRA Court, 10/22/2012. On October 24, 2012, the PCRA court apparently issued an order dismissing Appellant's PCRA petition and granting counsel's application to withdraw.[1] On the order itself, there is indication that it was sent to Appellant via certified mail; however, the docket does not reflect service upon Appellant, and the record does not contain evidence that Appellant received the order.

Nonetheless, Appellant claims that he filed a notice of appeal with the Superior Court November 24, 2012. See Appellant's Response to Order to Quash, 4/15/2013, at ¶ 1. On December 13, 2012, Appellant filed with the PCRA court an "application for rehearing/reargument" again raising the issues he put forward in his response to the Turner/Finley letter.

On February 27, 2013, Appellant learned that he no longer had an active case in the PCRA court. See Appellant's Response to Order to Quash, 4/15/2013, at ¶ 4. On March 20, 2013, Appellant filed in the PCRA court a notice of appeal from the October 24, 2012 order dismissing his petition. On April 5, 2013, the PCRA court entered an order directing Appellant to file a statement of errors complained of on appeal within 21 days. The PCRA court indicates that Appellant complied by filing a statement on April 8, 2012, see PCRA Court Opinion, 7/23/2013, at 2 n.1; however, the certified record does not contain this statement. Based upon the PCRA court's discussion of the missing statement, Appellant raised five issues therein.

On April 2, 2013, this Court issued a rule to show cause why the appeal should not be quashed as untimely filed. Appellant timely filed a response, and the issue of the timeliness of the appeal was referred to the panel of this Court assigned to decide the merits of the appeal. On July 23, 2013, the PCRA court filed an opinion recommending that this Court treat this appeal "as a timely appeal nunc pro tunc from the October 24, 2012 order due to a breakdown in the operation of the courts." Id. at 2 (citing Commonwealth v. Smith, 501 A.2d 273, 275 (Pa.Super. 1985)). The PCRA court noted that, alternatively, the lack of proper notice means that the appeal period has not yet begun to run, id. at 2; the Commonwealth in its brief adopts this alternative view and suggests that this Court should assume jurisdiction over the appeal in the interest of judicial economy, "consistent with Pa.R.A.P. 905(a)(5)."[2] Commonwealth's Brief at 6.

We must resolve this issue before we are able to address the substance of Appellant's issues on appeal, for the timeliness of an appeal affects this Court's jurisdiction. See, e.g., Commonwealth v. Green, 862 A.2d 613, 615 (Pa.Super. 2004) (en banc) ("Jurisdiction is vested in the Superior Court upon the filing of a timely notice of appeal.").

"[A] notice of appeal … shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). "[I]n computing any period of time under these rules involving the date of entry of an order …, the day of entry shall be the day the clerk of the court … mails or delivers copies of the order to the parties…." Pa.R.A.P. 108(a)(1).

Here, the PCRA court indicates that although it sent the October 24, 2012 order to Appellant via certified mail as is required by Pa.R.Crim.P. 907(4), it has no record that Appellant ever received it. Further, there is no indication on the docket that Appellant was served with the order. Accordingly, the time period for appealing the order under Pa.R.A.P. 108 was never triggered, and Appellant's notice of appeal is not untimely. See, e.g., Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa.Super. 2000) ("Our review of the docket entries discloses no indication that the clerk furnished a copy of the order to Appellant. Thus, we assume the period for taking an appeal was never triggered…."); Commonwealth v. Hess, 810 A.2d 1249, 1254 (Pa.Super. 2002) (declining to find waiver where there was no notation on the docket of when Appellant was served with the order to file a Rule 1925(b) statement, and thus the Court was unable to determine when, "if ever" the time period for filing the statement began to run).

This leaves the question of whether this Court has jurisdiction over an appeal filed before the appeal period has begun to run. Rule 301 of the Rules of Appellate Procedure provides: "no order of a court shall be appealable until it has been entered upon the appropriate docket in the lower court." Pa.R.A.P. 301(a)(1).

Rules 113 and 114 of the Rules of Criminal Procedure govern docket entries of court orders. Rule 114 provides that an order (1) must be time stamped with the date of receipt, (2) must be served on each party or his attorney, and (3) a docket entry "promptly shall be made." Pa.R.Crim.P. 114(A)(1), (B)(1), and (C)(1), respectively. Further, the docket entry "shall contain" the date of service of the order. Pa.R.Crim.P. 114(C)(2)(c). Rule 113(8) further provides that docket entries "shall include at a minimum" all information required by Rule 114. Pa.R.Crim.P. 113(8).

Reading Rule 301 of the Appellate Rules in conjunction with Rules 113 and 114 of the Criminal Rules, we conclude that the October 24, 2012 order dismissing Appellant's PCRA petition has not been "entered upon the docket" in the PCRA court. The failure of the clerk of courts to note on the docket all of the information mandated by Rules 113 and 114 renders the October 24, 2012 order unappealable under Pa.R.A.P. 301(a)(1). Accord Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999) ("an order is not appealable until it is entered on the docket with the required notation that appropriate notice has been given."); Hepler v. Urban, 544 A.2d 922, 923 (Pa. 1988) ("In the instant action, there is no notation in the docket that notice was given concerning entry of the order…. Thus, the order was not final….").[3]

There is some authority for the notion that this Court may address the merits of an appeal in such situations. See, e.g., Vertical Resources, Inc. v. Bramlett, 837 A.2d 1193, 1199 (Pa.Super. 2003) ("Indeed, it appears that in this case, the appeal period has not yet been triggered since the notice was never sent. However, in the interest of judicial economy, we will regard as done what should have been done and consider the notice as having been mailed."). Nonetheless, given the multiple problems with the procedure and record in this case, we conclude that the interests of justice are best served by quashing this appeal.

Upon return of the record to the PCRA court, the clerk of courts shall make the order dismissing Appellant's PCRA petition final by serving it upon Appellant and so noting on the docket as required by Pa.R.Crim.P. 114. Thereafter, Appellant may file a notice of appeal within 30 days; if so, the PCRA court may order Appellant to file with the clerk of courts and serve upon the PCRA judge a concise statement of errors pursuant to Pa.R.A.P. 1925(b).

Appeal quashed.

Judgment Entered.


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