J-A18016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM JAVONTAY DEBOLD                    :
                                               :
                       Appellant               :   No. 540 WDA 2018

                  Appeal from the PCRA Order March 26, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0008172-2014


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 10, 2019

        Appellant William Javontay Debold appeals from the order dismissing

his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We are constrained to quash this appeal because the

PCRA petition was filed prematurely before the trial court. Accordingly, we

lack jurisdiction to consider the appeal of the trial court’s dismissal of the PCRA

petition.

        On August 1, 2014, Appellant was charged with one count of possession

of firearm prohibited and one count of firearms not to be carried without a

license.1   Appellant, who was represented by Rebecca Hudock, Esq. (trial

counsel), signed a written guilty plea colloquy and entered a guilty plea on

both counts on February 12, 2015. That same day, the trial court sentenced

____________________________________________


1   18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1).
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Appellant to a term of four to eight years’ incarceration for possession of

firearm prohibited and no further penalty for firearms not to be carried without

a license.

      On February 13, 2015, Appellant’s trial counsel timely filed a post-

sentence motion for reconsideration of sentence. The trial court did not enter

an order resolving Appellant’s post-sentence motion, and Appellant did not

take a direct appeal.

      Appellant filed a pro se PCRA petition, which the PCRA court docketed

on February 16, 2016. The PCRA court appointed PCRA counsel, Suzanne M.

Swan, Esq., on April 25, 2016. On August 18, 2017, PCRA counsel filed an

amended petition claiming that Appellant did not knowingly enter into the

guilty plea and that trial counsel was ineffective.

      On October 6, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss the PCRA petition without a hearing. Appellant did not

file a response. The PCRA court issued an order on March 26, 2018, dismissing

Appellant’s PCRA petition.

      Appellant filed a notice of appeal on April 16, 2018, and complied with

the PCRA court’s order to file a concise statement pursuant to Pa.R.A.P.

1925(b). The PCRA court issued a Rule 1925(a) opinion.

      Appellant raises one issue for our review:

      Did the [PCRA] court abuse its discretion in denying the PCRA
      petition insofar as [Appellant] established the merits of the claim
      that his guilty plea was not knowingly and voluntarily entered, and
      that counsel was ineffective for not objecting to, or moving to
      withdraw the invalid plea on the grounds that [Appellant]

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      erroneously believed that his new sentence would run
      concurrently with any subsequently imposed backtime for a parole
      violation?

Appellant’s Brief at 4.

      As a preliminary matter, we must determine whether Appellant’s PCRA

petition was properly before the PCRA court. See Commonwealth v. Harris,

114 A.3d 1, 6 (Pa. Super. 2015) (stating that “[w]hen a PCRA court lacks

jurisdiction to consider the merits of a petition, we likewise lack jurisdiction to

consider an appeal from disposition of the petition” (citation omitted)). This

Court “may sua sponte consider whether we have jurisdiction to consider the

merits of the claims presented.”      Id. (citation omitted).     Specifically, we

consider the procedural breakdown caused by the trial court’s failure to enter

an order disposing of Appellant’s timely post-sentence motion. See id.

      This Court has stated that “[a] PCRA petition may only be filed after an

appellant has waived or exhausted his direct appeal rights.” Commonwealth

v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (per curiam) (emphasis in

original and citation omitted); accord 42 Pa.C.S. § 9545(b)(1)-(2) (stating

that a petition “shall be filed within one year of the date the judgment becomes

final” and that “a judgment becomes final at the conclusion of direct review .

. . or at the expiration of time for seeking the review”). When a defendant

files a timely post-sentence motion, the finality of the judgment of sentence

is governed by Pa.R.Crim.P. 720.       Pursuant to Rule 720(B)(3)(c), the trial

court must decide the motion within 120 days or the motion is deemed denied

by operation of law. Pa.R.Crim.P. 720(B)(3)(a), (c). The clerk of courts “shall



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[then] forthwith enter an order on behalf of the court denying the motion by

operation of law.”   Pa.R.Crim.P. 720(B)(3)(c).    When timely post-sentence

motions are filed, the judgment of sentence is not final until the appropriate

order is entered on the docket. Commonwealth v. Claffey, 80 A.3d 780,

783 (Pa. Super. 2013) (footnote omitted) (citing Commonwealth v.

Borrero, 692 A.2d 158, 159 (Pa. Super. 1997)).

      Here, the trial court sentenced Appellant on February 12, 2015.

Appellant filed a timely post-sentence motion on February 13, 2015. The trial

court did not address the motion within the 120-day time period, and the

motion was deemed denied by operation of law on June 15, 2015.             See

Pa.R.Crim.P. 720(B)(3)(a); see also 1 Pa.C.S. § 1908. The clerk of courts,

however, failed to enter the order denying the motion by operation of law.

See Pa.R.Crim.P. 720(B)(3)(c). Therefore, because of this breakdown in the

operation of the courts, there was no order triggering Appellant’s right to take

a direct appeal. See Borrero, 692 A.2d at 159.

      We conclude that Appellant’s sentence was not final when Appellant filed

his PCRA petition, such that the PCRA court lacked jurisdiction to consider the

merits of the petition. See Harris, 114 A.3d at 6. Accordingly, we quash this

appeal because this Court lacks jurisdiction to consider the appeal of the

dismissal of Appellant’s prematurely filed PCRA petition. See id.

      Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/2019




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