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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEONTAE ALLEN MCDOWELL :
:
Appellant : No. 391 WDA 2017
Appeal from the PCRA Order January 18, 2017
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000870-2015,
CP-04-CR-0000874-2015
BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 12, 2018
Appellant, Deontae Allen McDowell, appeals pro se from the order
denying his petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we quash.
The PCRA court summarized the factual and procedural history of this
case as follows:
On June 24, 201[5], pursuant to a plea agreement,
[Appellant] entered a guilty plea in Case No. 870 of 2015 to one
count of Persons Not to Possess a Firearm under 18 Pa.C.S.A.
§ 6105(a)(1), and a guilty plea in Case No. 874 of 2015 to
another count of Persons Not to Possess a Firearm under 18
Pa.C.S.A. § 6105(a)(1). The [c]ourt accepted [Appellant’s] plea
and imposed in each case a sentence of five years to ten years
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in a state correctional facility. The sentences were within the
standard range and were run concurrently.[1]
On July 18, 2016, [Appellant] filed a PCRA [p]etition in the
above-captioned cases.[2] On July 19, 2016 the [c]ourt entered
an Order appointing counsel for [Appellant]. A Motion for
Extension of Time was granted by the [c]ourt on September 7,
2016. Counsel for [Appellant] then filed a Motion to Withdraw
from PCRA on Basis of No Merit on November 4, 2016, and an
Amended Motion on November 23, 2016. The [c]ourt entered a
Preliminary Order and Notice of Court on December 2, 2016,
allowing counsel permission to withdraw, notifying [Appellant] of
the [c]ourt’s intention to dismiss the PCRA Petition without a
hearing based upon the reasoning stated in counsel’s No Merit
Letter, and informing [Appellant] of his right to file a written
response by December 22, 2016. On [December] 28,
[Appellant] filed his written response, styled as an Objection to
Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907.1 On
January 18, 2017, the [c]ourt entered an Order Dismissing PCRA
Petition Without Hearing. In its Order, the [c]ourt explained its
reasoning for dismissing [Appellant’s] PCRA [petition].
[Appellant] then filed a Notice of Appeal.2 On March 3, 2017,
the [c]ourt entered an Order directing [Appellant] to file a
Concise Statement of Matters Complained of on Appeal. The
deadline for [Appellant] to file his Concise Statement was
twenty-one days later, i.e., Friday, March 24, 2017. [Appellant],
however, has failed to file any form of Concise Statement in this
case. The [c]ourt now enters this Opinion addressing the issues
raised by [Appellant].
1 Although time-stamped by the Clerk of Court when
received on December 28, 2016, [Appellant’s]
written response is dated December 22, 2016.
2 The [c]ourt’s Order dismissing [Appellant’s] PCRA
Petition was entered on January 18, 2017.
[Appellant’s] Notice of Appeal was time-stamped by
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1 Appellant did not file a direct appeal.
2As the PCRA court explained in its Pa.R.A.P. 1925(a) opinion, Appellant’s
PCRA petition was timely filed. PCRA Court Opinion, 4/3/17, at 4 n.3.
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the Clerk of Courts on February 24, 2017, beyond
the thirty day jurisdictional limitation imposed by
Pa.R.A.P. 903(a). [Appellant’s] Notice of Appeal,
though, is dated February 17, 2017, which is just
within the required time frame. Thus, pursuant to
the “prisoner mailbox rule,” [Appellant’s] Notice of
Appeal appears to be timely filed. See, e.g., Com. v.
Jones, 549 Pa. 58 64, 700 A.2d 423, 426 (1997);
Com. v. Ray, 2016 PA Super 37, 134 A.3d 1109,
1111, n.2. Otherwise, his appeal would be untimely
and the Superior Court would be without jurisdiction
to consider it. Com. v. Moir, 2000 PA Super 403, ¶
3, 766 A.2d 1253, 1254 (“The 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.”) (external citation
omitted).
Additionally, although [Appellant’s] Notice of Appeal
did not contain either the required fee or a Petition
to Proceed in Forma Pauperis, this does not
necessarily affect the jurisdiction of the appellate
court, but rather allows it to take any appropriate
action. See, e.g., Pa.R.A.P. 902 (“Failure of an
appellant to take any step other than the timely filing
of a notice of appeal does not affect the validity of
the appeal, but it is subject to such action as the
appellate court deems appropriate. . . ”); First Union
Nat. Bank v. F.A. Realty Inv’rs Corp., 2000 PA Super
360, ¶ 9, 812 A.2d 719, 722-23 (“[T]he perfection of
the appeal does not depend in any way on the
payment of the filing fee.”).
PCRA Court Opinion, 4/3/17, at 1-2. The PCRA court filed its opinion
pursuant to Pa.R.A.P. 1925(a) on April 3, 2017. On April 13, 2017, the
PCRA court filed a supplemental Pa.R.A.P. 1925(a) opinion, indicating that
on April 12, 2017, the Clerk of Courts of Beaver County received a
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statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)
from Appellant.
Appellant presents the following issues for our review:
I. Did the [PCRA] Court err in dismissing [Appellant’s]
[PCRA] Petition without a hearing when the [c]ourt failed
to apply the “void ab initio” doctrine to the mandatory
minimum statute found at 42 Pa.C.S.A. § 9712.1 which
was found to be in violation of Alleyne v. United States,
133 S.Ct. 2151 (2013) and void by the Pennsylvania
Supreme Court?
II. Did the [PCRA] [c]ourt err in dismissing [Appellant’s]
[PCRA] Petition without a hearing when the [c]ourt
misapplied the qualification of “firearm” to a .36 caliber
percussion cap revolver found within [Appellant’s]
possession when not being utilized in commission of a
“crime”?
III. Did the [PCRA] [c]ourt err in dismissing [Appellant’s]
[PCRA] Petition without a hearing when Counsel failed to
provide effective assistance of Counsel during [Appellant’s]
Plea Colloquy?
Appellant’s Brief at 5.
Our standard of review of an order denying relief under the PCRA
requires us to determine whether the decision of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014). “The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014).
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As a prefatory matter, we must determine whether the instant appeal
is timely. Pursuant to Pa.R.A.P. 903(a), “[T]he notice of appeal...shall be
filed within 30 days after the entry of the order from which the appeal is
taken.” It is well settled that the timeliness of an appeal implicates our
jurisdiction and may be considered sua sponte. Commonwealth v.
Nahavandian, 954 A.2d 625, 629 (Pa. Super. 2008). “Jurisdiction is vested
in the Superior Court upon the filing of a timely notice of appeal.” Id. Time
limitations on the taking of appeals are strictly construed and cannot be
extended as a matter of grace. Commonwealth v. Burks, 102 A.3d 497,
500 (Pa. Super. 2014).
In the instant matter, Appellant is a pro se prisoner. The “prisoner-
mailbox rule” provides that “in the interest of fairness, a pro se prisoner’s
appeal shall be deemed to be filed on the date that he delivers the appeal to
prison authorities and/or places his notice of appeal in the institutional
mailbox.” Commonwealth v. Chambers, 35 A.3d 34, 39 (Pa. Super.
2011) (quoting Smith v. Pennsylvania Board Of Probation and Parole,
683 A.2d 278, 281 (Pa. 1996)).
To be timely, Appellant needed to file his notice of appeal by Friday,
February 17, 2017.3 A review of the certified record reflects that Appellant
dated the notice of appeal February 17, 2017. The envelope in which
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3 The PCRA court dismissed Appellant’s petition on January 18, 2017.
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Appellant sent the notice of appeal, however, was date-stamped as
deposited with inmate mail on February 21, 2017. Accordingly, we conclude
that Appellant’s notice of appeal was untimely filed. See Chambers, 35
A.3d at 39 (“a pro se prisoner’s appeal shall be deemed to be filed on the
date that he delivers the appeal to prison authorities and/or places his notice
of appeal in the institutional mailbox.”).4 Because Appellant’s notice of
appeal was untimely filed, we lack jurisdiction over this matter and are
constrained to quash Appellant’s appeal. Nahavandian, 954 A.2d at 629.
Moreover, even if Appellant had timely filed his notice of appeal, his
issues would be waived for failure to file a timely Pa.R.A.P. 1925(b)
statement. Where a trial court orders an appellant to file a Pa.R.A.P.
1925(b) statement, the appellant must comply in a timely manner.
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005).
[F]ailure to comply with the minimal requirements of
Pa.R.A.P.1925(b) will result in automatic waiver of the issues
raised. Specifically, Pa.R.A.P.1925(b) requires that an appellant
“file of record in the lower court and serve on the trial judge a
concise statement of the matters complained of on the appeal no
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4 We note that while acknowledging that the envelope carrying the notice of
appeal was dated February 21, 2017, the PCRA court found the notice of
appeal to be timely, explaining that this was “a reasonable timeframe to
account for the Department of Corrections to mail [Appellant’s] Notice of
Appeal and thus satisfy the prisoner mailbox rule with regard to whether
[Appellant’s] Notice of Appeal was timely filed.” PCRA Court Supplemental
Opinion, 4/13/17, at 2.
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later than [twenty-one]5 days after entry” of an order requesting
the statement.
Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005).
The record reflects that the trial court issued an order on March 3,
2017, directing Appellant to submit a Rule 1925(b) statement. Accordingly,
Appellant’s Pa.R.A.P. 1925(b) statement was due on Friday, March 24, 2017.
On April 3, 2017, the PCRA court filed an opinion pursuant to Pa.R.A.P.
1925(a), indicating that it had not received Appellant’s Pa.R.A.P. 1925(b)
statement and concluding that Appellant’s issues were waived.
On April 13, 2017, the PCRA court filed a Supplemental Rule 1925(a)
Opinion. In it, the PCRA court explained that “[o]n April 12, 2017, nine days
after the [c]ourt entered its Rule 1925(a) Opinion and served a copy on
[Appellant], the Clerk of Courts received a Statement of Matters Complained
of on Appeal from [Appellant].” PCRA Court Opinion, 4/13/17, at 2. The
PCRA court again concluded that Appellant’s Pa.R.A.P. 1925(b) statement
was untimely filed and that Appellant’s claims on appeal should be
dismissed. Id. at 3-5.
The record reflects that although Appellant’s Pa.R.A.P. 1925(b)
statement is dated March 23, 2017, the date-stamp on the envelope shows
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5 The Supreme Court amended Pa.R.A.P. 1925 in 2007. The current version
extends the original fourteen–day filing period of the statement to a
minimum twenty-one–day filing period and grants the judge, upon
application of the appellant and for good cause shown, authority to enlarge
the time period initially specified, or, in extraordinary cases, to allow for
filing of a statement nunc pro tunc. Pa.R.A.P. 1925, note.
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that the document was placed in inmate mail on April 7, 2017. Accordingly,
pursuant to the prisoner mailbox rule, the Pa.R.A.P. 1925(b) statement is
deemed filed on April 7, 2017. As noted, pursuant to the PCRA court’s
March 3, 2017 order, Appellant’s Pa.R.A.P. 1925(b) statement was due on
March 24, 2017. Thus, Appellant failed to file his statement within twenty-
one days of the date of the PCRA court’s order. Pa.R.A.P. 1925(b). Due to
Appellant’s failure to timely submit a Rule 1925(b) statement, we conclude
that any issues he wished to raise on appeal have been waived. See
Schofield, 888 A.2d at 774 (where the pro se appellant’s Pa.R.A.P. 1925(b)
statement was not timely filed, the appellant’s issues were waived).
Accordingly, even if Appellant had timely appealed the order denying his
PCRA petition, we would have concluded that the issues he attempts to raise
on appeal would be waived for failure to timely file his Pa.R.A.P. 1925(b)
statement.
For the reasons set forth above, we conclude that Appellant’s appeal
was untimely. Because the appeal was untimely, we are constrained to
quash the appeal. Nahavandian, 954 A.2d at 630.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2018
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