J-S10014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 THOMAS JOSEPH PARIS                      :
                                          :
                    Appellant             :   No. 1132 MDA 2019

       Appeal from the Judgment of Sentence Entered May 20, 2019
            In the Court of Common Pleas of Luzerne County
          Criminal Division at No(s): CP-40-CR-0002034-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:              FILED: MARCH 30, 2020

      Thomas Joseph Paris appeals from the judgment of sentence imposed

following his guilty plea to one count of receiving stolen property, see § 18

Pa.C.S.A. § 3925(a), and one count of identity theft, see 18 Pa.C.S.A. §

4120(a). As we conclude we lack jurisdiction due to Paris’s untimely appeal,

we quash.

      Paris pleaded guilty on May 20, 2019, and on that same date received

a sentence of twelve to twenty-four months of incarceration. Paris did not file

a post-sentence motion. Instead, while still represented by counsel, he filed a

pro se notice of appeal. Paris’s notice of appeal purports to appeal from an

order entered on June 1, 2019, and features a handwritten date, ostensibly

the date the notice was written, of June 2, 2019. However, that same notice

of appeal also indicates that it was processed by the Luzerne County Clerk of
J-S10014-20



Courts Criminal Division on July 11, 2019, and received by our Court on July

15, 2019.

      After the trial court received Paris’s notice of appeal, it directed him to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Instead of filing a statement, Paris’s counsel moved for the

appointment of conflict counsel. After the court granted the motion, Paris’s

new counsel filed a concise statement identifying that Paris’s appeal lacked

any meritorious appellate issues. Moreover, that statement explained that no

objections were placed on record nor were any post-trial motions filed.

Subsequently, Paris’s new counsel filed an Anders brief with our Court

pursuant    to   Anders    v.   California,   386   U.S.    738   (1978),    and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

      As he did not file a post-sentence motion, Paris had until June 19, 2019,

thirty days from the imposition of his sentence, to file a notice of appeal. See

Pa.R.Crim.P. 720(A)(3). Paris’s notice of appeal was not docketed in the trial

court until July 11, 2019 and was therefore facially untimely. He did not seek

any kind of nunc pro tunc relief from the trial court.

      As Paris was incarcerated, his pro se filing is “deemed filed as of the

date it is delivered to the prison authorities for purposes of mailing or placed

in the institutional mailbox.” Pa.R.A.P. 121(a). However, there is no “properly

executed prisoner cash slip or reasonably verifiable evidence,” id., evincing

“the date that [Paris] deposited,” id., his filing with prison authorities for




                                      -2-
J-S10014-20



mailing. The only evidence in support of a timely filing appears to be a

handwritten “6-2-2019” on Paris’s notice of appeal.

      This Court issued a rule for Paris to show cause why his appeal should

not be quashed as untimely. In response, Paris’s counsel submitted a one-

sentence letter requesting that Paris’s pro se notice of appeal be treated as a

notice of appeal nunc pro tunc. Given this request, counsel did not file or

identify any evidence that could support an inference that Paris’s pro se notice

of appeal was timely filed.

       “The timeliness of an appeal and compliance with the statutory

provisions granting the right to appeal implicate an appellate court’s

jurisdiction and its competency to act.” Commonwealth v. Williams, 106

A.3d 583, 587 (Pa. 2014). “Absent extraordinary circumstances, an appellate

court lacks the power to enlarge or extend the time provided by statute for

taking an appeal.” Id. “Thus, an appellant’s failure to appeal timely an order

generally divests the appellate court of its jurisdiction to hear the appeal.” Id.

      Further, we have no power to grant nunc pro tunc relief to Paris outside

the confines of the Post Conviction Relief Act (“PCRA”). See Commonwealth

v. Eller, 807 A.2d 838, 845 (Pa. 2002). We note that Paris’s trial counsel, the

Office of the Public Defender of Luzerne County, has construed Paris’s filings

as asserting ineffective assistance of trial counsel. See Motion for Appointment

of Conflicts Counsel, 8/12/19, at ¶ 18. If Paris contends that trial counsel was

ineffective in failing to file a direct appeal, this avenue of relief is explicitly

confined to collateral proceedings under the PCRA. See Eller, 807 A.2d at

                                       -3-
J-S10014-20



842-43 (recognizing prior precedent established that claims that counsel was

ineffective for failing to file a notice of appeal was subject to the exclusivity

provision of the PCRA).

      As we have no authority to excuse Paris’s untimely notice of appeal, we

are without jurisdiction to entertain the merits of his appeal. Accordingly, we

quash his appeal. Petition to withdraw as counsel denied as moot.

      Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/30/2020




                                      -4-
