J-S75011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
DEONTAE ALLEN MCDOWELL                   :
                                         :
                   Appellant             :    No. 391 WDA 2017

              Appeal from the PCRA Order January 18, 2017
    In the Court of Common Pleas of Beaver County Criminal Division at
                     No(s): CP-04-CR-0000870-2015,
                         CP-04-CR-0000874-2015


BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 12, 2018

      Appellant, Deontae Allen McDowell, appeals pro se from the order

denying his petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we quash.

      The PCRA court summarized the factual and procedural history of this

case as follows:

            On June 24, 201[5], pursuant to a plea agreement,
      [Appellant] entered a guilty plea in Case No. 870 of 2015 to one
      count of Persons Not to Possess a Firearm under 18 Pa.C.S.A.
      § 6105(a)(1), and a guilty plea in Case No. 874 of 2015 to
      another count of Persons Not to Possess a Firearm under 18
      Pa.C.S.A. § 6105(a)(1). The [c]ourt accepted [Appellant’s] plea
      and imposed in each case a sentence of five years to ten years
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        in a state correctional facility. The sentences were within the
        standard range and were run concurrently.[1]

               On July 18, 2016, [Appellant] filed a PCRA [p]etition in the
        above-captioned cases.[2] On July 19, 2016 the [c]ourt entered
        an Order appointing counsel for [Appellant].        A Motion for
        Extension of Time was granted by the [c]ourt on September 7,
        2016. Counsel for [Appellant] then filed a Motion to Withdraw
        from PCRA on Basis of No Merit on November 4, 2016, and an
        Amended Motion on November 23, 2016. The [c]ourt entered a
        Preliminary Order and Notice of Court on December 2, 2016,
        allowing counsel permission to withdraw, notifying [Appellant] of
        the [c]ourt’s intention to dismiss the PCRA Petition without a
        hearing based upon the reasoning stated in counsel’s No Merit
        Letter, and informing [Appellant] of his right to file a written
        response by December 22, 2016.               On [December] 28,
        [Appellant] filed his written response, styled as an Objection to
        Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907.1 On
        January 18, 2017, the [c]ourt entered an Order Dismissing PCRA
        Petition Without Hearing. In its Order, the [c]ourt explained its
        reasoning for dismissing [Appellant’s] PCRA [petition].
        [Appellant] then filed a Notice of Appeal.2 On March 3, 2017,
        the [c]ourt entered an Order directing [Appellant] to file a
        Concise Statement of Matters Complained of on Appeal. The
        deadline for [Appellant] to file his Concise Statement was
        twenty-one days later, i.e., Friday, March 24, 2017. [Appellant],
        however, has failed to file any form of Concise Statement in this
        case. The [c]ourt now enters this Opinion addressing the issues
        raised by [Appellant].

              1 Although time-stamped by the Clerk of Court when
              received on December 28, 2016, [Appellant’s]
              written response is dated December 22, 2016.

              2 The [c]ourt’s Order dismissing [Appellant’s] PCRA
              Petition was entered on January 18, 2017.
              [Appellant’s] Notice of Appeal was time-stamped by
____________________________________________


1   Appellant did not file a direct appeal.

2As the PCRA court explained in its Pa.R.A.P. 1925(a) opinion, Appellant’s
PCRA petition was timely filed. PCRA Court Opinion, 4/3/17, at 4 n.3.



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           the Clerk of Courts on February 24, 2017, beyond
           the thirty day jurisdictional limitation imposed by
           Pa.R.A.P. 903(a). [Appellant’s] Notice of Appeal,
           though, is dated February 17, 2017, which is just
           within the required time frame. Thus, pursuant to
           the “prisoner mailbox rule,” [Appellant’s] Notice of
           Appeal appears to be timely filed. See, e.g., Com. v.
           Jones, 549 Pa. 58 64, 700 A.2d 423, 426 (1997);
           Com. v. Ray, 2016 PA Super 37, 134 A.3d 1109,
           1111, n.2. Otherwise, his appeal would be untimely
           and the Superior Court would be without jurisdiction
           to consider it. Com. v. Moir, 2000 PA Super 403, ¶
           3, 766 A.2d 1253, 1254 (“The question of timeliness
           of an appeal is jurisdictional. . . In order to preserve
           the right to appeal a final order of the trial court, a
           notice of appeal must be filed within thirty days after
           the date of entry of that order.”) (external citation
           omitted).

           Additionally, although [Appellant’s] Notice of Appeal
           did not contain either the required fee or a Petition
           to Proceed in Forma Pauperis, this does not
           necessarily affect the jurisdiction of the appellate
           court, but rather allows it to take any appropriate
           action.   See, e.g., Pa.R.A.P. 902 (“Failure of an
           appellant to take any step other than the timely filing
           of a notice of appeal does not affect the validity of
           the appeal, but it is subject to such action as the
           appellate court deems appropriate. . . ”); First Union
           Nat. Bank v. F.A. Realty Inv’rs Corp., 2000 PA Super
           360, ¶ 9, 812 A.2d 719, 722-23 (“[T]he perfection of
           the appeal does not depend in any way on the
           payment of the filing fee.”).

PCRA Court Opinion, 4/3/17, at 1-2.        The PCRA court filed its opinion

pursuant to Pa.R.A.P. 1925(a) on April 3, 2017.       On April 13, 2017, the

PCRA court filed a supplemental Pa.R.A.P. 1925(a) opinion, indicating that

on April 12, 2017, the Clerk of Courts of Beaver County received a




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statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)

from Appellant.

      Appellant presents the following issues for our review:

      I.     Did the [PCRA] Court err in dismissing [Appellant’s]
             [PCRA] Petition without a hearing when the [c]ourt failed
             to apply the “void ab initio” doctrine to the mandatory
             minimum statute found at 42 Pa.C.S.A. § 9712.1 which
             was found to be in violation of Alleyne v. United States,
             133 S.Ct. 2151 (2013) and void by the Pennsylvania
             Supreme Court?

      II.    Did the [PCRA] [c]ourt err in dismissing [Appellant’s]
             [PCRA] Petition without a hearing when the [c]ourt
             misapplied the qualification of “firearm” to a .36 caliber
             percussion cap revolver found within [Appellant’s]
             possession when not being utilized in commission of a
             “crime”?

      III.   Did the [PCRA] [c]ourt err in dismissing [Appellant’s]
             [PCRA] Petition without a hearing when Counsel failed to
             provide effective assistance of Counsel during [Appellant’s]
             Plea Colloquy?

Appellant’s Brief at 5.

      Our standard of review of an order denying relief under the PCRA

requires us to determine whether the decision of the PCRA court is

supported    by   the     evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014).                        “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).




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        As a prefatory matter, we must determine whether the instant appeal

is timely.     Pursuant to Pa.R.A.P. 903(a), “[T]he notice of appeal...shall be

filed within 30 days after the entry of the order from which the appeal is

taken.”      It is well settled that the timeliness of an appeal implicates our

jurisdiction and may be considered sua sponte.            Commonwealth v.

Nahavandian, 954 A.2d 625, 629 (Pa. Super. 2008). “Jurisdiction is vested

in the Superior Court upon the filing of a timely notice of appeal.” Id. Time

limitations on the taking of appeals are strictly construed and cannot be

extended as a matter of grace. Commonwealth v. Burks, 102 A.3d 497,

500 (Pa. Super. 2014).

        In the instant matter, Appellant is a pro se prisoner. The “prisoner-

mailbox rule” provides that “in the interest of fairness, a pro se prisoner’s

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. Chambers, 35 A.3d 34, 39 (Pa. Super.

2011) (quoting Smith v. Pennsylvania Board Of Probation and Parole,

683 A.2d 278, 281 (Pa. 1996)).

        To be timely, Appellant needed to file his notice of appeal by Friday,

February 17, 2017.3 A review of the certified record reflects that Appellant

dated the notice of appeal February 17, 2017.          The envelope in which

____________________________________________


3   The PCRA court dismissed Appellant’s petition on January 18, 2017.



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Appellant sent the notice of appeal, however, was date-stamped as

deposited with inmate mail on February 21, 2017. Accordingly, we conclude

that Appellant’s notice of appeal was untimely filed.     See Chambers, 35

A.3d at 39 (“a pro se prisoner’s 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.”).4      Because Appellant’s notice of

appeal was untimely filed, we lack jurisdiction over this matter and are

constrained to quash Appellant’s appeal. Nahavandian, 954 A.2d at 629.

       Moreover, even if Appellant had timely filed his notice of appeal, his

issues would be waived for failure to file a timely Pa.R.A.P. 1925(b)

statement.      Where a trial court orders an appellant to file a Pa.R.A.P.

1925(b) statement, the appellant must comply in a timely manner.

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005).

       [F]ailure to comply with the minimal requirements of
       Pa.R.A.P.1925(b) will result in automatic waiver of the issues
       raised. Specifically, Pa.R.A.P.1925(b) requires that an appellant
       “file of record in the lower court and serve on the trial judge a
       concise statement of the matters complained of on the appeal no


____________________________________________


4 We note that while acknowledging that the envelope carrying the notice of
appeal was dated February 21, 2017, the PCRA court found the notice of
appeal to be timely, explaining that this was “a reasonable timeframe to
account for the Department of Corrections to mail [Appellant’s] Notice of
Appeal and thus satisfy the prisoner mailbox rule with regard to whether
[Appellant’s] Notice of Appeal was timely filed.” PCRA Court Supplemental
Opinion, 4/13/17, at 2.




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       later than [twenty-one]5 days after entry” of an order requesting
       the statement.

Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005).

       The record reflects that the trial court issued an order on March 3,

2017, directing Appellant to submit a Rule 1925(b) statement. Accordingly,

Appellant’s Pa.R.A.P. 1925(b) statement was due on Friday, March 24, 2017.

On April 3, 2017, the PCRA court filed an opinion pursuant to Pa.R.A.P.

1925(a), indicating that it had not received Appellant’s Pa.R.A.P. 1925(b)

statement and concluding that Appellant’s issues were waived.

       On April 13, 2017, the PCRA court filed a Supplemental Rule 1925(a)

Opinion. In it, the PCRA court explained that “[o]n April 12, 2017, nine days

after the [c]ourt entered its Rule 1925(a) Opinion and served a copy on

[Appellant], the Clerk of Courts received a Statement of Matters Complained

of on Appeal from [Appellant].”          PCRA Court Opinion, 4/13/17, at 2.   The

PCRA court again concluded that Appellant’s Pa.R.A.P. 1925(b) statement

was untimely filed and that Appellant’s claims on appeal should be

dismissed. Id. at 3-5.

       The record reflects that although Appellant’s Pa.R.A.P. 1925(b)

statement is dated March 23, 2017, the date-stamp on the envelope shows
____________________________________________


5  The Supreme Court amended Pa.R.A.P. 1925 in 2007. The current version
extends the original fourteen–day filing period of the statement to a
minimum twenty-one–day filing period and grants the judge, upon
application of the appellant and for good cause shown, authority to enlarge
the time period initially specified, or, in extraordinary cases, to allow for
filing of a statement nunc pro tunc. Pa.R.A.P. 1925, note.



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that the document was placed in inmate mail on April 7, 2017. Accordingly,

pursuant to the prisoner mailbox rule, the Pa.R.A.P. 1925(b) statement is

deemed filed on April 7, 2017.    As noted, pursuant to the PCRA court’s

March 3, 2017 order, Appellant’s Pa.R.A.P. 1925(b) statement was due on

March 24, 2017. Thus, Appellant failed to file his statement within twenty-

one days of the date of the PCRA court’s order. Pa.R.A.P. 1925(b). Due to

Appellant’s failure to timely submit a Rule 1925(b) statement, we conclude

that any issues he wished to raise on appeal have been waived.         See

Schofield, 888 A.2d at 774 (where the pro se appellant’s Pa.R.A.P. 1925(b)

statement was not timely filed, the appellant’s issues were waived).

Accordingly, even if Appellant had timely appealed the order denying his

PCRA petition, we would have concluded that the issues he attempts to raise

on appeal would be waived for failure to timely file his Pa.R.A.P. 1925(b)

statement.

     For the reasons set forth above, we conclude that Appellant’s appeal

was untimely.   Because the appeal was untimely, we are constrained to

quash the appeal. Nahavandian, 954 A.2d at 630.

     Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2018




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