Com. v. Ford, J. ( 2017 )

J-S40030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN A. FORD, :
:
Appellant : No. 263 EDA 2017
Appeal from the Order October 4, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000796-2002
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED JULY 13, 2017
Appellant Justin A. Ford appeals pro se from an Order of the
Northampton County Court of Common Pleas dismissing his Motion for
Return of Property as untimely filed. After careful review, we affirm.
On December 7, 2001, the Commonwealth arrested and charged
Appellant with firearms, conspiracy, and drug possession offenses. At the
time of the arrest, police officers seized $1,489 in cash from Appellant. On
December 19, 2001, the Commonwealth filed a Petition for Forfeiture of the
seized cash. See Docket No. CP-48-MD-0000329-2001. That same day, the
trial court issued a Rule to Show Cause why the Petition should not be
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*
Former Justice specially assigned to the Superior Court.
J-S40030-17
granted. Appellant did not respond. On February 13, 2002, the court
granted the Commonwealth’s forfeiture Petition. Appellant did not appeal.
On March 4, 2003, after the U.S. Attorney’s Office issued an
Indictment seeking to prosecute Appellant on firearms offenses arising from
the same criminal incident, the Commonwealth nolle prossed all charges and
dismissed the case. Appellant did not file a motion for return of property
during the pendency of the criminal cases against him, or within thirty days
following the dismissal of the charges.
Thirteen-and-a-half years later, on September 12, 2016, Appellant
filed a pro se Motion for Return of Property, seeking the return of $1,324 in
cash1 that had been seized during his 2001 arrest.2 On September 16,
2016, the court scheduled a hearing for September 30, 2016, sending notice
to both Appellant and Gary Asteak, Esq., Appellant’s attorney of record in
the 2001 criminal case.
Neither Attorney Asteak nor Appellant appeared at the September 30,
2016 hearing. The court dismissed the Motion for Return of Property as
untimely and because of Appellant’s failure to appear to prosecute the
Motion. See Trial Ct. Op., dated 1/3/17, at 2.
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1
Appellant does not indicate why he seeks the return of only a portion of
what the forfeiture docket indicates was at issue.
2
Appellant filed the instant Motion for Return under his criminal docket
number, not under the miscellaneous docket number in which the forfeiture
had been granted.
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On October 3, 2016, Appellant filed a Motion for the Appointment of
Counsel with the trial court. On October 4, 2016, the trial court filed its
written Order denying the Motion for Return of Property. The court clerk
sent a copy of the Order to Attorney Asteak. Despite receiving Appellant’s
Motion for the Appointment of Counsel the previous day, the docket has no
notation that the court clerk sent a copy of the Order to Appellant.
On October 17, 2016, Appellant filed a pro se Motion for Rehearing.
On November 3, 2016, and again on November 17, 2016, Appellant
submitted pro se “Notice of Inquiry” seeking information on the status of his
Motions for Rehearing and for Appointment of Counsel.
On December 13, 2016, Appellant filed a pro se Notice of Appeal with
this Court.3 The trial court filed a Pa.R.A.P. 1925(a) Opinion on January 3,
2017. That court did not order Appellant to file a Rule 1925(b) statement.4
On March 7, 2017, our Court issued a Rule to Show Cause why the
appeal filed on December 13, 2016, from the October 4, 2016 Order should
not be quashed as untimely filed. Appellant responded that he was “never
provided by the lower court with an order advising him that he had a right to
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3
Ordinarily, appeals pertaining to forfeiture actions fall within the
jurisdiction of the Commonwealth Court. However, Appellant filed this action
under his criminal docket number, and Appellee has not objected to this
Court’s jurisdiction. Accordingly, and in the interests of judicial economy, we
conclude that jurisdiction is perfected in this Court. See Pa.R.A.P. 741.
4
On January 17, 2017, Appellant filed a “Notice to Court,” which the trial
court docketed as a Concise Statement of Matters Complained of on Appeal.
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appeal” the October 4th Order. Reply to Order, filed 3/20/17, at 1. He
asserts that it was only after he filed his second Notice of Inquiry that the
trial court advised him that “he is untimely from appealing decision [sic]
made.” Id. at 2. The issue is now before this panel for resolution.
Before this court may consider the merits of the issues raised on
appeal, we must determine whether we have jurisdiction. A Notice of Appeal
must be filed within 30 days of the date of a final order. Pa.R.A.P. 903(a).
The filing of a Motion for a Rehearing does not toll the appeal period unless
reconsideration is granted. Pa.R.A.P. 1701(b)(3)(ii); Commonwealth v.
Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). Appellate courts generally
lack jurisdiction to consider untimely appeals. Commonwealth v. Capaldi,
112 A.3d 1242, 1245 (Pa. Super. 2015). A late filing, however, may be
excused if there has been a breakdown in the court’s processes. See
Commonwealth v. Braykovich, 664 A.2d 133, 136 (Pa. Super. 1995)
(extension of filing period is permitted only in extraordinary circumstances,
such as fraud or some breakdown in court operations).
Our Rules of Criminal Procedure provide that “[a] copy of any order or
court notice promptly shall be served on each party’s attorney, or the party
if unrepresented” by the clerk of courts. Pa.R.Crim.P. 114(B)(1) and (2).
Rule 114 further directs the clerk of courts to make prompt docket entries,
containing, inter alia, the date of service of the order or court notice.
Pa.R.Crim. P. 114(C).
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In the instant case, it is undisputed that the trial court’s Order became
final on October 4, 2016. Appellant filed his appeal on December 13, 2016—
70 days later. The appeal is, therefore, untimely.
However, Appellant asserts he “was never provided by the lower court
with an order advising him that he had a right to appeal decision [sic] that
was rendered on October 4, 2016, denying motion for return of property.”
Reply to Order at 1. The lower court’s docket indicates that the trial court
served only Appellant’s attorney of record from his 2001 case with a copy of
the Order on October 4, 2016, one day after the court received Appellant’s
Motion for Appointment of Counsel.
In light of Appellant’s Motion for Appointment of Counsel filed on
October 3, 2016, it is reasonable to assume that the attorney who had
represented Appellant 14 years before no longer represents him. Therefore,
pursuant to Rule 114, the court clerk should have sent the October 4, 2016
Order denying the Motion directly to Appellant at the same address to which
the Order scheduling the hearing on the Motion had been sent. The failure
to do so is the result of a breakdown in court operations. Accordingly, we
decline to quash this appeal.5
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5
Although we know from the fact that Appellant filed a timely Motion for
Rehearing that he somehow received notice of the October 4, 2016 Order,
the Order on record does not inform Appellant that he had thirty days from
the date of the Order to file an appeal. With no docket entries or record
(Footnote Continued Next Page)
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In his appellate brief, Appellant asserts that because he was not
officially served with a Notice of Forfeiture, he was denied his right to due
process. He also avers that the trial court erred by denying his Motion for
Return of Property based on its lack of timeliness. No relief is due.6
Our review of the denial of Appellant’s Motion for Return of Property is
limited to whether the trial court committed an error of law.
Commonwealth v. Wintel, Inc., 829 A.2d 753, 756 n.3 (Pa. Cmwlth.
2003). The scope of review is plenary. Commonwealth v. Howard, 931
A.2d 129, 131 (Pa. Cmwlth. 2007).
Our Rules of Criminal Procedure provide that a “person aggrieved by a
search and seizure . . . may move for the return of the property on the
ground that he or she is entitled to lawful possession thereof. Such motion
shall be filed in the court of common pleas for the judicial district in which
the property was seized.” Pa.R.Crim.P. 588. In Commonwealth v. Allen,
107 A.3d 709 (Pa. 2014), our Supreme Court held that an arrestee must file
his Motion for the Return of Property seized by law enforcement during the
pendency of the criminal proceedings against him, or within thirty days
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(Footnote Continued)
evidence to indicate otherwise, we cannot conclude that Appellant was
informed of his appeal rights.
6
Appellant has not challenged the trial court’s failure to act on his Motion for
the Appointment of Counsel. We nonetheless note that there is no
constitutional right to the appointment of counsel in a forfeiture proceeding.
$9,847.00 U.S. Currency, 704 A.2d 612, 616–17 (Pa. 1997).
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following the dismissal of the charges. Id. at 717. “The failure to bring the
action in a timely manner results in a waiver of the issue.” Trial Ct. Op.,
filed 1/3/17, at 2, citing Allen.
In support of his first issue, Appellant asserts that the trial court erred
in dismissing his Motion as untimely because “a notice [of the forfeiture
proceeding] was never served, therefore there was never a commencement
of the statute of limitation to file for his property back.” Appellant’s Brief at
4.
Contrary to Appellant’s contention, the record from the forfeiture
proceeding indicates that Appellant was successfully served by Detective
Matthew J. Lohenitz of the Easton Police Department with a copy of the
Forfeiture Petition and a Notice to Answer for Forfeiture on January 10,
2002. See Proof of Service, Docket No. CP-48-MD-0000329-2001, dated
1/10/2002.7 The Notice to Answer for Forfeiture informed Appellant that (1)
he was “required to file an answer to this petition . . . within thirty (30) days
from the service hereof;” and (2) “if you fail to file said answer, a decree of
forfeiture and condemnation will be entered against said property.” See
Notice to Answer for Forfeiture, Docket No. CP-48-MD-0000329-2001, dated
1/10/2002. “In the absence of fraud,” which Appellant has not alleged, a
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7
The record from the forfeiture proceeding supplements the record
submitted in this Appeal. The Notice to Answer for Forfeiture has a “X” on
the line next to “Refused to Sign.” See Notice to Answer for Forfeiture.
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notice of Proof of Service “is conclusive upon the parties.” Seminole Bldg.
& Loan Ass'n v. Levit, 163 A. 345, 346 (Pa. Super. 1932). Accordingly, we
conclude Appellant did receive notice of the forfeiture proceeding and the
resulting forfeiture. No relief is warranted on Appellant’s first issue.
With respect to Appellant’s challenge to the denial of his Motion for
Return of Property based on untimeliness, as the trial court noted, “there
has been no action in this docket number for thirteen and a half years.”
Trial Ct. Op., filed 1/3/17, at 2. Likewise, the forfeiture docket shows no
activity since 2002. The trial court correctly relied on Allen, supra, in
concluding that Appellant’s Motion was untimely. Accordingly, Appellant’s
claim is waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2017
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