Com. v. Cantz, T.

J-S18041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY LEONARD CANTZ
Appellant No. 2321 EDA 2014
Appeal from the PCRA Order June 30, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001853-2011
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
JUDGMENT ORDER BY MUNDY, J.: FILED JUNE 11, 2015
Appellant, Timothy Leonard Canz, filed a notice of appeal on August 7,
2014, from the June 30, 2014 order denying his petition for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. “Because the timeliness of an appeal implicates our jurisdiction, we
cannot address the merits of an appeal or cross-appeal before determining
whether it was timely.” Krankowski v. O'Neil, 928 A.2d 284, 285 (Pa.
Super. 2007) (citation omitted).
When a statute fixes the time within which an appeal
may be taken, the time may not be extended as a
matter of indulgence or grace. Pennsylvania Rule of
Appellate Procedure 903 provides that a notice of
appeal “shall be filed within 30 days after the entry
of the order from which the appeal is taken.”
Pa.R.A.P. 903(a). An order is not appealable until “it
has been entered on the appropriate docket in the
lower court.” Pa.R.A.P. 301(a).
J-S18041-15
Commonwealth v. Pena, 31 A.3d 704, 706 (Pa. Super. 2011) (citation
omitted).
Instantly, the trial court’s order dismissing Appellant’s PCRA petition
was docketed on June 30, 2014, with notations indicating notices were sent
to each party on that date. Appellant’s notice of appeal was not filed until
August 7, 2014, 38 days after the entry of the June 30, 2014 order. On
August 26, 2014, this Court issued a rule to show cause why the appeal
should not be quashed as untimely. Appellant’s counsel responded, noting
the instant PCRA proceeding was initiated by a pro se PCRA petition filed by
Appellant, including in its caption two underlying cases at CP-45-CR-
0000895-2011 and CP-45-CR-0001853-2011. Appellant’s Answer to Rule to
Show Cause, 9/2/14, at 1. Counsel filed two amended PCRA petitions under
the individual dockets, raising identical issues. Id. Thereafter, all
proceedings and orders on the petitions were conducted or issued jointly,
but the cases were never consolidated. Id. at 2. Counsel filed a timely
notice of appeal of the PCRA court’s denial of Appellant’s amended PCRA
petition at CP-45-CR-0000895-2011. Counsel avers he “inadvertently
omitted the docket number for [CP-45-CR-0001853-2011] on Appellant’s
[n]otice of [a]ppeal,” and attempted to remedy the oversight as soon as he
became aware of the omission. Id. at 2-3. By per curiam order dated
November 10, 2014, the question was deferred to this panel.
-2-
J-S18041-15
As counsel’s inadvertence cannot excuse the untimeliness of the
instant notice of appeal, we are constrained to quash the appeal. See Pena
supra.1
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2015
____________________________________________
1
Given our disposition, Counsel’s motion to withdraw, and the
Commonwealth’s motion to dismiss are denied as moot.
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