Com. v. Derk, S. ( 2023 )

J-S18032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN CARL DERK :
:
Appellant : No. 49 MDA 2022
Appeal from the PCRA Order Entered November 24, 2021
In the Court of Common Pleas of Snyder County Criminal Division at
No(s): CP-55-CR-0000153-1993,
CP-55-CR-0000306-1992
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
CONCURRING MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 13, 2023
I respectfully concur. I do not believe our decision in Commonwealth
v. Stansbury, 219 A.3d 157 (Pa.Super. 2019) applies here. There, we refused
to quash under Walker because “the PCRA court informed Appellant that he
could pursue appellate review by filing a single notice of appeal.” Id. at 160.
We explained that “such misstatements as to the manner that [the
a]ppellant could effectuate an appeal . . . amount to a breakdown in court
operations such that we may overlook the defective nature of [the] timely
notice of appeal rather than quash pursuant to Walker.” Id. (brackets in
Stansbury, emphasis added). No similar misstatement occurred here. The
PCRA court did not mislead Derk. Rather, as the majority states, the PCRA
court failed to advise Derk at all about his appeal rights. See Majority at 1
n.1; Order, 11/24/21. Nevertheless, I would not quash but rather allow Derk
J-S18032-22
to correct the error, as permitted by Commonwealth v. Young, 265 A.3d
462, 477 (Pa. 2021).
Assuming that Derk would have fixed the mistake, I agree with the
majority that the PCRA court properly dismissed the PCRA petition as
untimely. Derk did not plead any timeliness exception in his PCRA petition,
much less prove that one applied.
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