Com. v. Kramer, M.

• Court: Superior Court of Pennsylvania
• Decided: January 6, 2020
• Docket: 416 WDA 2019
• Status: Unpublished

Opinion

J-S55025-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL J. KRAMER : : Appellant : No. 416 WDA 2019

Appeal from the PCRA Order Entered March 4, 2019 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0000704-2001

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

JUDGMENT ORDER BY McLAUGHLIN, J.: FILED JANUARY 06, 2020

Michael J. Kramer has appealed the denial of his Post Conviction Relief

Act (“PCRA”) petition. 42 Pa.C.S.A. §§ 9541-9546. We quash this appeal as

untimely.

After Kramer filed a PCRA petition in August 2018, the PCRA court

appointed counsel who filed a Turner/Finley1 letter and a petition to

withdraw. The court ultimately granted counsel’s petition to withdraw and

denied the PCRA petition on January 3, 2019, because Kramer was no longer

serving a sentence in this case. Kramer moved for reconsideration, which the

PCRA court denied on March 4, 2019. Kramer then filed the instant appeal on

March 14, 2019. ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). J-S55025-19

On appeal, Kramer raises the following claims:

1. Kramer’s claims are not procedurally barred.

2. Kramer’s counsel was ineffective.

3. The lower court erred by allowing counsel to withdraw.

4. The lower court erred by disallowing a response.

Kramer’s Br. at 3, 5-6.

We do not address the merits of the above claims because the appeal

before us is untimely. An aggrieved party may file an appeal within 30 days

of the order from which the party appeals. Pa.R.A.P. 903(a). An appeal does

not lie from an order denying reconsideration; the appeal must be from the

order granting or denying relief in the first instance. See Commonwealth v.

Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000). The mere filing of a motion for

reconsideration does not toll the appeal period. Gardner v. Consolidated

Rail Corp., 100 A.3d 280, 283 (Pa.Super. 2014). Rather, the trial court must

expressly grant reconsideration during the 30-day appeal period in order to

extend the time for taking an appeal. Moir, 766 A2d at 1254. The failure to

file an appeal within 30 days of an appealable order deprives this Court of

jurisdiction. Valley Forge Center. Associates. v. Rib-It/K.P., Inc., 693

A.2d 242, 245 (Pa.Super. 1997).

Here, the PCRA court entered the underlying order denying relief on

January 3, 2019. As the thirtieth day after that order was Saturday, February

2, 2019, Kramer had until the following Monday, February 4, 2019, to file a

timely notice of appeal. See 1 Pa.C.S.A. § 1908 (“Whenever the last day of

-2- J-S55025-19

any such period shall fall on Saturday or Sunday, . . . such day shall be omitted

from the computation”). Kramer filed the instant notice of appeal on March

14, 2019 and therefore it is patently untimely. Furthermore, even if Kramer

had filed a timely notice of appeal, we would affirm because Kramer is no

longer “currently serving” a sentence in this case and therefore is ineligible

for PCRA relief. 42 Pa.C.S.A. § 9543(a)(1)(i); Commonwealth v. Plunkett,

151 A.3d 1108, 1113 (Pa.Super. 2016) (affirming PCRA court order denying

PCRA relief to appellant whose sentence expired).

Appeal quashed. Motion for Appointment of Counsel denied as moot.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/6/2020

-3-