Com. v. Robbins, D.

• Court: Superior Court of Pennsylvania
• Decided: August 10, 2021
• Docket: 2190 EDA 2020
• Status: Unpublished

Opinion

J-A19007-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DUANE C. ROBBINS : : Appellant : No. 2190 EDA 2020

Appeal from the Order Entered October 15, 2020 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-SA-0000057-2020

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

MEMORANDUM BY DUBOW, J.: FILED AUGUST 10, 2021

Appellant, Duane C. Robbins, appeals from the Order dismissing his

appeal from a conviction for a summary offense as untimely filed. After careful

review, we conclude that Appellant’s untimely appeal divested the trial court

of jurisdiction over his appeal. We, therefore, we affirm.

On April 14, 2017, Pennsylvania State Police issued Appellant a traffic

citation for Driving While Operating Privilege Suspended (“DUS”).1 The district

court initially scheduled a trial for June 21, 2017, but continued Appellant’s

trial to July 26, 2017, at Appellant’s request. Appellant failed to appear for the

July 26, 2017 trial, prompting the district court to enter judgment against him. ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 1543(a). We note that in Commonwealth v. Eid, 249 A.3d

1030, 1038-44 (Pa. 2021), our Supreme Court found subsection (b)(1.1)(i) unconstitutionally vague. This ruling does not affect our disposition, as the court convicted Appellant under subsection (a). J-A19007-21

The court sentenced Appellant to serve sixty days’ incarceration, plus fines

and costs.2 Due to Appellant’s absence, the court issued a bench warrant for

his arrest.

Appellant evaded the authorities until July 2020. By Order dated July 9,

2020, the district court ordered Appellant’s term of incarceration to begin on

August 17, 2020. Appellant filed a Notice of Appeal from his July 26, 2017

conviction with the Court of Common Pleas on July 28, 2020.

On August 21, 2020, the Commonwealth filed a Motion to Dismiss

Summary Appeal. It averred that Appellant filed his appeal beyond the thirty

day appeal period and requested dismissal. Appellant did not respond to the

Commonwealth’s Motion.

On October 15, 2020, the Court of Common Pleas granted the

Commonwealth’s motion and dismissed Appellant’s appeal.

Appellant filed a timely Notice of Appeal and both he and the trial court

complied with Pa.R.A.P. 1925. Appellant raises the following issues on appeal:

[1. D]id the lower court err in dismissing the appeal from a district magistrate’s judgment and sentence in summary conviction proceedings?

[2. D]id the lower court err in failing to conduct a de novo review of the appeal from a district magistrate’s summary judgment and sentence?

____________________________________________

2 Appellant had been convicted of DUS on at least five prior occasions. Section

6503 of the Vehicle Code requires that, for persons convicted of a sixth or subsequent DUS violation, the court “shall” sentence the defendant “to imprisonment for not less than 30 days but not more than six months.” 75 Pa.C.S. § 6503(a.1).

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Appellant’s Br. at 4.

In essence, Appellant argues that the Court of Common Pleas should

have conducted a trial de novo instead of dismissing his summary appeal as

untimely. Id. at 10-17. He does not address jurisdictional defect caused by

Appellant’s filing his appeal to the Court of Common Pleas three years after

the Magistrate convicted and sentenced Appellant.

Pennsylvania Rule of Criminal Procedure 460 “provide[s] the exclusive

means of appealing from a summary guilty plea or conviction” and mandates

that an appellant file an appeal from a summary conviction “within 30 days

after the entry of the guilty plea, the conviction, or other final order from

which the appeal is taken.” Pa.R.Crim.P. 460(A), (E). “‘Entry,’ as used in this

rule, means the date on which the issuing authority enters or records the

guilty plea, the conviction, or other order in the district justice computer

system.” Pa.R.Crim.P. 460, cmt. When an appellant fails to timely file an

appeal, he or she must petition the trial court for nunc pro tunc relief.

Commonwealth v. Yohe, 641 A.2d 1210, 1212 (Pa. Super. 1994).

Critically, the timeliness of an appeal relates to the court’s jurisdiction

to hear the case. In re Adoption of W.R., 823 A.2d 1013, 1015 (Pa. Super.

2003).

The trial court explains that it dismissed Appellant’s appeal as untimely

filed pursuant to Pa.R.Crim.P. 460. Trial Ct. Op., 1/11/21, at 1-3. It observes

that the magistrate district court convicted Appellant of DUS on July 26, 2017,

but Appellant filed his appeal over three years after the court entered

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judgment against him. Id. As a result, “[Appellant] waived his right to a de

novo hearing, because he did not meet the simple procedural requirements

for filing his Notice of Appeal.” Id. We agree.

Appellant had 30 days from the date of his conviction, July 26, 2017, to

file a Notice of Appeal. He filed his Notice of Appeal on July 28, 2020, over

three years after his conviction. He did not petition the court for nunc pro tunc

relief. His appeal was, therefore, untimely and the trial court was without

jurisdiction to entertain his appeal.

Order affirmed. Case stricken from argument list.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/10/2021

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