J-S80025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 NICOLE PRUSSMAN                          :
                                          :
                    Appellant             :   No. 2051 EDA 2018

               Appeal from the Order Entered June 13, 2018
    In the Court of Common Pleas of Wayne County Criminal Division at
                      No(s): CP-64-SA-0000005-2018


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 20, 2019

      Nicole Prussman appeals from the June 13, 2018 order denying her

petition for nunc pro tunc appeal of her summary conviction. We affirm.

      On August 8, 2017, Appellant received a traffic citation for driving while

operating privilege suspended in violation of 75 Pa.C.S. § 1543(A). She pled

guilty to the summary offense in front of the magisterial district judge on

October 5, 2017, and was advised at the time that she had thirty days to file

an appeal for a de novo trial. She did not file an appeal.

      On October 13, 2017, Appellant received notice from the Pennsylvania

Department of Transportation (“PennDOT”) that her operator’s license was
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suspended for one year.1 In response, she filed a timely appeal of the license

suspension.

       On April 17, 2018, Appellant filed a petition for nunc pro tunc appeal of

her summary conviction. In her petition, Appellant alleged that when she pled

guilty to the summary offense, she was unaware that it carried a civil collateral

consequence of a one-year license suspension. She averred further that she

would not have pled guilty had she known that fact, and that her plea was

unknowing and unintelligent.

       Appellant alleged that her failure to timely appeal the summary

conviction was due to a breakdown in the court’s operation, specifically, the

court’s failure to inform her that the guilty plea carried with it the collateral

civil consequence of a one-year license suspension. She also pled that she

had been “told” that all she needed to do was appeal the license suspension,

which she did. Petition for Leave to Appeal Nunc Pro Tunc, 4/17/18, at 1. It

was only later that she learned that absent an appeal of the underlying

conviction, her license suspension appeal would not be granted.        Id.   She

averred that the Commonwealth would not be prejudiced by the delay, that

only the filing police officer would be necessary at the de novo trial, and the

interests of justice required the granting of the appeal. Id.

____________________________________________


1   Appellant originally claimed that the thirty-day appeal period on the
summary conviction had expired before she received notice of the license
suspension. The trial court rejected that contention, pointing out that
Appellant received the notice of suspension well within the thirty-day appeal
period. Trial Court’s Statement of Reasons, 9/12/18, at 4.

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      On June 13, 2018, the trial court held back-to-back hearings on

Appellant’s petition for nunc pro tunc appeal of the summary conviction and

the appeal from the license suspension. Appellant testified that there were

personal circumstances that led to her license being delinquent.             She

described a very difficult pregnancy and maintained that, at the time of the

traffic stop, she was traveling to care for her father who was in the last stages

of a terminal illness. When she pled guilty, she thought she was merely paying

a fine for not having a valid driver’s license. She testified that she did not

know about the one-year suspension until she received the PennDOT notice,

and that she filed a timely appeal from that notice. Appellant maintained that

she thought she had addressed the cause of her suspension, but learned

months later that this was not the case. At that time, she retained counsel

who filed the petition for appeal nunc pro tunc on her behalf.

      The Commonwealth moved to dismiss the petition, and the court

granted the motion. Thereafter, they proceeded to a hearing on the propriety

of the license suspension. Counsel for Appellant conceded that the outcome

of the earlier matter controlled, the court agreed, and the appeal was denied.

Counsel argued, however, that the suspension should be stayed while

Appellant filed an appeal from the decision on the nunc pro tunc appeal. The

Commonwealth represented that Appellant already had a stay as a result of

filing the instant appeal, but that since she was under suspension due to

another outstanding citation, her license was still suspended.             After


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acknowledging that granting a stay would not benefit Appellant, the court

declined to grant a stay.

       Appellant filed a motion for reconsideration of the trial court’s denial of

her nunc pro tunc appeal, which was denied by order of June 26, 2018.

Appellant timely appealed and complied with Pa.R.A.P. 1925(b).2                 On

September 12, 2018, the court fled its Statement of Reasons for its decision.

       On appeal, Appellant presents one issue for our review:

       1. Did the [t]rial [c]ourt abuse its discretion where it denied
          Appellant’s nunc pro tunc appeal from summary conviction
          despite evidence of record establishing extraordinary
          circumstances related to Appellant’s delay in filing, specifically:

              a. A breakdown in the Court’s operations for failing to
                 inform her of a mandatory collateral consequence
                 to her conviction;

              b. Ineffectiveness of counsel whereby Appellant was
                 wrongfully advised by her counsel that she did not
                 need to file an appeal of the summary criminal
                 conviction in this matter to remove her license
                 suspension which, in fact, was an absolute
                 requirement and proved fatal to Appellant’s
                 requested relief;

              c. That Appellant would otherwise be unable to
                 vindicate her absolute right to appeal afforded to
____________________________________________


2 Appellant identified four reasons why the trial court erred in denying her
petition seeking a nunc pro tunc appeal. She maintained that the late filing
was due to a breakdown in the court; was the product of an unknowing and
unintelligent guilty plea; that she only received notice of the suspension from
the Department of Transportation after the deadline for filing a timely appeal
from the summary conviction; and that failure to permit the appeal would
result in her loss of her absolute right to appeal guaranteed by Article V,
section 9 of the Pennsylvania Constitution. Pa.R.A.P. 1925(b) Concise
Statement of Errors Complained of on Appeal, 7/30/18, at 1.

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               her by the Pennsylvania Constitution, Article V,
               Section 8?

Appellants brief at 5.

      This is an appeal from the denial of an appeal nunc pro tunc from a

summary conviction. Our standard of review of the propriety of such an order

is whether the trial court abused its discretion. Commonwealth v. Stock,

679 A.2d 760, 762 (Pa. 1996) (citing Commonwealth v. Jarema, 590 A.2d

310 (Pa.Super. 1991)). The following principles inform our review.

      An appeal must be filed within thirty days after the entry of the order

from which the appeal is taken, and that rule is applicable to appeals from

summary convictions.     Pennsylvania courts traditionally have held that in

cases involving appeals from summary convictions, nunc pro tunc relief may

be granted only when circumstances “such as ineffectiveness of counsel,

fraud, or a breakdown in the court’s operations” result in the denial of a

criminal defendant’s constitutional right to an appeal.           Id. at 762

(quoting   Jarema, supra at 311).        This standard has been “somewhat

liberalized” to afford a right to an appeal where the right has been lost due to

extraordinary circumstances. Id. at 763-64. See Criss v. Wise, 781 A.2d

1156, 1159 (Pa. 2001) (holding that untimeliness due to non-negligent

circumstances, either “as they relate to the appellant or the appellant’s

counsel,” might warrant nunc pro tunc relief); see also Commonwealth v.

White, 806 A.2d 45, 46 (Pa.Super. 2002) (observing that the pertinent

question in reviewing of the propriety of an adverse nunc pro tunc ruling is


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whether     the   right   to   appeal    was     denied   because   of    extraordinary

circumstances not of the appellant’s doing).

       The trial court found no fraud, breakdown in the court’s operations, or

extraordinary circumstances that would warrant the grant of nunc pro tunc

relief. After our review of the record and the applicable law, we find no abuse

of discretion on the part of the trial court.

       Notably, Appellant expressly abandons her claim that the court’s failure

to advise her of the civil collateral consequences of pleading guilty to 75

Pa.C.S. § 1543 constituted a breakdown in the court.3                    She proceeds,

however, in reliance upon Commonwealth v. White, 806 A.2d 45, 46

(Pa.Super. 2002), for the proposition in support of her contention that nunc

pro tunc relief is appropriate here where the loss of her right to appeal was

due to extraordinary circumstances not of her own making.                    Appellant

contends that the record demonstrates a “plethora of extraordinary

circumstances” that entitled her to nunc pro tunc relief, primary among them

the incorrect legal advice she received.

       At the June 13, 2018 evidentiary hearing, Appellant testified about

challenging personal circumstances that explained why her license had lapsed.



____________________________________________


3 Appellant acknowledges that under Commonwealth v. Duffey, 639 A.2d
1174 (Pa. 1994), the magisterial district judge was not obligated to notify her
of the collateral civil consequence of license suspension. Nonetheless, she
asks that we view her lack of knowledge of that consequence as a factor
contributing to the extraordinary circumstances surrounding her delay.

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None of these circumstances is relevant in determining whether her

subsequent failure to file a timely appeal should be excused. Furthermore,

while she did not know when she pled guilty that her license would be

suspended for one year, she had more than two weeks to file a timely appeal

from the summary conviction after she received notice of the suspension.

      The crux of Appellant’s argument is that she relied upon legal advice

that she did not need to file an appeal from the summary criminal conviction

in this matter in order to remove her license suspension, when, in fact, such

an appeal was an absolute requirement.        She argues that the ineffective

assistance of counsel she received affected her constitutional right of appeal,

and thus, nunc pro tunc relief is warranted.         See Commonwealth v.

Bronough, 670 A.2d 147 (Pa.Super. 1996) (permitting appeal nunc pro tunc

where PCRA court denied petitioner an evidentiary hearing on a claim that

counsel was ineffective in failing to file a requested direct appeal in light of

absolute right to appeal under Pa.Const., art. V, § 9); Stock, supra (finding

exceptional circumstances justifying nunc pro tunc appeal, where appellant’s

attorney’s failure to file a requested appeal from a summary conviction

resulted in the loss of his state constitutional right to appeal under Pa. Const.

art. I, § 9).

      In support of her contention, Appellant references the fact that she was

advised by counsel that there was no need to appeal the summary conviction

in order to attack the license suspension. While she acknowledges that she


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had not retained counsel and directed counsel to file an appeal as in Stock,

she argues that nevertheless, she was non-negligently deprived of her right

to appeal due to counsel’s incorrect advice upon which she relied. She cites

Stock for the proposition that the only way her state constitutional right to

appeal can be vindicated is by the grant of an appeal nunc pro tunc.

Appellant’s brief at 19.

      Distilled to its essence, the extraordinary circumstance upon which

Appellant relies in support of her claim that the court abused its discretion in

denying her a nunc pro tunc appeal is counsel’s incorrect advice about the

need to file an appeal from the summary conviction. However, there is no

indication in the certified record that this circumstance ever occurred.

      In her petition, Appellant pled that she “appealed the License

Suspension, having been told that was all she needed to do.”           Petition,

4/17/18, at 1. She pled further that she learned otherwise when she met

present counsel at a social gathering on April 14, 2018. Id. Glaringly absent

is any allegation that she sought legal advice or retained an attorney who

provided incorrect advice regarding the need to file an appeal from the

summary conviction in order to challenge the suspension.

      Nor did her testimony at the evidentiary hearing establish anything akin

to ineffective assistance of counsel in this regard. She testified only that she

“filed an appeal. I’m still a little confused as to what went wrong. I thought

I had followed what I was supposed to do filing that appeal here again.” N.T.


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Nunc Pro Tunc Appeal of Summary Conviction, 6/13/18, at 8.           There was

simply no evidence adduced that her failure to file a timely appeal from the

summary conviction was based upon any legal advice, let alone ineffective

assistance of counsel. Thus, the record does not support claims of ineffective

assistance of counsel that would bring this case within Stock, or demonstrate

extraordinary circumstances that would entitle her to a nunc pro tunc appeal.

      For these reasons, we find no abuse of discretion on the part of the trial

court, and hence, we affirm.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/19




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