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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
DEONTAE ALLEN McDOWELL,                   :        No. 1823 WDA 2017
                                          :
                         Appellant        :


                  Appeal from the Order, September 6, 2017,
                in the Court of Common Pleas of Beaver County
               Criminal Division at Nos. CP-04-CR-0000870-2015,
                            CP-04-CR-0000874-2015


BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 23, 2018

        Deontae Allen McDowell appeals pro se from the September 6, 2017

order denying his application for leave to defer fines and costs on the basis it

lacked jurisdiction to grant appellant the relief he requested. After careful

review, we affirm.1

        The trial court summarized the relevant facts and procedural history of

this case as follows:

              On June 24, 2016, pursuant to a plea agreement,
              [appellant] entered a guilty plea in Case No. 870 of
              2015 to one count of Persons Not to Possess a
              Firearm under 18 Pa.C.S.A. § 6105(a)(1), and a
              guilty plea in Case No. 874 of 2015 to another count
              of Persons Not to Possess a Firearm under
              18 Pa.C.S.A. § 6105(a)(1). The [c]ourt accepted
              [appellant’s] plea and imposed in each case a

1   The Commonwealth has not filed a brief in this matter.
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           sentence of five years to ten years in a state
           correctional facility. The sentences were within the
           standard range and were run concurrently.
           [Appellant was also ordered to pay fines and costs in
           the amount of $1,563.50. (See notes of testimony,
           6/24/16 at 38-40; application for leave to defer fines
           and costs, 9/5/17 at 1.2] On September 5, 2017,
           [appellant] filed an Application for Leave to Defer
           Fines and Costs.       In his Application, [appellant]
           asked the [c]ourt to “issue an order stating that the
           twenty percent (20%) deductions cease and the
           remainder of the debt owed be deferred until
           [appellant’s] pending minimum sentence . . . [.]” On
           September 6, 2017, [t]he [c]ourt entered an Order
           denying [appellant’s] Application on the basis that it
           did not have jurisdiction to grant the relief
           requested.

           On October 13, 2017, [appellant] filed with the
           Commonwealth Court of Pennsylvania an Application
           for Leave to Proceed in Forma Pauperis and a
           Petition for Review. According to the stamp on the
           envelope, these documents were mailed on
           October 3, 2017.       On November 8, 2017, the
           Commonwealth         Court    mailed     [appellant’s]
           documents to the Beaver County Clerk of Courts,
           stating that it appears to be an attempt by
           [appellant] to file a notice of appeal, and directing
           the [c]ourt to process the document in accordance
           with Pa. R.A.P. 905 (regarding filing of a notice of
           appeal).     These documents were received and
           time-stamped by the Beaver County Clerk of Courts
           on November 13, 2017. The [c]ourt entered an
           Order on December 4, 2017, directing that
           [appellant’s] Petition for Review be treated as a
           Notice of Appeal, and that it be treated as having
           been filed on October 13, 2017 in accordance with
           Pa.R.A.P. 905(a)(4).


2 Pursuant to 42 Pa.C.S.A. § 9782(b)(5) (“Act 84”), the Department of
Corrections (“DOC”) is “authorized to make monetary deduction from inmate
personal accounts for the purpose of collecting restitution or any other
court-ordered obligation.”


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Trial court opinion, 12/5/17 at 1-2.

      Preliminarily, we note that appellant’s pro se appeal was stamped as

filed by the Commonwealth Court on October 13, 2017, in excess of the

30-day appeal period from the trial court’s September 6, 2017 order, and

thus appears untimely on its face. See Pa.R.A.P. 903(a) (stating, a “notice

of appeal . . . shall be filed within 30 days after the entry of the order from

which the appeal is taken.”).         However, where a pro se appellant is

incarcerated, as is the case here, the prisoner mailbox rule applies and an

appeal is deemed filed on the date the prisoner deposits the appeal with

prison authorities or places it in a prison mailbox.         Commonwealth v.

Chambers, 35 A.3d 34, 38 (Pa.Super. 2011), appeal denied, 46 A.3d 715

(Pa. 2012).     Instantly, the post-mark on the envelope that accompanied

appellant’s notice of appeal indicates that it was deposited with prison

authorities on October 3, 2017, before the 30-day appeal period expired.

Accordingly, we deem the instant appeal to be timely.3

      Appellant raises the following issues for our review:

              [1.]   Did the Court of Common Pleas of Beaver
                     County violate [appellant’s] constitutional right
                     to Due Process when it failed to take subject
                     matter jurisdiction over the Motion for
                     Deferment?




3 We note that the trial court did not order appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b).    On December 5, 2017, the trial court filed its
Rule 1925(a) opinion.


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             [2.]   Is [appellant] eligible for a Deferment of Fines
                    and Costs incurred by Act 84, 42 Pa.C.S.A.
                    § 9728 et seq. (Act 1998-84 (S.B. 640),
                    P.L. 640 § 4, approved June 18 1998, eff. in
                    120 days) by the Court of Common Pleas when
                    it states it lacks subject matter jurisdiction?

Appellant’s brief at 4 (emphasis omitted).

      Here, the trial court held that it lacked jurisdiction to order the DOC to

cease its 20% deduction from appellant’s inmate account because appellant

failed to challenge his underlying sentence.      The trial court reasoned as

follows:

             A review of [appellant’s] Application for Leave to
             Defer Fines and Costs clearly shows that [appellant]
             made no claims whatsoever regarding modification
             of his Sentence Order, or the validity of his sentence.
             Rather, he merely claimed that he was unable to
             afford the [DOC] twenty percent deductions from his
             inmate account, claimed a right to deferment, and
             requested the Court to order the [DOC] to cease its
             deductions until the completion of his minimum
             sentence. . . . Because the claim [appellant]
             addressed to this Court was, in truth, a civil action
             against the [DOC], an agency of the Commonwealth,
             this Court does not have jurisdiction to consider the
             claim, and [appellant’s] Application was properly
             denied.

Trial court opinion, 12/5/17 at 4-5 (footnote omitted).

      Upon review, we agree with the trial court’s conclusions.        This court

addressed a similar matter in Commonwealth v. Danysh, 833 A.2d 151

(Pa.Super. 2003). Danysh involved a situation where the Court of Common

Pleas of Susquehanna County denied an inmate’s petition to cease Act 84

deductions    from    his   inmate    account,   after   concluding    that   the


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20% deduction constituted a “reasonable amount.”          Danysh, 833 A.2d at

152.    On appeal, the Danysh court raised the issue of subject matter

jurisdiction sua sponte, recognizing that the Commonwealth Court has

original jurisdiction over various classes of cases, including civil suits against

government actors.     Id.   The Danysh court concluded that the inmate’s

action was a civil action “against the Commonwealth government, as [the]

DOC falls within the jurisdictional statute’s definition of that term[,]” and the

inmate “should have brought his petition as a petition for review of a

governmental determination under the Commonwealth Court’s original

jurisdiction.” Id. at 153-154, citing 42 Pa.C.S.A. § 761(a)(1) (providing, in

relevant part, that “the Commonwealth Court shall have original jurisdiction

of all civil actions or proceedings . . . [a]gainst the Commonwealth

government . . . .”). Therefore, the court of common pleas lacked subject

matter jurisdiction. Id. at 154.4

       Based on the foregoing, we discern no error on the part of the trial

court in denying appellant’s application for leave to defer fines and costs for

lack of jurisdiction.5 See also Commonwealth v. Jackson, 858 A.2d 627,


4  This court did note, however, that the trial court would have had
jurisdiction if the defendant were incarcerated in the county jail as opposed
to a state correctional institution. Danysh, 833 A.2d at 154. Here,
appellant is incarcerated at S.C.I. Rockview.

5 In Danysh, we explained that “[a]lthough the court of common pleas
lacked subject matter jurisdiction, we have appellate jurisdiction since this is
an appeal from a final order.” Danysh, 833 A.2d at 152 n.1. The same is
true in the instant matter.


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629-630 (Pa.Super. 2004) (en banc) (concluding that the trial court

properly determined that it lacked jurisdiction over an inmate’s pro se

petition to stop the DOC from deducting 20% of his earnings from his inmate

account to pay for court-ordered costs and restitution).     Accordingly, we

affirm the September 6, 2017 order of the trial court denying appellant’s

application because it lacked jurisdiction to address it, without prejudice to

seek relief from the Commonwealth Court.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 7/23/2018




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