J-S80021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
JEFFREY MARK KENNOY                      :
                                         :
                   Appellant             :   No. 555 EDA 2016

               Appeal from the PCRA Order January 5, 2016
 In the Court of Common Pleas of Montgomery County Criminal Division at
                    No(s): CP-46-CR-0006475-2007



BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 12, 2018

      Appellant, Jeffrey Mark Kennoy, appeals pro se from the January 5,

2016 order that denied his petition for collateral relief filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We quash.

      The PCRA court set forth the relevant facts and procedural history of

this case as follows:

      On August 4, 2007, after first commandeering a car with a
      young woman and a twelve (12) year old boy inside, Appellant,
      armed with a .38 caliber revolver shot at two (2) Horsham
      Township police officers multiple times. The officers returned
      fire, wounding Appellant. Appellant eventually entered open
      guilty pleas to two (2) counts of aggravated assault and various
      firearm offenses on December 30, 2009. The court sentenced
      Appellant on June 28, 2010, to an aggregate term of twenty-two
      (22) to forty-four (44) years of imprisonment. Counsel filed a
      timely petition for reconsideration of sentence on July 8, 2010.
      The sentencing court held a hearing on the petition on
      September 15, 2010, and denied the petition on September 21,
      2010. Appellant did not file a direct appeal.2
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              2 Accordingly, Appellant’s Judgment of sentence
              became final on Thursday, October 21, 2010.[1]

              On May 10, 2011, Appellant filed a timely pro se petition
       under the PCRA. The court appointed counsel and held a hearing
       on November 10, 2011. The undersigned denied Appellant’s first
       PCRA petition by order docketed on December 16, 2011.
       Appellant filed a timely pro se appeal. Counsel eventually filed a
       “no–merit” letter that the Superior Court deemed to be
       satisfactory, as well as a petition to withdraw on March 27,
       2014.[2] The Superior Court conducted an independent review
       and issued a memorandum opinion on May 1, 2014, which
       affirmed the PCRA court. (Commonwealth v. Kennoy, [104 A.3d
       35,] 355 EDA 2012, [(Pa. Super.] filed May 1, 2014).

             Appellant filed a “Subsequent Petition” under the PCRA pro
       se on October 23, 2014, which the Clerk of Courts docketed on
       October 29, 2014. In his petition, Appellant raised three issues,
       which the court addressed, in addition to the untimeliness of the
       Subsequent Petition, in the undersigned’s Notice Pursuant to
       Pa.R.Crim.P. 907(1) of Intention to Dismiss PCRA Petition
       Without a Hearing.
____________________________________________


1  Thus, to be timely, a PCRA petition must have been filed by October 21,
2011. See 42 Pa.C.S. § 9545(b)(1) (In order to be considered timely, a first
or any subsequent PCRA petition “shall be filed within one year of the date”
the petitioner’s judgment of sentence becomes final.).

2  Initially, PCRA counsel filed her petition to withdraw in the PCRA court
after Appellant filed his notice of appeal. We remanded and directed counsel
to file either an advocate’s brief on Appellant’s behalf or a petition to
withdraw and “no-merit” letter in this Court. Commonwealth v. Kennoy,
96 A.3d 1090, 355 EDA 2012 (Pa. Super. filed January 23,
2014)(unpublished memorandum). After remand, counsel filed a petition to
withdraw, which we denied because counsel failed to satisfy all of the
requirements for withdrawal. We again remanded for the filing of an
advocate’s brief or counsel’s compliance with Commonwealth v. Turner,
544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988). Commonwealth v. Kennoy, 100 A.3d 309, 355 EDA
2012 (Pa. Super. filed March 17, 2014) (unpublished memorandum). PCRA
counsel subsequently complied with the Turner/Finley dictates.



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             Appellant filed an appeal from the dismissal of his
       Subsequent Petition.[3] Although the typewritten date on the
       notice of appeal is February 2, 2016, Appellant mailed the notice
       to the Montgomery County Clerk of Courts in an envelope
       postmarked February 12, 2016, which the Clerk of Courts
       received and docketed on February 17, 2016.

PCRA Court Opinion, 5/10/17, at 2–3 (footnote omitted).

       Appellant raises the following issues for our review:

       I. Whether the PCRA Court erred when it ruled that Appellant’s
       Notice of Appeal was filed late and should be quashed?

       II. Whether the PCRA Court erred when it denied Appellant’s
       Subsequent PCRA as untimely?

Appellant’s Brief at 4.

       We note that the PCRA court concluded that this appeal was untimely,

thereby urging us to quash the appeal. PCRA Court Opinion, 5/10/17, at 6.

We, likewise, must first address whether the appeal was timely filed. It is

well settled that the “[t]imeliness of an appeal is a jurisdictional question.”

Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011). “When a

statute fixes the time within which an appeal may be taken, the time may

not be extended as a matter of indulgence or grace.” Id. (citation omitted).

       As noted above, the order denying Appellant’s PCRA petition was filed

on January 5, 2016, and the record contains the stamped, certified-mail

receipt showing that the order was mailed to Appellant on that date. Thus,

____________________________________________


3   The PCRA court dismissed the PCRA petition on January 5, 2016.



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the appeal period began on January 5, 2016. See Pa.R.A.P. 108(a)(1) (“[I]n

computing any period of time under these rules involving the date of entry

of an order by a court or other government unit, the day of entry shall be

the day the clerk of the court or the office of the government unit mails or

delivers copies of the order to the parties . . . .”).      Commonwealth v.

Gaines, 127 A.3d 15, 18 (Pa. Super. 2015) (en banc). Therefore, Appellant

had thirty days from January 5, 2016, in which to file a timely appeal.

Pa.R.A.P. 903(a) (all notices of appeal “shall be filed within 30 days after the

entry of the order from which the appeal is taken.”). The thirtieth day fell

on Thursday, February 4, 2016. The record reflects that Appellant dated his

notice of appeal February 2, 2016, but the notice of appeal was not docketed

in the common pleas court until February 17, 2016, thirteen days late.

      While Appellant’s notice of appeal was docketed thirteen days late, we

are cognizant that Appellant is, and was, incarcerated at the time of filing.

The “prisoner mailbox rule” provides a limited exception to the time

requirements    for   filings   in   the    courts   of   this   Commonwealth.

Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). The

prisoner mailbox rule allows a pro se document to be deemed filed on the

date it is placed in the hands of prison authorities for mailing. Id.

      The best evidence of the date Appellant placed the notice of appeal in

the hands of prison authorities for mailing is not February 2, 2016, the date

written on the notice of appeal; theoretically, Appellant could write any date


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J-S80021-17


on his notice of appeal. Thus, we are compelled to look to other evidence.

The certified record contains the envelope Appellant used for mailing, which

shows a postmark of February 12, 2016. Under the prisoner mailbox rule,

“a pro se prisoner’s document is deemed filed on the date he delivers it to

prison authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34,

38 (Pa. Super. 2011) (citation omitted). As a result, we deem Appellant’s

appeal to have been filed on February 12, 2016, eight days late.

       Therefore, Appellant’s notice of appeal was not filed within the thirty-

day period prescribed by Rule 903(a). Based on the foregoing, we conclude

Appellant's notice of appeal was untimely filed. Accordingly, we are without

jurisdiction to entertain the appeal and are constrained to quash.4

       Appeal quashed.

       Judge Musmanno joins the Memorandum.

       Judge Bowes concurs in the result.




____________________________________________


4   Even if Appellant’s notice of appeal was timely filed, we would agree with
the PCRA court that Appellant’s PCRA petition was untimely, as described
and supported in the PCRA court’s notice pursuant to Pa.R.Crim.P. 907(1),
filed November 20, 2015 (docket entry number 10).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/18




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