Com. v. Johnson, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREEK JOHNSON :
:
Appellant : No. 2563 EDA 2018
Appeal from the Judgment of Sentence Entered May 10, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003594-2016
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 1, 2019
Tyreek Johnson (Johnson) appeals from the judgment of sentence
entered on May 10, 2018, by the Court of Common Pleas of Delaware County
(trial court) after a violation of probation hearing. Johnson’s appointed
counsel seeks to withdraw from representation pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We quash the appeal and grant counsel’s petition.
We take the following pertinent facts and procedural history from our
review of the certified record. On August 15, 2016, Johnson pleaded guilty
with the assistance of counsel to two counts each of Retail Theft and
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* Retired Senior Judge assigned to the Superior Court.
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Conspiracy and one count of Possession of Marijuana.1 The trial court
sentenced him to two years of probation. After Johnson violated the
probation, the court re-sentenced him to immediate parole and two years of
consecutive probation. On May 10, 2018, after a second probation violation,
the court resentenced Johnson to an aggregate term of not less than one nor
more than two years’ incarceration to be served concurrent to a sentence he
was then serving in Philadelphia. Over three months later, Johnson filed an
untimely pro se notice of appeal in which he challenges his sentence and
alleges that he had asked counsel to file an appeal but he failed to do so.
(Notice of Appeal, 8/28/18, at 1).2 Appointed appellate counsel has filed an
Anders brief and petition to withdraw.3
Before addressing the substantive merits of Johnson’s appeal, we must
determine whether we have jurisdiction to do so. This Court acquires
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1 18 Pa.C.S. §§ 3929(a)(1) and 903, and 35 P.S. § 780-113(a)(31),
respectively.
2 The notice of appeal is a letter requesting appellate relief that Johnson sent
to the trial court’s chambers. The court added to the notice of appeal the
three criminal docket numbers at which it sentenced Johnson at the May 10,
2018 violation of probation hearing. It then filed it separately in each criminal
case. In addition to this appeal, this notice of appeal forms the basis of two
other appeals in this Court, one for each criminal docket number. See
Commonwealth v. Johnson, 2564 EDA 2018 (trial court docket number
7548-2018); Commonwealth v. Johnson, 2565 EDA 2018 (trial court
docket number 7549-2018).
3 Counsel has substantially complied with the procedural requirements for
withdrawal pursuant to Anders. See Commonwealth v. Lilley, 978 A.2d
995, 997 (Pa. Super. 2009).
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jurisdiction when a litigant files a notice of appeal within thirty days of a final
order. See Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super.
2007); see also Pa.R.A.P. 903(a). This jurisdictional prerequisite is
fundamental and strictly construed. See Commonwealth v. Reibow, 445
A.2d 1219, 1220 (Pa. Super. 1982). If an appeal is untimely, we lack
jurisdiction to hear it and must quash. See Wrecks, supra at 1289.
Generally, an appellate court cannot extend the time for filing an appeal.
See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007),
appeal denied, 960 A.2d 838 (Pa. 2008) (“A court may not enlarge the time
for filing a notice of appeal as a matter of grace or indulgence.”); Pa.R.A.P.
105(b). We may only hear an untimely appeal in the case of fraud or a
breakdown in the administrative operations of the courts. See Bass v.
Commonwealth, 401 A.2d 1133, 1135 (Pa. 1979). A breakdown in the
judicial system occurs where an administrative body acts negligently or
improperly or misleads a party. See Union Elec. 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. See Bass, supra at 1135.
Instantly, the court sentenced Johnson on May 10, 2018, and counsel
advised him of his post-sentence and appellate rights and their deadlines.
(See N.T. Hearing, 5/10/18, at 26-27). Additionally, the record does not
reflect any extraordinary circumstances such as a breakdown of the court.
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See Union Elec. Corp., supra at 584; Bass, supra at 1135. However, he
did not file a post-sentence motion and he filed his notice of appeal over three
months’ after the court imposed his sentence. Therefore, Johnson’s notice of
appeal is patently untimely and divests this Court of jurisdiction.
Moreover, to the extent that we could construe his notice of appeal to
allege that it is untimely due to the ineffectiveness of counsel, we are
precluded from considering this claim because it is a matter seeking collateral
relief. An unjustified failure to file or perfect a requested appeal “falls beneath
the range of competence demanded of attorneys in criminal cases” and
creates the presumption that counsel was ineffective. Commonwealth v.
Lantzy, 736 A.2d 564, 571-72 (Pa. 1999). However, our Supreme Court has
expressly held that a petitioner has no right to pursue reinstatement of his
appeal rights nunc pro tunc based on the ineffective assistance of counsel,
outside the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. See
Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001); see also Lantzy,
supra at 570 (“[T]he PCRA provides the exclusive remedy for post-conviction
claims seeking restoration of appellate rights due to counsel’s failure to perfect
a direct appeal[.]”).
Accordingly, to restore his direct appeal rights, Johnson must follow the
procedures set forth in the PCRA; we cannot grant collateral relief in the
context of an untimely direct appeal over which we lack jurisdiction. For all
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of these reasons, we quash Johnson’s untimely appeal and grant counsel’s
petition to withdraw.
Appeal quashed. Petition granted.
Judge Lazarus joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/19
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