Com. v. Whitmarsh, S.

• Court: Superior Court of Pennsylvania
• Decided: January 27, 2023
• Docket: 909 MDA 2022
• Status: Unpublished

Opinion

J-S41009-22 J-S41010-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SEAN TINA LOU WHITMARSH : : Appellant : No. 709 MDA 2022

Appeal from the Judgment of Sentence Entered April 1, 2022 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000897-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SEAN TINA LOU WHITMARSH : : Appellant : No. 909 MDA 2022

Appeal from the Judgment of Sentence Entered April 1, 2022 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000895-2021

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED: JANUARY 27, 2023

Sean Tina Lou Whitmarsh appeals from the judgments of sentence,

entered in the Court of Common Pleas of Bradford County, following her

convictions at CP-08-CR-0000895-2021 (Docket No. 895-2021), to five counts ____________________________________________

* Former Justice specially assigned to the Superior Court. J-S41009-22 J-S41010-22

of burglary,1 and at CP-08-CR-0000897-2021 (Docket No. 897-2021), to one

count of flight to avoid apprehension.2 Additionally, Whitmarsh’s counsel,

Jillian Kochis, Esquire, has filed applications to withdraw as counsel and

accompanying Anders3 briefs. Upon review, we quash these appeals and

dismiss counsel’s application to withdraw as moot.4

Whitmarsh was charged with multiple counts of burglary and related

offenses on five separate dockets. Whitmarsh had been acting in concert with

several co-defendants to scope out homes to burglarize. On December 20,

2021, Whitmarsh entered into a hybrid guilty plea, and pled guilty to five

counts of burglary at Docket No. 895-2021 and one count of flight to avoid

apprehension at Docket No. 897-2021. The remaining offenses, including

those comprising three of Whitmarsh’s dockets,5 were dismissed.

Additionally, Whitmarsh agreed to cooperate with the Commonwealth against

her co-defendants. At the close of the guilty plea hearing, the trial court

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1 18 Pa.C.S.A. § 3502(a)(2).

2 18 Pa.C.S.A. § 5126(a).

3 Anders v. California, 368 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

4 As discussed infra, Whitmarsh pled guilty at the above-mentioned dockets at the same hearing, was sentenced simultaneously on both, and has filed identical Anders briefs. Accordingly, we have consolidated these appeals sua sponte. See Pa.R.A.P. 513.

5 CP-08-CR-0000175-2021, CP-08-CR-0000826-2021, and CP-08-CR- 0000917-2021 (Docket No. 917-2021).

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deferred sentencing and ordered a pre-sentence investigation report (PSI).

There was no agreement as to sentencing.

On April 1, 2022, the trial court sentenced Whitmarsh to a period of nine

to twenty-months’ incarceration for each conviction of burglary, and to a

period of twelve to thirty-six months’ incarceration for her conviction of flight

to avoid apprehension. The trial court ordered that Whitmarsh’s sentences be

served consecutively, resulting in an aggregate sentence of 57 to 156 months

in prison. The trial court also ordered that Whitmarsh pay fines and costs,

$9,500.00 in restitution,6 and found Whitmarsh ineligible for Recidivism Risk

Reduction Incentive (RRRI).

On April 11, 2022, Whitmarsh filed an application with the Public

Defender’s Office of Bradford County to request representation for a direct

appeal to this Court. On April 12, 2022, the Public Defender’s Office notified

Court Administration that it was unable to represent Whitmarsh due to a

conflict. On or about April 21, 2022, the trial court entered an order

appointing Attorney Kochis to represent Whitmarsh on appeal. On or about

April 20, 2022, Court Administration contacted Attorney Kochis about her

appointment to represent Whitmarsh on appeal. See Petition for Leave to

Appeal Nunc Pro Tunc, 6/20/22, at 1-2; Response to Rule to Show Cause,

7/28/22, at 2. On May 3, 2022, Attorney Kochis mailed two notices of appeal

6 The restitution amount was to be paid jointly and severally among Whitmarsh and her co-defendants. See N.T. Sentencing Hearing, 3/28/22, at 9-13.

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to the Bradford County Court Administration. The first was at Docket No. 897-

2021. The second was at Docket No. 917-2021, one of the dockets that had

been dismissed pursuant to Whitmarsh’s plea agreement. The final day to file

timely notices of appeal was May 2, 2022.7 See Pa.R.A.P. 903(a). These

appeals were not received by the Clerk of Courts until May 6, 2022.8 Both of

these notices were filed more than 30 days past the date Whitmarsh’s

judgment of sentence was imposed and, thus, were untimely. Id.

7 The 30th day to appeal was May 1, 2022, a Sunday, and accordingly, Whitmarsh had until May 2, 2022, to timely file notices of appeal. See 1 Pa.C.S.A. § 1908 (“[w]henever the last day of any such time period shall fall on a Saturday or Sunday … such day shall be omitted from the computation.”).

8 Pursuant to Pa.R.A.P. 905(a)(3), a counseled notice of appeal is considered filed when it is marked received by the Clerk of Courts, not when it is deposited in the mail. See Pa.R.A.P. 905(a)(3). Instantly, on May 3, 2022, Attorney Kochis mailed the notices of appeal to Court Administration, not the Clerk of Courts. See Notice of Appeal, 5/6/22, at 3. Court Administration marked the Notices of Appeal as “received” on May 6, 2022. See id.

However, these errors are of no moment. Despite Attorney Kochis’s contentions, Rule 905 clearly states that notices of appeal are considered filed on the date that the Clerk of Courts receives the notices. See Pa.R.A.P. 905(a)(3). Thus, the May 3, 2022 mailing date is irrelevant. Additionally, Attorney Kochis mailed the notices to Court Administration, where they were received on May 6, 2021; however, the Clerk of Courts did not receive the notices until May 11, 2022. Nevertheless, under Rule 905(a)(4), a notice of appeal is considered “filed” even if it is sent to the incorrect court office within the unified judicial system. See Pa.R.A.P. 905(a)(4). Therefore, the notices of appeal were filed on May 6, 2022, the date that the Court Administration received and stamped the notices for Docket Nos. 897-2021 and 917-2021.

Moreover, we observe that, for the purposes of our disposition, this is a distinction without a difference. All three dates, May 3, 2022, May 6, 2022, and May 11, 2022, are beyond the 30-day window to file an appeal and, thus, are untimely. See Pa.R.A.P. 903(a).

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On May 31, 2022, Attorney Kochis filed an Application for Extension of

Time to file a Docketing Statement, alleging that the appeal at Docket No.

917-2021 was erroneous and indicating that she would correct the mistake.

See Application for Extension of Time to File Criminal Docketing Statement,

5/31/22, at 1-2. On June 20, 2022, Attorney Kochis filed, in the trial court, a

motion for nunc pro tunc relief to extend the time to file a notice of appeal at

Docket No. 895-2021, and an accompanying notice of appeal for Docket No.

895-2021.9 The trial court granted the request. Both Whitmarsh and the trial

court complied with Pa.R.A.P. 1925.

On July 21, 2021, this Court issued a rule to show cause why

Whitmarsh’s appeal at Docket No. 897-2021 should not be quashed as

untimely. See Rule to Show Cause, 7/21/22, at 1. Attorney Kochis filed a

response, and this Court deferred disposition to the merits panel. See

Response to Rule to Show Cause, 7/28/22, at 1-13;10 see also Order

Discharging Rule to Show Cause, 8/09/22, at 1.

Prior to addressing Attorney Kochis’s Anders briefs and Whitmarsh’s

claims, we must address whether we have jurisdiction to entertain these

9 Subsequently, on June 29, 2022, Attorney Kochis filed a Praecipe to Discontinue the appeal at Docket No. 917-2021, and, therefore, that appeal is no longer before this Court.

10 We note that Attorney Kochis filed two Responses to this Court’s Rule to Show Cause. However, throughout this memorandum, we cite only to the second response as they are identical with the exception that the second filing is the corrected response, which contains the various exhibits Attorney Kochis relies upon.

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appeals. See Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999)

(appellate courts may raise issue of jurisdiction sua sponte). “Jurisdiction is

vested in the Superior Court upon the filing of a timely notice of appeal.”

Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc)

(citation omitted). “A direct appeal in a criminal proceeding lies from the

judgment of sentence.” Commonwealth v. Preacher, 827 A.2d 1235, 1236

n.1 (Pa. Super. 2003). A 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).

Instantly, the appeal at Docket No. 897-2021 was filed on May 6, 2022,

four days late and patently untimely. In her response to the rule to show

cause, Attorney Kochis asserts that this untimeliness should be excused

because the trial court did not advise Whitmarsh of her appellate rights and,

thus, there was a breakdown in the court processes. See Response to Rule

to Show Cause, 7/28/22, at 5-6. In the alternative, Attorney Kochis argues

that she did not receive the trial court’s order appointing her to represent

Whitmarsh until May 11, 2022, at the same time she received the trial court’s

order for a Rule 1925(b) statement.

Regarding Attorney Kochis’s first contention, we disagree. It is apparent

from the record that the trial judge directed Whitmarsh’s counsel to advise

her of her appellate rights, who stated, on the record, “Ms. Whitmarsh, you

have ten days to file for motions for reconsideration and you have 30 days

to file for an appeal in Superior Court.” N.T. Sentencing Hearing, 3/28/22,

at 13 (emphasis added).

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While this advice was ultimately erroneous due to trial counsel

specifying a single appeal, see Commonwealth v. Larkin, 235 A.3d 350,

353 (Pa. Super. 2020) (breakdown occurs where appellant acts on

misinformation conveyed to him by trial court),11 it is irrelevant in this

circumstance. In Larkin, the defendant filed a single timely notice of appeal

from a sentencing order that resolved two dockets. See id. at 352. Notably,

this Court relied upon the initial timely notice of appeal and concluded that

there was a breakdown where the trial court had misadvised the defendant

regarding the number of notices of appeal he was required to file. See id. at

353.

Instantly, none of Whitmarsh’s appeals was timely and, therefore, there

is no breakdown in court processes under Larkin to excuse Whitmarsh’s late

filing of the notice of appeal for Docket No. 897-2021.

Regarding Attorney Kochis’s second contention that she did not receive

notice of her appointment until May 11, 2022, we find this assertion to be

similarly unavailing. Indeed, in Attorney Kochis’s Response to the Rule to

Show Cause, she candidly states that she was aware of her appointment on

or about April 20, 2022, twelve days before the notice of appeal was due. See

Response to Rule to Show Cause, 7/28/22, at 2. Additionally, it is similarly ____________________________________________

11In unpublished decisions, this Court has concluded that where the trial judge orders counsel to advise a defendant of his or her appellate rights and does so erroneously without correction from the trial judge, the exception in Larkin applies. See Commonwealth v. Nelson, 240 A.3d 993 (Pa. Super. 2020) (Table); Commonwealth v. Robinson, 256 A.3d 20 (Pa. Super. 2021) (Table).

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clear from the record that Attorney Kochis’s appointment was entered into the

record on April 21, 2022. See Order, 4/21/22, at 1 (appointing Attorney

Kochis). Furthermore, the record also reveals that Attorney Kochis mailed the

untimely notices of appeal on May 3, 2022, 8 days before she purportedly

received the trial court’s order.12 See Response to Rule to Show Cause,

7/28/22, at 1-6. Thus, it is clear that Attorney Kochis knew of her

appointment in plenty of time to file timely notices of appeal in the above

captioned causes. Accordingly, no breakdown has occurred to excuse the

untimely filings for any of Whitmarsh’s appeal.

Finally, regarding the above-captioned Docket No. 895-2021, we are

compelled to quash because the trial court lacked the authority to grant nunc

pro tunc relief. As stated above, Attorney Kochis filed an erroneous appeal at

Docket No. 917-2021, which had been dismissed pursuant to Whitmarsh’s

plea agreement. That appeal was filed on the 34th day, in excess of the 30-

day appeal limit. Then, on June 20, 2022, 80 days after the sentencing order,

Attorney Kochis filed a motion for nunc pro tunc relief. See Petition for Leave

to Appeal Nunc Pro Tunc, 6/20/22, at 1-3 (unnumbered).

It is well-settled that post-sentence motions must be filed within 10-

days of the judgment of sentence, otherwise they do not toll the 30-day notice

of appeal time limit. See Pa.R.Crim.P. 720(A)(1) (requiring post-sentence ____________________________________________

12Even if the notices were not mailed on May 3, 2022, as Attorney Kochis avers, the notices were nevertheless marked as “received” by Court Administration on May 6, 2022, which occurred five days prior to Attorney Kochis’s stated receipt of the trial court’s order.

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motions be filed within 10 days of judgment of sentence); see also

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)

(untimely post-sentence motions do not toll 30-day appeal period). However,

an exception exists where an appellant filed a post-sentence motion nunc pro

tunc within 30 days of the judgment of sentence, so long as the defendant

satisfies two requirements. Id. “First, within 30 days of [the] imposition of

sentence, a defendant must request the trial court to consider a post-sentence

motion nunc pro tunc[.] Second, the trial court must expressly permit the

filing of a post-sentence motion nunc pro tunc, also within 30 days of [the]

imposition of sentence.” Id. (emphasis added)

Instantly, Attorney Kochis’s petition for nunc pro tunc relief is a post-

sentence motion for nunc pro tunc relief. Additionally, it was filed well in

excess of the 30-day limit to file a post-sentence motion nunc pro tunc. See

id.; see also Pa.R.Crim.P. 720(A)(1). Therefore, the trial court lacked the

authority to grant an enlargement of time within which Whitmarsh could file a

notice of appeal at Docket No. 895-2021. Accordingly, we are compelled to

quash this appeal as well.13 ____________________________________________

13 We note that this procedural morass is not the final stop for Whitmarsh. Generally, failure to perfect a requested direct appeal constitutes per se ineffective assistance of counsel the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, and may constitute grounds for the reinstatement of direct appeal rights. See Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (unjustified failure to file requested appeal is per se ineffectiveness). Whitmarsh has one year from the date of her judgment of sentence became final to file a timely PCRA Petition raising this claim. See Commonwealth v. Ballance, 203 A.3d 1027, 1033 (Pa. Super. 2019) (quashed direct appeal does not enlarge time to file timely PCRA).

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Having concluded that we lack jurisdiction, we cannot review counsel’s

petition to withdraw, the Anders brief or the record to determine whether we

agree with counsel’s assessment that the appeal is frivolous. This appeal is

quashed for lack of jurisdiction.

Appeals quashed. Application to withdraw as counsel dismissed as

moot.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/27/2023

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