J-S56028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 MARK FORD                                 :
                                           :
                    Appellant              :   No. 338 EDA 2019

       Appeal from the Judgment of Sentence Entered March 20, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0002874-2015

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 MARK FORD                                 :
                                           :
                    Appellant              :   No. 339 EDA 2019

       Appeal from the Judgment of Sentence Entered March 20, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004136-2015


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 03, 2019

      Appellant, Mark Ford, purports to appeal nunc pro tunc from the

judgment of sentence entered in the Court of Common Pleas of Philadelphia

County after the court granted his petition filed pursuant to the Post Conviction

Relief Act (“PCRA”) 42 Pa.C.S.A. §§ 9541-9546, and restored his right to file

a direct appeal. We hold that the PCRA court lacked jurisdiction to reinstate
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Appellant’s direct appeal rights nunc pro tunc. Accordingly, we vacate the

PCRA court’s order and quash Appellant’s appeal for lack of jurisdiction.

        On December 5, 2016, Appellant entered an open guilty plea in two

cases.     Specifically, regarding Docket Number CP-51-CR-0002874-2015

(hereinafter, Docket Number 2874-2015), Appellant entered an open guilty

plea to: rape by forcible compulsion,1 involuntary deviate sexual intercourse

(“IDSI”) by forcible compulsion,2 robbery,3 kidnapping for ransom,4 unlawful

restraint,5 possession of an instrument of crime,6 and terroristic threats.7 In

addition, regarding Docket Number CP-51-CR-0004136-2015 (hereinafter,

Docket Number 4136-2015), Appellant pled guilty to robbery, kidnapping for

ransom, access device fraud,8 indecent assault by forcible compulsion,9 and

terroristic threats.


____________________________________________


1   18 Pa.C.S.A. § 3121(a)(1).

2   18 Pa.C.S.A. § 3123(a)(1).

3   18 Pa.C.S.A. § 3701(a)(1)(i).

4   18 Pa.C.S.A. § 2901(a)(1).

5   18 Pa.C.S.A. § 2902(a)(1).

6   18 Pa.C.S.A. § 907(a).

7   18 Pa.C.S.A. § 2706(a)(1).

8   18 Pa.C.S.A. § 4106(a)(1).

9   18 Pa.C.S.A. § 3126(a)(2).


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      The PCRA court set forth the relevant factual and procedural background

of this matter as follows:

      On [Docket Number 2874-2015, Appellant] pled guilty to the
      following facts.

         If she were to testify, [the victim, I.J.] would testify that on
         [February 8, 2015] around 5:50 [a.m.], at the time she was
         [22-years-old,] [I.J.] was walking on 66th Avenue from
         Broad Street on her way to go to work and catch the bus.
         [Appellant] approached [I.J.] from behind[,] put an object
         to her back which [I.J.] believed to be a gun, pulled her into
         a secluded driveway, vaginally raped her, and forced [I.J.]
         to perform oral intercourse on [Appellant] until [he]
         ejaculated in her mouth.

         At that point, [Appellant] had [I.J.] spit into a paper, wipe
         her tongue, and ordered [I.J.] to give [Appellant] her
         underwear. He also took [I.J.’s] identification card, cell
         phone, and bank card[,] as well as [$5.00]. He told [I.J.]
         that if she told anyone what happened, he would kill her and
         her family. [I.J.] disclosed to her grandmother. Police were
         notified.      A rape kit was taken from her. [Appellant’s]
         DNA was found on [I.J.’s] tongue.

      On [Docket Number 4136-2015, Appellant] pled guilty to the
      following facts.

         [T.A.] would testify that on February 10, 2015, around
         10:30 [p.m.], at the time she was [23-years-old,] [T.A.]
         was waiting for her bus at 6600 5th Street when [Appellant]
         approached her and grabbed her. [T.A.] tried to scream for
         help. [Appellant] placed a scarf over [T.A.’s] mouth and
         told her he had a gun, [and] that he was going to rob her
         and then kill her afterwards. He led [T.A.] to a secluded
         area between some houses where he demanded money
         from her and began looking through her purse. [Appellant]
         demanded [T.A.] call her bank to see how much money she
         had in her account[.] When he found out how much money
         she had, [Appellant] took [T.A.] to the Sunoco gas station
         located at 440 West Cheltenham Avenue in Philadelphia[,
         Pennsylvania]. This is all on surveillance video. [Appellant]
         had [T.A.] withdraw money from an ATM inside the store.
         [T.A.] withdrew [$200.00] and gave it to [Appellant]. He

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         then took the debit card and withdrew an additional
         [$200.00] from her account. When he left, [Appellant] took
         [T.A.’s] identification card, [and] told her he wanted to know
         where she lived and what she looked like in case she
         reported the incident to police. [Appellant] then grabbed
         [T.A.’s] butt and said [] that she had a soft butt and he
         wanted to take her to a hotel. He had her call a cab, which
         is reflected in [T.A.’s] phone records, to take them to a
         hotel. [While] they were waiting for a cab to pick them up,
         someone in the gas station called the police. [The police]
         arrive[d]. They arrested [Appellant]. They recovered from
         [Appellant] [the] withdrawn money, [T.A.’s] identification
         card, and the ATM receipt.

         After the incident, a photo array was presented to [I.J.,
         wherein she positively identified Appellant]. That would be
         the sum and substance of the Commonwealth’s case.

      Following a thorough colloquy, [the trial court] accepted
      [Appellant’s] guilty plea to the above facts and deferred
      sentencing to March 20, 2017, pending completion of a
      presentence investigation, mental health evaluation, and an
      evaluation by the Sexual Offenders Assessment Board. [Before
      his sentencing hearing], [Appellant] filed a pro se motion to
      withdraw his guilty plea. The Commonwealth filed a response on
      March 6, 2017. On March 20, 2017, prior to being sentenced,
      defense counsel informed [the trial court] that [Appellant] was
      withdrawing his pro se motion. That same day, [Appellant] was
      sentenced to an aggregate term of [12] to [41] years[’] of
      incarceration.

PCRA Court Opinion, 3/6/19, at 1-3 (footnotes omitted).

      On March 30, 2017, Appellant filed a motion for reconsideration of

sentence.   Appellant’s Motion for Reconsideration, 3/30/17, at 1.        While

Appellant’s motion for reconsideration was still pending, on June 22, 2017,

Appellant filed a pro se PCRA petition. Appellant’s PCRA Petition, 6/22/17, at

1-9. Within his petition, Appellant claimed that trial counsel was ineffective




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for failing to file a direct appeal. Id. Thus, he sought leave to file a direct

appeal nunc pro tunc. Id. at 5.

       The trial court denied Appellant’s motion for reconsideration of sentence

on July 17, 2017. Trial Court Order, 7/17/17, at 1. Three days later, counsel

appointed to represent Appellant in connection with his PCRA petition entered

his appearance. PCRA Court Opinion, 3/6/19, at 3. On February 27, 2018,

court-appointed counsel filed a motion to withdraw as counsel and a no-merit

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). “On

March 14, 2018, after finding [] counsel’s Finley letter inadequate, [the PCRA

court] permitted counsel to withdraw and ordered a new attorney to be

appointed to represent [Appellant].”           PCRA Court Opinion, 3/6/19, at 3.

Subsequently, on October 30, 2018, new counsel filed an amended PCRA

petition asserting that trial counsel was ineffective for failing to file a direct

appeal on Appellant’s behalf. Appellant’s Amended PCRA Petition, 10/30/18,

at 1-13. On January 25, 2019, the PCRA court reinstated Appellant’s appellate

rights nunc pro tunc. PCRA Court Opinion, 3/6/19, at 3. This timely appeal

followed.10

____________________________________________


10Appellant filed two notices of appeal on January 30, 2019, separately listing
each docket number. See Commonwealth v. Walker, 185 A.3d 969, 977
(Pa. 2018). On February 4, 2019, the trial court ordered Appellant to file a
Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).
Appellant timely complied.     The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on March 6, 2019.


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      Appellant raises the following issue on appeal:

      Did the trial court err by imposing an unduly harsh and excessive
      sentence in light of the mitigating factors presented by Appellant?

See generally Appellant’s Brief at 7.

      Before we address the merits of Appellant’s discretionary sentencing

claim, we must determine whether the PCRA court had jurisdiction to hear

Appellant’s PCRA petition. “This Court may consider the issue of jurisdiction

sua sponte.” Commonwealth v. Grove, 170 A.3d 1127, 1136–1137 (Pa.

Super. 2017), quoting Commonwealth v. Ivy, 146 A.3d 241, 255 (Pa.

Super. 2016). “When a PCRA court lacks jurisdiction to consider the merits of

a petition, we likewise lack jurisdiction to consider an appeal from disposition

of the petition.” Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015).

      Pursuant to 42 Pa.C.S.A. §§ 9545(b)(1), a PCRA petition must be “filed

within one year of the date the judgment [of sentence] becomes final.” 42

Pa.C.S.A. §§ 9545(b)(1). “[A] judgment becomes 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 the review.”     42 Pa.C.S.A. §§ 9545(b)(3).       The PCRA,

however, “has no applicability until [an appellant’s] judgment of sentence

becomes final.”   See Commonwealth v. Kubis, 808 A.2d 196, n.4 (Pa.

Super. 2002), appeal denied 813 A.2d 839 (Pa. 2002). Indeed, if a PCRA

petition is filed before the petitioner “has waived or exhausted his direct

appeal rights,” the PCRA court lacks jurisdiction to proceed in the action.


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Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000); see also

Commonwealth v. Fralic, 625 A.2d 1249, n.1 (Pa. Super. 1993);

Commonwealth v. O’Neil, 573 A.2d 1112, 1116 (Pa. Super. 1990).

      In this case, Appellant’s judgment of sentence became final on August

16, 2017, 30 days after the time for seeking appellate review with this Court

expired. Appellant’s PCRA petition, however, was filed on June 22, 2017, 25

days before the trial court denied reconsideration of his sentence, and 55 days

before his right to file a direct appeal from his judgment of sentence expired.

Because Appellant filed his PCRA petition before he waived or exhausted his

direct appeal rights and before his judgment of sentence became final, it was

premature.    See Leslie, 757 A.2d at 985-986; see also 42 Pa.C.S.A. §§

9545(b)(3). Therefore, the PCRA court lacked jurisdiction to proceed in this

action. As such, we are constrained to vacate the PCRA court’s order granting

Appellant leave to file a nunc pro tunc appeal from the judgment of sentence.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/19




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