J-A19005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SALIM AKBAR : : Appellant : No. 3194 EDA 2019
Appeal from the Judgment of Sentence Entered September 16, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006499-2017, CP-46-CR-0008002-2017
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED: FEBRUARY 16, 2021
Salim Abdul Akbar filed a pro se notice of appeal that appears to seek
to appeal the judgment of sentence entered by the Court of Common Pleas of
Montgomery County following his guilty plea to disorderly conduct and the
judgment of sentence entered by the same court following his guilty plea for
receiving stolen property at a different docket number. Appointed counsel filed
an Anders1 brief and an application to withdraw from representation. As we
are constrained to quash Akbar’s appeal as untimely filed, we grant counsel’s
application.
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967). J-A19005-20
The two matters underlying these appeals stem from separate and
unrelated incidents. However, Akbar pled guilty in both dockets on the same
date, September 16, 2019. At docket number CP-46-CR-0008002-2017,
Akbar pled guilty to receiving stolen property. At the same hearing, he pled
guilty to the summary offense of disorderly conduct at docket number CP-46-
CR-0006499-2017.
In an order dated September 16, 2019, the trial court sentenced Akbar
to three months’ probation for the receiving stolen property conviction at
docket number CP-46-CR-0008002-2017. In a separate order also dated
September 16, 2019, the court imposed no further penalty for the disorderly
conduct conviction at docket number CP-46-CR-0006499-2017. Akbar was
represented by the office of the public defender during the plea and at
sentencing.
On October 25, 2019, the trial court entered an order at each docket
number dismissing a post-sentence motion. However, neither docket contains
an entry showing that Akbar ever filed a post-sentence motion, much less one
that was timely filed.
Although Akbar was represented by the public defender, he nonetheless
filed a pro se notice of appeal on November 5, 2019. The notice of appeal
listed both the CP-46-CR-0008002-2017 and the CP-46-CR-0006499-2017
docket numbers in the caption. The notice of appeal, however, did not identify
the order or orders from which the appeal was taken and provided only that
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Akbar “hereby give[s] the court of common pleas, Notice of Appeal, [pursuant]
to all PA laws that apply to Notice of Appeal.” Notice of Appeal, 11/5/19.2
The trial court ordered Akbar to file a Pa.R.A.P. 1925(b) statement but
the public defender, who was still attorney-of-record for Akbar, did not file
one on Akbar’s behalf. Accordingly, the trial court removed the office of the
public defender from representation based on per se ineffectiveness and
appointed new counsel. Appointed counsel filed a separate Pa.R.A.P. 1925(b)
statement at each docket number, raising the same two claims regarding trial
counsel’s ineffectiveness in each statement.
The trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that the
appeal should be quashed because the notice of appeal violated Pa.R.A.P.
301(a)(1)3 by not specifying the date of the order or orders being appealed
and because the multiple listings of docket numbers on the single notice of
appeal violated Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018)
(adopting a prospective bright-line rule that a notice of appeal that fails to
comply with Pa.R.A.P. 341 and its Note, which require the filing of separate
2 The notice of appeal also stated that Akbar did not have access to a law library and requested a court-appointed attorney. 3 Pa.R.A.P. 301(a) addresses the requirements for an order to be appealable and provides in relevant part that “no order of a court shall be appealable until it has been entered upon the appropriate docket in the trial court.” Pa.R.A.P. 301(a)(1).
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notices of appeal when a single order resolves issues arising on more than one
trial court docket, shall result in the quashal of the appeal).4
Before we can even reach the question of whether the contents of
Akbar’s notice of appeal violated Pa.R.A.P. 301(a)(1) or Walker, we must first
determine whether Akbar’s notice of appeal was timely filed so as to invoke
this Court’s jurisdiction in the first instance. See Commonwealth v. Moir,
766 A.2d 1253, 1254 (Pa. Super. 2000) (stating that the question of the
timeliness of an appeal is jurisdictional). While the trial court’s October 25,
2019 order indicated Akbar had filed a post-sentence motion at both docket
numbers, neither docket includes the motion. In addition, neither the certified
record at docket number CP-46-CR-0008002-2017 nor the certified record at
docket number CP-46-CR-0006499-2017 contained a post-sentence motion.
Upon informal inquiry from our prothonotary’s office, the prothonotary
of the trial court transmitted a supplemental certified record to this Court.
That supplemental record included a motion to modify and/or reduce
4 The trial court also stated that it was not necessary for it to address the ineffectiveness claims raised by the Pa.R.A.P. 1925(b) statement because counsel had, according to the trial court, filed a notice of intent to file an Anders brief. On appeal, counsel did file an Anders brief, concluding that the record clearly demonstrated that the claims of ineffectiveness Akbar wished to raise were without any arguable merit. However, counsel did not file a contemporaneous application to withdraw from representation, and by extension of that failure, did not attach to that application the letter advising Akbar of his rights under Anders. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). This Court issued an order directing counsel to do so, and counsel complied. Akbar did not file a response to counsel’s filings.
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sentencing (“motion to modify sentencing”) that did not contain any docket
numbers in the caption but was dated September 11, 2019, five days before
Akbar pled guilty and was sentenced in the instant matters. The motion to
modify sentencing also clearly referred to facts and a judgment of sentence
relating to other criminal charges filed against Akbar.
Specifically, in the motion to modify sentencing, Akbar recounted that
following a trial, he had been found guilty of the introduction of contraband at
the Montgomery County Correctional Facility and subsequently sentenced to
two to five years of incarceration. Of course, these facts do not match those
of the instant matters where Akbar pled guilty to receiving stolen property and
disorderly conduct and was sentenced to three months’ probation for the
former and no further penalty for the latter. The facts in the motion to modify
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J-A19005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SALIM AKBAR : : Appellant : No. 3194 EDA 2019
Appeal from the Judgment of Sentence Entered September 16, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006499-2017, CP-46-CR-0008002-2017
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED: FEBRUARY 16, 2021
Salim Abdul Akbar filed a pro se notice of appeal that appears to seek
to appeal the judgment of sentence entered by the Court of Common Pleas of
Montgomery County following his guilty plea to disorderly conduct and the
judgment of sentence entered by the same court following his guilty plea for
receiving stolen property at a different docket number. Appointed counsel filed
an Anders1 brief and an application to withdraw from representation. As we
are constrained to quash Akbar’s appeal as untimely filed, we grant counsel’s
application.
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967). J-A19005-20
The two matters underlying these appeals stem from separate and
unrelated incidents. However, Akbar pled guilty in both dockets on the same
date, September 16, 2019. At docket number CP-46-CR-0008002-2017,
Akbar pled guilty to receiving stolen property. At the same hearing, he pled
guilty to the summary offense of disorderly conduct at docket number CP-46-
CR-0006499-2017.
In an order dated September 16, 2019, the trial court sentenced Akbar
to three months’ probation for the receiving stolen property conviction at
docket number CP-46-CR-0008002-2017. In a separate order also dated
September 16, 2019, the court imposed no further penalty for the disorderly
conduct conviction at docket number CP-46-CR-0006499-2017. Akbar was
represented by the office of the public defender during the plea and at
sentencing.
On October 25, 2019, the trial court entered an order at each docket
number dismissing a post-sentence motion. However, neither docket contains
an entry showing that Akbar ever filed a post-sentence motion, much less one
that was timely filed.
Although Akbar was represented by the public defender, he nonetheless
filed a pro se notice of appeal on November 5, 2019. The notice of appeal
listed both the CP-46-CR-0008002-2017 and the CP-46-CR-0006499-2017
docket numbers in the caption. The notice of appeal, however, did not identify
the order or orders from which the appeal was taken and provided only that
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Akbar “hereby give[s] the court of common pleas, Notice of Appeal, [pursuant]
to all PA laws that apply to Notice of Appeal.” Notice of Appeal, 11/5/19.2
The trial court ordered Akbar to file a Pa.R.A.P. 1925(b) statement but
the public defender, who was still attorney-of-record for Akbar, did not file
one on Akbar’s behalf. Accordingly, the trial court removed the office of the
public defender from representation based on per se ineffectiveness and
appointed new counsel. Appointed counsel filed a separate Pa.R.A.P. 1925(b)
statement at each docket number, raising the same two claims regarding trial
counsel’s ineffectiveness in each statement.
The trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that the
appeal should be quashed because the notice of appeal violated Pa.R.A.P.
301(a)(1)3 by not specifying the date of the order or orders being appealed
and because the multiple listings of docket numbers on the single notice of
appeal violated Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018)
(adopting a prospective bright-line rule that a notice of appeal that fails to
comply with Pa.R.A.P. 341 and its Note, which require the filing of separate
2 The notice of appeal also stated that Akbar did not have access to a law library and requested a court-appointed attorney. 3 Pa.R.A.P. 301(a) addresses the requirements for an order to be appealable and provides in relevant part that “no order of a court shall be appealable until it has been entered upon the appropriate docket in the trial court.” Pa.R.A.P. 301(a)(1).
-3- J-A19005-20
notices of appeal when a single order resolves issues arising on more than one
trial court docket, shall result in the quashal of the appeal).4
Before we can even reach the question of whether the contents of
Akbar’s notice of appeal violated Pa.R.A.P. 301(a)(1) or Walker, we must first
determine whether Akbar’s notice of appeal was timely filed so as to invoke
this Court’s jurisdiction in the first instance. See Commonwealth v. Moir,
766 A.2d 1253, 1254 (Pa. Super. 2000) (stating that the question of the
timeliness of an appeal is jurisdictional). While the trial court’s October 25,
2019 order indicated Akbar had filed a post-sentence motion at both docket
numbers, neither docket includes the motion. In addition, neither the certified
record at docket number CP-46-CR-0008002-2017 nor the certified record at
docket number CP-46-CR-0006499-2017 contained a post-sentence motion.
Upon informal inquiry from our prothonotary’s office, the prothonotary
of the trial court transmitted a supplemental certified record to this Court.
That supplemental record included a motion to modify and/or reduce
4 The trial court also stated that it was not necessary for it to address the ineffectiveness claims raised by the Pa.R.A.P. 1925(b) statement because counsel had, according to the trial court, filed a notice of intent to file an Anders brief. On appeal, counsel did file an Anders brief, concluding that the record clearly demonstrated that the claims of ineffectiveness Akbar wished to raise were without any arguable merit. However, counsel did not file a contemporaneous application to withdraw from representation, and by extension of that failure, did not attach to that application the letter advising Akbar of his rights under Anders. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). This Court issued an order directing counsel to do so, and counsel complied. Akbar did not file a response to counsel’s filings.
-4- J-A19005-20
sentencing (“motion to modify sentencing”) that did not contain any docket
numbers in the caption but was dated September 11, 2019, five days before
Akbar pled guilty and was sentenced in the instant matters. The motion to
modify sentencing also clearly referred to facts and a judgment of sentence
relating to other criminal charges filed against Akbar.
Specifically, in the motion to modify sentencing, Akbar recounted that
following a trial, he had been found guilty of the introduction of contraband at
the Montgomery County Correctional Facility and subsequently sentenced to
two to five years of incarceration. Of course, these facts do not match those
of the instant matters where Akbar pled guilty to receiving stolen property and
disorderly conduct and was sentenced to three months’ probation for the
former and no further penalty for the latter. The facts in the motion to modify
sentencing do, however, match Akbar’s unrelated case in Commonwealth v.
Akbar, No. 3022 EDA 2019, 241 A.3d 457 (Pa. Super. 2020) (unpublished
memorandum). There, Akbar was found guilty following a jury trial of, inter
alia, possession of oxycodone and marijuana as contraband after police found
those drugs on Akbar at the Montgomery County Correctional Facility. The trial
court subsequently sentenced Akbar to two to five years’ imprisonment on
September 11, 2019, the date Akbar used on the motion to modify sentencing.
Clearly, then, this motion cannot be read as challenging either of the
judgments of sentence underlying this appeal.
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Even if we were to accept that the motion to modify sentencing was
meant to seek modification of the judgments of sentence entered after Akbar’s
guilty pleas on September 16, 2019, that motion was not stamped as filed
until October 22, 2019. To be timely, Akbar would have had to file a post-
sentence motion within ten days of his judgment of sentence, or by September
26, 2019. See Pa.R.Crim.P. 720(A)(1) (stating that a written post-sentence
motion must be filed no later than ten days after the imposition of sentence).
As he did not file the motion to modify sentencing until October 22, 2019,
even if we were to deem it relevant to the instant matters, that motion would
have been untimely filed.
Because Akbar did not file an applicable post-sentence motion in either
of these matters, or at best filed an untimely one, he was required to file a
notice of appeal within 30 days of the imposition of sentence on September
16, 2019, or by October 16, 2019. See id. at 720(A)(3) (providing that if the
defendant does not file a timely post-sentence motion, the notice of appeal
must be filed within 30 days of the imposition of sentence). Akbar, however,
did not file his notice of appeal until November 5, 2019.5 Accordingly, the
5 Akbar’s notice of appeal was dated October 28, 2019, which is after the deadline for him to file a timely notice of appeal. Moreover, while Akbar was in prison for the above-referenced possession of oxycodone and marijuana as contraband judgment of sentence at the time he filed his notice of appeal in the instant matters, and did file that notice of appeal pro se, he does not make any argument that the prisoner mailbox rule applies to his notice of appeal. Even if he had, there is no evidence that the appeal could be considered timely
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notice of appeal was not timely filed, and we are therefore constrained to
quash the appeal. Given this resolution, counsel’s application to withdraw from
representation is granted.
Appeal quashed. Counsel’s application to withdraw from representation
granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/16/21
under that rule. Although there is an envelope attached to the motion to modify sentencing in the record, the envelope is not postmarked until November 1, 2019. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (stating that an appeal filed by a pro se prisoner is deemed filed on the date the appellant deposits the appeal with prison authorities and/or places it in the mailbox).
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