Com. v. Coleman, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TERRY L. COLEMAN :
:
Appellant : No. 1568 MDA 2018
Appeal from the Judgment of Sentence Entered December 8, 2016
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005318-2015
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 04, 2019
Terry L. Coleman (Appellant) purports to appeal nunc pro tunc from the
judgment of sentence imposed after a jury convicted him of conspiracy to
commit possession with intent to deliver a controlled substance1 (PWID) and
criminal use of a communication facility.2 Upon careful review, we have
determined that Appellant’s motion to reinstate his direct appeal rights should
have been treated as a petition under the Post Conviction Relief Act.3 We
vacate the order granting that motion and remand for the trial court to appoint
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(30).
2 18 Pa.C.S.A. § 7512(a).
3 42 Pa.C.S.A. §§ 9541-9546.
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new counsel.
On October 7, 2015, the trial court appointed Michael Palermo, Esq., to
represent Appellant; Attorney Palermo has been counsel of record throughout
this case. On December 8, 2016, a jury convicted Appellant of conspiracy to
commit PWID and criminal use of a communication facility. That same day,
the trial court imposed concurrent sentences of 40 to 120 months of
imprisonment, and 36 to 72 months of imprisonment, respectively. Appellant
filed a timely appeal on January 5, 2017. Thereafter, the trial court directed
Appellant to file a Pa.R.A.P. 1925(b) statement. Appellant did not comply, but
on February 8, 2017, Attorney Palermo filed a successful motion for leave to
file a Rule 1925(b) statement nunc pro tunc,4 and ultimately a timely
statement. The trial court issued an opinion on March 9, 2017.
On May 19, 2017, however, this Court dismissed Appellant’s appeal for
failure to file an appellate brief. Our per curiam order noted that this Court
had ordered Attorney Palermo to file a brief; directed Attorney Palermo to file
a certification in our Court within 10 days stating that Appellant was notified
of our order; and directed the trial court to withhold counsel fees pertaining
to the appeal. Commonwealth v. Coleman, 133 MDA 2017 (per curiam
order) (Pa. Super. May 19, 2017). This Court mailed a copy of the per curiam
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4The motion for leave to file a Rule 1925(b) statement nunc pro tunc did not
explain why Attorney Palermo did not timely comply with the Rule 1925(b)
order.
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order to Attorney Palermo that same day. No certification by Attorney Palermo
— that he notified Appellant of this Court’s order — was filed.
More than 14 months later, on July 30, 2018, Attorney Palermo filed a
“Motion for Leave to Restore Appellate Rights Nunc Pro Tunc.” The motion did
not refer to the PCRA or the PCRA’s timeliness requirements, nor did the
motion explain why no appellate brief was filed in the direct appeal at 133
MDA 2017. Nevertheless, Attorney Palermo averred, “For all intents and
purposes, Terry Coleman [Appellant] was without counsel during a critical
stage in the proceedings as a Brief was not filed on his behalf resulting in
prejudice.” Appellant’s Motion for Leave to Restore Appellate Rights Nunc Pro
Tunc, 7/30/18, at 2. In any event, the Commonwealth did not object to
Appellant’s motion, and the trial court granted the motion on August 13, 2018.
Appellant thus filed a second notice of appeal on August 31, 2018. Although
the Superior Court briefing schedule mailed to Attorney Palermo advised that
Appellant’s brief must be filed by November 13, 2018, the brief was filed late,
on November 30, 2018.5
Preliminarily, we recognize that “a petitioner has no right to a nunc pro
tunc appeal outside the PCRA to restore direct appeal rights lost due to
ineffectiveness of counsel,” and “the PCRA provides the sole means for
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5The brief presents two issues challenging the sufficiency of Appellant’s PWID
and criminal use of a communication facility convictions. See Appellant’s Brief
at 6.
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restoration of direct appeal rights.” Commonwealth v. Fairiror, 809 A.2d
396, 397 (Pa. Super. 2002) (citations omitted). Accordingly, “all requests for
reinstatement of appellate rights . . . must meet the timeliness requirements
of the PCRA.” Id. (citation omitted). “Section 9545(b)(1) of the PCRA
requires that any PCRA petition . . . must be filed within one year of the date
the judgment becomes final.” Id. (citing 42 Pa.C.S.A. § 9545(b)(1)). “[A]
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States . . . or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). A
“PCRA court may[, however,] entertain the merits of an untimely petition if
the petitioner can plead one of the exceptions to the one-year filing deadline
provided in 42 Pa.C.S.A. § 9545(b)(1).” Fairiror, 809 A.2d at 398. A “PCRA
court has no jurisdiction to hear an untimely petition.” Id. This Court may
sua sponte address the timeliness of a PCRA petition because “a question of
timeliness implicates the jurisdiction of our Court.” Commonwealth v.
Callahan, 101 A.3d 118, 121 (Pa. Super. 2014) (citation omitted).
Additionally, we note that “an unrepresented petitioner who is indigent
has a right to court-appointed counsel to represent him on his first PCRA
petition. ‘The denial of PCRA relief cannot stand unless the petitioner was
afforded the assistance of counsel.’” Commonwealth v. Kutnyak, 781 A.2d
1259, 1262 (Pa. Super. 2001) (citations omitted). Generally, an attorney
cannot raise a claim of his own ineffectiveness. Commonwealth v. Lesko,
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15 A.3d 345, 360 (Pa. 2011).
Consistent with the foregoing authority, Appellant’s July 30, 2018
motion to restore his direct appeal rights nunc pro tunc falls under the purview
of the PCRA. See Fairiror, 809 A.2d at 397. We note that it appears that
the motion was facially untimely under the PCRA. As stated above, this Court
dismissed Appellant’s appeal on May 19, 2017. Appellant then had 14 days to
seek reconsideration and 30 days to seek reinstatement of his appeal, but he
did not pursue either form of relief. See 42 Pa.C.S.A. § 5505 (“[A] court upon
notice to the parties may modify or rescind any order within 30 days after its
entry . . . .”); Pa.R.A.P. 2542 (application for reargument shall be filed within
14 days after entry of the order involved). Accordingly, for purposes of the
PCRA, Appellant’s judgment of sentence became final 30 days after the
dismissal of his appeal, on Monday, June 19, 2017.6 See 42 Pa.C.S.A. §
9545(b)(3). Appellant then had one year, until June 19, 2018, to file a PCRA
petition. See 42 Pa.C.S.A. § 9545(b)(1). Appellant’s motion, however, was
not filed until approximately 40 days later, on July 30, 2018, and it did not
plead any of the PCRA timeliness exceptions. See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii); Fairiror, 809 A.2d at 398.
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6 The 30th day fell on Sunday, June 18, 2017, and thus Appellant’s judgment
of sentence became final the following day, Monday, June 19, 2017. See 1
Pa.C.S.A. § 1908 (when last day of any period of time referred to in any
statute falls on Saturday, Sunday, or legal holiday, such day shall be omitted
from computation).
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Nevertheless, the trial court should have construed Appellant’s motion
to reinstate his direct appeal rights as a first petition under the PCRA. See
Kutnyak, 781 A.2d at 1262. Furthermore, as Attorney Palermo
acknowledged that his own failure to file an appellate brief at 133 MDA 2017
caused Appellant to be “without counsel” and caused prejudice, the trial court
should have appointed another attorney to represent Appellant. See Lesko,
15 A.3d at 360. We thus vacate the trial court’s August 13, 2018 order
granting Appellant’s motion to reinstate his direct appeal rights. We remand
for the trial court to appoint new counsel to represent Appellant. If Attorney
Palermo’s representation in this appeal was by appointment, we further direct
the trial court to withhold counsel fees pertaining to this appeal.7
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7 Recently, in an unrelated criminal appeal in which Attorney Palermo failed to
file a timely brief on behalf of his client, this Court noted Attorney Palermo’s:
history of late filings and dismissals for failure to file a brief in the
following appeals:
No. 208 MDA 2015 (four extensions granted; brief filed late); No.
324 MDA 2015 (five extensions granted; appeal dismissed for
failure to file brief; appeal subsequently reinstated and brief
accepted as untimely); No. 940 MDA 2015 (two extensions
granted; appeal dismissed for failure to file brief; appeal
subsequently reinstated and brief accepted as untimely); No.
2038 MDA 2015 (one extension granted; appeal dismissed for
failure to file brief; appeal subsequently reinstated and brief
accepted as untimely); No. 213 MDA 2016 (brief filed late); No.
1464 MDA 2016 (appeal dismissed for failure to comply with two
trial court orders directing filing of Pa.R.A.P. 1925(b) statement);
No. 133 MDA 2017 (appeal dismissed for failure to file brief); No.
851 MDA 2017 (two extensions granted; appeal dismissed for
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Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/04/2019
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failure to file brief; appeal subsequently reinstated and brief
accepted as untimely).
Commonwealth v. Smith, 1172 MDA 2018 (per curiam order at 1-2 n. 1)
(Pa. Super. Jan. 11, 2018).
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