J-S26009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
GERALD D. CROWLEY
Appellant No. 2937 EDA 2015
Appeal from the Judgment of Sentence January 24, 2014 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002903-2013
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 06, 2016
Appellant, Gerald D. Crowley, appeals from the judgment of sentence
entered on January 24, 2014, as made final by the denial of his
post-sentence motion on August 27, 2015. On this direct appeal, Appellant’s
court-appointed counsel has filed a petition to withdraw as counsel 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). As we deem this to be a direct appeal, and not an appeal from the
denial of post-conviction relief, we deny counsel’s petition to withdraw, and
remand for the filing of an appropriate concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) (“concise statement”) and merits brief.
* Retired Senior Judge Assigned to the Superior Court J-S26009-16
As our disposition of counsel’s petition to withdraw is based on the
procedural posture of this case, we focus our attention solely on the
procedural history of this case. On September 30, 2013, Appellant was
charged via criminal information with possession of a firearm by a prohibited
person,1 possession with intent to deliver a controlled substance,2
possession of drug paraphernalia,3 false identification to law enforcement,4
two counts of failure to keep a dog properly confined,5 failure to obtain a dog
license,6 harboring a dangerous dog,7 and failure to have a dog vaccinated
against rabies.8 On November 22, 2013, Appellant pled guilty to possession
of a firearm by a prohibited person and possession with intent to deliver a
controlled substance. The remaining charges were withdrawn. On January
24, 2014, Appellant was sentenced to an aggregate term of 5 to 10 years’
imprisonment.
1 18 Pa.C.S.A. § 6105(a)(1). 2 35 P.S. § 780-113(a)(30). 3 35 P.S. § 780-113(a)(32). 4 18 Pa.C.S.A. § 4914(a). 5 3 P.S. § 459-305(a)(1). 6 3 P.S. § 459-201(a). 7 3 P.S. § 459-502-A(a)(1)(i). 8 3 P.S. § 455.8(a).
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On January 29, 2014, Appellant filed a timely post-sentence motion.
The trial court, however, took no action on Appellant’s post-sentence motion
and, despite the passage of 120 days and the concomitant denial of
Appellant’s motion by operation of law, no order reflecting these
developments was entered on the docket. See Pa.R.Crim.P. 720(A)(2)(B).
On February 5, 2015, Appellant filed a pro se petition pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. On March 6,
2015, counsel was appointed. On August 3, 2015, counsel filed a
Turner/Finley no-merit letter. That same day, the PCRA court issued
notice of its intent to dismiss the PCRA petition without an evidentiary
hearing. See Pa.R.Crim.P. 907.
On August 14, 2015, counsel filed a petition seeking leave to withdraw
as counsel. On August 17, 2015, Appellant filed a pro se response to the
PCRA court’s Rule 907 notice. On August 27, 2015, the trial court ordered
the Clerk of Courts of Northampton County to enter an order denying
Appellant’s post-sentence motion by operation of law. See Pa.R.Crim.P.
720(B)(3). In that same order, Appellant’s PCRA petition was dismissed for
lack of jurisdiction. Also on August 27, 2015, the Clerk of Courts of
Northampton County entered an order denying Appellant’s post-sentence
motion via operation of law. This timely appeal followed.9
9 On September 30, 2015, the trial court ordered Appellant to file a concise statement. On October 19, 2015, Appellant filed his concise statement. On November 18, 2015, the trial court issued its Rule 1925(a) opinion.
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We first consider whether this case is a direct appeal from a judgment
of sentence, as made final by the denial of a post-sentence motion by
operation of law, or whether this case involves an appeal from the denial of
PCRA relief. As this determination involves a question of law, our standard
of review is de novo and our scope of review is plenary. Cf.
Commonwealth v. John, 854 A.2d 591, 593 (Pa. Super. 2004), appeal
denied, 870 A.2d 320 (Pa. 2005) (citation omitted).
We begin with a discussion of when Appellant’s judgment of sentence
became final for purposes of taking a direct appeal to this Court. When a
defendant files a post-sentence motion, and the trial court fails to act on
that motion within 120 days, a notice of appeal must be filed “within 30 days
of the entry of the order denying the motion by operation of law[.]”
Pa.R.Crim.P. 720(A)(2)(B).
In this case, Appellant filed a timely post-sentence motion and the trial
court did not act on that motion within 120 days. Therefore, Appellant had
until 30 days after entry of the order denying his post-sentence motion by
operation of law to seek review of his judgment of sentence in this Court.
As noted above, because of an apparent breakdown in the judicial system,
the order denying Appellant’s post-sentence motion by operation of law was
not entered until August 27, 2015. Thus, Appellant had until September 28,
2015 to seek direct review of his judgment of sentence.
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On September 14, 2015, Appellant filed a timely notice of appeal from
the entry of the order that denied his post-sentence by operation of law.
Appellant’s notice of appeal states that the appeal is taken from the order
denying Appellant’s post-sentence motion. This Court has interpreted such
notices of appeal as being taken from the judgment of sentence. See
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003).
Furthermore, it is axiomatic that “[a] PCRA petition may only be filed after
an appellant has waived or exhausted his direct appeal rights.”
Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (citation
omitted; emphasis in original). As Appellant’s PCRA petition was filed prior
to his judgment of sentence becoming final, Appellant’s PCRA petition was
premature. As such, the trial court properly dismissed Appellant’s PCRA
petition for want of jurisdiction. Therefore, because Appellant lodged a
timely appeal from the order denying his post-sentence by operation of law,
and in view of the plain language of the notice of appeal, we conclude that
Appellant’s notice of appeal, filed on September 14, 2015, should be
considered as taken from the judgment of sentence entered on January 24,
2014, as made final by the denial of his post-sentence motion on August 27,
2015. To hold otherwise would deny Appellant direct review of his judgment
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J-S26009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
GERALD D. CROWLEY
Appellant No. 2937 EDA 2015
Appeal from the Judgment of Sentence January 24, 2014 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002903-2013
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 06, 2016
Appellant, Gerald D. Crowley, appeals from the judgment of sentence
entered on January 24, 2014, as made final by the denial of his
post-sentence motion on August 27, 2015. On this direct appeal, Appellant’s
court-appointed counsel has filed a petition to withdraw as counsel 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). As we deem this to be a direct appeal, and not an appeal from the
denial of post-conviction relief, we deny counsel’s petition to withdraw, and
remand for the filing of an appropriate concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) (“concise statement”) and merits brief.
* Retired Senior Judge Assigned to the Superior Court J-S26009-16
As our disposition of counsel’s petition to withdraw is based on the
procedural posture of this case, we focus our attention solely on the
procedural history of this case. On September 30, 2013, Appellant was
charged via criminal information with possession of a firearm by a prohibited
person,1 possession with intent to deliver a controlled substance,2
possession of drug paraphernalia,3 false identification to law enforcement,4
two counts of failure to keep a dog properly confined,5 failure to obtain a dog
license,6 harboring a dangerous dog,7 and failure to have a dog vaccinated
against rabies.8 On November 22, 2013, Appellant pled guilty to possession
of a firearm by a prohibited person and possession with intent to deliver a
controlled substance. The remaining charges were withdrawn. On January
24, 2014, Appellant was sentenced to an aggregate term of 5 to 10 years’
imprisonment.
1 18 Pa.C.S.A. § 6105(a)(1). 2 35 P.S. § 780-113(a)(30). 3 35 P.S. § 780-113(a)(32). 4 18 Pa.C.S.A. § 4914(a). 5 3 P.S. § 459-305(a)(1). 6 3 P.S. § 459-201(a). 7 3 P.S. § 459-502-A(a)(1)(i). 8 3 P.S. § 455.8(a).
-2- J-S26009-16
On January 29, 2014, Appellant filed a timely post-sentence motion.
The trial court, however, took no action on Appellant’s post-sentence motion
and, despite the passage of 120 days and the concomitant denial of
Appellant’s motion by operation of law, no order reflecting these
developments was entered on the docket. See Pa.R.Crim.P. 720(A)(2)(B).
On February 5, 2015, Appellant filed a pro se petition pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. On March 6,
2015, counsel was appointed. On August 3, 2015, counsel filed a
Turner/Finley no-merit letter. That same day, the PCRA court issued
notice of its intent to dismiss the PCRA petition without an evidentiary
hearing. See Pa.R.Crim.P. 907.
On August 14, 2015, counsel filed a petition seeking leave to withdraw
as counsel. On August 17, 2015, Appellant filed a pro se response to the
PCRA court’s Rule 907 notice. On August 27, 2015, the trial court ordered
the Clerk of Courts of Northampton County to enter an order denying
Appellant’s post-sentence motion by operation of law. See Pa.R.Crim.P.
720(B)(3). In that same order, Appellant’s PCRA petition was dismissed for
lack of jurisdiction. Also on August 27, 2015, the Clerk of Courts of
Northampton County entered an order denying Appellant’s post-sentence
motion via operation of law. This timely appeal followed.9
9 On September 30, 2015, the trial court ordered Appellant to file a concise statement. On October 19, 2015, Appellant filed his concise statement. On November 18, 2015, the trial court issued its Rule 1925(a) opinion.
-3- J-S26009-16
We first consider whether this case is a direct appeal from a judgment
of sentence, as made final by the denial of a post-sentence motion by
operation of law, or whether this case involves an appeal from the denial of
PCRA relief. As this determination involves a question of law, our standard
of review is de novo and our scope of review is plenary. Cf.
Commonwealth v. John, 854 A.2d 591, 593 (Pa. Super. 2004), appeal
denied, 870 A.2d 320 (Pa. 2005) (citation omitted).
We begin with a discussion of when Appellant’s judgment of sentence
became final for purposes of taking a direct appeal to this Court. When a
defendant files a post-sentence motion, and the trial court fails to act on
that motion within 120 days, a notice of appeal must be filed “within 30 days
of the entry of the order denying the motion by operation of law[.]”
Pa.R.Crim.P. 720(A)(2)(B).
In this case, Appellant filed a timely post-sentence motion and the trial
court did not act on that motion within 120 days. Therefore, Appellant had
until 30 days after entry of the order denying his post-sentence motion by
operation of law to seek review of his judgment of sentence in this Court.
As noted above, because of an apparent breakdown in the judicial system,
the order denying Appellant’s post-sentence motion by operation of law was
not entered until August 27, 2015. Thus, Appellant had until September 28,
2015 to seek direct review of his judgment of sentence.
-4- J-S26009-16
On September 14, 2015, Appellant filed a timely notice of appeal from
the entry of the order that denied his post-sentence by operation of law.
Appellant’s notice of appeal states that the appeal is taken from the order
denying Appellant’s post-sentence motion. This Court has interpreted such
notices of appeal as being taken from the judgment of sentence. See
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003).
Furthermore, it is axiomatic that “[a] PCRA petition may only be filed after
an appellant has waived or exhausted his direct appeal rights.”
Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (citation
omitted; emphasis in original). As Appellant’s PCRA petition was filed prior
to his judgment of sentence becoming final, Appellant’s PCRA petition was
premature. As such, the trial court properly dismissed Appellant’s PCRA
petition for want of jurisdiction. Therefore, because Appellant lodged a
timely appeal from the order denying his post-sentence by operation of law,
and in view of the plain language of the notice of appeal, we conclude that
Appellant’s notice of appeal, filed on September 14, 2015, should be
considered as taken from the judgment of sentence entered on January 24,
2014, as made final by the denial of his post-sentence motion on August 27,
2015. To hold otherwise would deny Appellant direct review of his judgment
of sentence.
Having determined that this is a direct appeal and not an appeal from
the denial of PCRA relief, counsel’s Turner/Finley letter is inappropriate. A
-5- J-S26009-16
Turner/Finley no-merit letter, which is filed in post-conviction proceedings,
provides less protection than does a brief filed pursuant to Commonwealth
v. McClendon, 434 A.2d 1185 (Pa. 1981), and its federal predecessor,
Anders v. California, 386 U.S. 738 (1967).10 See Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). As such, although we
may accept an Anders brief in lieu of a Turner/Finley letter, we may not
accept a Turner/Finley letter in lieu of an Anders brief because doing so
would violate Appellant’s Sixth Amendment right to counsel.
One of the additional protections provided by Anders is that we may
only grant counsel leave to withdraw on direct appeal when any issue raised
on appeal would be wholly frivolous. See Commonwealth v. Bennett, 124
A.3d 327, 333 (Pa. Super. 2015) (citation omitted). We agree with the trial
court that there are non-frivolous issues for direct appeal, e.g., the trial
court’s misapplication of the sentencing guidelines. See Trial Court
Opinion, 11/18/15, at 5. As such, we direct that counsel proceed with the
filing of a concise statement and merits brief.
In sum, we conclude that this case is properly considered a direct
appeal and not an appeal from the denial of post-conviction relief. As such,
counsel’s attempt to withdraw under Turner/Finley is improper. The
certified record shall be remanded to the trial court for further proceedings
as indicated. Within ten days of this memorandum, counsel shall file a
10 In order to withdraw as counsel on direct appeal, counsel must follow the procedural requirements set forth in Anders and McClendon.
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concise statement listing issues to be raised on direct appeal. The trial court
shall issue a Rule 1925(a) opinion addressing those issues within 30 days of
the filing of the concise statement.11 Upon receipt of the trial court’s Rule
1925(a) opinion, the Clerk of Courts of Northampton County shall forthwith
transmit the original certified record and a supplemental certified record to
this Court. Appellant’s counsel shall have 21 days from the filing of the trial
court’s Rule 1925(a) opinion to file a merits brief with this Court. The
Commonwealth shall have 21 days from the filing of Appellant’s brief to file
its brief. Thereafter, Appellant’s counsel shall have seven days to file a reply
brief.
Petition to withdraw as counsel denied. Case remanded and certified
record returned to trial court. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/6/2016
11 If the trial court has previously addressed the claims in the concise statement, it may issue an order in lieu of opinion noting where in the certified record it has previously addressed the claims.
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