Com. v. Gaines, R. (memorandum)

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J-S30030-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROBERT DA-JUAN GAINES Appellant No.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: BENDER, P.J.E., MUNDY, J., and JENKINS, J. MEMORANDUM BY MUNDY, J.: FILED JULY 14, 2014 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 conclusion of which the jury found Appellant guilty of all counts except for one count of ____________________________________________ 1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903(a)(1), and 7512(a), respectively. J-S30030-14 unlawful delivery of a controlled substance. imprisonment. On November 17, 2010, the On December 17, 2010, Appellant filed a timely notice of appeal to this Court. August 15, 2011. This Court affirmed the judgment of sentence on 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 Super. 2011) (unpublished memorandum).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 pet 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 prope 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 improperly calculated prior record score.2 On April 25, 2013, Appellant filed a petition to amend his PCRA petition, which the PCRA court granted on May ____________________________________________ 2 concluding that prior counsel was ineffective. See PCRA Court Order, 4/12/13, at 2 (stating, to ineffective assistance of counsel as the matter is being addressed by the -2- J-S30030-14 1, 2013. Appellant filed an amended PCRA petition on May 21, 2013. The PCRA court conducted a hearing on June 19, 2013. On July 15, 2013, the 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 PCRA court 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. On August 19, 2013, Appellant filed a notice of appeal.3 On appeal, Appellant raises one issue for our review. A. [Whether the] ineffectiveness of trial counsel resulted in a conviction that was unjustly reached[?] determine whether this appeal is properly before us. We may raise issues concerning our appellate jurisdiction sua sponte. Andre, 17 A.3d 951, 957-958 (Pa. Super. 2011). Commonwealth v. In order to invoke our appellate jurisdiction, Pennsylvania Rule of Appellate Procedure 903 requires ____________________________________________ 3 Appellant and the PCRA court have complied with Pa.R.A.P. 1925. -3- J-S30030-14 the order Commonwealth v. Pena, 31 A.3d 704, 706 (Pa. Super. 2011) (citation omitted). In general, appeals are properly taken from final orders. See is expressly appeal pertains to ineffectiveness of counsel, which stems from the July 15, 2013 order denying his claims for relief under the PCRA. See Brief at 1 (stating [PCRA p]etition filed on September 14, 2012 and [the amended PCRA iminal Procedure 910 governs PCRA appeals and provides as follows. An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal. Pa.R.Crim.P. 910. In the case sub judice of all of his claims for relief under the PCRA. Furthermore, in Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001), our Supreme Court held that when a PCRA court denies all claims of relief with respect to the -4- J-S30030-14 guilt phase, but orders a new sentencing hearing, its order is a final one. Id. at 648. In Bryant all respects as to the guilt phase of his trial, but did order a new sentencing hearing. Bryant, supra at 647. Our Supreme Court reviewed whether this of relief as to his guilt-phase issues because he had not been re-sentenced. Id. at 648. quashed, our Supreme Court highlighted factors that explained the inefficiency of such fragmented appellate review. Re-sentencing the defendant before engaging in appellate review of the denial in piecemeal litigation, delay in the determination of guilt phase issues, and potential misuse of judicial resources if the new sentence is rendered moot by subsequent disposition of the guilt phase issues. For these reasons, the orderly administration of justice denying guilt phase relief should precede imposition of a new sentence by the trial court. Id. the Id. It is true that the case sub judice has a slightly different procedural posture insofar that the PCRA court has already resentenced Appellant, as opposed to merely rescheduling a new sentencing hearing. In our view, this does not affect the finality of it render Bryant meaningfully distinguishable. -5- As a result, we are J-S30030-14 appealable order under Rule 910.4 However, as this order was not mailed to Appellant until July 17, 2013, the appeal period did not begin until this date. See 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 from July 17, 2013, which was August 16, 2 appeal in this case was not filed until August 19, 2013, three days past the Rule 903 filing deadline.5 was untimely as it was filed 33 days after the Rule 903 period began to run when the PCRA court mailed its order to Appellant. Accordingly, we conclude that we are without jurisdiction, and quash this appeal. Appeal quashed. ____________________________________________ 4 15, 2013 order included the required notification that Appellant had 30 days to appeal, and cited to Rule 910. See PCRA Court [i]f the judge disposes of 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 5 as well. See -6- J-S30030-14 P.J.E. Bender concurs in the result. statement. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/14/2014 -7- Judge Jenkins files a dissenting

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