Com. v. Fiske, R. (memorandum)

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J-S34027-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROBERT FISKE, Appellant No. 1682 WDA 2013 Appeal from the PCRA Order Entered June 15, 2012 In the Court of Common Pleas of Potter County Criminal Division at No(s): CP-53-CR-0000117-2009 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J. MEMORANDUM BY BENDER, P.J.E.: FILED JULY 09, 2014 order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541counsel, Richard W. McCoy, Esq., seeks permission to withdraw his representation of Appellant pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). For the following reasons, we quash this appeal and grant On February 17, 2010, Appellant pled guilty to one count of stemmed from his inflicting serious bodily injury upon his six-month-old son. J-S34027-14 On March 18, 2010, the court sentenced Appellant to an aggravated appeal, challenging the discretionary aspects of his sentence. This Court Commonwealth v. Fiske, 26 A.3d 1182 (Pa. Super. 2011) (unpublished memorandum). Appellant did not file a petition for permission to appeal to our Supreme Court. On August 15, 2011, Appellant filed a pro se PCRA petition and Attorney McCoy was appointed to represent him. In his petition, Appellant raised various allegations of ineffective assistance of his plea/appellate counsel, Brent Petrosky, Esq. In one of those claims, Appellant alleged that Attorney Petrosky acted ineffectively by not filing a petition for permission to appeal to our Supreme Court. After conducting an evidentiary hearing, the PCRA court issued an order on June 15, 2012, granting the reinstatement of remaining claims of Atto On June 25, 2012, the Commonwealth filed a petition for PCRA court conducted a hearing on February 19, 2013, to address the -2- J-S34027-14 the date of this Order to file a Petition for Allocatur right to appeal from the June 15, 2012 denial of his other ineffectiveness [Appell Id. On March 14, 2013, Appellant filed a petition for permission to appeal to our Supreme Court, which was denied on Commonwealth v. Fiske, 74 A.3d 125 (Pa. 2013). August 27, 2013. On September 18, 2013, App order denying his substantive claims for collateral relief involving issued an order directing Appellant to file a Pa.R.A.P. 1925(b) statement. indicated in the Rule 1925(b) statement that he intended to file a petition to withdraw and a Turner/Finley Attorney McCoy filed that petition to withdraw and no merit letter with this Court on November 4, 2013. On November 25, 2013, Appellant filed a pro se to Turner/Finley, 11/25/13, at 1. Turner/Finley petition to withdraw and no merit letter, we must assess whether we have jurisdiction -3- J-S34027-14 sua sponte Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001) (citation omitted). direct appeal rights nunc pro tunc, yet also denied his substantive collateral claims of plea Appellant reinstatement of his appellate rights nunc pro tunc, its Commonwealth v. Miller, 868 A.2d 578, 580 (Pa. Super. 2005). In Miller, we explained: When a PCRA court grants a request for reinstatement of direct appeal rights nunc pro tunc, merits of any remaining claims. Commonwealth v. Hoyman, 385 Pa. Super. 439, 561 A.2d 756, 758 (1989). This delicate distinction has caused some confusion. See Commonwealth v. Pate, 421 Pa. Super. 122, 617 A.2d 754, 757 the PCRA court finds that the petitioner's appellate rights have been abridged, it should grant leave to file a direct appeal and inquire, but its inquiry [cannot] result in an appealable disposition. Id. (footnote omitted; emphasis in original). In this case, the PCRA court reinstated Appella rationale of Miller ineffectiveness claims is merely advisory; it is not an appealable disposition. Consequently, we do not have -4- jurisdiction over this appeal. J-S34027-14 Commonwealth v. Kennedy, 876 A.2d 939, 943 (Pa. 2005) (indicating appellate court lacks jurisdiction over non-appealable orders). s added) (precluding as and decided proceeding). Thus, Appellant may subsequently file a new PCRA petition (which would be considered his first for timeliness purposes) and raise the same subs that he presented in his initial petition. See Commonwealth v. Barnett, 25 A.3d 371, 377 (Pa. Super. 2011), order vacated on other grounds by, 84 A.3d 1060 (Pa. 2014) (dismissing Barnet of counsel, raised on direct appeal after the reinstatement of his direct appeal rights nunc pro tunc them in a subsequent PCRA petition); Commonwealth v. Karanicolas, 836 A.2d 940, 944 (Pa. Super. 2003) (holding that a PCRA petition brought after first PCRA petition for direct appeal nunc pro tunc timeliness purposes). Appe jurisdiction to entertain this appeal because of its patent untimeliness. Appellant did not file his notice of appeal until 460 days after the date of -5- J-S34027-14 the order from which he seeks to appeal. Pennsylvania Rule of Appellate notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is appeal period while Appellant sought allocatur with our Supreme Court, the PCRA court did not have the authority to extend the appeal deadline. See Coolbaugh, 770 A.2d at 791 (quoting Commonwealth v. Anwyll, 482 en an Act of Assembly fixes the time within which an appeal may be taken, a court ness were final and appealable, we would quash his appeal as untimely.1 ____________________________________________ 1 We acknowledge that this Court has declined to quash untimely appeals that stem from a breakdown in the function of the trial court. See Coolbaugh, 770 A.2d at 791 (refusing to quash appeal where trial court incorrectly stated that the appeal period would run from the date on which the revocation of his probation); Pierce v. Penman, 515 A.2d 948, 950 (Pa. Commonwealth v. Anwyll, 482 A.ed 656, 657 (Pa. Super. 1984) (overlooking untimely notice (Footnote Continued Next Page) -6- J-S34027-14 In light of the fact that Appellant is attempting to appeal from a nonappealable order, and he is doing so in an untimely fashion, we agree with Attorney McCoy that there are no issues that Appellant could assert in the instant appeal.2 merit letter have satisfied the Turner/Finley test to withdraw. other technical requirements of the See Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006), abrogated on other grounds by Commonwealth v. Pitts, 981 A.2d 875, 879 (Pa. 2009) (stating the requirements for withdrawal under Turner/Finley). Namely, Attorney McCoy forwarded to Appellant a copy of his petition to withdraw and nomerit letter. He also sent a letter to Appellant explaining his conclusion that (Footnote Continued) _______________________ of appeal and concl operation because the court misstated the appeal period). However, in this the appeal period amounted to a breakdown of the operation of the court. See Overnite Transp. Co. v. Teamster Local 107, 779 A.2d 533 (Pa. Super. 2001), , 786 A.2d 173 (Pa. 2001) (per curiam order) re the delay was based on the trial -trial motion for operation so as to permit our entertaining the appeal). 2 However, our decision should not be construed as indicating that we agree plea/appellate counsel ineffectiveness issues lack merit; we make no determination in that regard because we are without jurisdiction to do so. -7- J-S34027-14 to proceed with his appeal pro se or retain private counsel. Therefore, we petition to withdraw and quash this appeal, without the court shall consider as his first for timeliness purposes.3 If Appellant files such a petition, new counsel must be appointed to represent him. See capital cases)], when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge petition for post____________________________________________ 3 Without ruling on the timeliness of a future PCRA petition Appellant may file, we note that because our Supreme Court denied his petition for became final 90 days thereafter, or on November 25, 2013. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) entence becomes final ninety days after our Supreme Court rejects his or her petition for allowance of appeal since petitioner had ninety additional days to seek review with the United States Supreme Court). Accordingly, it appears that Appellant has until November 25, 2014, to file a timely PCRA petition asserting his ineffectiveness claims. See 42 Pa.C.S. § 9545(b) (stating a -8- J-S34027-14 Appeal quashed. Petition to relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/9/2014 -9- withdraw granted. Jurisdiction

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