J-S38010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID PETKO :
:
Appellant : No. 272 EDA 2017
Appeal from the Order Entered November 21, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000781-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 30, 2017
Appellant, David Petko, appeals from the order entered in the Monroe
County Court of Common Pleas, which denied his most recent motion for
waiver or reduction of the court costs and fines imposed as a result of his
July 8, 2014 conviction and sentence for one count of driving under the
influence of a controlled substance (“DUI”), as a second offense.
The trial court opinion sets forth the relevant facts and procedural
history of this case as follows:
On July 8, 2014, [Appellant] entered a nolo contendere
plea to Amended Count I, DUI, general impairment as a
second offense, and was sentenced to a period of
incarceration and payment of fines and costs. On October
19, 2016, [Appellant] filed an “Expungement of All Cost
(sic) and Fines.” In that filing, [Appellant] mostly raised
issues with the arrest and conviction. He also raised an
issue of health insurance allegedly paying some of the DUI
testing costs; however, he attaches no proof from his
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*Former Justice specially assigned to the Superior Court.
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alleged insurance carrier. In fact, the record of Pocono
Medical Center purports to be a payment made by the
“Special Programs Insurance Payment” believed to be
administered by the County for the Office of the District
Attorney. Appellant's request for "Expungement of Cost
and Fines" was denied by Order dated October 20, 2016.
No appeal was taken.
[Appellant] next filed a “Waiver of Court Cost (sic) and
Fines Under 234 Pa.Code Rule 456 and 42 Pa.C.S.A. 9730
(b)(3)” on November 18, 2016. Appellant again contended
that he should not have entered a plea and was coerced or
misled in doing so. Appellant also contended he was
without funds to pay his costs and fines and attached as
proof copies of his SSD, Medical Assistance, and other
benefits. [Appellant] requested community service in lieu
of his fines and costs. The request was denied by Order
dated November 21, 2016.
[Appellant] then filed his Petition for Reconsideration on
November 30, 2016. He again stated he was without
funds, and was requesting a modification to allow
community service in lieu of costs and fines due. An Order
was entered December 2, 2016 denying the relief
requested, which [Appellant] has now appealed.
(Trial Court Opinion, January 18, 2017, at 1-2). Appellant filed his notice of
appeal on January 3, 2017. The court ordered Appellant on January 4,
2017, to file a concise statement of errors complained of on appeal, per
Pa.R.A.P. 1925(b). Appellant complied on January 11, 2017.
Appellant raises the following issues on appeal:
[WHETHER THE TRIAL COURT ERRED WHEN IT DID] NOT
HEAR THE TRIAL SET AND [ACCEPTED] A GUILTY PLEA?
[WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO
REMOVE DEFENSE COUNSEL AND APPOINT NEW COUNSEL
FOR APPELLANT]?
[WHETHER THE TRIAL COURT ERRED WHEN IT DENIED
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APPELLANT’S PETITIONS TO WAIVE COURT COSTS AND
FINES]?
(Appellant’s Brief at 6).
As an initial matter, we observe a notice of appeal must be filed within
thirty (30) days after the entry of the order from which the appeal is taken.
Pa.R.A.P. 903(a). The notice of appeal shall be filed with the clerk of the
trial court; “[u]pon receipt of the notice of appeal the clerk shall immediately
stamp it with the date of receipt, and that date shall constitute the date
when the appeal was taken, which date shall be shown on the docket.”
Pa.R.A.P. 905(a)(3). Time limitations for taking appeals are strictly
construed and cannot be extended as a matter of grace. Commonwealth
v. Valentine, 928 A.2d 346 (Pa.Super. 2007). This Court can raise the
matter sua sponte, as the issue is one of jurisdiction to entertain the appeal.
Id. This Court has no jurisdiction to entertain an untimely appeal.
Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super. 2007), appeal
denied, 599 Pa. 691, 960 A.2d 838 (2008). Generally, an appellate court
may not enlarge the time for filing a notice of appeal. Pa.R.A.P. 105(b).
Extension of the appeal filing period is permitted only in extraordinary
circumstances, such as fraud or some breakdown in the court’s operation.
Commonwealth v. Braykovich, 664 A.2d 133 (Pa.Super. 1995), appeal
denied, 544 Pa. 622, 675 A.2d 1242 (1996).
When an appellant files a motion for reconsideration of a final order,
he must file a protective notice of appeal to ensure preservation of his
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appellate rights, in the event the court does not expressly grant
reconsideration within the thirty-day appeal period. Commonwealth v.
Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000). In other words, the mere
filing of a motion for reconsideration does not toll the thirty-day appeal
period:
It is well-settled that, upon the filing of a motion for
reconsideration, a trial court's action in granting a rule to
show cause and setting a hearing date is insufficient to toll
the appeal period. Rather, the trial court must expressly
grant reconsideration within thirty days of entry of its
order.
Id. (internal citations omitted).
Moreover, “we have consistently held that an appeal from an order
denying reconsideration is improper and untimely.” Id. In this context, the
appeal does not lie from the order denying reconsideration; filing an appeal
from that order is insufficient to preserve appellate rights, as “we will not
permit appellant to do indirectly that which he cannot do directly.”
Provident Nat. Bank v. Rooklin, 378 A.2d 893, 897 (Pa.Super. 1977).1
Instantly, Appellant filed his most recent motion for waiver or
reduction of court costs and fines on November 18, 2016. The court denied
relief on November 21, 2016. Appellant filed a motion for reconsideration on
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1
Generally, the Rules of Appellate Procedure apply to criminal and civil
cases alike; the principles enunciated in civil cases construing those rules
are equally applicable in criminal cases. See Commonwealth v.
Levanduski, 907 A.2d 3, 29 n.8 (Pa.Super. 2006) (en banc) (stating rules
of appellate procedure apply to criminal and civil cases alike).
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November 30, 2016, and the court denied reconsideration on December 2,
2016. Appellant’s current appeal did not lie from the December 2 nd order
denying reconsideration. See Provident Nat. Bank, supra. Instead,
Appellant had only until December 21, 2016 to file a notice of appeal from
the November 21st final order denying relief. See Moir, supra. Appellant
did not file his notice of appeal until January 3, 2017, which is patently
untimely.
Moreover, the record contains no evidence of extraordinary
circumstances such as a court holiday or closing, or a breakdown in the
operations of the court, to excuse Appellant’s untimely filing. See
Braykovich, supra (stating extension of appeal filing period is permitted
only in extraordinary circumstances, such as fraud or some breakdown in
court’s operation). Therefore, Appellant’s failure to file the notice of appeal
within thirty days of the November 21, 2016 order denying his motion for
waiver or reduction of court costs and fines divested this Court of appellate
jurisdiction. See Pa.R.A.P. 903; Patterson, supra. Accordingly, we
dismiss this appeal as untimely.
Appeal dismissed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2017
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