J-S14045-19

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 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 probation 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 Retail Theft and 
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Conspiracy and one count of Possession of Marijuana.

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 The 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, after 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 counsel has filed an 

Anders brief and petition to withdraw.3

Before addressing the substantive merits of Johnson’s appeal, we must 

determine whether we have jurisdiction to do so. This Court acquires 

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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 sent 

to the trial court’s chambers. The court added to the notice of appeal the 

three criminal docket 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, this notice of appeal forms the basis of two 

other appeals in this Court, one for 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).
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jurisdiction 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. Reibow, 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). Negligence 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-sentence 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. 
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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.

Moreover, 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 matter 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 rights due to counsel’s failure to perfect 

a direct appeal[.]”).

Accordingly, to 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 direct appeal over which we lack jurisdiction. For all 
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of these reasons, we quash Johnson’s untimely appeal and grant counsel’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