J-S59043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

SHALANA COLEEN SMITH

                           Appellant                   No. 493 EDA 2017


                     Appeal from the Order January 9, 2017
    In the Court of Common Pleas of Pike County Criminal Division at No(s):
                           CP-52-SA-0000033-2016

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 25, 2017

        Appellant, Shalana Coleen Smith, appeals from an order denying her

petition to appeal nunc pro tunc from her summary conviction in magisterial

district justice court for disorderly conduct.1 The sole issue in this appeal is

whether the Pike County Court of Common Pleas (“trial court”) abused its

discretion in denying Appellant leave to appeal nunc pro tunc. Pursuant to

Commonwealth v. Stock, 679 A.2d 760 (Pa. 1996), we conclude that the

trial court abused its discretion, and we reverse and remand to the trial

court for reinstatement of Appellant’s appeal from her summary conviction.

        On September 12, 2016, a magisterial district justice found Appellant

guilty of disorderly conduct, graded as a summary offense. Pet. For Appeal

*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 5503(a)(1).
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From Summary Conviction Nunc Pro Tunc, 11/23/16, at ¶ 2. On September

28, 2016, Appellant hired counsel for the purpose of appealing her summary

conviction.   Id. at ¶ 3.   Appellant’s thirty-day deadline for appealing her

summary conviction to the trial court was Wednesday, October 12, 2016.

Id. at ¶ 4. At some point after October 12, 2016, counsel contacted the trial

court to inquire when Appellant’s case was scheduled for trial. Id. at ¶ 7.

Counsel learned at that point that no appeal was on the docket. Id. at ¶ 6.

      On November 23, 2016, Appellant filed a petition in the trial court for

leave to file an appeal from her summary conviction nunc pro tunc. During a

hearing on this petition, without offering any evidence, counsel for Appellant

argued that (1) his office mailed a notice of appeal and a check for the filing

fee to the Clerk of Court on September 28, 2016, the date Appellant

retained him, (2) the check was never returned, leading counsel to believe

that the Clerk had docketed the appeal, and (3) the failure to docket the

appeal constituted a breakdown in the operations of the court.           N.T.,

12/7/16, at 3-4, 6-7.

      On January 9, 2017, the trial court entered an order denying Appellant

leave to appeal nunc pro tunc. Appellant filed a timely notice of appeal, and

both Appellant and the trial court complied with Pa.R.A.P. 1925.2 The trial


2 On February 28, 2017, the deadline for Appellant’s Pa.R.A.P. 1925(b)
statement, Appellant filed her statement electronically with this Court
instead of in the trial court (the proper forum). Pennsylvania law treats
documents filed in the wrong court as having been filed in the correct court



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court concluded that it “did not receive [Appellant’s] [n]otice of [a]ppeal”

within the thirty-day appeal period. Trial Ct. Op., 3/31/17, at 3.       The court

continued:

            [Appellant]’s counsel failed to present evidence that non-
            negligent circumstances led to the failure to file and docket
            the notice of appeal in a timely manner. Counsel avers
            that he mailed the notice of appeal to the [Clerk of Court]
            thirteen (13) days before the deadline yet he failed to
            establish proof of mailing of the notice or receipt of the
            same by the [Clerk]. [Appellant] failed to present any
            evidence of receipt of the notice of appeal by the [Clerk,]
            such as a certified mail receipt or other indicia of receipt
            by that office. Counsel learned of the filing deficiency
            through his client, [Appellant,] after the filing deadline had
            passed . . . .

            The [c]ourt afforded the parties an opportunity to present
            any testimony and evidence at the December 7, 2016
            hearing. [Appellant] presented no testimony or evidence in
            support of her Petition.       Although defense counsel
            presented oral argument based on [Appellant]’s Petition,
            such argument does not constitute evidence and, as such,
            there is no evidentiary record to support [Appellant]’s
            claims for relief.

Id. at 4.

      Appellant raises one issue in this appeal:

            Did the lower court err in denying [Appellant] nunc pro
            tunc relief to file her summary appeal as [Appellant’s]
            appeal was not filed due to a breakdown in the court’s
            operations?




on the date of filing in the wrong court. See 42 Pa.C.S. § 5103(a).
Consequently, we deem Appellant to have filed her Pa.R.A.P. 1925(b)
statement in the trial court on February 28, 2017.



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Appellant’s Brief at 4.      “An abuse of discretion standard governs our review

of the propriety of a grant or denial of an appeal nunc pro tunc.”               Stock,

679 A.2d at 762 (citation omitted).

        An appeal from a summary conviction “shall be perfected by filing a

notice of appeal within 30 days after the entry of . . . the conviction[.]”

Pa.R.Crim.P. 460(A). We agree with the trial court that Appellant failed to

present any evidence that her attorney mailed the notice of appeal to the

trial   court   prior   to   the    thirty-day   deadline   on   October   12,   2016.

Nevertheless, in view of Stock, we hold that the trial court abused its

discretion by denying Appellant leave to appeal her summary conviction

nunc pro tunc.

        In Stock, a district justice found defendant Stock guilty of three

summary traffic offenses and sentenced him to pay three separate fines.

Stock directed his attorney to appeal the summary conviction to the court of

common pleas, but the attorney failed to do so in a timely manner, resulting

in quashal of the appeal.          The trial court denied Stock’s motion to appeal

nunc pro tunc, and this Court affirmed.

        Our Supreme Court reversed and reinstated Stock’s appeal. The Court

observed that defendants enjoy an “absolute right to appeal” under Article

V, section 9 of the Pennsylvania Constitution, and “an appeal nunc pro tunc

is intended as a remedy to vindicate the right to an appeal where that right

has been lost due to certain extraordinary circumstances.”                 Id. at 764



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(citations omitted). The Court reasoned that Stock would lose his absolute

right of appeal unless he received leave to appeal nunc pro tunc:

           Were we to decide that [a]ppellant could not appeal nunc
           pro tunc despite the fact that his state constitutional right
           to appeal was denied him, [a]ppellant would have no other
           recourse. His conviction would stand and he would be
           without remedy. Appellant is not able to vindicate his right
           to appeal via the Post Conviction Relief Act[3] since he is
           not eligible to seek relief thereunder because he is not
           “incarcerated in this Commonwealth under a sentence of
           death or imprisonment or on parole or probation.” 42
           Pa.C.S.A. § 9543(2) (listing requirements to be eligible for
           relief under the PCRA) (emphasis added). In this regard,
           we find the reasoning of In the Interest of A.P., [617
           A.2d 764 (Pa. Super. 1992) (en banc)] persuasive and
           applicable herein. In A.P., a juvenile was adjudicated
           delinquent and he alleged that he was denied his right to
           appeal due to counsel failing to timely file an appeal. In
           A.P., the Superior Court reasoned

              A.P. has no other means of redress; a nunc pro tunc
              appeal is the only means by which a juvenile can
              challenge the stewardship of his trial counsel because
              the [PCRA] . . . which would be the remedy for an adult
              is not available to a juvenile. See In the Interest of
              DelSignore, [] 375 A.2d 803 ([Pa. Super.] 1977) . . . .
              If the constitutional right to appellate review is to mean
              anything under these circumstances, it must be
              protected through a nunc pro tunc appeal.

           A.P., [617 A.2d at 768]. Likewise here, if [a]ppellant’s
           state constitutional right to an appeal is to have any
           meaning and is to be vindicated, it can only be vindicated
           by granting him an appeal nunc pro tunc. Furthermore, it
           would be entirely unfair in the criminal context to permit
           [a]ppellant’s state constitutional right of an appeal to be
           extinguished solely on the basis of his counsel’s failure to
           timely file the appeal where [a]ppellant had requested an
           appeal to be filed. Commonwealth v. Ciotto, [] 555

3   42 Pa.C.S. §§ 9541-46 (referred to below as the “PCRA”).



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         A.2d 930, 931 n.1 ([Pa. Super.] 1989)(“dismissal of post-
         verdict motions on the basis of a procedural default in a
         criminal case, like a similar dismissal of a criminal appeal,
         improperly places the entire burden of counsel’s errors on
         the powerless” criminal defendant.) . . .

Id., 679 A.2d at 764-65.4

      Stock controls the outcome of this case.         As in Stock, (1) the

magisterial district justice herein found Appellant guilty of a summary

offense and sentenced her to pay a fine; (2) Appellant hired counsel to

appeal her summary conviction; but (3) counsel failed to appeal to the trial

court within the thirty-day appeal period. Appellant cannot seek relief under

the PCRA, because she is not serving a sentence of imprisonment or death

and is not on parole or probation.     Thus, as in Stock, the only way to

vindicate Appellant’s constitutional right of appeal is to grant her leave to

appeal her summary conviction nunc pro tunc.        The trial court abused its

discretion in denying such leave to Appellant.

      Order reversed. Case remanded for further proceedings in accordance

with this memorandum. Jurisdiction relinquished.


4 For the sake of completeness, we note that Stock is limited in application.
See Commonwealth v. Hall, 771 A.2d 1232, 1235-36 (Pa. 2001) (where
defendant was serving sentence of imprisonment at time counsel allegedly
failed to file direct appeal, defendant’s sole remedy was through PCRA, not
motion for leave to appeal nunc pro tunc; Stock is distinguishable because
“the defendant [in Stock] was never eligible for relief under the PCRA”
because he served sentence of imprisonment or was on parole or probation).
Nevertheless, our Supreme Court continues to recognize that Stock controls
when, as here, the defendant is “never eligible” for relief under the PCRA.
Commonwealth v. Descardes, 136 A.3d 493, 502 (Pa. 2016).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2017




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