J-S18015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MOSES JOEL FAHNESTOCK                      :
                                               :
                       Appellant               :   No. 1076 MDA 2019


               Appeal from the PCRA Order Entered June 5, 2019,
                in the Court of Common Pleas of Dauphin County,
              Criminal Division at No(s): CP-22-CR-0001407-2018.


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MOSES JOEL FAHNESTOCK                      :
                                               :
                       Appellant               :   No. 1077 MDA 2019


               Appeal from the PCRA Order Entered June 5, 2019,
                in the Court of Common Pleas of Dauphin County,
              Criminal Division at No(s): CP-22-CR-0000531-2014.


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                   FILED: JUNE 22, 2020

        In these consolidated appeals, Moses Joel Fahnestock appeals from the

order denying his first petition filed pursuant to the Post Conviction Relief Act.

42 Pa.C.S.A. §§ 9541-46. We reverse and remand with instructions.
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      The pertinent facts and procedural history, as gleaned from the certified

record, are as follows. On June 23, 2014, Fahnestock entered a negotiated

guilty plea to various charges at Docket No. 531-2014. That same day the

trial court, in accordance with the terms of the plea, sentenced Fahnestock to

an aggregate term of nine to twenty-three months of county incarceration and

a consecutive five-year term of probation. Fahnestock did not file an appeal.

On October 15, 2014, he was released on parole.

      While still on probation, Fahnestock was arrested on February 25, 2018

and charged with flight to avoid apprehension at Docket No. 1407-2018. On

May 2, 2018, Fahnestock pled guilty to the charge. As part of his written

guilty plea colloquy, Fahnestock acknowledged his post-sentence rights. At

the same proceeding, the trial court determined that Fahnestock violated the

conditions of his probation/parole with regard to Docket No. 531-2014. The

trial court then sentenced Fahnestock at both dockets, resulting in an

aggregate term of eighteen months to four years of state incarceration. At

the close of the proceeding, plea counsel waived the reading of Fahnestock’s

right to file a post-sentence motion and/or a direct appeal.

      Despite being represented by counsel, Fahnestock filed a pro se motion

to modify his sentence on May 15, 2018. The trial court denied the motion on

June 6, 2018.    Importantly, in the order, the trial court did not provide

Fahnestock with notice of his “right to appeal and the time limits in which the

appeal must be filed.”    Pa.R.Crim.P. 720(B)(4)(a); see also Pa.R.Crim.P.

720(B)(4)(a), Comment (noting, Rule 720B)(4)(a)’s “requirement ensures

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adequate notice to the . . . [appellant], which is important given the potential

time lapse between the notice provided at sentencing and the resolution of

the post-sentence motion”). Additionally, plea counsel was not included in

the distribution of the order.1 Fahnestock did not file a direct appeal.

       On October 5, 2018, Fahnestock filed a pro se PCRA petition, in which

he raised various claims, including a claim that plea counsel was ineffective

for failing to advise him of his post-sentence and appellate rights. The PCRA

court appointed counsel, and PCRA counsel filed an amended PCRA petition

on January 29, 2019.         In the amended petition, Fahnestock claimed that

government officials interfered with his right to file a direct appeal.

Specifically, Fahnestock asserted that, although the clerk of courts properly

docketed his motion to modify sentence, the clerk neglected to forward the

pro se filing to counsel so that counsel could timely correct any errors.2

       On May 8, 2019, the PCRA court issued a Pa.R.Crim.P. 907 intention to

dismiss Fahnestock’s PCRA petition without a hearing. Fahnestock filed a pro

se response.      By order entered June 5, 2019, the PCRA court dismissed


____________________________________________


1 On July 26, 2018, plea counsel did file a petition on Fahenstock’s behalf in
which counsel requested an award of additional time credit. The trial court
granted the motion on July 30, 2018. Although a copy of this order was
distributed to plea counsel, it was not sent to Fahnestock.

2 That next day, Fahnestock filed a motion to reinstate his appellate rights
nunc pro tunc, in which he asserted, inter alia, that the order denying his pro
se post-sentence motion was not distributed to plea counsel. Our review of
the certified record reveals that the PCRA court never ruled on this motion.


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Fahnestock’s amended PCRA petition. This appeal followed. Both Fahnestock

and the PCRA court have complied with Pa.R.A.P. 1925.

      Fahnestock presents the following issue for our review:


         1. The [PCRA] court abused its discretion by dismissing
            [Fahnestock’s] claim to reinstate his direct appeal rights
            pursuant to 42 Pa.C.S.A. § 9543(a)(2)(iv)?

Fahnestock’s Brief at 7 (emphasis omitted).

      Our scope and standard of review is well settled:

         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

      A PCRA petitioner is eligible for post-conviction relief when “[t]he

improper obstruction by governmental officials of the petitioner’s right to

appeal” occurred, and “where a meritorious appealable issue existed and was

properly preserved in the trial court.”   42 Pa.C.S.A. § 9543(a)(2)(iv). Here,

Fahnestock contends that the clerk of courts’ failure to forward a copy of his

May 15, 2018 pro se motion to plea counsel, pursuant to Pa.R.Crim.P. 576,

constituted a “breakdown in the system” that entitles him to relief in the form



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or reinstating his appellate rights nunc pro tunc. Fahnestock’s Brief at 10.

According to Fahnestock, “the clerk of courts prevented trial counsel from

receiving the [pro se] Motion and correcting any timeliness errors to protect

[his] direct appeal rights.” Id.

       The PCRA court found no merit to this claim. As the court explained in

its Rule 907 notice:

             Specifically, despite being represented by counsel,
          [Fahnestock] filed a motion to modify and reduce sentence.
          The clerk of courts docketed the motion. [Fahnestock] is
          claiming that the clerk of courts should have forwarded the
          pro se pleading to [plea] counsel to enable counsel to timely
          correct any errors. Commonwealth v. Rodriguez, 174
          A.3d 1130 (Pa. Super. 2017).

             [Fahnestock] is not entitled to relief. He pled guilty and
          was sentenced on May 2, 2018. At the time of his guilty
          plea, [Fahnestock] completed a guilty plea colloquy that
          explained his right to appeal. His ten day deadline in which
          to file a post-sentence motion was on May 12, 2018.
          [Fahnestock] did not file his pro se motion until May 15,
          2018. Thus, the clerk of courts[’] “failure” is not relevant.
          [Fahnestock] did not express his desire to appeal within the
          [ten day] deadline. Therefore, there was no obstruction by
          government officials and no relief is due.

Rule 907 Notice, 5/8/19, at unnumbered 2.3
____________________________________________


3 Fahnestock’s pro se motion may have been timely-filed pursuant to the
“prisoner mailbox rule.” See Commonwealth v. Brandon, 51 A.3d 231,
234, n.5 (Pa. Super. 2012) (deeming “a pro se document filed on the date it
is placed in the hands of prison authorities for mailing”). Because May 10,
2018 was a Saturday, Fahnestock’s ten days in which to file a post-sentence
motion expired on Monday, May 14, 2018. See 1 Pa.C.S.A. § 1908.
Fahnestock dated his motion on that date. However, our review of the record
reveals no evidence to support application of the prison mailbox rule.



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       In its brief, the Commonwealth summarily echoes this rationale:

“Notably, this failure to forward the motion occurred after [Fahnestock] filed

an untimely [pro se] post-trial motion. This is important because even if the

court forwarded the [pro se] motion and [Fahnestock’s counsel] had the

opportunity to amend and correct its deficiencies, it would have nevertheless

been jurisdictionally barred for lack of timeliness.” Commonwealth’s Brief at

7.

       In essence, both the PCRA court and the Commonwealth contend that

because Fahnestock filed his post-sentence motion in an untimely manner,

plea counsel could not correct this deficiency.        We cannot agree.    In

Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003), this Court

noted that, if a notice of appeal has not been filed, counsel can correct an

untimeliness of a post-sentence motion by seeking leave to file a post-

sentence motion nunc pro tunc within thirty days:


             We recognize that under 42 Pa.C.S.A. § 5505, if no
          appeal had been taken, within 30 days after the imposition
          of sentence, the trial court has the discretion to grant a
          request to file a post-sentence motion nunc pro tunc.

                                           ***

             To be entitled to file a post-sentence motion nunc pro
          tunc, a defendant must, within 30 days after the imposition
          of sentence, demonstrate sufficient cause, i.e., reasons that
____________________________________________


Nevertheless, this omission is of no consequence because we find that, even
if Fahnestock’s motion was motion untimely, he is still entitled to
reinstatement of his appellate rights. See infra.


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         excuse the late filing. . . . When the defendant has met
         this burden and has shown sufficient cause, the trial court
         must then exercise its discretion in deciding whether to
         permit a defendant to file a post-sentence motion nunc pro
         tunc. If the trial court chooses to permit a defendant to file
         a post-sentence motion nunc pro tunc, the court must do so
         expressly.

                                      ***

            [I]n order for a petition to file a post-sentence motion
         nunc pro tunc to be granted, a defendant must, within 30
         days after the imposition of sentence, demonstrate an
         extraordinary circumstance which excuses the tardiness.

Dreves, 839 A.2d at 1128 (footnoted omitted). See also Commonwealth

v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) (citing Dreves, and

explaining that a post-sentence motion may toll the appeal period only if two

conditions are met; within 30 days from the date sentence was imposed, the

defendant must make a request to file a post-sentence motion nunc pro tunc

and the trial court must expressly grant it).

      Here, contrary to the conclusions of the PCRA court and the

Commonwealth, had the clerk of courts forwarded Fahnestock’s untimely pro

se motion to plea counsel, plea counsel could have filed a request to file a

post-sentence motion nunc pro tunc, and attempted to sufficient cause to

permit the nunc pro tunc filing. Thus, the clerk of courts’ failure to forward

the pro se filing in this case constituted “a breakdown in the system” that

prejudiced Fahnestock, because plea counsel was denied the opportunity to

seek to file a post-sentence motion nunc pro tunc.        In addition, another

“breakdown” occurred when the trial court, in denying Fahnestock’s pro se



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post-sentence motion failed to inform him of his appellate rights.         See

Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007) (finding

a breakdown in the court’s operation occurred when the trial court denied the

defendant’s untimely post-sentence motion within the appeal period, but

failed to apprise him that he still had fifteen days to file an appeal).

      Given these circumstances, we conclude that the above irregularities

constitute breakdowns in the court system such that Fahnestock’s direct

appeal rights should be reinstated. Dreves, supra; Patterson, supra.

      Order reversed. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/22/2020




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