J-S64041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                    v.

JACOB PEMBERTON

                           Appellant                   No. 523 EDA 2016


                Appeal from the PCRA Order January 6, 2016
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0001332-2013


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY STEVENS, P.J.E.:              FILED SEPTEMBER 27, 2016

      Jacob Pemberton (“Appellant”) appeals from the order entered by the

Court of Common Pleas of Bucks County denying as untimely his motion

requesting leave to reinstate his direct appeal rights nunc pro tunc, which

the court correctly treated as his first petition for collateral relief under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq.              In

response, the Commonwealth supports Appellant’s appeal, agreeing that it

inadvertently misrepresented filing deadlines dispositive to the timeliness

question presented to the court. As we find the record supports the parties’

unified position, we vacate the order denying relief and remand the matter

for further proceedings.

      On June 17, 2013, Appellant pled guilty to the offenses of Attempted

Murder, Robbery, Criminal Conspiracy, and related offenses.         Initially, on

*Former Justice specially assigned to the Superior Court.
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September 4, 2013, the court imposed an aggregate sentence of not less

than 20 nor more than 40 years’ incarceration, but, on December 17, 2013,

it granted Appellant’s motion to modify sentence and imposed a new

aggregate sentence of incarceration of not less than 17 ½ to 35 years.

Appellant filed a timely direct appeal, but this Court, on September 8, 2014,

dismissed the appeal for Appellant’s failure to file an appellate brief.

      On April 13, 2015, Appellant filed with the lower court a Motion

seeking leave to file post-trial motions and a direct appeal nunc pro tunc.

The court properly treated this motion as a PCRA petition.                 See

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). On July 8, 2015, the

Commonwealth filed a motion to dismiss the PCRA petition on jurisdictional

grounds, claiming that Appellant had actually filed an untimely post-

sentence motion in 2013, which, in turn, meant his judgment of sentence

became final on October 4, 2013. As Appellant’s PCRA petition of April 13,

2015, was clearly filed more than one year later, it was time-barred under

Section 9545(b)(1), the Commonwealth posited. The court heard argument

on the issue and, on January 6, 2016, agreed with the Commownealth’s

position and dismissed Appellant’s petition as untimely.

      After Appellant filed the present appeal, the parties came to an

agreement that Appellant had, in fact, filed a timely post-sentence motion.

Pursuant to Pa.R.Crim.P. 720(A)(1), Appellant had ten days after receiving

sentence on September 4, 2013, to filed a timely post-sentence motion. His

filing twelve days later, on Monday, September 16, 2013, was nevertheless

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timely pursuant to 1 Pa.C.S. 1908, which provides “[w]henever the last day

of any [period of time . . . is referred to in any statute] shall fall on a

Saturday or Sunday . . . such day shall be omitted from the computation.”

The parties further agree that, because the post-sentence motion was

timely, all subsequent filings made by Appellant were timely, as well,

including his motion for nunc pro tunc relief construed as a PCRA petition.

      Our review of the record supports the parties’ mutual position that

Appellant’s motion met the jurisdictional requirements of the PCRA.

Accordingly, deeming the PCRA court’s denial of relief on jurisdictional

grounds erroneous, we vacate the order entered below and remand this

matter to the PCRA court for further proceedings consistent with this

decision.

     Order Vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2016




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