J-S58014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARLOS HERNANDEZ-ROBLEDO,

                            Appellant                 No. 2089 MDA 2015


               Appeal from the Order Entered November 18, 2015
                 in the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-MD-0001910-2015


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 07, 2016

        Appellant, Carlos Hernandez-Robledo, appeals from the order of

November 18, 2015, denying his petition for leave to appeal a summary

conviction nunc pro tunc. For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s January 12, 2016 opinion and our independent review

of the certified record.

        In December 2014, Appellant appeared at the office of the Magisterial

District Court and entered a guilty plea to his fifth violation for driving while



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*
    Retired Senior Judge assigned to the Superior Court.
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operating privilege is suspended or revoked.1 (See N.T. Hearing, 11/18/15,

at 4). Appellant, who has never possessed a valid driver’s license, (see id.

at 17), took no further action with respect to this matter until October 4,

2015, when he sought counsel.             (See id. at 12).   On October 7, 2015,

Appellant filed the instant petition for leave to file a summary traffic appeal

nunc pro tunc.

        On November 18, 2015, the trial court held an evidentiary hearing on

Appellant’s petition.      At the hearing, Appellant testified that he pleaded

guilty and paid the fine to avoid problems “with my ticket. I want[ed] to do

what I need[ed] to avoid problems.” (Id. at 7). Appellant claimed that in

March 2015, he received a letter from the Pennsylvania Department of

Transportation (PennDOT) advising him that any further convictions for

driving with a suspended license would result in incarceration and that he

needed to obtain counsel. (See id. at 9, 12-13). Appellant admitted that he

did not immediately seek counsel. (See id. at 12). In July 2015, Appellant

received his sixth citation for driving while operating privilege is suspended

or revoked.     (See id. at 14).      Despite this, Appellant again acknowledged

that he did not take any immediate action.

        Following the hearing, the trial court denied the petition. (See id. at

24-25). This timely appeal followed. On December 7, 2015, the trial court

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1
    75 Pa.C.S.A. § 1543(a).



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ordered Appellant to file a concise statement of errors complained of on

appeal.   See Pa.R.A.P. 1925(b).      Appellant filed a timely Rule 1925(b)

statement on December 16, 2015. See id. On January 12, 2016, the trial

court issued an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

             1.   Whether the trial court erred in denying Appellant’s
      petition to appeal nunc pro tunc where his plea of guilty was
      predicated upon mis-information provided to him by a clerk of
      the magisterial district court, thereby constituting a breakdown
      in court operations precluding a timely appeal[?]

             2.    Whether the trial court erred in denying Appellant’s
      petition to appeal nunc pro tunc on the basis of this Court’s
      holding in [Commonwealth v. White, 806 A.2d 45 (Pa. Super.
      2002)] where [Appellant] personally appeared in the magisterial
      district court and was not advised of his appellate rights by the
      issuing authority precluding a timely appeal[?]

             3.    Whether [Appellant] acted with due diligence in filing
      his petition to appeal nunc pro tunc upon learning of the ground
      relied upon for relief[?]

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

      Our scope and standard of review are settled.

            Initially, we note that the allowance of appeal nunc pro
      tunc is within the sound discretion of the trial court, and our
      scope of review of a decision of whether to permit an appeal
      nunc pro tunc is limited to a determination of whether the trial
      court has abused its discretion or committed an error of law.
      Orders granting or denying [a] petition to appeal nunc pro tunc
      are reversible [only] in instances where the court abused its
      discretion or where the court drew an erroneous legal
      conclusion.

Commonwealth v. Yohe, 641 A.2d 1210, 1211 (Pa. Super. 1994)

(citations and quotation marks omitted).

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      Because Appellant’s issues are interrelated, we address them together.

On appeal, Appellant claims that the trial court erred in denying his petition

for leave to appeal a summary conviction nunc pro tunc.

      The Pennsylvania Rules of Criminal Procedure provide that a defendant

has thirty days from the entry of the guilty plea or conviction to file an

appeal from a summary proceeding to the Court of Common Pleas.               See

Pa.R.Crim.P. 460(A).    This is the only means of challenging a summary

conviction.   See Pa.R.Crim.P. 460(E).       Further, we have stated that:

“[w]hen an Act of Assembly fixes the time within which an appeal may be

taken, courts are without power to extend the period or allow an appeal

nunc pro tunc absent fraud or its equivalent or some breakdown in the

court’s operation.”   Commonwealth v. Englert, 457 A.2d 121, 123 (Pa.

Super. 1983) (citation omitted).      This Court has recognized that, under

limited circumstances, the trial court can hear an appeal nunc pro tunc.

However, we only permit such an appeal where:

      evidence of fraud or a wrongful or negligent act of a court official
      has caused a defendant to forego his/her right to a timely appeal
      of a conviction. Further, the individual seeking leave to appeal
      nunc pro tunc must establish that he/she acted promptly to
      assert such a right once learning of the existence of the grounds
      relied upon for such requested relief.

Commonwealth v. Stadtfeld, 665 A.2d 487, 490 (Pa. Super. 1995)

(citation omitted, emphasis added).




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       In   the   instant    matter,     Appellant   contends   that   he   received

misinformation from a clerk at the Magisterial District Court.                  (See

Appellant’s Brief, at 9). Appellant claims that he told the clerk that:

       he wanted to avoid problems with his license,[2] [and] rather
       than inform him that he could have a trial, or, alternatively, that
       the court could not provide any advice to [Appellant] at all, he
       was advised that he could avoid problems with his license by
       making payment arrangements.

(Id. at 9). At the evidentiary hearing, Appellant admitted that the clerk told

him that by paying the ticket he was pleading guilty.           (See N.T. Hearing,

11/18/15, at 8-9). However, he claimed to be unaware that the guilty plea

constituted a conviction and that the clerk did not inform him of his right to

appeal. (See id. at 9). Appellant acknowledged that he first became aware

that the plea could cause him legal difficulties when he received a letter on

or about March 16, 2015, from PennDOT.3              (See id. at 9-11).     Appellant

testified that the letter advised him to obtain counsel and warned him that

further convictions for driving while operating privilege is suspended or

revoked would result in incarceration.           (See id. at 10-13).        Appellant

claimed the letter upset him; however, he took no action. (See id.). In July
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2
  While Appellant now claims that he told the clerk that he wanted to avoid
problems with his license, at the evidentiary hearing he testified that he said
that he wanted to avoid “problems with my ticket.”              (N.T. Hearing,
11/18/15, at 5-6). Again, we note that Appellant has never possessed a
valid driver’s license. (See id. at 17).
3
 Appellant did not supply a copy of the letter to the trial court. (See N.T.
Hearing, 11/18/15, at 10).



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2015, Appellant got a sixth ticket for driving while operating privilege is

suspended or revoked. (See id. at 14). Again, Appellant took no action.

(See id. at 12). Appellant did not seek counsel until October 2015. (See

id.).   Counsel then filed the instant petition on October 7, 2015, almost

seven months after Appellant received the March 2015 letter.

        In Stadtfeld, the appellant was cited in June 1989 for various motor

vehicle violations including driving while under suspension. See Stadtfeld,

supra at 489.       The appellant did not respond to the citations until

September 1992, when he learned that PennDOT has suspended his license

indefinitely. See id. After PennDOT informed him that the suspension arose

from the 1989 citation, the appellant contacted the Magisterial District Court,

where an employee allegedly informed him that the only way to dispose of

the outstanding charges was to pay the fine and court costs. See id. The

appellant paid the ticket in January 1993, but notwithstanding this, PennDOT

suspended his license for one year because of the January 1993 conviction.

See id.

        In November 1993, the appellant filed a petition for allowance of

appeal nunc pro tunc, arguing that the clerk misadvised him and that this

constituted a breakdown in the judicial system.      See id.   The trial court

denied the petition and the appellant appealed.     See id.    On appeal, this

Court never reached the underlying issue of an alleged breakdown in the




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judicial system; instead, we found that the appellant had not promptly filed

his petition after learning of the impending suspension.4 See id. at 490-91.

       Here, Appellant learned of impending difficulties caused by his guilty

plea in the March 2015 PennDOT letter that advised him to obtain counsel.

He received his sixth citation for driving while operating privilege is

suspended or revoked in July 2015.              Despite this, he took no action until

October 2015, almost seven months after receipt of the letter. This simply

does not constitute prompt action, even if a breakdown in the court system

occurred. See id. at 491; see also White, supra at 47 (finding appellant

failed to show he acted promptly in filing petition seeking nunc pro tunc

appeal where there was approximately four month delay between summary

conviction and filing of petition).            Therefore, because we conclude that

Appellant did not promptly file his petition for nunc pro tunc relief, we need

not address his remaining contentions of a breakdown in the judicial system.

See Stadtfeld, supra at 490.

       Order affirmed.




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4
  Despite this holding, we ultimately remanded the matter for additional
fact-finding with respect the appellant’s contention that he never received
actual notice of the 1989 citation. See id. at 491-94.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




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