J-S84026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 SHAHIED I. JONES                         :
                                          :
                     Appellant            :   No. 2363 EDA 2018

                  Appeal from the Order Entered June 29, 2018
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002298-2009


BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                 FILED MAY 09, 2019

      Shahied I. Jones appeals from the order entered on June 29, 2018,

denying his motion for return of property (motion) pursuant to Pennsylvania

Rule of Criminal Procedure 588 (Rule 588). On appeal, Jones argues that the

he did not give up the rights to his property merely because he untimely filed

his motion. For the reasons discussed below, we affirm.

      In February 2010, a jury convicted Jones of possession with intent to

deliver cocaine. In addition, in February 2010, the Commonwealth moved for

forfeiture of cash and a motor vehicle seized at the time of arrest. On March

8, 2010, the trial court sentenced Jones to 7 to 14 years’ incarceration. Jones

filed a timely appeal, which this Court dismissed when Jones failed to file a

docketing statement.     In April 2010, the court granted the motion for

forfeiture.
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        Subsequently, Jones filed a timely petition for collateral relief pursuant

to the Post Conviction Relief Act (“PCRA”),1 seeking restoration of his direct

appeal rights. The trial court granted PCRA relief and Jones filed a timely

notice of appeal. This Court affirmed the judgment of sentence on August 15,

2012.      Commonwealth v. Jones, 60 A.3d 572 (Pa. Super. 2012)

(unpublished memorandum).             Jones did not seek leave to appeal to the

Pennsylvania Supreme Court.

        In October 2012, Jones filed a counseled motion for return of property,

specifically jewelry, seized at the time of his arrest, pursuant to Pa.R.Crim.P.

588. The trial court denied his motion on December 7, 2012.2 Jones did not

file an appeal. However, Jones did move for reconsideration on December 17,

2012. The trial court denied the motion on December 19, 2012.

        On July 6, 2015, Jones filed a second PCRA petition. The PCRA court

dismissed the petition as untimely filed on October 19, 2015.          This Court

affirmed on August 15, 2016. Commonwealth v. Jones, 156 A.3d 336 (Pa.

Super. 2016) (unpublished memorandum). The Pennsylvania Supreme Court



____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2 In denying the motion, the trial court found the motion was premature
because Jones had “not exhausted all avenues of possible post trial relief that
could conceivably lead to a new trial.” Order, 12/06/2012, at 1. We note that
this motion was filed and decided before Commonwealth v. Allen, 107 A.3d
709 (Pa. 2014), discussed supra.



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denied leave to appeal on February 15, 2017. Commonwealth v. Jones,

166 A.3d 1229 (Pa. 2017).

        On June 6, 2018, Jones filed a second counseled motion again seeking

return of the jewelry. A hearing took place on June 26, 2018. On June 29,

2018, the trial court denied the motion. The instant, timely appeal followed.3

        On appeal, Jones argues that the trial court erred in denying his motion

for return of property pursuant to Pennsylvania Rule of Criminal Procedure

588.4 Because Jones did not timely file his motion, we disagree.




____________________________________________


3 On August 20, 2018, Jones filed a timely concise statement of errors
complained of on appeal in response to the trial court’s order. On August 24,
2018, the trial court issued an opinion.

4   Pennsylvania Rule of Criminal Procedure 588 provides:

        (A) A person aggrieved by a search and seizure, whether or not
        executed pursuant to a warrant, may move for the return of the
        property on the ground that he or she is entitled to lawful
        possession thereof. Such motion shall be filed in the court of
        common pleas for the judicial district in which the property was
        seized.

        (B) The judge hearing such motion shall receive evidence on any
        issue of fact necessary to the decision thereon. If the motion is
        granted, the property shall be restored unless the court
        determines that such property is contraband, in which case the
        court may order the property to be forfeited.

        (C) A motion to suppress evidence under Rule 581 may be joined
        with a motion under this rule.

Pa.R.Crim.P. 588.

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      Whether a motion for return of property filed more than eight years after

Jones’ judgment of sentence is timely, presents a question of law. Therefore,

“our standard of review is de novo, and our scope of review is plenary.”

Commonwealth v. Allen, 107 A.3d 709, 714 (Pa. 2014).

      Our Supreme Court addressed the timeliness of a motion for return of

property under Rule 588 in Allen. In that case, the Commonwealth withdrew

the charges against the defendant in 2002, and he filed a motion under Rule

588 in 2010.     Allen, 107 A.3d at 711.         As in the instant matter, the

Commonwealth did not file a petition for forfeiture for the specific property at

issue. Id. at 714. Our Supreme Court concluded that the defendant’s “stand-

alone” return motion was untimely and the issue waived because the

defendant had not filed the motion while the trial court retained jurisdiction.

Id. at 717. The Supreme Court acknowledged that Rule 588 does not address

timeliness. Id. at 716. However, it held that

      Although Rule 588 does not directly address the question of
      timing, it is sufficiently precise with regard to who may file a return
      motion and where the motion must be filed to permit us to discern
      that a criminal defendant has an opportunity to file a motion
      seeking the return of property while the charges against him are
      pending. Specifically, return motions are filed by “a person
      aggrieved by a search and seizure” and must “be filed in the court
      of common pleas for the judicial district in which the court retains
      jurisdiction to modify or rescind any order within thirty days of its
      entry, if no appeal has been taken[.]

Id. at 716-717. The Supreme Court limited its holding on waiver to cases

where the defendant’s return motion was a stand-alone motion and not filed

in response to a forfeiture petition. Id. at 717 n.9; see also id. at 715 n.7


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(noting Commonwealth’s concession that its filing of forfeiture petition waived

any defense to defendant’s return motion based on untimeliness or waiver);

accord Commonwealth v. Irland, 193 A.3d 370, 380-381 (Pa. 2018)

(distinguishing facts of that case, where Commonwealth pursued forfeiture,

from facts and holding of Allen ).

       Here, applying Allen, the trial court found that Jones waived his claim

for return of the jewelry by not filing a motion for return within 30 days of

March 8, 2010, the day he was sentenced. Trial Court Opinion, 8/24/18, at

4. We agree. Jones did not file the instant motion until June 2018, by which

time the trial court no longer had jurisdiction.5 Jones’ failure to request that

the court order the jewelry be returned while the court still had jurisdiction

over his case resulted in waiver of his claim. Allen, 107 A.3d at 718. Thus,

the court was therefore without jurisdiction to consider Jones’ Rule 588

Motion, and did not err in denying relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/9/19

____________________________________________


5 Even if the date the trial court lost jurisdiction to modify the sentence was
after Jones’ reinstated appeal was denied, his judgment of sentence was
confirmed by our Court on August 15, 2012.

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