Com. v. Grayson, P.

Opinion

J-A27024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : PHILLIP GRAYSON : : Appellant No. 169 WDA 2017

Appeal from the Judgment of Sentence September 19, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003163-2015

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 20, 2017

Appellant, Phillip Grayson, appeals from the judgment of sentence

entered following his convictions of corruption of minors, indecent assault of

a person less than thirteen years of age, and endangering the welfare of

children.1 We quash this appeal because Appellant filed his notice of appeal

beyond the time period permitted by law.

The question of timeliness of an appeal is jurisdictional.

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). Pursuant

to Pa.R.A.P. 903, “[T]he 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).

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1 18 Pa.C.S. §§ 6301(a)(i), 3126(a)(7), 4304(a), respectively. J-A27024-17

“[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) (quotations and citation omitted). See also

Pa.R.A.P. 105(b) (“T]he court may not enlarge the time for filing a notice of

appeal”).

Pa.R.Crim.P. 720 addresses post-sentence procedures and appeals, and

provides, in relevant part: “If the defendant files a timely post-sentence

motion, the notice of appeal shall be filed … within 30 days of the entry of the

order deciding the motion[.]” Pa.R.Crim.P. 720(A)(2)(a). The comment to

Rule 720 instructs that, “[u]nder paragraph (B)(3)(a) [regarding time limits

for the court’s decision on a post sentence motion], on the date when the

court disposes of the motion … the judgment becomes final for purposes of

appeal.” Pa.R.Crim.P. 720 cmt. The comment also directs: “If the trial judge

decides the motion within the time limits of this rule, the judge may grant

reconsideration on the post[-]sentence motion pursuant to 42 Pa.C.S. § 5505

or Pa.R.A.P. 1701.1 [sic], but the judge may not vacate the sentence pending

reconsideration.” Id. (citing Pa.R.Crim.P. 720(B)(3)).

Regarding the effect of the filing of motions for reconsideration on the

tolling of an appeal period, we are mindful of the following:

[T]he trial court must expressly grant reconsideration within thirty days of entry of its order. Pa.R.A.P. 1701. Failure to expressly grant reconsideration within the time set by the rules for filing an appeal will cause the trial court to lose its power to act on the application for reconsideration. Therefore, as the comment to Pa.R.A.P. 1701 explains, although a party may petition the court

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for reconsideration, the simultaneous filing of a notice of appeal is necessary to preserve appellate rights in the event that either the trial court fails to grant the petition expressly within 30 days, or it denies the petition. Moreover, we have consistently held that an appeal from an order denying reconsideration is improper and untimely.

Moir, 766 A.2d at 1254 (citations to case law and quotation marks omitted).

Our review of the certified record reflects that, pursuant to an

agreement, on September 19, 2016, Appellant entered a guilty plea to the

crimes stated above.2 On that date, the trial court sentenced Appellant to

serve an aggregate term of probation of twelve years with conditions

including: no contact with the victim, no contact with any minors, no

possession of sexual paraphernalia, and no internet access. On September

28, 2016, Appellant filed a post-sentence motion seeking to withdraw his

guilty plea. The trial court held a hearing, and in an order dated December 7,

2016, and filed on December 12, 2016, it denied the post-sentence motion.

Appellant filed a motion for reconsideration on December 16, 2016, which was

denied in an order dated January 6, 2017, and filed on January 10, 2017.

Appellant filed his notice of appeal on January 20, 2017.

Under Pa.R.Crim.P. 720, the thirty-day appeal period began to run on

December 12, 2016, when the trial court denied the post-sentence motion.

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2Under the plea agreement, charges of aggravated indecent assault of a child (18 Pa.C.S. §3125(b)) and unlawful contact with minors (18 Pa.C.S. §6318(i)) were withdrawn.

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In order to be timely, Appellant’s notice of appeal should have been filed on

or before January 11, 2017. However, the notice of appeal was filed on

January 20, 2017. Therefore, this appeal is patently untimely.3

However, “before our Court may quash [an] appeal, we must determine

whether an administrative breakdown in the court system excuses the

untimely filing of the notice of appeal.” Commonwealth v. Patterson, 940

A.2d 943, 498 (Pa. Super. 2007). A breakdown in the judicial system occurs

where an administrative body acts negligently or improperly or misleads a

party. Union Electric Corp. v. Board of Property Assessment, Appeals

& Review of Allegheny County, 746 A.2d 581, 584 (Pa. 2000). Negligence

of an appellant, an appellant’s counsel, or counsel’s agent is not a sufficient

excuse. Bass v. Commonwealth, 401 A.2d 1133, 1135 (Pa. 1979).

In an effort to excuse the untimely filing of this appeal, the learned

dissent concludes that the trial court did not adhere to the mandates of

Pa.R.Crim.P. 704(C)(3)(a), which require that a trial judge determine on the

record that a defendant has been advised of his rights to file a post-sentence

motion and to appeal, and their applicable time frames. However, we observe

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3 Although Appellant filed a motion for reconsideration of the December 12, 2016 order denying his post-sentence motion, the trial court did not expressly grant reconsideration. Therefore, the appeal period was not tolled. See Moir, 766 A.2d at 1254 (explaining appeal period is only tolled where the court expressly grants reconsideration within thirty days of its order). Consequently, Appellant’s notice of appeal was untimely.

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that the comment to Rule 704 permits the use of a written colloquy to satisfy

the dictates of paragraph (C)(3).

Our review of the record reflects that the trial court did meet this

requirement of Rule 704. Specifically, the following transpired on September

19, 2016:

THE COURT: You filled out the Guilty Plea Explanation of Defendant’s Rights. Did you read, understand and answer all the questions?

[Appellant]: Yes, ma’am.

THE COURT: Did you do so while your attorney was present?

[Appellant]: Yes, ma’am.

N.T., 9/19/16, 4.

Likewise, our review of the certified record reveals that, on September

19, 2016, Appellant completed and signed, along with his defense counsel, an

eleven-page “guilty plea explanation of defendant’s rights” form. Guilty Plea

Explanation of Defendant’s Rights, 9/19/16, at 1-11. This form included highly

specific details pertaining to Appellant’s rights to file a post-sentence motion

and to appeal, the time within which Appellant must exercise those rights, and

of the right to the assistance of counsel in the preparation of the motion and

appeal. Id. at 7-8.

In addition, the following transpired before the close of the proceeding:

THE COURT: . . . Do you understand the proceedings and your appellate rights?

THE DEFENDANT: Yes, ma’am.

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N.T., 9/19/16, at 6. Accordingly, pursuant to Pa.R.Crim.P. 704(C)(3)(a), the

trial judge determined on the record that Appellant had been properly advised

of his pertinent appellate rights. Thus, the mandates of Rule 704 have been

satisfied.

The dissent also takes umbrage with the contents of the order denying

Appellant’s timely filed post-sentence motion because the order did not

provide Appellant additional notice of his appellate rights pursuant to

Pa.R.Crim.P. 720(B)(4)(a). The dissent correctly notes that we have

concluded that a trial court’s failure to comply with [Pa.R.Crim.P.] 720

constitutes a breakdown that excuses the untimely filing of [an a]ppellant’s

notice of appeal.” Patterson, 940 A.2d at 500. In Patterson, the trial court

failed to comply with Rule 720(B)(4) and advise the appellant of the relevant

deadlines for appeal purposes following the disposition of his untimely post-

sentence motion. Because the untimely post-sentence motion did not toll the

appeal period, the appellant in Patterson then had approximately two weeks

in which to file a timely appeal following the denial of his untimely post-

sentence motion. Accordingly, we found that the trial court’s failure to comply

with Rule 720(B)(4) constituted a breakdown so as to excuse the appellant’s

untimely filing of his notice of appeal.

Instantly, however, our review of the certified record reflects that

Appellant filed a timely post-sentence motion and appended a proposed order

to that motion, which did not include the relevant language set forth under

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Rule 720. The trial court, in denying Appellant’s post-sentence motion,

utilized the proposed order that Appellant appended to his post-sentence

motion. See Post-Sentencing Motion, 9/28/16, at 5, Order 12/12/16.

Appellant then had a full thirty days in which to file a timely notice of appeal.

Rather than doing so, however, Appellant filed a motion for reconsideration

that unsuccessfully tolled the appeal period. We fail to see how the trial court’s

action in utilizing the proffered order presented by Appellant in his post-

sentence motion, and filing it on December 12, 2016, amounts to evidence of

fraud or a breakdown of court processes.

Hence, we conclude that we are without jurisdiction to entertain this

matter and are constrained to quash this appeal. However, our conclusion in

no way prejudices Appellant’s ability to seek a nunc pro tunc direct appeal

from the judgment of sentence, or to file a petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S §§ 9541-9546.

Appeal quashed.

Judge Musmanno joins the Memorandum.

P.J.E. Bender files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

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Date: 10/20/2017

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