J-S38010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   Appellee             :
                                        :
             v.                         :
                                        :
DAVID PETKO                             :
                                        :
                   Appellant            :         No. 272 EDA 2017

             Appeal from the Order Entered November 21, 2016
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0000781-2014


BEFORE:    GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                          FILED JUNE 30, 2017

      Appellant, David Petko, appeals from the order entered in the Monroe

County Court of Common Pleas, which denied his most recent motion for

waiver or reduction of the court costs and fines imposed as a result of his

July 8, 2014 conviction and sentence for one count of driving under the

influence of a controlled substance (“DUI”), as a second offense.

      The trial court opinion sets forth the relevant facts and procedural

history of this case as follows:

       On July 8, 2014, [Appellant] entered a nolo contendere
       plea to Amended Count I, DUI, general impairment as a
       second offense, and was sentenced to a period of
       incarceration and payment of fines and costs. On October
       19, 2016, [Appellant] filed an “Expungement of All Cost
       (sic) and Fines.” In that filing, [Appellant] mostly raised
       issues with the arrest and conviction. He also raised an
       issue of health insurance allegedly paying some of the DUI
       testing costs; however, he attaches no proof from his
___________________________

*Former Justice specially assigned to the Superior Court.
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         alleged insurance carrier. In fact, the record of Pocono
         Medical Center purports to be a payment made by the
         “Special Programs Insurance Payment” believed to be
         administered by the County for the Office of the District
         Attorney. Appellant's request for "Expungement of Cost
         and Fines" was denied by Order dated October 20, 2016.
         No appeal was taken.

         [Appellant] next filed a “Waiver of Court Cost (sic) and
         Fines Under 234 Pa.Code Rule 456 and 42 Pa.C.S.A. 9730
         (b)(3)” on November 18, 2016. Appellant again contended
         that he should not have entered a plea and was coerced or
         misled in doing so. Appellant also contended he was
         without funds to pay his costs and fines and attached as
         proof copies of his SSD, Medical Assistance, and other
         benefits. [Appellant] requested community service in lieu
         of his fines and costs. The request was denied by Order
         dated November 21, 2016.

         [Appellant] then filed his Petition for Reconsideration on
         November 30, 2016. He again stated he was without
         funds, and was requesting a modification to allow
         community service in lieu of costs and fines due. An Order
         was entered December 2, 2016 denying the relief
         requested, which [Appellant] has now appealed.

(Trial Court Opinion, January 18, 2017, at 1-2). Appellant filed his notice of

appeal on January 3, 2017.      The court ordered Appellant on January 4,

2017, to file a concise statement of errors complained of on appeal, per

Pa.R.A.P. 1925(b). Appellant complied on January 11, 2017.

      Appellant raises the following issues on appeal:

         [WHETHER THE TRIAL COURT ERRED WHEN IT DID] NOT
         HEAR THE TRIAL SET AND [ACCEPTED] A GUILTY PLEA?

         [WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO
         REMOVE DEFENSE COUNSEL AND APPOINT NEW COUNSEL
         FOR APPELLANT]?

         [WHETHER THE TRIAL COURT ERRED WHEN IT DENIED

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         APPELLANT’S PETITIONS TO WAIVE COURT COSTS AND
         FINES]?

(Appellant’s Brief at 6).

      As an initial matter, we observe a notice of appeal must be filed within

thirty (30) days after the entry of the order from which the appeal is taken.

Pa.R.A.P. 903(a).    The notice of appeal shall be filed with the clerk of the

trial court; “[u]pon receipt of the notice of appeal the clerk shall immediately

stamp it with the date of receipt, and that date shall constitute the date

when the appeal was taken, which date shall be shown on the docket.”

Pa.R.A.P. 905(a)(3).        Time limitations for taking appeals are strictly

construed and cannot be extended as a matter of grace. Commonwealth

v. Valentine, 928 A.2d 346 (Pa.Super. 2007).         This Court can raise the

matter sua sponte, as the issue is one of jurisdiction to entertain the appeal.

Id.   This Court has no jurisdiction to entertain an untimely appeal.

Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super. 2007), appeal

denied, 599 Pa. 691, 960 A.2d 838 (2008).        Generally, an appellate court

may not enlarge the time for filing a notice of appeal.      Pa.R.A.P. 105(b).

Extension of the appeal filing period is permitted only in extraordinary

circumstances, such as fraud or some breakdown in the court’s operation.

Commonwealth v. Braykovich, 664 A.2d 133 (Pa.Super. 1995), appeal

denied, 544 Pa. 622, 675 A.2d 1242 (1996).

      When an appellant files a motion for reconsideration of a final order,

he must file a protective notice of appeal to ensure preservation of his

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appellate    rights,   in   the   event    the   court   does   not   expressly   grant

reconsideration within the thirty-day appeal period.             Commonwealth v.

Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000).               In other words, the mere

filing of a motion for reconsideration does not toll the thirty-day appeal

period:

          It is well-settled that, upon the filing of a motion for
          reconsideration, a trial court's action in granting a rule to
          show cause and setting a hearing date is insufficient to toll
          the appeal period. Rather, the trial court must expressly
          grant reconsideration within thirty days of entry of its
          order.

Id. (internal citations omitted).

       Moreover, “we have consistently held that an appeal from an order

denying reconsideration is improper and untimely.” Id. In this context, the

appeal does not lie from the order denying reconsideration; filing an appeal

from that order is insufficient to preserve appellate rights, as “we will not

permit appellant to do indirectly that which he cannot do directly.”

Provident Nat. Bank v. Rooklin, 378 A.2d 893, 897 (Pa.Super. 1977).1

       Instantly, Appellant filed his most recent motion for waiver or

reduction of court costs and fines on November 18, 2016. The court denied

relief on November 21, 2016. Appellant filed a motion for reconsideration on
____________________________________________


1
  Generally, the Rules of Appellate Procedure apply to criminal and civil
cases alike; the principles enunciated in civil cases construing those rules
are equally applicable in criminal cases.           See Commonwealth v.
Levanduski, 907 A.2d 3, 29 n.8 (Pa.Super. 2006) (en banc) (stating rules
of appellate procedure apply to criminal and civil cases alike).



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November 30, 2016, and the court denied reconsideration on December 2,

2016.    Appellant’s current appeal did not lie from the December 2 nd order

denying reconsideration.       See Provident Nat. Bank, supra.            Instead,

Appellant had only until December 21, 2016 to file a notice of appeal from

the November 21st final order denying relief. See Moir, supra. Appellant

did not file his notice of appeal until January 3, 2017, which is patently

untimely.

        Moreover,   the     record   contains   no   evidence   of   extraordinary

circumstances such as a court holiday or closing, or a breakdown in the

operations of the court, to excuse Appellant’s untimely filing.               See

Braykovich, supra (stating extension of appeal filing period is permitted

only in extraordinary circumstances, such as fraud or some breakdown in

court’s operation). Therefore, Appellant’s failure to file the notice of appeal

within thirty days of the November 21, 2016 order denying his motion for

waiver or reduction of court costs and fines divested this Court of appellate

jurisdiction.   See Pa.R.A.P. 903; Patterson, supra.             Accordingly, we

dismiss this appeal as untimely.

        Appeal dismissed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2017




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