Com. v. Davis, H. Jr.

• Court: Superior Court of Pennsylvania
• Decided: January 5, 2024
• Docket: 1320 MDA 2022
• Status: Unpublished

Opinion

J-S27037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HAROLD AUGUSTUS DAVIS JR. : : Appellant : No. 1320 MDA 2022

Appeal from the Order Entered August 25, 2022 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005533-2013

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: JANUARY 5, 2024

Harold Augustus Davis, Jr. (“Davis”) appeals from the order denying his

pro se Request for Bill of Particulars. We quash the appeal.

In 2018, Davis entered a plea of nolo contendere to two counts of

aggravated assault and the trial court sentenced him to twelve to thirty years

in prison. This Court affirmed the judgment of sentence and our Supreme

Court denied allowance of appeal on September 29, 2020. See

Commonwealth v. Davis, 35 A.3d 353 (Pa. Super. 2020) (unpublished

memorandum), appeal denied, 239 A.3d 1087 (Pa. 2020). Davis did not seek

review in the United States Supreme Court.

On September 30, 2021, Davis filed a pro se petition pursuant to the

Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. The J-S27037-23

PCRA court denied the petition as untimely by an order dated November 29,

2021.1 Davis did not appeal that order.

In August 2022, Davis filed a pro se Request for Bill of Particulars in

which he requested copies of certain documents related to his criminal case

(i.e., the docket, police incident report, photographs, motions, medical

records, and transcripts). See Pro Se Request for Bill of Particulars, 8/18/22,

at 2-4. On August 24, 2022, the trial court denied the request as untimely

pursuant to Pa.R.Crim.P. 572 (providing that a request for bill of particulars

must be served by the defendant upon the Commonwealth within seven days

of arraignment). Davis filed a timely pro se notice of appeal. The court

appointed counsel. Both Davis and the court complied with Pa.R.A.P. 1925.

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1 It is unclear how the PCRA court arrived at its determination that Davis’s pro

se PCRA petition was untimely. Davis’s judgment of sentence did not become final until the ninety-day period in which to seek review in the United States Supreme Court expired. See U.S.Sup.Ct.R. 13 (stating that a petitioner has ninety days to file petition for writ of certiorari with United States Supreme Court); see also 42 Pa.C.S.A. § 9545(b)(3) (providing that “a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review”). Accordingly, Davis’s judgment of sentence became final on or around December 28, 2020, after the expiration of his time to file a petition for writ of certiorari with the United States Supreme Court. Thus, Davis had one year from that date, until December 28, 2021, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Davis filed his pro se PCRA petition on September 30, 2021, which was within that one-year timeframe.

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Davis raises the following issue for our review: “[w]hether the [PCRA]

court erred in neglecting to appoint counsel to a first time pro se [PCRA] filing

prior to denying PCRA relief.” Davis’s Brief at unnumbered 4.

Preliminarily, we must determine whether this Court has jurisdiction to

address the merits of Davis’s issue, as the timeliness of an appeal implicates

this Court’s jurisdiction. See Commonwealth v. Wooden, 215 A.3d 997,

999 (Pa. Super. 2019). Our appellate rules provide that a notice of appeal

must be filed within thirty days of entry of the order from which the appeal is

taken. See Pa.R.A.P. 903(a). However, with one exception not herein

applicable, “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). A

criminal order is properly entered upon the docket when the clerk of courts

promptly notes on the docket the following information: (1) the date of receipt

in the clerk’s office of the court order; (2) the date appearing on the court

order; and (3) the date of service of the court order. See Pa.R.Crim.P.

114(C)(2). Our Supreme Court has ruled that the clerk’s obligations under

Rule 114 are mandatory and may not be modified by local rules. See

Commonwealth v. Hess, 810 A.2d 1249, 1253 (Pa. 2002). Importantly, the

thirty-day time period for appealing from a criminal order other than a

judgment of sentence begins to run on the day that the order is mailed to the

parties by the clerk of courts. See Pa.R.A.P. 108(a)(1), (d).

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In the instant matter, the sole issue Davis presents for our review

pertains to his pro se PCRA petition which was denied by an order dated

November 29, 2021. While more than thirty days has passed since the date

of the order denying Davis’s PCRA petition, the record reflects that the order

has not yet been properly entered on the docket. As an initial matter, the

docket entry for the denial order contains no indication that it was served on

Davis via certified mail as required by Pennsylvania Rule of Criminal Procedure

907(4), which provides:

(4) When the petition is dismissed without a hearing, the judge promptly shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time limits within which the appeal must be filed. The order shall be filed and served as provided in Rule 114.

Pa.R.Crim.P. 907(4).

Moreover, the docket entry contains no indication of the date on which

the order was mailed to Davis in accordance with Rule 114(C)(2)(c).2 Because

this information is missing from the docket entry, the PCRA court’s order

dismissing Davis’s petition has yet to be properly entered, thus making it non-

appealable. See Commonwealth v. Carter, 122 A.3d 388, 391-92 (Pa.

Super. 2015) (holding that the appeal did not begin to run because the clerk

2 While the docket bears an entry on December 2, 2021, indicating “Proof of

Service,” there is no indication as to what or whom was served on that date.

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of courts did not note the date of service of the order on the docket so as to

trigger the appeal period). Accordingly, we quash the appeal as premature.3

Appeal quashed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 01/05/2024

3 Notably, the lower court acknowledges that, when sitting as the PCRA court,

it erred in failing to appoint counsel for Davis in connection with his first PCRA petition. See PCRA Court Opinion, 3/17/23, at 4; see also Commonwealth v. Bradley, 261 A.3d 381, 391 (Pa. 2021) (explaining that “a petitioner has a rule-based right to the appointment of counsel for a first PCRA petition”); Pa.R.Crim.P. 904 (providing that the judge shall appoint counsel to represent the defendant on the defendant’s first PCRA petition). Given this error and the other errors apparent from the record, nothing prevents the PCRA court from, upon remittal of the record, vacating its November 29, 2021 order, reinstating Davis’s timely first PCRA petition, and appointing counsel to represent Davis in connection with his petition.

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