J-S47045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

LUIS ANTONIO RODRIGUEZ CRUZ

                         Appellant                   No. 1261 EDA 2014


                   Appeal from the Order of January 7, 2014
               In the Court of Common Pleas of Chester County
              Criminal Division at No.: CP-15-CR-0004489-2012


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

JUDGMENT ORDER BY WECHT, J.:                     FILED SEPTEMBER 08, 2014

                              Rodriguez Cruz

order that denied his motion for modification of sentence nunc pro tunc.

Because Rodriguez Cruz                                                       ithout

jurisdiction and, therefore, quash his appeal.

      The trial court summarized the relevant procedural history as follows:

      On December 5, 2012, [Rodriguez Cruz] entered a guilty plea
      and negotiated sentence to two counts of possession with intent
      to deliver, in violation of 35 [P.S.] § 780-113(A)(30); criminal
      conspiracy, in violation of 18 Pa.C.S.A. § 903; and five counts of
      criminal solicitation in violation of 18 Pa.C.S.A. § 902(a) [at case
      4792-11. At case 4489-12, Rodriguez Cruz pled guilty to five
      counts of possession with intent to deliver, one count of criminal
      conspiracy, and one count of corrupt organizations, 18 Pa.C.S.A.
      § 911. Rodriguez Cruz
      fifteen to thirty years in prison].

      On September 25, 2013, [Rodriguez Cruz] filed a Motion for
      Modification of Sentence Nunc Pro Tunc.      A hearing was
      scheduled for October 22, 2013. However, on that date, it was
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       learned that the Sheriff failed to transport [Rodriguez Cruz] to
       the courthouse, so a continuance Order was entered
       rescheduling the hearing for January 6, 2014.

       In the meantime, [Rodriguez Cruz] filed a Motion for
       Appointment of Conflict Free Counsel on November 19, 2013.
       This court scheduled a hearing on that motion for the same
       January 6, 2014 date. Following the hearing, this court entered
       orders on January 7, 2014 denying [Rodriguez Cruz
       and dismissing the motions.[1]

Trial Court Opinion, 5/9/2014, at 1. On April 10, 2014, Rodriguez Cruz filed

a notice of appeal from the January 7, 2014 order dismissing his motions.

                                                       shall be filed within 30 days

after the entry of the order from which the appeal is taken

A   timely    filed   notice    of   appeal    vests   jurisdiction   in   this   Court.

Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). On

his notice of appeal, Rodriguez Cruz wrote that it was mailed on March 31,

2014. As a pro se prisoner, Rodriguez Cruz is entitled to the benefit of the

prisoner mailbox rule meaning that his appeal shall be deemed to be filed

on the date that he delivers the appeal to prison authorities and/or places

his notice of appeal in the institutional mailbox.              Commonwealth v.

____________________________________________


1
     Rodriguez Cruz         -sentence motion to modify his sentence was
untimely filed. An untimely post-sentence motion that is filed after a
judgment of sentence becomes final should be treated as a petition filed
pursuant to the
9541-46. Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013).
Therefore, the trial court should have treated Rodriguez Cruz
PCRA petition
outcome of Rodriguez Cruz




                                           -2-
J-S47045-14



Perez, 799 A.2d 848, 851 (Pa. Super. 2002).        The notice of appeal was

docketed on April 10, 2014. Regardless of which date is used, his notice of

appeal was filed more than thirty days after the

order. Therefore, we are without jurisdiction, and must quash his appeal.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2014




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