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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
PHILLIP GRAYSON :
:
Appellant No. 169 WDA 2017
Appeal from the Judgment of Sentence September 19, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003163-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 20, 2017
Appellant, Phillip Grayson, appeals from the judgment of sentence
entered following his convictions of corruption of minors, indecent assault of
a person less than thirteen years of age, and endangering the welfare of
children.1 We quash this appeal because Appellant filed his notice of appeal
beyond the time period permitted by law.
The question of timeliness of an appeal is jurisdictional.
Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). Pursuant
to Pa.R.A.P. 903, “[T]he 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).
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1 18 Pa.C.S. §§ 6301(a)(i), 3126(a)(7), 4304(a), respectively.
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“[T]ime limitations on the taking of appeals are strictly construed and cannot
be extended as a matter of grace.” Commonwealth v. Valentine, 928 A.2d
346, 349 (Pa. Super. 2007) (quotations and citation omitted). See also
Pa.R.A.P. 105(b) (“T]he court may not enlarge the time for filing a notice of
appeal”).
Pa.R.Crim.P. 720 addresses post-sentence procedures and appeals, and
provides, in relevant part: “If the defendant files a timely post-sentence
motion, the notice of appeal shall be filed … within 30 days of the entry of the
order deciding the motion[.]” Pa.R.Crim.P. 720(A)(2)(a). The comment to
Rule 720 instructs that, “[u]nder paragraph (B)(3)(a) [regarding time limits
for the court’s decision on a post sentence motion], on the date when the
court disposes of the motion … the judgment becomes final for purposes of
appeal.” Pa.R.Crim.P. 720 cmt. The comment also directs: “If the trial judge
decides the motion within the time limits of this rule, the judge may grant
reconsideration on the post[-]sentence motion pursuant to 42 Pa.C.S. § 5505
or Pa.R.A.P. 1701.1 [sic], but the judge may not vacate the sentence pending
reconsideration.” Id. (citing Pa.R.Crim.P. 720(B)(3)).
Regarding the effect of the filing of motions for reconsideration on the
tolling of an appeal period, we are mindful of the following:
[T]he trial court must expressly grant reconsideration within thirty
days of entry of its order. Pa.R.A.P. 1701. Failure to expressly
grant reconsideration within the time set by the rules for filing an
appeal will cause the trial court to lose its power to act on the
application for reconsideration. Therefore, as the comment to
Pa.R.A.P. 1701 explains, although a party may petition the court
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for reconsideration, the simultaneous filing of a notice of appeal is
necessary to preserve appellate rights in the event that either the
trial court fails to grant the petition expressly within 30 days, or it
denies the petition. Moreover, we have consistently held that an
appeal from an order denying reconsideration is improper and
untimely.
Moir, 766 A.2d at 1254 (citations to case law and quotation marks omitted).
Our review of the certified record reflects that, pursuant to an
agreement, on September 19, 2016, Appellant entered a guilty plea to the
crimes stated above.2 On that date, the trial court sentenced Appellant to
serve an aggregate term of probation of twelve years with conditions
including: no contact with the victim, no contact with any minors, no
possession of sexual paraphernalia, and no internet access. On September
28, 2016, Appellant filed a post-sentence motion seeking to withdraw his
guilty plea. The trial court held a hearing, and in an order dated December 7,
2016, and filed on December 12, 2016, it denied the post-sentence motion.
Appellant filed a motion for reconsideration on December 16, 2016, which was
denied in an order dated January 6, 2017, and filed on January 10, 2017.
Appellant filed his notice of appeal on January 20, 2017.
Under Pa.R.Crim.P. 720, the thirty-day appeal period began to run on
December 12, 2016, when the trial court denied the post-sentence motion.
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2Under the plea agreement, charges of aggravated indecent assault of a child
(18 Pa.C.S. §3125(b)) and unlawful contact with minors (18 Pa.C.S. §6318(i))
were withdrawn.
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In order to be timely, Appellant’s notice of appeal should have been filed on
or before January 11, 2017. However, the notice of appeal was filed on
January 20, 2017. Therefore, this appeal is patently untimely.3
However, “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.” Commonwealth v. Patterson, 940
A.2d 943, 498 (Pa. Super. 2007). A breakdown in the judicial system occurs
where an administrative body acts negligently or improperly or misleads a
party. Union Electric Corp. v. Board of Property Assessment, Appeals
& Review of Allegheny County, 746 A.2d 581, 584 (Pa. 2000). Negligence
of an appellant, an appellant’s counsel, or counsel’s agent is not a sufficient
excuse. Bass v. Commonwealth, 401 A.2d 1133, 1135 (Pa. 1979).
In an effort to excuse the untimely filing of this appeal, the learned
dissent concludes that the trial court did not adhere to the mandates of
Pa.R.Crim.P. 704(C)(3)(a), which require that a trial judge determine on the
record that a defendant has been advised of his rights to file a post-sentence
motion and to appeal, and their applicable time frames. However, we observe
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3 Although Appellant filed a motion for reconsideration of the December 12,
2016 order denying his post-sentence motion, the trial court did not expressly
grant reconsideration. Therefore, the appeal period was not tolled. See Moir,
766 A.2d at 1254 (explaining appeal period is only tolled where the court
expressly grants reconsideration within thirty days of its order).
Consequently, Appellant’s notice of appeal was untimely.
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that the comment to Rule 704 permits the use of a written colloquy to satisfy
the dictates of paragraph (C)(3).
Our review of the record reflects that the trial court did meet this
requirement of Rule 704. Specifically, the following transpired on September
19, 2016:
THE COURT: You filled out the Guilty Plea Explanation of
Defendant’s Rights. Did you read, understand and answer all the
questions?
[Appellant]: Yes, ma’am.
THE COURT: Did you do so while your attorney was present?
[Appellant]: Yes, ma’am.
N.T., 9/19/16, 4.
Likewise, our review of the certified record reveals that, on September
19, 2016, Appellant completed and signed, along with his defense counsel, an
eleven-page “guilty plea explanation of defendant’s rights” form. Guilty Plea
Explanation of Defendant’s Rights, 9/19/16, at 1-11. This form included highly
specific details pertaining to Appellant’s rights to file a post-sentence motion
and to appeal, the time within which Appellant must exercise those rights, and
of the right to the assistance of counsel in the preparation of the motion and
appeal. Id. at 7-8.
In addition, the following transpired before the close of the proceeding:
THE COURT: . . . Do you understand the proceedings and your
appellate rights?
THE DEFENDANT: Yes, ma’am.
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N.T., 9/19/16, at 6. Accordingly, pursuant to Pa.R.Crim.P. 704(C)(3)(a), the
trial judge determined on the record that Appellant had been properly advised
of his pertinent appellate rights. Thus, the mandates of Rule 704 have been
satisfied.
The dissent also takes umbrage with the contents of the order denying
Appellant’s timely filed post-sentence motion because the order did not
provide Appellant additional notice of his appellate rights pursuant to
Pa.R.Crim.P. 720(B)(4)(a). The dissent correctly notes that we have
concluded that a trial court’s failure to comply with [Pa.R.Crim.P.] 720
constitutes a breakdown that excuses the untimely filing of [an a]ppellant’s
notice of appeal.” Patterson, 940 A.2d at 500. In Patterson, the trial court
failed to comply with Rule 720(B)(4) and advise the appellant of the relevant
deadlines for appeal purposes following the disposition of his untimely post-
sentence motion. Because the untimely post-sentence motion did not toll the
appeal period, the appellant in Patterson then had approximately two weeks
in which to file a timely appeal following the denial of his untimely post-
sentence motion. Accordingly, we found that the trial court’s failure to comply
with Rule 720(B)(4) constituted a breakdown so as to excuse the appellant’s
untimely filing of his notice of appeal.
Instantly, however, our review of the certified record reflects that
Appellant filed a timely post-sentence motion and appended a proposed order
to that motion, which did not include the relevant language set forth under
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Rule 720. The trial court, in denying Appellant’s post-sentence motion,
utilized the proposed order that Appellant appended to his post-sentence
motion. See Post-Sentencing Motion, 9/28/16, at 5, Order 12/12/16.
Appellant then had a full thirty days in which to file a timely notice of appeal.
Rather than doing so, however, Appellant filed a motion for reconsideration
that unsuccessfully tolled the appeal period. We fail to see how the trial court’s
action in utilizing the proffered order presented by Appellant in his post-
sentence motion, and filing it on December 12, 2016, amounts to evidence of
fraud or a breakdown of court processes.
Hence, we conclude that we are without jurisdiction to entertain this
matter and are constrained to quash this appeal. However, our conclusion in
no way prejudices Appellant’s ability to seek a nunc pro tunc direct appeal
from the judgment of sentence, or to file a petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S §§ 9541-9546.
Appeal quashed.
Judge Musmanno joins the Memorandum.
P.J.E. Bender files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 10/20/2017
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