J-S69015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JUAN ABEL SANTIAGO,

                         Appellant                 No. 1801 MDA 2017


    Appeal from the Judgment of Sentence Entered September 15, 2017
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0002180-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED JANUARY 16, 2019

     Appellant, Juan Abel Santiago, appeals from the judgment of sentence

of life imprisonment, without the possibility of parole, imposed after he was

convicted of first-degree murder and related offenses. After review, we are

compelled to quash this appeal.

     We need not set forth the facts underlying Appellant’s convictions.

Instead, we only note that on September 15, 2017, he was convicted by a

jury of first-degree murder, second-degree murder, and robbery. That same

day, the court sentenced Appellant an aggregate term of two, concurrent
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terms of life imprisonment, without the possibility of parole, for his murder

convictions.1

       Appellant filed a timely, post-sentence motion. Therein, his privately-

retained trial counsel, George H. Margetas, Esq., raised substantive claims on

Appellant’s behalf, but also sought to withdraw from representing Appellant

on appeal. Attorney Margetas indicated that while he had “prepared [the]

proper paperwork in order to file an [a]ppeal[,]” he had only been retained

“for work through trial.”         Defense Post-Sentence Motion, 9/28/17, at 2

(unnumbered).       Consequently, Attorney Margetas asked for permission to

withdraw and that new counsel be appointed for Appellant’s appeal. Id.

       On October 18, 2017, the court issued an order denying Appellant’s

substantive, post-sentence motion issues, but granting Attorney Margetas’s

request to withdraw, stating: “Defense counsel shall file the proposed notice

of appeal. Counsel may then withdraw.” Order, 10/18/17, at 1 (single page).

The court further directed that Thomas Kelley, Esq., be appointed as appellate

counsel for Appellant. See id.

       On November 20, 2017, Attorney Margetas filed an untimely notice of

appeal. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule,

the notice of appeal required by Rule 902 (manner of taking appeal) shall be

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


1 We note that first- and second-degree murder do not merge for sentencing
purposes. See Commonwealth v. Crissman, 195 A.3d 588 (Pa. Super.
2018). Appellant’s robbery conviction, however, did merge with his conviction
for second-degree murder.

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taken.”). On June 27, 2018, this Court issued a Rule to Show Cause why

Appellant’s appeal should not be quashed as untimely. No response was filed

by Attorney Kelley, who had entered his appearance on Appellant’s behalf on

January 31, 2018. On July 13, 2018, this Court discharged the Rule to Show

Cause order and referred the issue of the timeliness of Appellant’s appeal to

the merits panel.

     On July 18, 2018, Attorney Kelley filed an untimely response to the

show-cause order.   Therein, he explained that the trial court had ordered

Attorney Margetas to file the notice of appeal before withdrawing, but that

Attorney Margetas had failed to do so in a timely fashion. Attorney Kelley

characterized these circumstances as “a breakdown in the process of replacing

counsel for [] Appellant[,]” and asked that we excuse the untimeliness of

Appellant’s appeal on that basis. See Appellant’s Response to Court’s Order

to Show Cause, 7/18/18, at 2 (citing Commonwealth v. Braykovich, 664

A.2d 133 (Pa. Super. 1995)). Unfortunately for Appellant, we cannot do so.

        It is well-settled that appellate courts cannot extend the time
     for filing an appeal. Pa.R.A.P. 105(b) provides as follows:

        An appellate court for good cause shown may upon
        application enlarge the time prescribed by these rules or by
        its order for doing any act, or may permit an act to be done
        after the expiration of such time, but the court may not
        enlarge the time for filing a notice of appeal, a petition for
        allowance of appeal, a petition for permission to appeal, or
        a petition for review. (emphasis added)

     However, the official note to Pa.R.A.P. 105 creates an exception
     to this rule: “Subdivision (b) of this rule is not intended to affect
     the power of a court to grant relief in the case of fraud or
     breakdown in the processes of a court.” As recognized by this

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      Court, the official note makes it clear that the appellate courts
      retain the power to grant relief from the effects of a breakdown in
      the court system:

         It is well-established that the extension of the filing period
         or the allowance of an appeal nunc pro tunc will be
         permitted only in extraordinary circumstances, namely,
         fraud or some breakdown in the processes of the court.
         Pa.R.A.P. 105(b) note.

Braykovich, 664 A.2d at 136 (emphasis added by Braykovich; some

internal citations omitted).

      In Braykovich, this Court excused an untimely-filed notice of appeal

because the clerk of courts had erroneously failed to enter an order denying

Braykovich’s post-sentence motion by operation of law, as it was required to

do under Pa.R.Crim.P. 1410 (now numbered Rule 720(B)(3)(c)). Clearly, the

breakdown in the operation of the court in Braykovich (the sole case cited

by Attorney Kelley in his response to our show-cause order) is not akin to the

circumstances in the present case. Here, the court did nothing wrong; it was

Appellant’s privately-retained counsel who erred. The court clearly ordered

Attorney Margetas to file a notice of appeal before withdrawing, yet counsel

failed to timely do so. Nothing in the record indicates that Attorney Margetas

had a “non-negligent” reason for this error. See Bass v. Commonwealth,

401 A.2d 1133, 1135 (Pa. 1979) (establishing an exception for the allowance




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of an appeal nunc pro tunc for counsel’s “non-negligent failure to file an

appeal”).2

       Consequently, we are compelled to conclude that there has been no

fraud or breakdown in the operations of the court that permit us to excuse the

untimeliness of Appellant’s notice of appeal. As such, we lack jurisdiction to

review his claims. See Commonwealth v. Capaldi, 112 A.3d 1242, 1244

(Pa. Super. 2015) (“We lack jurisdiction to consider untimely appeals, and we

may raise such jurisdictional issues sua sponte.”) (citation omitted).

Appellant’s only recourse is to file a petition under the Post Conviction Relief

Act, 42 Pa.C.S. §§ 9541-9546, alleging Attorney Margetas’s ineffectiveness

and seeking the reinstatement of his direct appeal rights.

       Appeal quashed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2019




____________________________________________


2While we cite Bass, we note that “the scope of the holding in Bass is unclear,
In re Interest of C.K., … 535 A.2d 634 ([Pa. Super.] 1987), and our Court
has applied Bass restrictively, see Moring v. Dunne, [493 A.2d 89 (Pa.
Super. 1985)].” Braykovich, 664 A.2d at 138 n.7.

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