Com. v. Hoffman, B.

J-S13002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
BRIAN HOFFMAN,
Appellant No. 766 WDA 2017
Appeal from the PCRA Order Entered April 27, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0009211-1985
CP-02-CR-0009774-1985
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 13, 2019
Appellant, Brian Hoffman, appeals from the post-conviction court’s April
27, 2017 order denying reconsideration of his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We quash this
appeal as untimely.
The PCRA court summarized the background of this case as follows:
[Appellant] was charged at CC 8809211 with Criminal Homicide[,]
and at CC 8509774 with Robbery, Theft by Unlawful Taking,
Unauthorized Use of Automobiles, Possessing Instruments of
Crime[,] and Criminal Conspiracy in relation to the 1985 stabbing
death of Walter Zange. Following the severance of his cases from
those of his co-[d]efendant, Bruce Stevens, a jury trial was held
before this [c]ourt from September 6-8, 1988[,] and at its
conclusion, [Appellant] was convicted of first-degree murder and
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* Retired Senior Judge assigned to the Superior Court.
J-S13002-19
all other charges. He was immediately sentenced to a term of life
imprisonment at CC 8509211 and subsequently appeared before
this [c]ourt on December 28, 1988, when he was also sentenced
to a concurrent term of imprisonment of 10 to 20 years at the
Robbery charge at CC 8509774. A direct appeal was taken and
the judgment of sentence was affirmed o[n] February 11, 1991.
Allocatur was granted and our Supreme Court affirmed the
Superior Court’s judgment on July 12, 1994. [Appellant’s]
subsequent Petition for Writ of Certiorari to the United States
Supreme Court was denied on November 28, 1994.
No further action was taken until November 14, 1996, when
[Appellant] filed a pro se [PCRA] [p]etition with this [c]ourt.
Counsel was appointed to represent [Appellant] and an
[a]mended [p]etition was subsequently filed on May 15, 1997.
After reviewing the record and giving appropriate notice of its
intent to do so, this [c]ourt dismissed the [p]etition without a
hearing on December 15, 1997. Following the reinstatement of
[Appellant’s] appellate rights nunc pro tunc, this [c]ourt’s [o]rder
was affirmed by our Superior Court on August 30, 1999.
Thereafter, on December 18, 2000, [Appellant] filed a pro se
Petition for Writ of Habeas Corpus in the United States District
Court for the Western District of Pennsylvania. It was dismissed
without a hearing on March 8, 2001.
No further action was taken until May 6, 2016, when [Appellant]
filed the instant [PCRA] [p]etition through Sally Frick, Esquire.
After thoroughly reviewing the [p]etition and record and initially
issuing a [n]otice of [i]ntent to [d]ismiss, this [c]ourt conducted
an evidentiary hearing on March 16, 2017. On March 21, 2017,
this [c]ourt entered an [o]rder dismissing the [p]etition. On April
19, 2017, [Appellant], through Attorney Frick, filed a [m]otion for
[r]econsideration,[1] which this [c]ourt subsequently denied on
April 27, 2017. Thereafter, on May 25, 2017[,] [Appellant], again
through Attorney Frick, filed a [n]otice of [a]ppeal with our
Superior Court.
PCRA Court Opinion (PCO), 10/17/2017, at 1-3 (footnotes omitted).
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1This filing was entitled “Petition for Reconsideration of Petition for Post-
Conviction Collateral Relief with Amendment.”
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Thereafter, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, and Appellant timely
complied. The PCRA court then issued its Rule 1925(a) opinion, in which it
noted that Appellant had untimely filed his notice of appeal and therefore
suggested that we quash his appeal. See id. at 3-4. Citing Commonwealth
v. Moir, 766 A.2d 1253 (Pa. Super. 2000), the PCRA court explained that
“although a party may petition the court for reconsideration, the simultaneous
filing of a notice of appeal is necessary to preserve appellate rights in the
event the trial court fails to grant the petition expressly within 30 days, or it
denies the petition[,]” and that “an appeal from an order denying
reconsideration is improper and untimely.” PCO at 3-4 (citing Moir, 766 A.2d
at 1254) (quotation marks and emphasis omitted). The PCRA court observed
that Appellant did not file a notice of appeal within 30 days from its March 21,
2017 order dismissing his petition, but instead filed a notice of appeal on May
25, 2017 from the PCRA court’s April 27, 2017 order denying his petition for
reconsideration. See id. at 4; see also Pa.R.A.P. 903(a) (providing that a
notice of appeal “shall be filed within 30 days after the entry of the order from
which the appeal is taken”). Thus, it concluded Appellant’s appeal was
untimely and should be quashed. See PCO at 4.
On October 30, 2017, this Court issued a briefing schedule order,
directing that Appellant’s brief be filed on or before December 6, 2017. On
December 14, 2017, Attorney Frick filed a motion for extension of time to file
Appellant’s brief, which we subsequently granted, extending the due date to
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February 5, 2018. On March 8, 2018, after Attorney Frick failed to file a brief,
we issued an order remanding the case to the PCRA court for a determination
as to whether counsel had abandoned Appellant and instructing it to take
further action as required to protect Appellant’s right to appeal. Thereafter,
the PCRA court determined that Attorney Frick had abandoned Appellant and
appointed him new counsel.
On November 11, 2018, Appellant — through his newly appointed
counsel — filed an application with this Court for reinstatement of his right to
appeal nun pro tunc and to vacate the current briefing schedule. Therein,
Appellant argued, inter alia, that “Attorney Frick’s failure to file a notice of
appeal within 30 days of the PCRA court’s March 21, 2017 order denying the
[p]etition for [r]eview constitutes ineffective assistance of counsel per se and
warrants reinstatement of [Appellant’s] right to appeal nunc pro tunc.”
Appellant’s Application for Reinstatement, 11/11/2018, at 7. Given that this
application for relief was pending before us, on November 21, 2018, Appellant
also sought an extension of time to file his brief. On November 28, 2018, this
Court issued a per curiam order, stating the following, in relevant part:
AND NOW, upon consideration of [Appellant’s] November 11,
2018, “Application for Reinstatement of Appellant’s Right to
Appeal Nunc Pro Tunc,” and November 21, 2018, “Application for
Extension of Time to File Brief for Appellant by 60 Days – Second
Request,” the following is now ORDERED:
Appellant’s “Application for Reinstatement of Appellant’s Right to
Appeal” is DENIED. Appellant may raise any additional claims of
ineffectiveness of prior appellate counsel in a separate PCRA
[petition] before the lower court. See Commonwealth v.
Sepulveda, 144 A.3d 1270, 1280 (Pa. … 2016).
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Appellant’s “Application for Extension of Time” is GRANTED such
that Appellant’s brief shall be due in this Court no later than
January 25, 2018….
Order, 11/28/2018 (single page; some emphasis omitted).
Appellant then filed a timely brief, raising therein a single issue for our
review:
Does prior counsel’s failure to perfect [Appellant’s] appeal from
the order dismissing his petition for relief pursuant to the [PCRA]
constitute ineffective assistance of counsel per se warranting
reinstatement of [Appellant’s] right to appeal from the order nunc
pro tunc?
Appellant’s Brief at 5.
We have already disposed of this issue in our November 28, 2018 per
curiam order. However, we additionally observe that “[t]he question of
timeliness of an appeal is jurisdictional. In order to preserve the right to
appeal a final order of the trial court, a notice of appeal must be filed within
thirty days after the date of entry of that order.” Moir, 766 A.2d at 1254(citations omitted). Here, Appellant concedes that he filed his notice of appeal
late.2 He also does not allege that his failure to file a timely notice of appeal
occurred because of some breakdown in the operation of the court. See
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2 We note, though, that Appellant disagrees with the PCRA court that Attorney
Frick’s April 19, 2017 “Petition for Reconsideration of Petition for Post-
Conviction Relief with Amendment” was a request for reconsideration.
Appellant’s Brief at 9. Instead, he says that “it appears Attorney Frick
intended the document … as an amended version of the [p]etition for [r]elief.”
Id. Nevertheless, he recognizes that “because the PCRA court had already
dismissed the [p]etition for [r]elief, and because Attorney Frick never sought,
much less obtained, leave to amend it, the document was effectively a nullity.”
Id. (citation omitted). Thus, he agrees that his period to appeal lapsed on
April 20, 2017. See id. at 9-10.
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Commonwealth v. Williams, 893 A.2d 147, 150 (Pa. Super. 2006) (noting
that “an appeal nunc pro tunc is intended as a remedy to vindicate the right
to an appeal where that right has been lost due to certain extraordinary
circumstances[,]” and concluding that “failing to timely file a notice of appeal
without some breakdown in the operation of the court … does not rise to the
level of extraordinary”) (citation omitted). Consequently, we do not have
jurisdiction to entertain this appeal.3
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2019
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3 As we pointed out in our November 28, 2018 order, Appellant may raise any
claims of ineffectiveness pertaining to Attorney Frick in a separate PCRA
petition before the lower court. See Commonwealth v. Williamson, 21
A.3d 236, 242 (Pa. Super. 2011) (concluding that “counsel’s failure to file a
timely petition for allowance of appeal could be considered a newly-discovered
fact for purposes of [42 Pa.C.S. §] 9545(b)(1)(ii)”).
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