Com. v. Lopez-Diaz, I., Sr.

J-S28002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IVAN LOPEZ-DIAZ, SR. :
:
Appellant : No. 1474 MDA 2021
Appeal from the Judgment of Sentence Entered September 24, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006408-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IVAN LOPEZ-DIAZ, SR. :
:
Appellant : No. 1475 MDA 2021
Appeal from the Judgment of Sentence Entered September 24, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006413-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IVAN LOPEZ-DIAZ, SR. :
:
: No. 1476 MDA 2021
Appeal from the Judgment of Sentence Entered September 24, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006414-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S28002-22
:
v. :
:
:
IVAN LOPEZ-DIAZ SR. :
:
Appellant : No. 1477 MDA 2021
Appeal from the Judgment of Sentence Entered September 24, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003372-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IVAN LOPEZ-DIAZ, SR. :
:
Appellant : No. 1478 MDA 2021
Appeal from the Judgment of Sentence Entered September 24, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000486-2021
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 9, 2022
Appellant, Ivan Lopez-Diaz, Sr., appeals from the judgment of sentence
at five separate criminal dockets entered on September 24, 20211 following
his open guilty pleas to three counts of possession with intent to deliver
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1 The judgment of sentence was made final by the denial of Appellant’s post-
sentence motion on October 4, 2021. Here, counsel for Appellant filed five
separate notices of appeal, each listing the five trial court docket numbers
associated with the September 24, 2021 order. Accordingly, we deem this
appeal to be compliant with the decision of our Supreme Court in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), as interpreted by this
Court in Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en
banc).
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narcotics (heroin/fentanyl), two counts of criminal use of a communication
facility, seven counts of theft by deception, and three counts of criminal
conspiracy.2 For the reasons that follow, we are constrained to quash the
appeal.
On June 14, 2021 and July 14, 2021, Appellant entered open guilty pleas
to the aforementioned charges. Following the receipt of a pretrial
investigation report, the trial court sentenced Appellant on all charges on
September 24, 2021 to an aggregate term of seven-and-one-half to 15 years
of incarceration. On October 4, 2021, Appellant filed a post-sentence motion.
The trial court denied relief by order entered on October 4, 2021. On
November 5, 2021, Appellant filed an untimely notice of appeal. On November
17, 2021, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days.
Appellant filed a concise 1925(b) statement on December 9, 2021, one day
late. On January 4, 2022, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
On appeal, Appellant presents the following issues for our review:
I. Did the sentencing court err in denying Appellant’s
post[-]sentence motion [by failing to consider] mitigating
factors [and] misapplying the sentencing guidelines,
resulting in an abuse of discretion when it handed down an
aggregate sentence of not less than seven and one[-]half
nor more than fifteen years [of] incarceration?
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2 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 7512, 18 Pa.C.S.A. § 3922, and
18 Pa.C.S.A. § 903, respectively.
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II. Did the sentencing court err in its determination [that]
Appellant [is] ineligibl[e] for participation in the
[Commonwealth’s] drug treatment program?3
Appellant’s Brief at 7 (complete capitalization omitted).
Before we address the merits of Appellant’s appeal, we recognize 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.” Commonwealth
v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000); 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”). If a defendant files a timely
post-sentence motion, the appeal period does not begin to run until the motion
is decided. Pa.R.Crim.P. 720(A)(2)(a); Pa.R.A.P. 903(a). Here, the trial court
imposed judgment of sentence on September 24, 2021 and Appellant filed a
timely post-sentence motion on October 4, 2021. The trial court denied
Appellant’s post-sentence motion on the same day. As such, Appellant had
30 days from October 4, 2021, or until November 3, 2021, to file a notice of
appeal. Appellant, however, did not file his notice of appeal until November
5, 2021 and counsel concedes that it was untimely. See Trial Court Opinion,
1/4/2022, at 6 (Appellant’s notice of appeal “is untimely in that it was filed
thirty-two days after the order of [] court dated October 4, 2021.”); compare
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3 Appellant concedes that “upon careful and further review[,]” his “challenge
to the [trial c]ourt’s determination of ineligibility for the State Drug Treatment
Program [] admittedly lacks merits[.]” Appellant’s Brief at 12; see also id at
27 (“Appellant concedes that this claim does ultimately lack merit.”).
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Appellant’s Brief at 16 (“Counsel [] admits that the notice of appeal was filed
thirty[-]three days after the [s]entencing [c]ourt denied the [p]ost[-s]entence
[m]otion [and] understands that the untimely notice of appeal is jurisdictional
in nature.”). Moreover, we have previously determined:
Time limitations for taking appeals are strictly construed and
cannot be extended as a matter of grace. This Court can raise the
matter sua sponte, as the issue is one of jurisdiction to entertain
the appeal. Absent extraordinary circumstances, this Court has
no jurisdiction to entertain an untimely appeal.
Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014) (internal
citations omitted). An extension of time for filing a notice of appeal is
permitted only in extraordinary circumstances such as fraud or a breakdown
in the operations of the court.4 Id., citing Commonwealth v. Braykovich,
664 A.2d 133 (Pa. Super. 1995); see also Commonwealth v. Williams, 893
A.2d 147, 150 (Pa. Super. 2006) (“[F]ailing to timely file a notice of appeal
without some breakdown in the operation of the court [] does not rise to the
level of extraordinary.”). Finding Appellant failed to demonstrate
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4 In this case, Appellant filed a late notice of appeal without asking the trial
court for nunc pro tunc relief and without offering an excuse to the trial court
for the untimely filing. For the first time on appeal, counsel for Appellant avers
that he contracted Covid-19 during the last week of September 2021, was
bed-ridden, mistakenly computed the filing deadline, and did not check the
on-line docket to view the properly filed order denying post-sentence relief
before filing a late notice of appeal. See Appellant’s Brief at 15-16. Hence,
the trial court did not determine whether the late filing resulted from
extraordinary circumstances. As a reviewing court, we may not make that
determination for the first time on appeal. See Pa.R.A.P. 302(a) (“Issues not
raised in the trial court are waived and cannot be raised for the first time on
appeal.”).
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extraordinary circumstances in this matter, we conclude that this Court does
not have jurisdiction to entertain this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/09/2022
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