Opinion
J-S10040-17 No. 2468 EDA 2016
05-09-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JUSTIN CORLISS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 21, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000743-1997 BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J. MEMORANDUM BY SOLANO, J.:
Pro se Appellant Justin Corliss appeals from the order denying his serial Post Conviction Relief Act ("PCRA") petition as untimely. The Commonwealth has filed a Motion to Quash this appeal. We affirm the PCRA court's order and deny the Commonwealth's motion as moot.
We recently summarized the procedural history of this case:
On August 20, 1998, after a jury found Appellant guilty of statutory sexual assault, aggravated indecent assault, indecent assault, and corruption of minors, the trial court imposed a sentence of four to ten years of incarceration. This Court affirmed the judgment of sentence on direct appeal, and Appellant's subsequent PCRA petitions were unsuccessful. Appellant was released from prison in 2008, having completed the full term of his sentence.Commonwealth v. Corliss , 709 EDA 2014, at 1 (Pa. Super. Dec. 4, 2014) (unpublished memorandum), appeal denied , 117 A.3d 295 (Pa. 2015). On August 7, 2013, Appellant filed a counseled petition for a writ of coram nobis. The PCRA court treated that petition as an untimely PCRA petition and dismissed it for lack of jurisdiction. We affirmed, id. at 2, and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal.
On June 3, 2016, Appellant filed the instant pro se "Nunc Pro Tunc Petition for Post-Conviction Relief," in which he alleged that his court-appointed appellate counsel was not competent to represent him due to a conflict of interest. On June 21, 2016, the PCRA court denied the petition as untimely. On July 20, 2016, Appellant filed a motion for reconsideration and a notice of appeal. On July 21, 2016, the PCRA court denied the motion for reconsideration and struck the notice of appeal. Appellant filed another notice of appeal on August 5, 2016.
The PCRA court did not issue a notice pursuant to Pa.R.Crim.P. 907 before denying relief. However, Appellant has not raised this issue on appeal, so it is waived. See Commonwealth v. Zeigler , 148 A.3d 849, 851 n.2 (Pa. Super. 2016). "Moreover, failure to issue [a] Rule 907 notice is not reversible error where the record is clear that the petition is untimely." Id.
The docket entry for July 20, 2016 includes only the motion for reconsideration. However, the July 20 notice of appeal is in the certified record, and the trial court acknowledged its filing.
On October 4, 2016, this Court issued an order directing Appellant to show cause why his appeal should not be quashed as untimely. On October 14, 2016, Appellant filed a response. Thereafter, we discharged the show-cause order and deferred resolution of the timeliness issue to this panel.
In this appeal, Appellant presents the following issue:
Did the lower court err and abuse its discretion in refusing to conduct an evidentiary hearing concerning [appellate counsel's] conflict of interest and divided loyalties when [Appellant] is able to demonstrate prejudice derived therefrom that abrogated his constitutional right to counsel and a direct appeal resulting in a manifest miscarriage of justice due to the presence of exculpatory DNA evidence (having forever been misrepresented and otherwise ignored by the lower court) where, under lesser circumstances, this Court reversed, in Com. v. Williams, 814 A.2d 739, 2002?Appellant's Brief at 7.
Timeliness of Appeal
As an initial matter, we must determine whether Appellant filed a timely appeal. We may address this issue sua sponte because if a notice of appeal is not timely filed, this Court lacks jurisdiction. Commonwealth v. Cooper , 710 A.2d 76, 78 (Pa. Super. 1998).
Generally, a notice of appeal must be "filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). If a trial court expressly grants reconsideration of an appealable order within that 30 days, an appeal may not be filed until the trial court enters a new order disposing of the case on reconsideration. See Pa.R.A.P. 1701(b)(3). In the meantime, any notice of appeal entered from the first dispositive order is rendered inoperative. Id. The mere filing of a motion for reconsideration does not toll the appeal period. Moore v. Moore , 634 A.2d 163, 167 (Pa. 1993). Because of the confusion engendered by this rule, the Official Note to Rule 1701 advises:
The better procedure under this rule will be for a party seeking reconsideration to file an application for reconsideration below and a notice of appeal, etc. If the application lacks merit the trial court or other government unit may deny the application by the entry of an order to that effect or by inaction. The prior appeal paper will remain in effect, and appeal will have been taken without the necessity to watch the calendar for the running of the appeal period.Pa.R.A.P. 1701 Note.
Here, Appellant followed the advice in Rule 1701's Official Note by timely filing both a motion for reconsideration and a notice of appeal on July 20, 2016 — within 30 days of the PCRA court's June 21, 2016 order dismissing Appellant's PCRA petition. Under Rule 1701, when the PCRA court denied reconsideration, the prior notice of appeal should have remained in effect. See Pa.R.A.P. 1701 Note. However, the PCRA court inexplicably struck Appellant's July 20, 2016 notice of appeal and stated in its July 21, 2016 order that "[t]he time in which to file a Notice of Appeal begins to run anew after entry of this decision on reconsideration." Order, 7/21/16. Understandably, Appellant then followed the guidance of this order and filed a new notice of appeal on August 5, 2016.
The PCRA court's July 21, 2016 order was in error. Upon the denial of reconsideration, the appealable order remained the June 21, 2016 order of dismissal, not the PCRA court's order denying reconsideration. See Pa.R.A.P. 1701(b)(3) & Note. Appellant's August 5, 2016 notice of appeal therefore was untimely because it was filed more than 30 days after the June 21, 2016 dismissal order. Nevertheless, we will not quash Appellant's appeal. Appellant's untimeliness is the result of the trial court's erroneous striking of Appellant's valid July 20, 2016 notice of appeal and erroneous advice in its July 21 order. Because those errors constitute a breakdown in the judicial process, we will consider Appellant's appeal timely. See Commonwealth v. Coolbaugh , 770 A.2d 788, 791 (Pa. Super. 2001) (declining to quash appeal where trial court misstated appeal period).
Timeliness of Appellant's PCRA Petition
The PCRA court dismissed Appellant's petition as untimely.
This Court's standard of review regarding an order dismissing a petition under the PCRA is to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.Commonwealth v. Hill , 149 A.3d 362, 364-65 (Pa. Super. 2016) (citation and internal quotation marks omitted).
We have explained:
The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Hernandez , 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment is final unless the petition alleges and the petitioner proves one of the three exceptions to the time limitations for filing the petition set forth in Section 9545(b)(1) of the statute. See 42 Pa.C.S. § 9545(b).Commonwealth v. Furgess , 149 A.3d 90, 92 (Pa. Super. 2016) (footnote omitted).
We have reviewed Appellant's brief, the certified record, the relevant law, and the opinion of the able PCRA court judge, the Honorable David J. Williamson. We discern no error in the PCRA court's determination and conclude that Judge Williamson's opinion, entered on June 21, 2016, ably addressed the untimeliness of Appellant's PCRA petition. See Hill , 149 A.3d at 364-65. Therefore, we affirm on the basis of Judge Williamson's well-reasoned opinion and adopt it as our own. In the event of further proceedings that reference this Court's memorandum, the parties shall attach a copy of the PCRA court's June 21, 2016 opinion.
The Commonwealth has moved to quash this appeal, arguing that Appellant is ineligible for PCRA relief because he is no longer serving a sentence of imprisonment, probation, or parole for the crimes at issue, see 42 Pa.C.S. § 9543(a), and that the trial court lacked jurisdiction to consider Appellant's PCRA petition because the petition was untimely, see 42 Pa.C.S. § 9545(b). Because we are affirming for reasons that are encompassed within the Commonwealth's second argument for quashal, the Commonwealth's motion to quash is denied as moot. --------
Motion to quash denied. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/9/2017
Image materials not available for display.