J-S48009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DANIEL JOSEPH MITCHELL                     :
                                               :
                      Appellant                :   No. 349 MDA 2017

                 Appeal from the PCRA Order January 20, 2017
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-MD-0000246-2016


BEFORE:      OTT, J., STABILE,J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                                  FILED AUGUST 21, 2017

        Daniel Joseph Mitchell appeals, pro se, from the order entered January

20, 2017, in the Lycoming County Court of Common Pleas, dismissing his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546.             Mitchell seeks relief from a 90-day

suspended sentence, and $300.00 fine, imposed on July 11, 2016, after the

trial court found him guilty of indirect criminal contempt1 for violating a

Protection from Abuse (“PFA”) Order issued to his wife. On appeal, Mitchell

contends the PCRA court erred in dismissing his petition without considering

his allegations that trial counsel was ineffective. Because we agree with the


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*
    Retired Senior Judge assigned to the Superior Court.
1
    23 Pa.C.S. § 6114(a).
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PCRA court’s determination that Mitchell is not eligible for PCRA relief, we

affirm.

       We have gleaned the facts underlying Mitchell’s conviction from the

affidavit of probable cause attached to his criminal complaint.2 See Criminal

Complaint, 6/10/2016, Affidavit of Probable Cause.              Mitchell’s wife, the

complainant, obtained a temporary PFA against Mitchell on February 29,

2016, which was made final by order of the court on March 30, 2016. Since

the beginning of March 2016, Mitchell has been incarcerated for a parole

violation. Between March 2, 2016, and April 22, 2016, Mitchell sent three

letters and a canvas drawing to his mother, and requested she give them to

the complainant. As a result of these actions, the Commonwealth charged

Mitchell with one count of indirect criminal contempt. Following a hearing on

July 11, 2016, the trial court found Mitchell guilty of the crime charged, and

imposed a sentence of a $300 fine, and 90 days’ incarceration, which the

court “suspended on the condition that [Mitchell] faithfully comply with all

mandates of the Final Protection From Abuse Order during its term of

enforcement.”      Order, 7/11/2016.           No appeal was filed.   Mitchell never

served the suspended sentence, which expired on October 11, 2016.               See

Order, 12/21/2016, at 1 n.1.


____________________________________________


2
  The transcript from the contempt hearing was not included in the certified
record.




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       On September 26, 2016, Mitchell filed a timely, pro se PCRA petition,

raising claims concerning the ineffective assistance of trial counsel.   PCRA

counsel was appointed, but, on December 1, 2016, filed a petition to

withdraw and accompanying Turner/Finley3 “no merit” letter.          Counsel

explained that because Mitchell was not serving a sentence for his

conviction, he was ineligible for PCRA relief pursuant to 42 Pa.C.S. §

9543(a)(1). See Petition to Withdraw from Representation, 12/1/2016, at

4. Thereafter, on December 21, 2016, the PCRA court sent Mitchell notice of

its intent to dismiss the petition without first conducting an evidentiary

hearing pursuant to Pa.R.Crim.P. 907. Mitchell did not respond to the Rule

907 notice, and on January 19, 2017, the PCRA court entered an order

dismissing Mitchell’s petition and granting counsel permission to withdraw.

Mitchell’s notice of appeal was docketed on February 27, 2017.

       Before we address the substantive issue on review, we must first

determine whether this appeal was timely filed.4 “It is well settled that the

timeliness of an appeal implicates our jurisdiction and may be considered




____________________________________________


3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4
 On May 19, 2017, this Court issued a rule directing Mitchell to show cause
why the appeal should not be quashed as untimely. See Order, 5/19/2017.
Mitchell filed a prompt response, and the show-cause order was discharged.
The issue is now before this panel for consideration.



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sua sponte.” Commonwealth v. Trinidad, 96 A.3d 1031, 1034 (Pa. Super.

2014) (quotation omitted), appeal denied, 99 A.3d 925 (Pa. 2014).

        Here, the trial court docketed the order denying PCRA relief on January

20, 2017. Although it is well settled that a notice of appeal must be filed

within 30 days after entry of the order on appeal, 5 in the present case, the

thirtieth day fell on a Sunday, and the following day was a court holiday.

Therefore, Mitchell had until Tuesday, February 21, 2017, to file a timely

notice of appeal.      See 1 Pa.C.S. § 1908.     However, Mitchell’s notice of

appeal was not docketed until February 27, 2017, making it facially

untimely.

         Mitchell contends he never received a copy of the trial court’s

January 20, 2017, order denying PCRA relief. Rather, Mitchell claims he first

learned of the entry of the order only after his family inquired in the lower

court. See Petition to Show Cause, 6/2/2017, at 1. We find, however, that

Mitchell’s claim is belied by the record. Mitchell’s name and address at SCI-

Benner were listed on the bottom of the order denying PCRA relief.

Furthermore, the docket indicates notice of the order was mailed on January

20, 2017. Accordingly, we will presume Mitchell received a copy of the order

denying relief.



____________________________________________


5
    See Pa.R.Crim.P. 903(a).




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        Nevertheless, because he was incarcerated on other charges at the

time he filed the appeal, Mitchell also asserts he is entitled to relief pursuant

to the “prisoner mailbox rule.”            Under the “‘prisoner mailbox rule,’ a

document is deemed filed when placed in the hands of prison authorities for

mailing.”    Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (2006).

Here, the record contains no official documentation, such as the postmarked

envelope, indicating when Mitchell deposited his notice of appeal in the

prison mail system.         Therefore, because the date of mailing is a factual

question,     we    could     remand      for    an   evidentiary   hearing.   See

Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa. Super. 1998). However,

when “the opposing party does not challenge the timeliness of the appeal

and the prisoner’s assertion of timeliness is plausible, we may find the

appeal timely without remand.”             Id.    In the present case, neither the

Commonwealth nor the PCRA court has asserted the untimeliness of the

appeal. Further, if, as Mitchell contends, he placed the notice of appeal in

the prison mail system on Tuesday, February 21, 2017,6 it is plausible that

the appeal would not have been docketed until Monday, February 27, 2017.

Accordingly, we decline to quash this appeal.

        The sole claim Mitchell raises on appeal challenges the PCRA court’s

dismissal of his petition without first considering his claim that trial counsel


____________________________________________


6
    See Petition to Show Cause, 6/2/2017, at 2.



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provided ineffective assistance.    The PCRA court dismissed the petition,

concluding Mitchell was ineligible for relief because he was not currently

serving a sentence for the crime at issue.      See Order, 12/21/2016.      We

agree.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).     Further, a PCRA court may

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.”      Id.

(citations omitted).

      In order to be eligible for collateral relief under the PCRA, a petitioner

must plead and prove, inter alia, that “at the time relief is granted” he is

either:

      (i) currently serving a sentence of imprisonment, probation or
      parole for the crime;

      (ii) awaiting execution of a sentence of death for the crime; or

      (iii) serving a sentence which must expire before the person may
      commence serving the disputed sentence.

42 Pa.C.S. § 9543(a)(1)(i)-(iii).     Our Supreme Court has emphasized:

“Eligibility for relief under the PCRA is dependent upon the petitioner

currently serving a sentence of imprisonment, probation, or parole for the

crime.”   Commonwealth v. Turner, 80 A.3d 754, 761–762 (Pa. 2013)

(emphasis supplied), cert. denied, 134 S.Ct. 1771 (U.S. 2014).


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      Here, Mitchell never served the suspended 90-day sentence before it

expired on October 11, 2016. See Order, 12/21/2016, at 1 n.1. Therefore,

because Mitchell is not currently serving a sentence for the conviction of

indirect criminal contempt on appeal, we agree with the PCRA court’s

determination that he is statutorily ineligible for PCRA relief.

      Order affirmed.

      Stabile, J., joins the memorandum.

      Platt, J., concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2017




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