Com. v. Faust, C.

Opinion

J. S02010/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : CHRISTOPHER CHARLES FAUST, : No. 3939 EDA 2017 : Appellant :

Appeal from the Judgment of Sentence, September 19, 2017, in the Court of Common Pleas of Delaware County Criminal Division at No. CP-23-CR-0002079-2008

BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 08, 2019

Christopher Charles Faust appeals from the September 19, 2017

aggregate judgment of sentence of 22 to 45 years’ imprisonment, followed by

4 years of probation, imposed after a prior panel of this court granted

appellant relief pursuant to the PCRA1 and remanded this case for

resentencing on his third-degree murder and attempted murder convictions.2

After careful review, we quash this appeal for lack of jurisdiction.

The relevant facts of this case were summarized by a prior panel of this

court on direct appeal and need not be reiterated here. See Commonwealth

v. Faust, 64 A.3d 11 (Pa.Super. 2012) (unpublished memorandum at 1-3),

1 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

2 18 Pa.C.S.A §§ 2502(c) and 901(a), respectively. J. S02010/19

appeal denied, 74 A.3d 1030 (Pa. 2013). In sum, on September 9, 2010,

appellant was found guilty of third-degree murder, attempted murder, and

related offenses3 in connection with the February 24, 2008 shooting death of

Anthony Dunn and attempted murder of Yahshaw Humphrey in the City of

Chester. On November 3, 2010, the trial court sentenced appellant to an

aggregate term of 22 to 50 years’ imprisonment, followed by 4 years of

probation. On December 7, 2012, this court affirmed appellant’s judgment of

sentence, and our supreme court denied allowance of appeal on

September 10, 2013. See id.

On May 21, 2014, appellant filed a timely pro se PCRA petition. On

July 7, 2014, the PCRA court appointed counsel,4 who subsequently filed a

“no merit” letter and petition to withdraw pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa.Super. 1988) (en banc). On October 7, 2015, the PCRA court

granted counsel permission to withdraw and provided appellant with notice of

its intention to dismiss his petition without a hearing, pursuant to

Pa.R.Crim.P. 907(1). Thereafter, on November 2, 2015, the PCRA court

dismissed appellant’s petition without a hearing. Appellant appealed the order

3 Appellant was also found guilty of aggravated assault, unlawful possession of a firearm, firearms not to be carried without a license, possessing instruments of crime, and recklessly endangering another person. See 18 Pa.C.S.A. §§ 2702(a), 6105(a), 6106(a), 907(a), and 2705, respectively.

4 Stephen Molineux, Esq.

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dismissing his PCRA petition. On April 18, 2017, a panel of this court found

that appellant’s sentence was unconstitutional under Alleyne v. United

States, 570 U.S. 99 (2013), and that he was entitled to be resentenced on

his third-degree murder and attempted murder convictions. See

Commonwealth v. Faust, A.3d , 2017 WL 1382795, at *4 (Pa.Super.

2017) (unpublished memorandum). The PCRA court’s order was affirmed in

all other respects. Id.

Following remand, the trial court appointed Robert Turco, Esq.

(“Attorney Turco”), to represent appellant at the resentencing hearing. A

resentencing hearing was held before the Honorable John P. Capuzzi on

September 19, 2017. At the conclusion of the hearing, Judge Capuzzi

resentenced appellant to 17 to 35 years’ imprisonment for third-degree

murder and a consecutive term of 5 to 10 years’ imprisonment for attempted

murder. (Notes of testimony, 9/19/17 at 29.) Appellant was informed of his

post-sentence rights at said hearing and executed a “Statement of

Post-Sentence Rights” that same day. See id. at 29-31. On October 3, 2017,

Attorney Turco simultaneously filed a petition to withdraw as counsel and an

untimely “Petition for Reconsideration of Re-Sentence of September 19, 2017”

on behalf of appellant. In said petition, Attorney Turco avers that:

[appellant] wrote to his counsel in a letter dated September 19, 2017, the day of sentencing [purportedly requesting he file a post-sentence motion]; however, due to the prison mail system his letter was not sent until September 27, 2017 and

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counsel did not receive it until after the 10th day to file this within Motion.

“Petition for Reconsideration of Re-Sentence of September 19, 2017,” 10/3/17

at ¶ 7.

Notably, neither appellant’s pro se letter to Attorney Turco nor any

documentation evidencing when said letter was deposited with prison

authorities is attached to the petition for reconsideration. Following a hearing

on October 19, 2017, the trial court denied appellant’s post-sentence motion

“as untimely and without merit,” and granted Attorney Turco’s motion to

withdraw. (See trial court order, 10/19/17.) On October 30, 2017, appellant

filed a pro se notice of appeal, requesting the appointment of counsel. On

November 17, 2017, the trial court appointed appellant’s instant counsel,

Karen Eileen Friel, Esq. (“Attorney Friel”), to represent him.5

Appellant raises the following issues for our review:

I. [Did t]he Trial Court abuse[] its discretion by not conducting an independent review of evidence presented at [appellant’s] re-sentencing hearing[?]

II. [Did t]he Trial Court abuse[] its discretion by not giving [appellant] adequate reasons or explanation for its new sentence[?]

Appellant’s brief at 4.

Prior to any consideration of the merits of appellant’s claims, we must

first determine whether this court has proper jurisdiction to hear this appeal.

5 Appellant and the trial court have complied with Pa.R.A.P. 1925.

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[T]his Court can raise jurisdictional issues sua sponte. . . . This Court “may not enlarge the time for filing a notice of appeal. . . .” Pa.R.A.P. 105(b). Absent a breakdown in the operations of the court, [t]ime limitations on the taking of appeals are strictly construed and cannot be extended as a matter of grace.

Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa.Super. 2007) (some

citations and internal quotation marks omitted; emphasis added).

Pursuant to Pennsylvania Rule of Criminal Procedure 720(A)(1), “a

written post-sentence motion shall be filed no later than 10 days after

imposition of sentence.” Id. Likewise, Pennsylvania Rule of Appellate

Procedure 903 provides that, “the notice of appeal required by Rule 902 . . .

shall be filed within 30 days after the entry of the order from which the appeal

is taken.” Pa.R.A.P. 903(a).

In the instant matter, appellant was resentenced on September 19,

2017, and thus, had 10 days, or until September 29, 2017, to file a timely

post-sentence motion. See Pa.R.Crim.P. 720(A)(1). Appellant’s

post-sentence motion for reconsideration of sentence was filed on October 3,

2017, which was clearly untimely. Despite the untimeliness, the trial court

held a hearing on October 19, 2017, and denied appellant’s post-sentence

motion “both as untimely and without merit.” (Notes of testimony, 10/19/17

at 13; see also trial court order, 10/19/17.) As noted, appellant subsequently

filed an untimely pro se notice of appeal on October 30, 2017.

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Generally, where a post-sentence motion is untimely, the notice of

appeal must be filed within 30 days of imposition of sentence. See

Commonwealth v. Dreves, 839 A.2d 1122, 1227 (Pa.Super. 2003)

(en banc) (stating that absent the timely filing of a post-sentence motion,

the event triggering the appeal run date remains the date sentence was

imposed). The filing of an untimely post-sentence motion does not toll the

30-day period to file an appeal from the judgment of sentence. Id. On the

contrary, an untimely filed post-sentence motion will toll the appeal period

“only if the trial court accepted it under its limited authority to allow the filing

of a post-sentence motion nunc pro tunc.” Commonwealth v. Capaldi,

112 A.3d 1242, 1244 (Pa.Super. 2015). Moreover, “[t]he trial court’s

resolution of the merits of the late post-sentence motion is no substitute for

an order expressly granting nunc pro tunc relief.” Id. (citation and internal

quotation marks omitted).

Here, notwithstanding the trial court’s resolution of appellant’s untimely

post-sentence motion, in part, on the merits, appellant’s motion failed to toll

the direct-appeal period, because the trial court did not expressly allow the

late post-sentence motion nunc pro tunc. See id. at 1244; Dreves, 839

A.2d at 1128-1129 (stating that resolution on merits of late post-sentence

motion does not alone deem late motion as filed nunc pro tunc). Thus,

appellant’s October 30, 2017 notice of appeal was clearly untimely.

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During the pendency of the appeal, this court issued a rule to show

cause order directing appellant to explain how his appeal was timely. (See

per curiam order, 1/19/18.) Although represented by his instant counsel,

Attorney Friel, appellant submitted a pro se response to this court on

January 26, 2018, claiming that his post-sentence motion for reconsideration

of sentence, and thus his subsequent appeal, were timely filed pursuant to the

“prisoner mailbox rule,” because he gave a copy of his pro se “motion” to

prison authorities on September 20, 2017. (See response to rule to show

cause, 1/26/18 at ¶¶ 3-4.) Appellant further noted that Attorney Turco stated

at the October 19, 2017 hearing that he received pro se correspondence from

appellant, dated September 19, 2017, indicating his desire to file a

post-sentence motion, but that this letter was received after the 10-day filing

deadline. (Id. at ¶ 5; see also notes of testimony, 10/19/17 at 3-4.) This

court issued a second rule to show cause order on February 7, 2018, directing

Attorney Friel to explain how the appeal was timely. (See per curiam order,

2/7/18.)6 On February 16, 2018, appellant filed a pro se response to the rule

to show cause order that was virtually identical to his prior response filed

January 26, 2018.7

6 We admonish Attorney Friel for failing to respond to the February 7, 2018 rule to show cause order, and failing to address the timeliness issue in her appellate brief.

7 There is no indication in the docket as to whether the rule to show cause order was discharged and this issue was deferred to the merits panel.

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Under the “prisoner mailbox rule,” an appeal by a pro se prisoner is

deemed filed on the date the prisoner deposits the appeal with prison

authorities or places it in a prison mailbox, though the appeal is actually

received after the deadline for filing an appeal. See Commonwealth v.

Chambers, 35 A.3d 34, 38 (Pa.Super. 2011), appeal denied, 46 A.3d 715

(Pa. 2012). In determining the filing date of such appeals, “we are inclined to

accept any reasonably verifiable evidence of the date that the prisoner

deposits the appeal with the prison authorities[,]” including a certificate of

mailing, cash slip from prison authorities, or evidence of internal operating

procedures of the prison or court regarding mail delivery. Commonwealth

v. Perez, 799 A.2d 848, 851 (Pa.Super. 2002) (citation omitted). Here,

although Attorney Turco indicated at the October 19, 2017 hearing that he

received pro se correspondence from appellant indicating his desire to file a

post-sentence motion, no exhibits were presented at the hearing evidencing

the date this letter was mailed, and the certified record contains no certificates

of mailing, postal receipts, or any other documentation indicating when this

correspondence was deposited with prison authorities. Accordingly, we agree

with the trial court that appellant’s October 3, 2017 post-sentence motion,

and his subsequent appeal, filed October 30, 2017, were untimely. As such,

we quash this appeal for lack of jurisdiction. See Capaldi, 112 A.3d at 1244

(“We lack jurisdiction to consider untimely appeals, and we may raise such

jurisdictional issues sua sponte.”).

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Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/8/19

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