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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

TYREEK JOHNSON

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2563 EDA 2018 Appeal from the Judgment of Sentence Entered May 10, 2018 In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP

- 23

- CR

- 0003594

- 2016

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J. MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 1, 2019 Tyreek Johnson (Johnson) appeals from the judgment of sentence entered on May 10, 2018 , by the Court of Common Pleas of Delaware County (trial court) after a violation of probati on hearing. Johnson ’ s appointed counsel seeks to withdraw from representation pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009) . We quash the appeal and grant counsel’s petition. We take the following pertinent facts and procedural history from our review of the certified record. On August 15, 2016, Johnson pleaded guilty with the assistance of counsel to two counts each of R etail T heft andJ

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C onspiracy and one count of Possession o f Marijuana

. 1 Th e trial court sentenced him to two years of probation . After Johnson violated the probation , the court re - sentenced him to immediate parole and two years of consecutive probation. On May 10, 2018, a fter a second probation violation, the court resentenced Johnson to an aggregate term of not less than one nor more than two years ’ incarceration to be served concurrent to a sentence he was then serving in Philadelphia. Over three months later, Johnson filed an untimely pro se notice of appeal in which he challenges his sentence and alleges that he had asked counsel to file an appeal but he failed to do so. (Notice of Appeal, 8/28/18, at 1). 2 Appointed appellate c ounsel has filed an Anders brief and petition to withdraw. 3
Be fore addressing the substantive merits of Johnson’s appeal , we must determine whether we have jurisdiction to do so

. This Court acquires

_________________ __________ ______ ____ _______ 1 18 Pa.C.S. §§ 3929(a)(1) and 903, and 35 P.S. § 780

- 113(a)(31), respectively.

2 The notice of appeal is a letter requesting appellate relief that Johnson s ent to the trial court ’s chambers

. The court added to the notice of appeal the three criminal do cket numbers at which it sentenced Johnson at the May 10, 2018 violation of probation hearing. It then filed it separately in each criminal case. In addition to this appeal, t his notice of appeal forms the basis of two other appeals in this Court , one fo r each criminal docket number

. See Commonwealth v. Johnson , 2564 EDA 2018 (trial court docket number 7548

- 2018); Commonwealth v. Johnson , 2565 EDA 2018 (trial court docket number 7549

- 2018)

.
3 Counsel has substantially complied with the procedural requirements for withdrawal pursuant to Anders

. See Commonwealth v. Lilley , 978 A.2d 995, 997 (Pa. Super. 2009).J

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juris diction when a litigant files a notice of appeal within thirty days of a final order. See Commonwealth v. Wrecks , 934 A.2d 1287, 1289 (Pa. Super. 2007) ; see also Pa.R.A.P. 903(a)

. This jurisdictional prerequisite is fundamental and strictly construed. See Commonwealth v. Reibo w , 445 A.2d 1219, 1220 (Pa. Super. 1982)

. If an appeal is untimely , we lack jurisdiction to hear it and must quash. See Wrecks , supra at 1289. Generally, an appellate court cannot extend the time for filing an appeal. See Commonwealth v. Patterson , 940 A.2d 493, 498 (Pa. Super. 2007) , appeal denied , 960 A.2d 838 (Pa. 2008) (“A court may not enlarge the time for filing a notice of appeal as a matter of grace or indulgence.”); Pa.R.A.P. 105(b)

. We may only hear an untimely appeal in the case of fraud or a breakdown in the administrative operations of the courts. See Bass v. Commonwealth , 401 A.2d 1133, 1135 (Pa. 1979)

. A breakdown in the judicial system occurs where an administrative body acts negligently or improperly or misleads a party. See Union Elec. Corp. v. Board of Property Assessment, Appeals & Review of Allegheny County , 746 A.2d 581, 584 (Pa. 2000)

. Negligenc e of an appellant, an appellant’ s counsel or counsel ’ s agent is not a sufficient excuse. See Bass , supra at 1135

. Instantly , the court sentenced Johnson on May 10, 2018, and counsel advised him of his post

- se ntence and appellate rights and their deadlines. ( See N.T. Hearing, 5/10/18, at 26

- 27). Additionally, the record does not reflect any extraordinary circumstances such as a breakdown of the court.J

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See Union Elec. Corp. , supra at 584; Bass , supra at 1135. However, he did not file a post

- sentence motion and he filed his notice of appeal over three months’ after the court imposed his sentence . Therefore, Johnson’s notice of appeal is patently untimely and divests this Court of jurisdiction.
Moreov er, to the extent that we could construe his notice of appeal to allege that it is untimely due to the ineffectiveness of counsel, we are precluded from considering this claim because it is a mat ter seeking collateral relief. An unjustified failure to file or perfect a requested appeal “falls beneath the range of competence demanded of attorneys in criminal cases” and creates the presumption that counsel was ineffective. Commonwealth v. Lantzy , 736 A.2d 564, 571

- 72 (Pa. 1999)

. However, our Supreme Court has expressly held that a petitioner has no right to pursue reinstatement of his appeal rights nunc pro tunc based on the ineffective assistance of counsel, outside the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. See Commonwealth v. Hall , 771 A.2d 1232, 1235 (Pa. 2001); see also Lantzy , supra at 570 ( “ [T]he PCRA provides the exclusive remedy for post

- conviction claims seeking restoration of appellate righ ts due to counsel’ s failure to perfect a direct appeal [.]”). Accordingly, t o restore his direct appeal rights, Johnson must follow the procedures set forth in the PCRA; we cannot grant collateral relief in the context of an untimely d irect appeal over whic h we lack jurisdiction

. For allJ

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of these reasons, we quash Johnson’s untimely appeal and grant counse l’s petition to withdraw

. Appeal quashed. Petition granted

. Judge Lazarus joins the memorandum. Judge Nichols concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/1/19