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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
    CHONICE MARTIN                        :
                                          :
                     Appellant            :   No. 1287 EDA 2018

            Appeal from the Judgment of Sentence January 11, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005281-2014

BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                      FILED FEBRUARY 19, 2019

        Appellant Chonice Martin appeals from the judgement of sentence

imposed after she pled guilty to aggravated assault and possession of an

instrument of crime (PIC).1 Appellant’s counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and its Pennsylvania counterpart,

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,

we remand this matter to the trial court for further proceedings consistent

with this memorandum.

        We briefly summarize the facts presented at Appellant’s sentencing

hearing as follows. During an altercation on July 1, 2017, Appellant used a

six-inch steak knife to stab the complainant, Ms. Mitchell, two times in her

chest underneath her right arm. See N.T. Sentencing, 1/11/18, at 20. The

treatment of the complainant’s injuries required the placement of a chest tube

1   18 Pa.C.S. §§ 2702(a), 907(a).
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and a five-day stay in the hospital. Id. As a result, Appellant was charged

with aggravated assault and PIC.

      On July 13, 2017, Appellant entered an open guilty plea to the

aforementioned charges. Sentencing was deferred for preparation of a pre-

sentence investigation (PSI) report.   On January 11, 2018, the trial court

sentenced Appellant to a standard guideline-range sentence of four to ten

years’ incarceration for aggravated assault.2   She was also sentenced to a

consecutive term of five years’ probation for PIC. Appellant was represented

through sentencing by private counsel, C. Reginald Johnson, Esq. (Attorney

Johnson).

      After the trial court imposed Appellant’s sentence, Attorney Johnson

engaged in the following discussion of Appellant’s post-sentence and appellate

rights:

      [Attorney Johnson]: If I may, Your Honor? You have 10 days from
      today to ask me to put something in writing contesting what
      happened here today at your sentencing, a motion for
      reconsideration of sentence, something of the like. As you sit
      here now, do you intend to ask His Honor, in writing, to
      reconsider?

      [Appellant]: Yes.

      [Attorney Johnson]: In addition to that, if that motion is denied,
      you have 30 days from the denial date of that petition to file a
      notice of appeal to a higher court, the Superior Court, contesting



2  Appellant had a prior record score of zero and an offense gravity score of
eleven. Therefore, the standard-range minimum sentence was thirty-six to
fifty-four months, plus or minus twelve months for aggravating or mitigating
factors. See 204 Pa. Code § 303.16(a).

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      the legality of your plea and your sentence. Do you understand
      that?

      [Appellant]: Yes.

      [Attorney Johnson]: You will have to let me know within the next
      30 days. That notice has to be filed in 30 days, either from today
      or from the denial of your motion for reconsideration.

      [Appellant]: Thank you.

      [Attorney Johnson]: Do you understand?

      [Appellant]: Yes.

N.T. Sentencing, 1/11/18, at 43-44 (emphasis added).

      The following day, Attorney Johnson filed a motion to withdraw as

counsel. Attorney Johnson stated that he met with Appellant to discuss her

post-sentence motion.3 According to Attorney Johnson, Appellant blamed him

“for the harsh sentence she received because the [c]ourt ‘obviously does not

like you—all the other lawyers were treated much better than you. Because

you did not do your job I got this long sentence instead of probation.’”

Attorney Johnson’s Pet. to Withdraw as Counsel, 1/12/18, at 2 (unpaginated).

Attorney Johnson indicated that Appellant also made “other unfounded

incendiary comments” that demonstrated her desire for him to withdraw as

counsel. Id. Attorney Johnson took no further action in this matter, and did

not file Appellant’s intended post-sentence motion or a notice of appeal.

      Two months later, on March 13, 2018, the trial court granted Attorney

Johnson’s motion to withdraw and appointed new counsel “to file post-



3 The record indicates that Appellant intended to seek reconsideration of her
sentence, but does not indicate that she sought to withdraw her guilty plea.

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sentence motions and notices including, but not limited to, a motion for

reconsideration of sentence and/or notice of appeal.” See Order, 3/13/18.

The trial court’s order did not set the time for filing a post-sentence motion or

a notice of appeal nunc pro tunc. That same day, Jennifer Ann Santiago, Esq.

(Attorney Santiago) entered her appearance as new counsel for Appellant.

      On April 9, 2018, Appellant, through new counsel, filed a motion for

reconsideration of sentence. On April 12, 2018, the trial court denied the

motion as untimely filed from the January 11, 2018 judgment of sentence.

      Appellant thereafter filed a notice of appeal on April 30, 2018.4 On May

2, 2018, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement

within twenty-one days. In response, on May 24, 2018, Appellant’s counsel

filed a statement of intent to file an Anders brief pursuant to Pa.R.A.P.

1925(c)(4), asserting that there were no meritorious issues to raise on appeal,

“as this was a guilty plea.” See Rule 1925(c) Statement, 5/24/18, at 1.5 The

trial court issued a 1925(a) opinion on June 8, 2018, concluding that there

were no meritorious appellate claims, because Appellant failed to file a timely



4 Attorney Santiago purported to appeal from the “Order of Judgment entered
in the above-captioned matter on the 24th day of April, 2018.” Notice of
Appeal, 4/30/18.

5 We note that, in “[a] plea of guilty forecloses challenges to all matters except
the voluntariness of the plea, the jurisdiction of the court, or the legality of
the sentence[,]” but that a defendant “may challenge the discretionary
aspects of [her] sentence . . . so long as there is no plea agreement as to the
terms of the sentence.” Commonwealth v. Stewart, 867 A.2d 589, 591
(Pa. Super. 2002).


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post-sentence motion and/or timely notice of appeal from the January 11,

2018 sentence.6 See Trial Ct. Op., 6/8/18, at 3.

      On July 6, 2018, this Court issued a rule to show cause as to why the

appeal should not be quashed as untimely. Appellant did not file a response.

Instead, on July 13, 2018, Attorney Santiago filed a petition to withdraw and

a separate Anders/Santiago brief. This Court discharged the rule to show

cause and referred consideration of Appellant’s response to this panel.

      Initially, we must consider whether we have jurisdiction over this

appeal.   See Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super.

2004) (stating that “appellate courts may consider the issue of jurisdiction sua

sponte”) (citation omitted). Jurisdiction is vested in this Court upon the filing

of a timely notice of appeal. Id.

      “In order to perfect a timely appeal, a defendant must file a notice of

appeal within 30 days of the imposition of [her] sentence, unless [she] files a

timely post-sentence motion within 10 days of sentencing, thereby tolling that

30–day window.”     Commonwealth v. Leatherby, 116 A.3d 73, 78 (Pa.

Super. 2015) (citations omitted).     However, “[i]f no timely post-sentence

motion is filed, the defendant’s appeal period begins to run from the date

sentence is imposed.”      Pa.R.Crim.P. 720, cmt; see Commonwealth v.

Dreves, 839 A.2d 1122, 1127 (Pa. Super. 2003) (en banc) (stating that the


6 However, the trial court did not address the sixty-day delay between
counsel’s motion to withdraw and the subsequent hearing at which counsel’s
motion was granted and new counsel was appointed.


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filing of untimely post-sentence motions does not toll the thirty-day period to

file an appeal from the judgment of sentence).

      “Generally, an appellate court cannot extend the time for filing an

appeal.”   Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super.

2007). “Nonetheless, this general rule does not affect the power of the courts

to grant relief in the case of fraud or breakdown in the processes of the court.”

Id. Moreover, a request to file a post-sentence motion or direct appeal nunc

pro tunc must be raised in a petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. See Commonwealth v. Liston, 977 A.2d

1089 (Pa. 2009) (regarding post-sentence motions); Commonwealth v.

Eller, 807 A.2d 838, 846 (Pa. 2002) (addressing direct appeals).

      Here, Appellant was sentenced on January 11, 2018, and she filed an

untimely post-sentence motion on April 9, 2018. Because the post-sentence

motion was untimely filed, it did not toll the time period in which Appellant

was required to file a notice of appeal with this Court. See Dreves, 839 A.2d

at 1127 (stating that the filing of untimely post-sentence motions does not

toll the thirty-day period to file an appeal from the judgment of sentence).

Therefore, Appellant’s notice of appeal was due by February 12, 2018,7 and

the notice of appeal filed on April 30, 2018, was untimely on its face.



7 Although February 10, 2018 was thirty days from the date Appellant was
sentenced, it was a Saturday. See 1 Pa.C.S. § 1908 (stating that when the
last day of a statutory period falls on a Saturday or Sunday, such day shall be
omitted from the time computation).


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      Ordinarily, we would be constrained to quash this appeal. Nevertheless,

under the unique circumstances of this case, we decline to do so based on a

breakdown in the operations of the court. See id.; see also Leatherby, 116

A.3d at 79 (stating that an appellant “should not be precluded from appellate

review based on what was, in effect, an administrative breakdown on the part

of the trial court.”). At sentencing on January 11, 2018, Appellant clearly

instructed her privately retained counsel, Attorney Johnson, to file a motion

for reconsideration. See N.T. Sentencing, 1/11/18, at 43-44. The following

day, however, Attorney Johnson moved to withdraw as counsel and took no

further actions to protect Appellant’s post-sentence or appellate rights. The

trial court did not rule on Attorney Johnson’s motion until March 13, 2018,

well after the deadlines for Appellant to file either a post-sentence motion or

a direct appeal passed.

      Further, the trial court’s March 13, 2018 order stated that new counsel

would be appointed to a file a post-sentence motion or notice of appeal. See

Order, 3/13/18. That order did not indicate when such filings were due. More

significantly, the trial court did not indicate that it would regard any filing as

being untimely from the date of imposition the judgment of sentence.

Therefore, although Attorney Santiago could have filed a PCRA petition

seeking reinstatement of Appellant’s post-sentence and appellate rights, the




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trial court’s March 13th order suggested that the court would accept her post-

sentence motion and/or notice of appeal nunc pro tunc.8

      Accordingly, we conclude that the trial court erred in finding that

Attorney Santiago’s April 9, 2018 post-sentence motion was untimely filed

from the January 11, 2018 judgment of sentence. We further conclude that

the failure to file post-sentence motions and a direct appeal in a timely fashion

resulted from breakdowns that were beyond Appellant’s control.

      For the foregoing reasons, we decline to quash Appellant’s appeal. See

Leatherby, 116 A.3d at 79. Given the breakdowns in the operation of the

court, we remand this matter for the trial court to address the merits of


8 Further adding to the confusion, one of the trial court’s docket entries for
March 13th states: “PCRA continued. Defense attorney Carl Johnson is
withdrawn as counsel of record. Court to appoint new counsel. List for status
of counsel – 4/24/18 – Room 200.” See Trial Ct. Docket CR-5281-2014 at 16
(emphasis added). As noted above Attorney Santiago did not discuss the trial
court’s ruling that her post-sentence motion and notice of appeal were
untimely. Instead, for the first time in her Anders/Santiago brief, she states
that “[a]fter a [PCRA] petition, Appellant filed her timely Notice of Appeal on
April 30, 2018.” Appellant’s Brief at 5 (emphasis added).

We add that quashing the present appeal would significantly limit Appellant
from seeking reinstatement of her direct appeal rights nunc pro tunc in a
timely filed PCRA petition. See Commonwealth v. Brown, 943 A.2d 264,
268 (Pa. 2008) (stating that the untimely filing of a direct appeal does not toll
the period for seeking PCRA review and that a petitioner has one year from
thirty days after the judgment of his sentence to file a timely PCRA petition.)
Because Appellant did not file a timely direct appeal, her PCRA petition would
be due by thirty days and one year after the imposition of sentence, or
February 12, 2019. See Commonwealth v. Jerman, 762 A.2d 366, 368
(Pa. Super. 2000) (noting that when a PCRA petitioner does not file a direct
appeal his or her judgment of sentence becomes final thirty days after
imposition of sentence).


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Appellant’s post-sentence motion nunc pro tunc. In the event the court denies

Appellant’s motion, Appellant shall have the right to file a notice of appeal

within thirty days of the order denying her motion.

     Case remanded with instructions. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/19




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