J-S67006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMONT JOHNSON :
:
Appellant : No. 779 EDA 2017
Appeal from the Judgment of Sentence January 23, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0008104-2014
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.
MEMORANDUM BY OTT, J.: FILED APRIL 08, 2019
Lamont Johnson appeals from the judgment of sentence imposed on
January 23, 2017, in the Court of Common Pleas of Delaware County. Based
on our review, we remand for an evidentiary hearing concerning the timeliness
of this appeal.
Briefly, we note that, on December 1, 2016, a jury found Johnson guilty
of two drug charges. On January 23, 2017, the trial court subsequently
sentenced him to an aggregate term of 70 to 140 months’ imprisonment. In
late February 2017, Johnson, acting pro se, filed a notice of appeal.1
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Retired Senior Judge assigned to the Superior Court.
1We are unable to ascertain from the record whether trial counsel abandoned
Johnson or Johnson chose to file his own notice of appeal. The record does
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The Commonwealth contends that we should quash the instant appeal
as untimely because Johnson’s 30-day appeal period from the sentence
imposed expired on February 22, 2017, and Johnson did not file his pro se
notice of appeal until February 24, 2017. Johnson, however, takes the
position that he signed his notice of appeal and gave it to prison officials for
mailing on February 22, 2017, and, therefore, is entitled to use that date as
the date of filing pursuant to the “prisoner mailbox rule.”
Under the “prisoner mailbox rule,” we deem a pro se prisoner’s
document filed on the date he delivers it to prison authorities for mailing.
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). See also
Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998) (“[F]or
prisoners proceeding pro se, a notice is deemed filed as of the date it is
deposited in the prison mail system.”).
The Commonwealth argues that the date of signature is not dispositive
of the issue of when Johnson gave the documents to prison officials. The
Commonwealth’s Brief, at 13-14. We agree.
Because Johnson’s pro se notice of appeal was filed outside the thirty-
day period, we directed him to show cause why the appeal should not be
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indicate that Johnson and trial counsel did not have a harmonious relationship.
In any event, we note that, in Commonwealth v. Williams, 151 A.3d 621
(Pa. Super. 2016), a panel of this Court held that we are required to docket
and honor pro se notices of appeal filed by represented criminal defendants.
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dismissed as untimely filed.2 See Order, 6/21/2017. Johnson’s counsel
answered the show cause order, claiming that the appeal was timely under
the “prisoner mailbox rule” because his pro se notice of appeal with
accompanying proof of service were dated February 22, 2017.
Pennsylvania Rule of Appellate Procedure 121 provides, in relevant part:
A pro se filing submitted by a prisoner incarcerated in a
correctional facility is deemed filed as of the date it is delivered to
the prison authorities for purposes of mailing or placed in the
institutional mailbox, as evidenced by a properly executed
prisoner cash slip or other reasonably verifiable evidence of the
date that the prisoner deposited the pro se filing with the prison
authorities.
Pa.R.A.P.121(a). A prisoner bears the burden of proving delivery of the notice
to prison authorities within the prescribed time for its filing. See Jones,
supra at 426. Reasonable verifiable evidence for proving timely delivery
includes, but is not limited to, a Postal Form 3817 certificate of mailing or a
prison “cash slip” noting a prisoner account deduction and the date of mailing.
Id. The court may also consider a prisoner’s affidavit attesting to the date of
deposit, as well as evidence regarding the operating procedures of the mail
delivery service in question. Id.
“Where . . . the facts concerning the timeliness [of the filing] are in
dispute, a remand for an evidentiary hearing may be warranted.” Id. at 426
n.3.
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2 We discharged the show cause order on October 2, 2017, and referred the
issue to the merits panel. See Order, 10/02/2017.
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In the present case, the record does contain a copy of the envelope in
which the prison mailed the notice of appeal, and it is dated February 24,
2017, after the thirty-day period expired. It does not contain a prison cash
slip. Nonetheless, based on the hand-written date of “2/22/2017” on
Johnson’s notice of appeal and proof of service, it is possible that Johnson
placed the pro se documents in the hands of prison officials on that date.
As it cannot be determined on the record before us if Johnson timely
filed his appeal, we remand this case to the trial court to hold an evidentiary
hearing to determine whether Johnson timely delivered his pro se notice of
appeal to prison authorities, and to file a supplemental opinion within 45 days
of the date of the filing of this memorandum.
Case remanded for proceedings consistent with this memorandum.
Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/19
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