J-S73001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 RICHARD ANTON RUPAR                     :
                                         :
                   Appellant             :       No. 1710 WDA 2017

               Appeal from the PCRA Order October 11, 2017
           In the Court of Common Pleas of Washington County
           Criminal Division at No(s): CP-63-CR-0003171-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED DECEMBER 18, 2018

     Appellant, Richard Anton Rupar, appeals pro se from the order entered

in the Washington County Court of Common Pleas, which denied his second

petition brought pursuant to the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. For the following reasons, we dismiss the appeal.

     The relevant facts and procedural history of this case are as follows. On

June 11, 2013, Appellant entered a negotiated guilty plea to two counts each

of involuntary deviate sexual intercourse (“IDSI”) and indecent assault, and

one count of endangering the welfare of children (“EWOC”). That same day,

the court sentenced Appellant to an aggregate term of eight (8) to sixteen

(16) years’ incarceration, and imposed upon Appellant lifetime registration

under the Sex Offender Registration and Notification Act (“SORNA”), at 42

Pa.C.S.A. §§ 9799.10-9799.41, as a Tier III offender.     On June 18, 2013,
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Appellant filed a motion to withdraw his guilty plea, which the court denied on

July 1, 2013, following a hearing. Appellant sought no direct review of the

judgment of sentence.

       On June 17, 2014, Appellant timely filed his first pro se PCRA petition.

The PCRA court appointed counsel on June 25, 2014.          On April 11, 2017,

Appellant asked to withdraw his petition, and the PCRA court dismissed it.

       On August 29, 2017, Appellant filed the current pro se PCRA petition,

styled as a “Petition to Correct and Modify Sentence,” which asserted relief

due under Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017),

certiorari denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018).1 The

court denied Appellant’s PCRA petition on October 11, 2017, and served the

order upon the parties on October 12, 2017. Appellant filed a pro se notice of

appeal on November 16, 2017. The court ordered Appellant on November 21,

2017, to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b); Appellant timely complied pro se on December 7, 2017.

On August 22, 2018, the Commonwealth filed in this Court an application to


____________________________________________


1 Any petition for post-conviction collateral relief will generally be considered
a PCRA petition if the petition raises issues cognizable under the PCRA. See
Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011), appeal denied,
616 Pa. 634, 47 A.3d 845 (2012); 42 Pa.C.S.A. § 9542 (stating PCRA shall be
sole means of obtaining collateral relief and encompasses all other common
law and statutory remedies for same purpose). Here, Appellant styled his
current petition as a “Petition to Correct and Modify Sentence” and challenged
the constitutionality of his sex offender registration, which is cognizable under
the PCRA. Thus, Appellant’s filing constituted a PCRA petition. See 42
Pa.C.S.A. § 9543(a)(2)(i); Jackson, supra.

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dismiss Appellant’s appeal as untimely.      On October 11, 2018, this Court

denied the Commonwealth’s motion without prejudice.

      Preliminarily, a notice of appeal “shall be filed within 30 days after the

entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). The

notice of appeal shall be filed with the clerk of the trial court; “[u]pon receipt

of the notice of appeal the clerk shall immediately stamp it with the date of

receipt, and that date shall constitute the date when the appeal was taken,

which date shall be shown on the docket.”          Pa.R.A.P. 905(a)(3).     Time

limitations for taking appeals are strictly construed and cannot be extended

as a matter of grace.       Commonwealth v. Valentine, 928 A.2d 346

(Pa.Super. 2007). This Court can raise the matter sua sponte, as the issue is

one of jurisdiction to entertain the appeal. Id. This Court has no jurisdiction

to entertain an untimely appeal. Commonwealth v. Patterson, 940 A.2d

493 (Pa.Super. 2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008).

Generally, an appellate court may not enlarge the time for filing a notice of

appeal. Pa.R.A.P. 105(b). Extension of the filing period is permitted only in

extraordinary circumstances, such as fraud or some breakdown in the court’s

operation. Commonwealth v. Braykovich, 664 A.2d 133 (Pa.Super. 1995),

appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996).

      Instantly, the PCRA court entered the order on appeal on October 11,

2017, and served it on October 12, 2017. Thus, Appellant’s notice of appeal

was due on or before Monday, November 13, 2017. See Pa.R.A.P. 903(a).


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Nevertheless, the clerk of courts did not receive it for filing until November

16, 2017, although Appellant had dated the handwritten proof of service,

attached to the notice of appeal, as November 6, 2017. Despite Appellant’s

self-dated proof of service, nothing else in the record demonstrates Appellant

handed the notice of appeal to prison authorities for mailing on or before

November 13, 2017, such that he could benefit from the prisoner mailbox

rule.2 Additionally, the record contains no extraordinary circumstances such

as a breakdown in the operation of the court to excuse the delay in filing the

notice of appeal. See Braykovich, supra. Appellant’s failure to file a timely

notice of appeal divests this Court of jurisdiction to review it.3 See Pa.R.A.P.

905(a)(3); Patterson, supra.             Accordingly, we dismiss this appeal as

untimely filed.

       Appeal dismissed.

       President Judge Emeritus Bender joins this memorandum.
       Judge Olson concurs in the result.


____________________________________________


2 See Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal
denied, 616 Pa. 625, 46 A.3d 715 (2012) (explaining prisoner mailbox rule
provides that pro se prisoner’s document is deemed filed on date he delivers
it to prison authorities for mailing).

3 The PCRA court recommended in its Rule 1925(a) opinion that this Court
remand for the PCRA court to grant Appellant relief under Muniz. The record,
however, makes clear Appellant’s current filing is an untimely PCRA petition.
Case law provides Muniz does not serve as an exception to the PCRA
timeliness requirement. See Commonwealth v. Murphy, 180 A.3d 402
(Pa.Super. 2018), appeal denied, ___ Pa. ___, 195 A.3d 559 (2018) (stating
petitioner cannot rely on Muniz to meet timeliness exception under Section
9545(b) unless and until Supreme Court allows).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2018




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