J-A13033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLIFFORD BRANDON REPOTSKI :
:
Appellant : No. 2788 EDA 2016
Appeal from the Judgment of Sentence July 26, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0001643-2011
BEFORE: LAZARUS, OTT, and FITZGERALD,* JJ.
JUDGMENT ORDER BY FITZGERALD, J.: FILED MAY 01, 2017
Appellant, Clifford Brandon Repotski, appeals pro se from the
judgment of sentence entered in the Montgomery County Court of Common
Pleas. Because Appellant has filed an untimely notice of appeal to this
Court, we quash.
The trial court summarized the procedural history of this case as
follows:
On March 14, 2012, [Appellant] pleaded guilty to four
counts of Sexual Abuse of Children, Possession of child
Pornography in violation of 18 Pa.C.S. § 6312(d)[ ]. On
June 13, 2012, this court sentenced [Appellant] to, inter
alia, a six-month probation and a 10-year registration
requirement under Megan’s Law. [Appellant’s] judgment
of sentence was affirmed by the Superior Court on
December 12, 2012.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On March 4, 2016, [Appellant] received a notice of
violation of his probation. The Notice was signed by
[Appellant] that date and docketed on April 4, 2016. A
Gagnon[1] II hearing was held on July 26, 2016.
[Appellant] was found to be in violation of his probation
and sentenced to time served to twenty-three (23)
months, a consecutive three year probation and a
concurrent 5 year probation. On or about August 4, 2016,
[Appellant] was paroled from the County jail. On August
29, 2016, [Appellant] mailed a pro se notice of appeal
directly to the Superior Court. On August 30, 2016, the
Superior Court forwarded the notice, unfiled, to the
Montgomery County Clerk of Court where it was docketed
on September 2, 2016.
Trial Ct. Op., 9/23/16, at 1-2 (footnotes omitted).
As a prefatory matter,
we must address the timeliness of this appeal as it
implicates our jurisdiction. Commonwealth v. Yarris, [ ]
731 A.2d 581, 587 ([Pa.] 1999) (appellate courts may
consider the issue of jurisdiction sua sponte ). Jurisdiction
is vested in the Superior Court upon the filing of a timely
notice of appeal. Commonwealth v. Miller, 715 A.2d
1203, 1205 (Pa. Super. 1998).
Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc).
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). Pennsylvania Rule
of Appellate Procedure 105 provides that “the court may not enlarge the
time for filing a notice of appeal . . . .” Pa.R.A.P. 105(b). However, the
official note to Rule 105 carves out an exception to this rule: “[s]ubdivision
(b) of this rule is not intended to affect the power of a court to grant relief in
____________________________________________
1
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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the case of fraud or breakdown in the processes of a court.” Pa.R.A.P. 105,
note; see also Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa.
Super. 2007) (“before our Court may quash [an] appeal, we must determine
whether an administrative breakdown in the court system excuses the
untimely filing of the notice of appeal”).
In the case sub judice, Appellant stipulated to being in violation of his
probation. See Probation/Parole Stipulation Colloquy, 7/26/16. Sentence
was imposed on July 26, 2016. Appellant had until August 25, 2016, to file
his notice of appeal. Instantly, the certified record reveals that Appellant (1)
mailed his notice of appeal to this Court on August 29th, (2) it was filed in
this Court on August 30th,2 and (3) it was docketed in Montgomery County
on September 2, 2016. Therefore, the notice of appeal was untimely. We
discern no fraud or breakdown in the court system. As the untimeliness of
this appeal deprives this Court of jurisdiction, we quash. See Green, 862
A.2d at 615.
Appeal quashed.
____________________________________________
2
We note that in the criminal docketing statement, Appellant indicates the
notice of appeal was filed on August 30, 2016. See Appellant Clifford
Brandon Repotski’s Response to Appellee[’]s Opinion of September 23, 2016,
10/3/16, at 16.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2017
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