Com. v. Payne, J. ( 2021 )

J-A18030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA ISAAC PAYNE :
:
Appellant : No. 139 WDA 2021
Appeal from the PCRA Order Entered September 14, 2020
In the Court of Common Pleas of Forest County Criminal Division at
No(s): CP-27-CR-0000046-2008
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 18, 2021
Appellant Joshua Isaac Payne appeals pro se from the order dismissing
his untimely Post Conviction Relief Act1 (PCRA) petition without a hearing.
Appellant argues that he was entitled to review under the newly discovered
fact exception to the PCRA time bar. For the reasons that follow, we are
constrained to quash.
Briefly, on February 25, 2009, Appellant pled guilty to terroristic threats.
That same day, the trial court sentenced Appellant to fifteen months to five
years’ incarceration, to run consecutive to a sentence that Appellant was
already serving at that time.
On August 7, 2020, the PCRA court docketed Appellant’s pro se PCRA
petition. Therein, Appellant claimed that trial counsel was ineffective for (1)
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1 42 Pa.C.S. §§ 9541- 9546.
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failing to request a competency hearing or present evidence concerning
Appellant’s alleged mental disorders; and (2) failing to “raise diminished
capacity” at the time of Appellant’s plea and sentencing hearing. See PCRA
Pet., 8/7/20, at 3. The PCRA court appointed counsel, who subsequently filed
a Turner/Finley2 no merit letter and a petition to withdraw as counsel.
Therein, counsel noted that although Appellant was aware of his mental health
diagnoses in 2013, he did not file a PCRA petition until 2020. Therefore,
counsel concluded that Appellant would be unable to establish an exception to
the PCRA time bar.
On August 25, 2020, the PCRA court issued a notice of its intent to
dismiss Appellant’s petition without a hearing. In that same order, the PCRA
court also granted counsel’s motion to withdraw. On September 11, 2020,
Appellant filed a pro se response requesting that the PCRA court reconsider
its decision to dismiss the petition without a hearing.
On September 14, 2020, the PCRA court formally dismissed Appellant’s
petition. The PCRA court explained that Appellant’s petition was facially
untimely and that he had failed to prove an exception to the PCRA time-bar.
On January 29, 2021, Appellant’s pro se notice of appeal was docketed.
On February 25, 2021, this Court issued a rule to show cause why the appeal
should not be quashed as untimely. Appellant filed a pro se response
indicating that he had provided the notice of appeal to prison authorities to be
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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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mailed on September 20, 2020, as reflected on the handwritten certificate of
service included with his notice of appeal. See Resp. to Rule to Show Cause,
3/10/21, at 1-3. This Court subsequently discharged the rule to show cause
and referred the issue to this panel.
Initially, we must resolve whether we have jurisdiction over the instant
appeal. “It is well settled that the timeliness of an appeal implicates our
jurisdiction and may be considered sua sponte. Jurisdiction is vested in the
Superior Court upon the filing of a timely notice of appeal.” Commonwealth
v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) (citations and quotation
marks omitted). Generally, an appellant invokes this Court’s jurisdiction by
filing a notice of appeal within thirty days of the entry of the order being
appealed. See Pa.R.A.P. 903(a).
The Pennsylvania Supreme Court has stated that a pro se prisoner’s
notice of appeal will be deemed filed when it is placed in a prison mailbox or
deposited with prison authorities. Commonwealth v. Jones, 700 A.2d 423,
426 (Pa. 1997) (discussing the “prisoner mailbox” rule). The pro se prisoner,
however, “bears the burden of proving that he or she in fact delivered the
appeal within the appropriate time period.” Id.Jones instructs that courts should be “inclined to accept any reasonably
verifiable evidence of the date that the prisoner deposits the appeal with the
prison authorities.” Id. Examples of such evidence include postmarks on the
envelope used to mail the notice of appeal or postal forms that indicate the
date of mailing. Id. The prisoner may also produce a cash slip “noting both
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the deduction from his account for the mailing to the prothonotary and the
date of the mailing,” or an “affidavit attesting to the date of deposit.” Id.Evidence regarding the prison’s or court’s mail policies may also establish the
last possible date on which an appeal was delivered to prison officials. Id.;
but see Commonwealth v. Betts, 240 A.3d 616, 619, n.5 (Pa. Super. 2020)
(accepting a defendant’s untimely filing without supporting documentation
where it was docketed only three days after the applicable deadline, noting
that given “the inherent delays associated with mail delivery,” it was most
likely “deposited for mailing” prior to the filing deadline).
Here, the PCRA court entered the order dismissing Appellant’s petition
on September 14, 2020. Therefore, Appellant had until Wednesday, October
14, 2020 to file a notice of appeal. See Pa.R.A.P. 903(a). As noted previously,
Appellant’s pro se notice of appeal was docketed on January 29, 2021, more
than three months after the 30-day appeal deadline expired.
In his response to this Court’s rule to show cause, Appellant stated that
he provided the notice of appeal to prison authorities on September 20, 2020.
However, other than Appellant’s handwritten certificate of service, there is
nothing in the certified record to indicate that Appellant delivered his notice of
appeal to prison authorities at that time. Indeed, the postage mark on the
envelope containing Appellant’s notice of appeal reflects a date of January 26,
2021, which was more than three months after the appeal deadline and just
three days before the appeal was docketed by the clerk of courts. Under these
circumstances, Appellant has failed to establish that he delivered the notice of
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appeal to prison authorities within the appropriate timeframe. See Jones,
700 A.2d at 426; cf. Betts, 240 A.3d at 619 n.5. Therefore, we are
constrained to quash the instant appeal as untimely.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2021
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