Com. v. Rodriguez Cruz, L. ( 2014 )

J-S47045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LUIS ANTONIO RODRIGUEZ CRUZ
Appellant No. 1261 EDA 2014
Appeal from the Order of January 7, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0004489-2012
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
JUDGMENT ORDER BY WECHT, J.: FILED SEPTEMBER 08, 2014
Rodriguez Cruz
order that denied his motion for modification of sentence nunc pro tunc.
Because Rodriguez Cruz ithout
jurisdiction and, therefore, quash his appeal.
The trial court summarized the relevant procedural history as follows:
On December 5, 2012, [Rodriguez Cruz] entered a guilty plea
and negotiated sentence to two counts of possession with intent
to deliver, in violation of 35 [P.S.] § 780-113(A)(30); criminal
conspiracy, in violation of 18 Pa.C.S.A. § 903; and five counts of
criminal solicitation in violation of 18 Pa.C.S.A. § 902(a) [at case
4792-11. At case 4489-12, Rodriguez Cruz pled guilty to five
counts of possession with intent to deliver, one count of criminal
conspiracy, and one count of corrupt organizations, 18 Pa.C.S.A.
§ 911. Rodriguez Cruz
fifteen to thirty years in prison].
On September 25, 2013, [Rodriguez Cruz] filed a Motion for
Modification of Sentence Nunc Pro Tunc. A hearing was
scheduled for October 22, 2013. However, on that date, it was
J-S47045-14
learned that the Sheriff failed to transport [Rodriguez Cruz] to
the courthouse, so a continuance Order was entered
rescheduling the hearing for January 6, 2014.
In the meantime, [Rodriguez Cruz] filed a Motion for
Appointment of Conflict Free Counsel on November 19, 2013.
This court scheduled a hearing on that motion for the same
January 6, 2014 date. Following the hearing, this court entered
orders on January 7, 2014 denying [Rodriguez Cruz
and dismissing the motions.[1]
Trial Court Opinion, 5/9/2014, at 1. On April 10, 2014, Rodriguez Cruz filed
a notice of appeal from the January 7, 2014 order dismissing his motions.
shall be filed within 30 days
after the entry of the order from which the appeal is taken
A timely filed notice of appeal vests jurisdiction in this Court.
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). On
his notice of appeal, Rodriguez Cruz wrote that it was mailed on March 31,
2014. As a pro se prisoner, Rodriguez Cruz is entitled to the benefit of the
prisoner mailbox rule meaning that his appeal shall be deemed to be filed
on the date that he delivers the appeal to prison authorities and/or places
his notice of appeal in the institutional mailbox. Commonwealth v.
____________________________________________
1
Rodriguez Cruz -sentence motion to modify his sentence was
untimely filed. An untimely post-sentence motion that is filed after a
judgment of sentence becomes final should be treated as a petition filed
pursuant to the
9541-46. Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013).
Therefore, the trial court should have treated Rodriguez Cruz
PCRA petition
outcome of Rodriguez Cruz
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Perez, 799 A.2d 848, 851 (Pa. Super. 2002). The notice of appeal was
docketed on April 10, 2014. Regardless of which date is used, his notice of
appeal was filed more than thirty days after the
order. Therefore, we are without jurisdiction, and must quash his appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2014
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