J-E02001-15


                                  2015 PA Super 230

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT DA-JUAN GAINES

                            Appellant                 No. 1497 MDA 2013


                   Appeal from the PCRA Order July 15, 2013
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0001303-2009


BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J.,
        SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.

OPINION BY MUNDY, J.:                            FILED NOVEMBER 05, 2015

       Appellant, Robert Da-Juan Gaines, appeals from the July 15, 2013

order dismissing his first petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.        After careful

review, we quash this appeal.

       We summarize the relevant facts and procedural history of this case as

follows.     On September 8, 2009, the Commonwealth filed an information

charging Appellant with two counts each of unlawful delivery of a controlled

substance, criminal conspiracy, and criminal use of a communication

facility.1   On October 11, 2010, Appellant proceeded to a jury trial, at the

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1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903(a)(1), and 7512(a),
respectively.
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conclusion of which the jury found Appellant guilty of all counts except for

one count of unlawful delivery of a controlled substance. On November 17,

2010, the trial court imposed an aggregate sentence of 102 to 360 months’

imprisonment.      On December 17, 2010, Appellant filed a timely notice of

appeal to this Court.        This Court affirmed the judgment of sentence on

August 15, 2011.        Commonwealth v. Gaines, 32 A.3d 834 (Pa. Super.

2011) (unpublished memorandum).                Appellant did not file a petition for

allowance of appeal with our Supreme Court.

        On September 14, 2012, Appellant filed a timely, counseled PCRA

petition.    Among the claims therein, Appellant argued that “[his c]ounsel

failed to bring to the attention of the [s]entencing [c]ourt the miscalculation

of [his prior record score], leading to a standard range sentence that did not

accurately reflect a proper calculation of his prior record.” Appellant’s PCRA

Petition, 9/14/12, at ¶ 6. The Commonwealth filed its answer on October 8,

2012.       On April 12, 2013, the PCRA court entered an order scheduling

resentencing in accordance with a stipulation between Appellant and the

Commonwealth        that   Appellant’s     original   sentence   was   based   on   an

improperly calculated prior record score.2 On April 25, 2013, Appellant filed


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2
  The PCRA court’s order appears to grant Appellant relief without specifically
concluding that prior counsel was ineffective. See PCRA Court Order,
4/12/13, at 2 (stating, “there is no finding for th[e PCRA c]ourt to make as
to ineffective assistance of counsel as the matter is being addressed by the
[PCRA c]ourt as to that issue[]”).



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a petition to amend his PCRA petition, which the PCRA court granted on May

1, 2013. Appellant filed an amended PCRA petition on May 21, 2013. 3 The

PCRA court conducted a hearing on June 19, 2013. On July 15, 2013, the

PCRA court entered an order denying Appellant’s request for PCRA relief;

however, the record reveals that the clerk of courts did not mail said order

to Appellant until July 17, 2013.              On July 17, 2013, the trial court

resentenced Appellant to an aggregate term of 64 to 156 months’


____________________________________________
3
  The concurrence avers that Appellant’s May 21, 2013 amended PCRA
petition was an untimely second PCRA petition, because Appellant withdrew
his remaining ineffective assistance of counsel claims from his original PCRA
petition. Concurring Opinion at 1-2. Although the PCRA court’s April 12,
2013 order states that Appellant “intended to withdraw” his other claims, the
next paragraph in the same order states the following.

                     The defense counsel has alerted … the Court to
              additional information that he has recently learned
              which may require him to amend [Appellant]’s PCRA
              petition. The Court finds that in the interest of
              judicial economy, that [Appellant] shall be detained
              in the Franklin County Jail for a period of 10 days
              from today’s date so that he may meet with his
              counsel … for the development of an amended PCRA
              petition.

PCRA Court Order, 4/12/13, at 2-3. Therefore, the PCRA court’s order that
granted resentencing also granted Appellant leave to amend his petition.
We note that this technically rendered Appellant’s April 25, 2013 formal
request for leave to amend superfluous. Nevertheless, it is axiomatic that
granting leave to amend was well within the PCRA court’s discretion. See
Pa.R.Crim.P. 905(A) (stating, “[t]he judge may grant leave to amend or
withdraw a petition for post-conviction collateral relief at any time … [and
a]mendment shall be freely allowed to achieve substantial justice[]”).
Therefore, Appellant’s May 21, 2013 petition is properly characterized as an
amended PCRA petition rather than a second untimely petition.



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imprisonment with credit for time served. On July 29, 2013, Appellant filed

a motion to modify sentence, which was granted the next day to include that

Appellant was RRRI eligible.4 On August 19, 2013, Appellant filed a notice of

appeal.5

       On July 14, 2014, this Court filed an unpublished memorandum

quashing Appellant’s appeal as untimely. Appellant filed a timely petition for

reargument en banc on July 23, 2014. On September 22, 2014, this Court

entered an order granting Appellant’s petition for reargument en banc. Both

Appellant and the Commonwealth filed substituted briefs; however, neither

addressed the issue the original panel found dispositive, i.e., whether the

untimeliness of Appellant’s notice of appeal divested this Court of jurisdiction

to consider Appellant’s claims.         Therefore, on April 21, 2015, this Court

entered an order directing the parties to file supplemental briefs addressing

the jurisdictional issue, with which both parties complied.

       In his substituted brief, Appellant raises one issue for our review.

              A.     [Whether the] ineffectiveness of trial counsel
                     resulted in a conviction that was unjustly
                     reached[?]

Appellant’s Brief at 4.
____________________________________________
4
  As the tenth day fell on a Saturday, Appellant’s post-sentence motion filed
on Monday, July 29, 2013 was timely. See generally Pa.R.Crim.P. 720(A);
1 Pa.C.S.A. § 1908.
5
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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      Before we address the merits of Appellant’s appeal, we first address

the question upon which we granted reargument en banc, that is, whether

this appeal is properly before us.    We may raise issues concerning our

appellate jurisdiction sua sponte. Commonwealth v. Andre, 17 A.3d 951,

957-958 (Pa. Super. 2011).     In order to invoke our appellate jurisdiction,

Pennsylvania Rule of Appellate Procedure 903 requires that all “notice[s] of

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

the appeal is taken.”     Pa.R.A.P. 903(a).     Because this filing period is

jurisdictional in nature, it must be strictly construed and “may not be

extended as a matter of indulgence or grace.”     Commonwealth v. Pena,

31 A.3d 704, 706 (Pa. Super. 2011) (citation omitted).

      In general, appeals are properly taken from final orders.           See

Pa.R.A.P. 341(b)(2) (stating an appeal lies from an order that “is expressly

defined as a final order by statute[]”).      Appellant’s entire argument on

appeal pertains to ineffectiveness of counsel, which stems from the July 15,

2013 order denying his guilt phase claims for relief under the PCRA.     See

Appellant’s Brief at 1 (stating, “[t]his is an appeal from [the PCRA court’s

order] dated July 15, 2013 on the preserved issue of the [PCRA c]ourt’s

denial of the [PCRA p]etition filed September 14, 2012 and [the amended

PCRA petition] filed May 21, 2013[]”).        Pennsylvania Rule of Criminal

Procedure 910 governs PCRA appeals and provides as follows.

            An order granting, denying, dismissing, or otherwise
            finally disposing of a petition for post-conviction

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              collateral relief shall constitute a final order for
              purposes of appeal.

Pa.R.Crim.P. 910.       By its plain text, Rule 910 has no exceptions.   It is

absolute.     Further, the comment to Rule 910 states that “[a] partial

disposition under Rule 907[3] is not a final order until the judge has fully

disposed of all claims.” Id. at cmt.

       In our view, there can be no serious dispute that the order granting in

part and denying in part all the issues raised in the PCRA petition “finally

dispos[ed]” of Appellant’s PCRA petition.         Pa.R.Crim.P. 910.      Here,

Appellant’s PCRA petition raised several claims, each seeking either a new

trial or resentencing.      The PCRA court granted one sentencing claim and

denied all claims for a new trial. As a result, the PCRA court’s July 15, 2013

order ended collateral proceedings and called for a new sentencing

proceeding, which is a trial court function, not a collateral proceeding

function.   Therefore, the PCRA court’s order disposed of all of Appellant’s

claims in his PCRA petition, terminating its role in the proceedings.6 See




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6
  In appropriate circumstances, a PCRA court may impose the new sentence
in its PCRA court order, as opposed to ordering a new sentencing
proceeding. However, it is not in dispute that the PCRA court did not do so
in the instant case.




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id. at cmt. Under a plain, straightforward application of Rule 910, the PCRA

court’s order was a final one.7

       Here, the PCRA court’s order was docketed on July 15, 2013.

However, as this order was not mailed to Appellant until July 17, 2013, the

appeal period did not begin until this date.8       See Pa.R.A.P. 108(a)(1)

(stating, “in computing any period of time under these rules involving the

date of entry of an order by a court or other government unit, the day of

entry shall be the day the clerk of the court or the office of the government

unit mails or delivers copies of the order to the parties …[]”).    Therefore,

Appellant’s notice of appeal was due 30 days from July 17, 2013, which was

Friday, August 16, 2013. Appellant’s notice of appeal in this case was not




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7
 Although not dispositive on its own, we note that the PCRA court’s July 15,
2013 order included the required notification that Appellant had 30 days to
appeal, and cited to Rule 910. See PCRA Court Order, 7/15/13, at 1;
Pa.R.Crim.P. 908(E) (stating, “[i]f the judge disposes of the case … when the
defendant is not present in open court, the judge … shall advise the
defendant of the right to appeal from the final order disposing of the petition
and of the time limits within which the appeal must be filed[]”).
8
  We reject Appellant’s argument that the appeal period did not begin to run
until July 19, 2013, when counsel received the PCRA court’s order. See
generally Appellant’s Supplemental Brief at 2. Appellant does not cite to
any authority for the proposition that the Rule 903 filing period begins on
the date the order is received, and this would contradict the plain text of
Rule 108(a).



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filed until Monday, August 19, 2013, three days past the Rule 903 filing

deadline.9

       However, Appellant avers that the PCRA court’s July 15, 2013 order

was not final. In his reargument petition, Appellant averred that his appeal

lies from the new July 17, 2013 judgment of sentence.                   Appellant’s

Reargument Petition, 7/23/14, at 9-10.              Stated another way, Appellant’s

argument is that an order granting relief under the PCRA is not a final order;

rather, the final order is the order imposed at the completion of the trial

court proceeding ordered by the PCRA court’s grant of relief.10                This

proposed procedural rule would resolve this exact case because here the

Commonwealth stipulated that Appellant was entitled to resentencing,

essentially precluding the Commonwealth from appealing the grant of PCRA

relief in the form of resentencing.            However, this rule would have to be

applied to all PCRA appeals that come to this Court. When applied outside

of this specific case and taken to its logical conclusion, Appellant’s proposed

procedure would have serious far-reaching consequences.




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9
 We note that Appellant’s notice of appeal was dated August 19, 2013 as
well. See Appellant’s Notice of Appeal, 8/19/13, at 1.
10
   Appellant does not raise any issues pertaining to the July 17, 2013 new
judgment of sentence. His claims in this appeal are limited to ineffective
assistance of counsel, which only pertain to the July 15, 2013 order denying
his PCRA petition in part.



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        For example, let us assume a timely PCRA petition raises one guilt-

phase claim and one sentencing-phase claim. The PCRA court conducts an

evidentiary hearing and grants the defendant a new trial, rendering the

sentencing issue       moot.       Under Appellant’s proposed   procedure, the

Commonwealth would be required to wait to appeal this PCRA order until

an order is imposed following the conclusion of the proceeding resulting from

the partial grant of the relief ordered by the PCRA court, i.e., the completion

of the new trial.       Aside from distorting the plain text of Rule 910, the

application of the Appellant’s proposed new procedure becomes more

problematic if at the second trial, the defendant is acquitted, as it is

hornbook federal constitutional law that the Commonwealth cannot appeal

an acquittal under the Double Jeopardy Clause.         United States v. Scott,

437 U.S. 82, 91 (1978). There is no functional difference between a grant of

resentencing and the grant of a new trial, as they both would artificially end

collateral review under Appellant’s rule.          The only way to make the

Appellant’s proposed rule appear viable, would be to further fracture Rule

910 and hold that this new procedure is only applicable to partial grants of

sentencing relief, not new trials.        However, as we noted above, Rule 910

contains no exceptions and provides no support for the creation of such a

schism.11


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11
     Appellant also acknowledges that this Court has tried to implement this
(Footnote Continued Next Page)


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      Finally, if we adopted Appellant’s proposed rule, this Court would be

creating an entirely new procedure for the appealability of a PCRA court

order that grants resentencing but denies a new trial. However, Article V,

section 10(c) of the Pennsylvania Constitution states that “[t]he Supreme

Court shall have the power to prescribe general rules governing practice,

procedure and the conduct of all courts[.]”         Pa. Const. art. V, § 10(c)

(emphasis added). This Court has previously refrained from tampering with

the finality and appealability of orders, as we concluded that doing so would

encroach upon our Supreme Court’s exclusive rulemaking power. See In re

                       _______________________
(Footnote Continued)

procedure before in Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001).
Appellant’s Supplemental Brief at 3. In Bryant, our Supreme Court held
that when a PCRA court denies all claims of relief with respect to the guilt
phase, but orders a new sentencing hearing, its order is a final one.
Bryant, supra at 648. In doing so, our Supreme Court disapproved of the
very procedure Appellant asks this Court to adopt. Appellant argues that
Bryant’s holding is only applicable to capital cases.            Appellant’s
Supplemental Brief at 3. Regardless of how Bryant should be viewed in the
larger spectrum of PCRA cases, capital PCRA appeals are the smaller subset
of PCRA cases that are adjudicated in this Commonwealth. As noted above,
in Bryant, this Court created, for capital cases, the same procedure that
Appellant urges us to adopt here.          Our Supreme Court specifically
disapproved the procedure. We cannot agree that our Supreme Court in
Bryant intended sub silentio to hold that the same procedure it disapproved
for the smaller subset of PCRA appeals was permissible for the larger
subset of PCRA appeals, i.e., non-capital cases.

       We also stress that when a PCRA court grants in part and denies in
part a PCRA petition, the fact that it is final for purposes of appeal is not a
procedure that our Supreme Court invented specifically for Bryant. Rather,
it is a straightforward application of Rule 910, which our Supreme Court
explicitly cited to with approval in Bryant.          Bryant, supra, quoting
Pa.R.Crim.P. 1510 (now Rule 910).



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M.D., 839 A.2d 1116, 1121 (Pa. Super. 2003) (stating, “if we were to deem

all [juvenile court] review orders subject to appeal, we would be engaging in

rulemaking, a function within the exclusive jurisdiction of the Pennsylvania

Supreme Court[]”).   We likewise resist the temptation to do so here.     By

altering what is and what is not a final, appealable order, this Court would

be promulgating a new procedural rule for appealing partial grants of PCRA

relief. In our view, if there is to be such a new procedure, it should only

come from the Rules Committee and our Supreme Court. In light of all the

aforementioned considerations, we hold that the PCRA court’s July 15, 2013

order granting in part and denying in part Appellant’s PCRA petition was a

final order under Rule 910.

     Based on the foregoing, we conclude that Appellant’s notice of appeal

was untimely filed from the July 15, 2013 order disposing of Appellant’s

PCRA petition.   Accordingly, we are without jurisdiction and quash this

appeal.

     Appeal quashed.

     Judge Panella and Judge Lazarus join the opinion.

     Judge Stabile concurs in the result.

     Judge Donohue files a concurring opinion in which Judge Stabile joins.

     President Judge Emeritus Bender files a dissenting opinion in which

President Judge Gantman and Judge Shogan join.




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        Judge Allen did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2015




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