J-S56007-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                      v.

JUSTIN M. CREDICO

                           Appellant                No. 841 EDA 2017


                  Appeal from the Order February 14, 2017
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001148-2011


BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                     FILED SEPTEMBER 27, 2017

      Justin M. Credico appeals pro se from the order denying his motion for

leave to appeal nunc pro tunc. We affirm.

      The trial court ably set forth the relevant procedural and factual

history as follows:

            On November 30, 2011, after a non-jury trial, Appellant
      was convicted of two counts of harassment. 18 Pa.C.S.A. §
      2709(a). He was sentenced on December 11, 2011 to serve 146
      days to 12 months, was given credit for time served, and was
      granted parole that day. His appeal of his judgment of sentence
      was dismissed by the Superior Court on March 5, 2012, after
      Appellant failed to file a docketing statement as is required by
      Pa.R.A.P. 3517.

            On July 2, 2012, Appellant was found to be in violation of
      his parole and his parole was revoked. He was reparoled that
      same date, with the condition that he undergo a mental health
      examination within 15 days.


* Retired Senior Judge specially assigned to the Superior Court.
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            On September 27, 2013, Appellant was again found to be
      in violation of his parole. At the hearing held on that date he
      was given credit for the 12 months and 10 days that he had
      spent in custody and was released from custody. In addition,
      the detainer against him was removed and his case closed.

             On February 2, 2016, Appellant filed in [the trial court] a
      “petition for writ of error coram nobis.” In it Appellant wished to
      raise the defense of entrapment to his original charges. Since
      an action under the Post-Conviction Relief Act is the sole means
      of obtaining collateral relief, 42 Pa.C.S.A. § 9452, and since
      Appellant was not eligible for PCRA relief in that he had
      completed serving his sentence in its entirety, 42 Pa.C.S.A. §
      9543(a)(1)(i), we denied his petition on February 16, 2016.

            Appellant appealed our order of February 16, 2016. On
      May 6, 2016, the Superior Court dismissed Appellant’s appeal
      after he again failed to file a Pa.R.A.P. 3517 docketing
      statement.

           On January 17, 2017, Appellant filed with [the trial court]
      a motion for leave to appeal nunc pro tunc, requesting yet
      another opportunity to appeal the order of February 16, 2016.

Trial Court Opinion, 5/18/17, at 1-2.      The trial court denied Appellant’s

motion for nunc pro tunc relief. Appellant filed a timely notice of appeal to

this Court.   The trial court did not direct Appellant to file a Rule 1925(b)

concise statement of errors complained of on appeal, but it authored a Rule

1925(a) opinion. This matter is now ready for our review.

      Appellant presents one issue for our consideration:     “When the [trial

court’s] known address for a defendant is incorrect, and not the cause or

fault of the defendant, causing the defendant to miss orders[,] opinions[,]

and deadlines, does such an error satisfy the “extraordinary circumstances”




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necessary for nunc pro tunc appeal and/or equitable tolling?       Appellant’s

brief at 4.

      We review an order denying a motion to reinstate appellate rights

nunc pro tunc for an abuse of discretion.     Commonwealth v. Williams,

893 A.2d 147, 150 (Pa.Super. 2006). Nunc pro tunc relief is “intended to be

an extraordinary remedy to vindicate the right to an appeal where that right

has been lost due to some extraordinary circumstance.”      Commonwealth

v. White, 806 A.2d 45, 46 (Pa.Super. 2002) (citation omitted).       We have

previously held that such extraordinary circumstances include “fraud or

some breakdown in the processes of the court.”           Commonwealth v.

Braykovich, 664 A.2d 133, 136 (Pa.Super. 1995).

      Appellant avers that from November 2011 until 2017, the trial court

listed his address as Chester County Prison. However, since he was released

from prison in 2012, he no longer received mail at that address. Appellant

argues that the court failed to explain to him that he was required to notify

the clerk of courts of his release from prison in order to update his official

address. As such, he maintains that he did not receive any correspondence

from this Court regarding his appeals, causing his cases to be dismissed.

Appellant concludes that the court’s error constitutes a breakdown in the

processes of the court, and thus, the trial court erred in denying his motion

for leave to appeal nunc pro tunc.




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      The trial court observed that nunc pro tunc relief was appropriate

“when the right to an appeal has been lost due to some extraordinary

circumstance not of a defendant’s own doing.” Trial Court Opinion, 5/18/17,

at 4 (citing Commonwealth v. White, 806 A.2d 45, 46 (Pa.Super. 2002).

Implicitly, the court determined that Appellant’s failure to notify the court of

his new mailing address upon release from prison did not constitute a

breakdown in the court’s processes, and thus, nunc pro tunc relief was not

warranted. We agree.

      At the time of sentencing, the court had a duty to advise Appellant of,

among other things, his “right to file a post-sentence motion and to appeal,

of the time within which [he] must exercise those rights, and of the right to

assistance of counsel in the preparation of the motion and appeal.”

Pa.R.Crim.P. 704(C)(3)(a). The Rules of Criminal Procedure did not require

the court, as Appellant suggests, to inform him that he bore the burden of

contacting the court when he was released for prison in order to update his

mailing address. Rather, the duty to ensure that the court has an accurate

and up-to-date address is shouldered by the defendant.             Contrary to

Appellant’s assertions herein, his failure to apprise the court of an accurate

home address was not a breakdown in the processes of the court. Thus, the

trial court did not abuse its discretion in denying Appellant’s motion for leave

to appeal nunc pro tunc.

      Order affirmed.

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J-S56007-17



     Judge Platt joins the memorandum.

     Judge Stabile concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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