J-S70037-18

                                   2019 PA Super 26


    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                       Appellee                   :
                                                  :
                v.                                :
                                                  :
    JOEL BALLANCE                                 :
                                                  :
                       Appellant                  :      No. 2660 EDA 2017

             Appeal from the Judgment of Sentence May 21, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006785-2012,
             CP-51-CR-0006787-2012, CP-51-CR-0006788-2012,
             CP-51-CR-0006789-2012, CP-51-CR-0006790-2012,
             CP-51-CR-0006792-2012, CP-51-CR-0006796-2012,
             CP-51-CR-0006797-2012, CP-51-CR-0006798-2012,
             CP-51-CR-0006799-2012, CP-51-CR-0006800-2012,
              CP-51-CR-0006807-2012, CP-51-CR-0006809-2012


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

OPINION BY GANTMAN, P.J.:                              FILED FEBRUARY 05, 2019

       Appellant, Joel Ballance, purports to appeal nunc pro tunc from the

judgment of sentence entered in the Philadelphia County Court of Common

Pleas, after the court granted in part Appellant’s petition filed under the Post

Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546, and restored

his right to file a direct appeal.1            We hold that the PCRA court had no

____________________________________________


1Appellant filed a single notice of appeal, although the court entered separate
orders at each of 13 relevant docket numbers. Nevertheless, the single notice
of appeal predates the Supreme Court’s decision in Commonwealth v.
Walker, ___ Pa. ___, 185 A.3d 969 (2018) (requiring prospectively,
separate notices of appeal from individual orders which resolve issues arising
at separate trial court docket numbers). Accordingly, we decline to apply
Walker to this case.
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jurisdiction to reinstate Appellant’s direct appeal rights nunc pro tunc.

Accordingly, we vacate the court’s order granting Appellant leave to file a nunc

pro tunc appeal from the judgment of sentence and dismiss the appeal for

lack of jurisdiction.

      The relevant facts and procedural history of the case are summarized

as follows.   In 2012, Appellant was arrested and charged with numerous

offenses at various docket numbers.        The charges involved a string of

burglaries or attempted burglaries with related offenses, in northeast

Philadelphia. On March 13, 2014, Appellant entered an open guilty plea to

various reduced charges. The court sentenced Appellant to an aggregate term

of 10 to 20 years’ incarceration on May 21, 2014.       Appellant filed a post-

sentence motion on June 3, 2014, which was a day late. Nevertheless, the

court held a hearing on the motion and denied relief on June 19, 2014.

Appellant filed a pro se notice of appeal on July 15, 2014. The court appointed

counsel who filed an amended notice of appeal on August 1, 2014.

      This Court issued a Rule to Show Cause on October 15, 2014, directing

Appellant to explain how his appeal should not be quashed as untimely.

Counsel responded by letter to this Court on October 24, 2014, that he was

recently court-appointed for the appeal, he acknowledged the appeal was

procedurally flawed as untimely, and he agreed it must be quashed under the

circumstances to allow further proceedings by way of a PCRA petition. Counsel

copied his response to all relevant parties including Appellant and advised him


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of his rights. By order of November 6, 2014, the matter was referred to the

panel of judges assigned to decide the merits of the appeal. Without evidence

of any fraud or breakdown in the operations of the court, the panel of judges

ultimately quashed the appeal for lack of jurisdiction on September 17, 2015.

See   Commonwealth       v.    Ballance,       133   A.3d   73    (Pa.Super.   2015)

(unpublished memorandum).

      On July 21, 2016, Appellant filed a pro se PCRA petition to challenge his

sentence as illegal and as an abuse of discretion. The court appointed counsel

who   filed   an   amended    petition    on   February     19,   2017,   requesting

reinstatement of Appellant’s post-sentence motion and direct appeal rights

nunc pro tunc.     By order filed August 4, 2017, the PCRA court granted

Appellant’s petition in part, restored only his direct appeal rights, and gave

him 14 days to file a notice of appeal. Appellant filed a notice of appeal on

August 17, 2017. On August 22, 2017, the court ordered Appellant to file a

concise statement of errors complained of on appeal, per Pa.R.A.P. 1925;

Appellant timely complied on August 23, 2017.

      Appellant raises these issues on appeal:

         DID THE [TRIAL] COURT ERR WHEN IT IMPOSED
         SENTENCES FOR BOTH BURGLARY AND THE CRIME WHICH
         [APPELLANT] INTENDED TO COMMIT AFTER THE
         BURGLARIOUS ENTRY IN VIOLATION OF 18 PA.C.S.A. §
         3502(D)?

         DID THE [TRIAL] COURT ERR WHEN IT IMPOSED
         SENTENCES FOR BOTH ATTEMPTED BURGLARY AND THE
         CRIME WHICH [APPELLANT] INTENDED TO COMMIT AFTER
         THE BURGLARIOUS ENTRY IN VIOLATION OF 18 PA.C.S.A.

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         § 3502(D)?

(Appellant’s Brief at 4).

       Before we can address the merits of these issues, however, we must

determine if the PCRA court had jurisdiction to restore Appellant’s rights to a

direct appeal such that this appeal is properly before us for review.      The

timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v.

Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert. denied, 556 U.S. 1285,

129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).          “[T]he PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of the petition.” Commonwealth v. Laird, ___ A.3d ___,

___,   2018   PA    Super   343   *1   (filed   December   17,   2018)   (citing

Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007)). In other

words, Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 508,

837 A.2d 1157, 1161 (2003). The PCRA requires a petition, including a second

or subsequent petition, to be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence

is final “at the conclusion of direct review, including discretionary review in

the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

       Further:


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         The PCRA provides the sole means for obtaining collateral
         review of a judgment of sentence. [A] court may entertain
         a challenge to the legality of the sentence so long as the
         court has jurisdiction to hear the claim. In the PCRA
         context, jurisdiction is tied to the filing of a timely PCRA
         petition. Although legality of sentence is always subject to
         review within the PCRA, claims must still first satisfy the
         PCRA’s time limits or one of the exceptions thereto. Thus,
         a collateral claim regarding the legality of a sentence can be
         lost for failure to raise it in a timely manner under the PCRA.

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super. 2013) (internal

citations omitted). “[I]n circumstances in which no timely direct appeal is filed

relative to a judgment of sentence, and direct review is therefore unavailable,

the one-year period allowed for the filing of a post-conviction petition

commences upon the actual expiration of the time period allowed for seeking

direct review, as specified in the PCRA.” Commonwealth v. Brown, 596 Pa.

354, 361, 943 A.2d 264, 268 (2008). The initial untimely filing does not serve

to circumvent the clear and unambiguous language of Section 9545(b)(3) and

alter the date when the judgment of sentence became final. Commonwealth

v. Hutchins, 760 A.2d 50, 54 (Pa.Super. 2000).

      Generally, to obtain merits review of a PCRA petition filed more than

one year after the sentence became final; the petitioner must allege and prove

at least one of the three timeliness exceptions.          See 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii). The petitioner must allege and prove:

         (i) the failure to raise the claim previously was the result
         of interference by government officials with the presentation
         of the claim in violation of the Constitution or laws of this
         Commonwealth or the Constitution or laws of the United
         States;

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         (ii) the facts upon which the claim is predicated were
         unknown to the petitioner and could not have been
         ascertained by the exercise of due diligence; or

         (iii) the right asserted is a constitutional right that was
         recognized by the Supreme Court of the United States or
         the Supreme Court of Pennsylvania after the time period
         provided in this section and has been held by that court to
         apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “[W]hen a PCRA petition is not filed within

one year of the expiration of direct review, or not eligible for one of the three

limited exceptions, or entitled to one of the exceptions, but not filed within 60

days of the date that the claim could have been first brought, the trial court

has no power to address the substantive merits of a petitioner’s PCRA claims.”

Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783

(2000). We can raise sua sponte the timeliness of a PCRA petition because it

is an issue of the court’s jurisdiction. Hutchins, supra.

      Instantly, the trial court sentenced Appellant on May 21, 2014.

Appellant filed untimely post-sentence motions, one day late and without

request for permission and court-ordered extension of time. Appellant’s late-

filed post-sentence motion alone did not extend the time for him to file a direct

appeal. See Pa.R.Crim.P. 720(A) (providing written post-sentence motions

shall be filed no later than ten days after imposition of sentence; only

timely-filed post-sentence motion will toll 30-day appeal period and extend it

to 30 days after entry of order deciding timely motion or denying it by

operation of law; if post-sentence motion is untimely, notice of appeal must

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J-S70037-18


be filed within 30 days of imposition of sentence); Pa.R.A.P. 903 (stating

general rule that appeal must be filed within thirty days). Notwithstanding

the trial court’s hearing and denial of Appellant’s untimely post-sentence

motion on the merits, his motion failed to toll the direct appeal period, because

the court did not expressly allow the late post-sentence motion nunc pro tunc.

See Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super. 2003) (en banc)

(stating that absent timely filed post-sentence motion, event triggering appeal

run date remains date sentence was imposed; court’s resolution on merits of

late post-sentence motion does not alone deem late motion as filed nunc pro

tunc). Thus, Appellant’s late post-sentence motion and hearing did not toll

the 30-day direct appeal period, so his notice of appeal from the judgment of

sentence was due on or before June 20, 2014.            See Ballance, supra.

Therefore, Appellant’s judgment of sentence became final for PCRA purposes

on June 20, 2014, upon expiration of the time to file a direct appeal.

      Appellant, however, filed an untimely notice of appeal pro se on July 15,

2014. The court appointed appellate counsel who filed an amended notice of

appeal on August 1, 2014. During the pendency of the appeal, this Court

issued a Rule to Show Cause directing Appellant to explain how his appeal was

timely. Counsel responded by letter to this Court on October 24, 2014, that

he was recently court-appointed for the appeal, he acknowledged the appeal

was procedurally flawed as untimely, and he agreed it must be quashed under

the circumstances to allow further proceedings by way of a PCRA petition.


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Counsel copied his response to all relevant parties including Appellant and

advised him of his rights. By order of November 6, 2014, this Court referred

the matter to the panel of judges assigned to decide the merits of the appeal.

Without evidence of any fraud or breakdown in the operations of the court,

the panel of judges later quashed the untimely appeal for lack of jurisdiction

on September 17, 2015. See id.

      Appellant was represented on direct appeal by counsel who informed

Appellant by letter of October 24, 2014, that the appeal was untimely. To

obtain relief under the PCRA, Appellant knew he had to file a PCRA petition.

To file a timely PCRA petition, Appellant would have had to withdraw his direct

appeal and file the petition on or before June 20, 2015. See Brown, supra.

Instead, he unsuccessfully pursued his direct appeal, which concluded on

September 17, 2015, a few months past his PCRA deadline. To pursue a PCRA

petition after the resolution of his direct appeal as untimely filed, Appellant

would have had to (a) file the petition within sixty days of this Court’s decision

on direct appeal and (b) plead and prove one of the statutory exceptions to

the PCRA time bar. Appellant did not file his petition until July 21, 2016, which

rendered it untimely on its face. Appointed PCRA counsel compounded the

error by using the date this Court quashed the direct appeal for lack of

jurisdiction to calculate the timeliness of the PCRA petition, which was

incorrect. See Laird, supra. Counsel assumed the petition was timely, and

neither the trial court nor the Commonwealth challenged or even addressed


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the jurisdictional matter. In the PCRA context, statutory jurisdiction cannot

be conferred by silence, agreement or neglect. See Hutchins, supra. The

PCRA court’s jurisdiction was a threshold requirement, even if Appellant’s

claim regarding the legality of the sentence was denied review for his failure

to raise it in a timely petition. See Infante, supra.

      Given that his PCRA petition was untimely, Appellant should have but

did not plead and prove when he first learned of this Court’s decision on his

direct appeal and invoke a relevant exception to the statutory time limits.

Having failed to satisfy the statutory 60-day rule and assert a valid timeliness

exception, Appellant’s PCRA petition remained time-barred. See Gamboa-

Taylor, supra; 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Thus, we hold the PCRA

court had no jurisdiction to restore Appellant’s direct appeal rights nunc pro

tunc via the untimely petition. See Robinson, supra. Likewise, we have no

jurisdiction to entertain the appeal. See Hutchins, supra.

      For these reasons, we vacate the court’s order granting Appellant leave

to file a nunc pro tunc appeal from the judgment of sentence and dismiss the

current appeal for lack of jurisdiction. See Commonwealth v. Hall, 565 Pa.

92, 771 A.2d 1232 (2001) (vacating court order granting leave to file appeal

nunc pro tunc and dismissing appeal filed, where remedy sought was available

under PCRA and subject to its requirements on timely filing).

      Appeal dismissed.




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J-S70037-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/19




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