Com. v. Skundrich, R. ( 2016 )

J-S45002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RALPH SKUNDRICH,
Appellant No. 2010 WDA 2014
Appeal from the Judgment of Sentence of November 6, 2014
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0002199-2011
BEFORE: OLSON, DUBOW AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 28, 2016
Appellant, Ralph Skundrich, appeals from the judgment of sentence
entered on November 6, 2014 in the Criminal Division of the Court of
Common Pleas of Butler County following his jury trial convictions for rape –
forcible compulsion,1 burglary,2 two counts of involuntary deviate sexual
intercourse – forcible compulsion,3 indecent assault – forcible compulsion,4
____________________________________________
1
18 Pa.C.S.A. § 3121(a)(1).
2
18 Pa.C.S.A. § 3502(a).
3
18 Pa.C.S.A. § 3123(a)(1).
4
18 Pa.C.S.A. § 3126(a)(2).
*Retired Senior Judge assigned to the Superior Court
J-S45002-16
and terroristic threats with intent to terrorize another.5 As we are without
jurisdiction over this untimely appeal, we quash.
A jury convicted Appellant of the foregoing charges, which arose from
a sexual assault upon the complainant in her home at night. The trial court
sentenced Appellant to an aggregate term of 382 to 764 months’
incarceration. Appellant filed no post-sentence motions. This appeal
followed.
Before we review Appellant’s claims, we must address the timeliness of
his appeal, as it implicates our jurisdiction. This Court acquires jurisdiction
when a litigant files a notice of appeal within 30 days of a final order.
Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007); see
also Pa.R.A.P. 903(a). This is a fundamental prerequisite of this Court’s
jurisdiction and we strictly construe it. 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. Wrecks, 934 A.2d at 1289.
Generally, an appellate court cannot extend the time for filing an
appeal. Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super.
2007) (“A court may not enlarge the time for filing a notice of appeal as a
matter of grace or indulgence.”); see also, Pa.R.A.P. 105(b). We may only
hear an untimely appeal in the case of fraud or a breakdown in the
____________________________________________
5
18 Pa.C.S.A. § 2706(a)(1).
-2-
J-S45002-16
administrative operations of the courts. 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.
Union Electric 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. Bass, 401 A.2d at 1135.
The trial court sentenced Appellant on November 6, 2014. Appellant
filed no post-sentence motions. Criminal Docket, at 6-9. Accordingly, he
had 30 days from November 6, 2014 to file a timely notice of appeal.
Pa.R.A.P. 903(a). That period ended December 8, 2014.6 Appellant’s notice
of appeal is date-stamped on December 9, 2014. Therefore, this appeal is
facially untimely.
In a response to our order to show cause why we should not quash
this appeal as untimely, counsel averred that he caused Appellant’s notice of
appeal to be served on the clerk of courts and the district attorney on
December 5, 2014. Reply Letter to Show Cause Order, 2/18/15, at 1.
Counsel also attached to the response Appellant’s notice of appeal, which
states “Respectfully submitted this the 5th day of December, 2014.” Id. at
____________________________________________
6
Thirty days after November 6, 2014 – December 6, 2014 – was a
Saturday. Therefore, Appellant had until Monday, December 8, 2014 to
timely file a notice of appeal. 1 Pa.C.S.A. § 1908.
-3-
J-S45002-16
2. Additionally, the official record includes a certificate of service for the
notice of appeal, which also states that service occurred on December 5,
2014. Notice of Appeal, 12/9/14. However, the time-stamp on Appellant’s
notice of appeal shows that it was filed on December 9, 2014. Id. Counsel
asserts that an unspecified clerical error caused Appellant’s notice of appeal
to be time-stamped and docketed on the later date. Reply Letter to Show
Cause Order, 2/18/15, at 1; Appellant’s Brief at 26.
“An appeal is perfected upon the timely filing in the Prothonotary’s
office.” Jacobs v. Jacobs, 884 A.2d 301, 305 (Pa. Super. 2005); see also,
Pa.R.A.P. 905. The date stamp applied by the clerk’s office on the notice of
appeal constitutes the date when the appeal was taken. Pa.R.A.P.
905(a)(3). In other circumstances, we have held that the date of mailing or
service indicated on a document is not definitive for purposes of timeliness.
See, e.g., Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 228 (Pa. Super. 2014) (Gantman, J., concurring) (date of
service recited in concise statement is not necessarily definitive for purposes
of timeliness); In re Estate of Boyle, 77 A.3d 674, 675 (Pa. Super. 2013)
(concise statement untimely on its face where signature line and
accompanying certificate of service were dated September 10, 2012 but
time-stamp and docket entry reflect filing date of September 20, 2012); see
also, Commonwealth v. Matsinger, 68 A.3d 390, 393 (Pa. Cmwlth. 2013)
-4-
J-S45002-16
(time-stamp held to be controlling on the question of timeliness when a
certificate of service recites a different date).
Appellant does not offer independent evidence to prove that the date
specified in his certificate of service is the correct date of filing. See Reply
Letter to Show Cause Order, 2/18/15, at 1; Appellant’s Brief at 26.
Therefore, the date on which the clerk’s office docketed and time-stamped
Appellant’s notice of appeal governs our assessment of timeliness. Jacobs,
884 A.2d at 305. Because that date fell outside the 30-day appeal period,
this appeal is untimely.
If Appellant could prove that the clerk’s office neglected its duty to
accurately record the filing date of his notice of appeal, then cause may exist
to excuse his untimeliness. Such negligence or impropriety would constitute
an “administrative breakdown” in the operation of the courts. See Union
Electric Corp., 746 A.2d at 584. However, Appellant neither pleads nor
proves this extraordinary circumstance, and it is not apparent from the
record. Accordingly, this appeal is untimely and we must quash for lack of
jurisdiction. Wrecks, 934 A.2d at 1289.
In the alternative, Appellant argues that if this appeal is untimely
because of the ineffective assistance of counsel, then we should entertain his
claims as a matter on collateral relief. It is well-settled that 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
-5-
J-S45002-16
presumption that counsel was ineffective. Commonwealth v. Lantzy, 736
A.2d 564, 571-572 (Pa. 1999). However:
A petitioner has no right to a nunc pro tunc7 appeal outside the
[Post Conviction Relief Act (PCRA)] to restore direct appeal rights
lost due to ineffectiveness of counsel. [O]ur Supreme Court held
that the PCRA provides the sole means for restoration of direct
appeal rights. Commonwealth v. Hall, 771 A.2d 1232, 1235
(Pa. 2001) (“by its own language, and by judicial decisions
interpreting such language, the PCRA provides the sole means
for obtaining state collateral relief.”).
Commonwealth v. Fairiror, 819 A.2d 396, 397 (Pa. Super. 2002). To
restore his direct appeal rights, Appellant 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.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2016
____________________________________________
7
“The term nunc pro tunc means ‘now for then.’ It is a phrase applied to
acts allowed to be done after the time when they should be done, with a
retroactive effect, i.e., with the same effect as if regularly done. Thus,
reinstatement of direct appeal rights nunc pro tunc denotes that [an
appellant] now has the same direct appeal rights as he would have had in
the beginning.” Commonwealth v. Wright, 846 A.2d 730, 735 (Pa. Super.
2004).
-6-