Com. v. Yelverton, J. ( 2023 )

J-S10034-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES YELVERTON :
:
Appellant : No. 1523 EDA 2022
Appeal from the Order Entered April 27, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at Nos.: CP-23-CR-0007473-1977,
CP-23-MD-0004545-1978, CP-23-MD-0004546-1978,
CP-23-MD-0004549-1978, CP-23-MD-0004550-1978,
CP-23-MD-0004551-1978, CP-23-MD-0004559-1978,
CP-23-MD-0004560-1978, CP-23-MD-0004561-1978
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 30, 2023
Appellant, James Yelverton, appeals from the order entered on April 27,
2022 by the Court of Common Pleas of Delaware County denying as untimely
his motion to withdraw his guilty pleas.1 Upon review, we affirm.
The factual and procedural background of the instant appeal is not at
issue here. Briefly,
[i]n December, 1978, [A]ppellant pled guilty to one charge of rape
and sixteen charges of burglary and property offenses. On two
subsequent occasions he moved to withdraw his guilty pleas. The
motions were denied. On July 13, 1979, [A]ppellant was
sentenced on his guilty pleas to an aggregate twenty-one to forty-
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1As it will be explained later, Appellant’s “motion” is in fact Appellant’s seventh
Post Conviction Relief Act (“PCRA”) petition, 42 Pa.C.S.A. §§ 9541-46.
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two years[’] imprisonment. Thereafter, he moved for
reconsideration of the sentences. This motion also was denied.
On December 17, 1979, [A]ppellant filed a [Post Conviction
Hearing Act2 (“PCHA”)] petition, pro se, challenging his sentences
and the validity of his guilty pleas, and claiming that the trial court
erred in not granting his petition to withdraw the pleas because
the Commonwealth allegedly violated the plea bargain and
because of ineffective assistance of counsel. New counsel was
appointed to represent [A]ppellant. After hearing on the issues,
the PCHA court found that the guilty pleas were voluntarily,
intelligently and knowingly made and not induced as a result of
the ineffective assistance of counsel. The trial court, however,
granted [A]ppellant the right to appeal his judgments of sentence
to the Superior Court nunc pro tunc due to the failure of trial
counsel to timely perfect an appeal from the judgments of
sentence. An appeal was taken[.]
Commonwealth v. Yelverton, No. 628 Philadelphia 1986, unpublished
memorandum at *1-2 (Pa. Super. filed January 28, 1987).
On December 28, 1984, we affirmed the judgments of sentence. See
Commonwealth v. Yelverton, No. 3555 Philadelphia 1982, unpublished
memorandum (Pa. Super. filed December 28, 1984). As Appellant sought no
additional review before our Supreme Court, Appellant’s sentences became
final on January 28, 1985.
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2The PCHA was repealed in part, modified in part, and renamed the Post
Conviction Relief Act (“PCRA”), effective April 13, 1988.
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Following multiple unsuccessful PCRA petitions, on April 26, 2022,
Appellant pro se filed a “Motion to Withdraw Guilty Pleas,”3,4 which the lower
court denied on April 27, 2022. This appeal followed.
There are several problems with the instant appeal. First, it appears
that this appeal, which was filed on June 7, 2022, is untimely as it was not
docketed within 30 days of the service of the order denying relief (i.e., by June
3, 2022).5
The trial court record, however, reveals that Appellant filed with the trial
court a notice of appeal on May 26, 2022. The clerk of courts, however, failed
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3 In the underlying “motion,” Appellant alleged ineffective assistance of trial
counsel, which resulted in a denial of his right to a direct appeal. According
to Appellant, trial counsel’s error can be redressed by allowing him to withdraw
his guilty pleas. See Motion to Withdraw Guilty Pleas, 4/26/22, at 2-3.
4 It should be noted that on April 4, 2022, Appellant filed a PCRA petition, his
sixth. On April 12, 2022, the PCRA court issued a notice of intent to dismiss
Appellant’s sixth PCRA petition pursuant to Pa.R.A.P. 907(1). It does not
appear, however, that the PCRA court has entered a final order dismissing the
April 12, 2022 PCRA petition.
In the meantime, on April 26, 2022, Appellant filed the underlying “motion,”
which the lower court denied the following day. It appears, therefore, that
the instant “motion” was filed and disposed of while the previous PCRA petition
was still pending. The PCRA court was not precluded from considering the
underlying “motion” because of the pendency of Appellant’s sixth PCRA
petition. See Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super.
2018) (en banc) appeal denied, 647 Pa. 570, 190 A.3d 1134 (2018).
5 The trial court docket shows that the April 27, 2022 order was mailed to
Appellant on May 4, 2022 via first-class mail. Accordingly, the notice of appeal
was due by June 3, 2022. See Pa.R.A.P. 105(b); Pa.R.A.P. 108(a)(1);
Pa.R.A.P. 121(f), and Pa.R.A.P. 903(a).
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to timely forward it to this Court, as required under Pa.R.A.P. 905(b), and
decided instead to return it to Appellant.6 Subsequently, on June 7, 2022,
Appellant filed another notice of appeal from the April 27, 2022 order.
Given the June 3, 2022 deadline, the notice of appeal filed by Appellant
on May 26, 2022, was timely filed, whereas the notice of appeal filed by
Appellant on June 7, 2022, was untimely.
Because the delay in docketing the instant appeal was due to the clerk
of courts’ error and considering that Appellant filed a timely notice of appeal,
we decline to find that the instant appeal violates Rule 903. Commonwealth
v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007) (“Absent a breakdown in
the operations of the court, [t]ime limitations on the taking of appeals are
strictly construed and cannot be extended as a matter of grace.”). See also
Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047 (Pa. 1980)
(Superior Court abused discretion in quashing appeal from decision rendered
by the court of common pleas due to failure to transmit copy of notice of
appeal, proof of service, and docketing fee to prothonotary of appellate court,
where appeal was otherwise timely perfected in all respects). Accordingly, for
the reasons stated above, the notice of appeal filed on June 7, 2022, is
deemed timely filed.
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6 The clerk of courts not only failed to forward the notice to this Court, but
also apparently decided to return the notice to Appellant because the
“numbers were wrong.” See Trial Court docket entry for May 26, 2022.
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Next, the June 7, 2022 pro se notice of appeal docketed in this Court
contained nine trial court docket numbers in the caption,7 which is consistent
with the caption of the lower court’s April 27, 2022 order.
It appears, therefore, that Commonwealth v. Walker, 185 A.3d 969(Pa. 2018) is implicated here.8 In Walker, which applies to all cases filed
after June 1, 2018, our Supreme Court held that appellants are required to
file separate notices of appeal when a single order resolves issues arising on
more than one lower court docket.
While at first glance the instant notice of appeal appears to violate
Walker, there is an exception to the rule announced in Walker that applies
here. In Commonwealth v. Stansbury, 219 A.3d 157, 160 (Pa. Super
2019), this Court concluded that a breakdown of the courts occurs when a
PCRA court advises petitioners that they can pursue appellate review by filing
a single notice of appeal, even though the order disposed of petitions pending
at two separate docket numbers. See also Commonwealth v. Larkin, 235
A.3d 350, 352-54 (Pa. Super. 2020) (en banc) (reaffirming Stansbury).
Here, in its April 27, 2022 order, the lower court completely failed to
advise Appellant of his appellate rights, an error far worse than the one
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7 The caption of the May 26, 2022 notice of appeal also contained multiple
trial court docket numbers.
8 It is worth noting that on October 14, 2022, we issued a rule directing
Appellant to show cause why the appeal should not be quashed in light of
Walker. Appellant failed to file a response. On January 17, 2023, we entered
an order discharging the rule to show cause.
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sanctioned in Stansbury. In light of the foregoing, we conclude the error by
the lower court constituted a breakdown in the court’s operations, thus
allowing us to proceed with Appellant’s instant appeal. See Stansbury,
supra; Larkin, supra.
Next, Appellant filed a “Motion to Withdraw Guilty Pleas,” which the
lower court, apparently, failed to treat as a PCRA petition.9 Treating the
underlying “motion” as a PCRA petition, the lower court should have
determined the timeliness of the same as it would under the PCRA. It did not
do so.
Under the PCRA, any PCRA petition, “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final
“at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” Id. § 9545(b)(3). The
PCRA’s timeliness requirements are jurisdictional in nature, and a court may
not address the merits of an untimely petition. See, e.g., Commonwealth
v. Rienzi, 827 A.2d 369, 371 (Pa. 2003).
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9 Regardless of how the pleading is titled, courts are to treat a pleading filed
after a judgment of sentence becomes final as a PCRA petition if it requests
relief contemplated by the PCRA. See Commonwealth v. Torres, 223 A.3d
715, 716 (Pa. Super. 2019). Here, Appellant appears to argue ineffective
assistance of counsel, see Motion to Withdraw Guilty Pleas, 4/26/22, at 2-3,
which is a claim cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(ii).
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Appellant’s judgments of sentence became final on January 28, 1985,
30 days after this Court affirmed his judgments of sentence, and the time for
filing a petition for allowance of appeal with the Supreme Court of had
Pennsylvania expired. Because Appellant filed the instant “motion” on April
26, 2022, his “motion” is facially untimely.10
Pennsylvania courts may consider an untimely petition if the appellant
pleads and proves one of three exceptions set forth at 42 Pa.C.S.A.
§ 9545(b)(1)(i)-(iii). Any petition invoking one of these exceptions “shall be
filed within one year of the date the claim could have been presented.”
42 Pa.C.S.A. § 9545(b)(2).
A review of the “motion” and Appellant’s brief reveals that Appellant
never addressed the timeliness of the “motion” under the PCRA. Accordingly,
given that the “motion” is facially untimely for purposes of the PCRA, and
given that Appellant did not allege or prove the applicability of one the
exceptions to the one-year time bar, we are unable to review the merits of his
claims. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Woods, 179
A.3d 37, 42 (Pa. Super. 2017) (“The petitioner bears the burden to plead and
prove an applicable statutory exception. If the petition is untimely and the
petitioner has not pled and proven an exception, the petition must be
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10 We note that since Appellant’s judgments of sentence became final prior to
the effective date of 42 Pa.C.S.A. § 9545, Appellant had until January 16,
1997, to file his first PCRA petition. However, because Appellant filed the
instant “motion” on April 26, 2022, it is manifestly untimely.
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dismissed without a hearing because Pennsylvania courts are without
jurisdiction to consider the merits of the petition.”).
Finally, it is worth mentioning that the claim raised here (ineffective
assistance of trial counsel, which resulted in a denial of his right to a direct
appeal) was addressed in connection with Appellant’s first PCHA petition.
As noted above, the record shows that: (i) the PCHA court found that
trial counsel was ineffective in connection with the untimely filing of the direct
appeal; (ii) the PCHA court granted Appellant the right to appeal nunc pro tunc
from his judgments of sentence, (iii) Appellant actually filed a nunc pro tunc
direct appeal, and (iv) we affirmed the judgments of sentence. Yelverton,
No. 3555 Philadelphia 1982, at *1; Yelverton, No. 628 Philadelphia 1986, at
*1-2. Thus, to the extent Appellant argues ineffective assistance of counsel
in connection with the filing of the direct appeal, Appellant was already
granted relief. Id. To the extent Appellant argues that trial counsel’s
ineffectiveness prevented him from seeking and/or obtaining direct review
from our Court, the claim is devoid of any merit as the record shows that he
was able to seek and obtain direct review from this Court.
In light of the foregoing, we conclude, therefore, that the lower court
correctly denied relief. Thus, albeit on other grounds, we affirm the order of
the lower court denying Appellant relief. See Commonwealth v.
Charleston, 94 A.3d 1012, 1028 (Pa. Super. 2014) (citation omitted) (“[W]e
may affirm the PCRA court’s decision on any basis.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2023
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