J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NIGEL JOHNSTON

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

PENNSYLVANIA

No. 930 WDA 2023

Appeal from the PCRA Order Entered July 18, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0008386

- 2020

BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY OLSON, J.: FILED: June 20, 2024

Appellant, Nigel Johnston , appeals from the July 18 , 2023 order

dismissing, as untimely, his petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

– 9546. We affirm.

On April 6, 2021, Appellant entered a negotiated guilty plea to theft by

deception, access device fraud
, and co nspiracy. That same day, Appellant

was sentenced to an aggregate term of six years’ probation . Appellant did not

file a direct appeal; thus, his judgment of sentence became final on May 6,

2021

. See 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final,

inter alia , on expiration of time for seeking review). On or about June 30,J

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2022, Appellant filed a pro se PCRA petition. 1 The PCRA court subsequently

appointed counsel who, on December 19, 2022, filed an amended PC RA

petition on Appellant’s behalf. On June 27, 2023 , the PCRA court issued notice

of its intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907, citing

_________________ __________ ______ ____ _______

1 Appellant’s pro se PCRA petition does not appear in the certified record or on the docket. The PCRA court, however, noted that it was received and dated June 30, 2022. See PCRA Court Opinion, 11/13/23, at 8.J

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the untimeliness of Appellant’s petition. On July 18, 2023 , the PCRA court

dismissed Appe llant’s petition. This appeal timely followed. 2 , 3

_________________ __________ ______ ____ _______

2 It is well

- settled that a notice of appeal must be filed w ithin “30 days after the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(b). In the absence of a timely notice of appeal, we must quash. See Commonwealth v. Burks , 102 A.3d 497, 500 (Pa. Super. 2014) (“[Superior] Court has no jurisdict ion to entertain an untimely appeal.”).

In this instance, the PCRA court issued an order dismissing Appellant’s PCRA petition on July 18, 2023. The trial court docket also indicates that the order was served on Appellant’s counsel that day. Appellant then filed a notice of appeal. The trial c ourt docket indicates that Appellant’s notice of appeal was filed August 17, 2023, but the trial court timestamp on the notice of appeal is dated August 18, 2023. In light of this discrepancy, we issued a rule to show cause order why the appeal should not be quashed. Appellant’s counsel filed a response to the rule to show cause order in which she indicated that she “prepared and e

- filed” Appellant’s notice of appeal via the Unified Judicial System of Pennsylvania’s PACFile system on August 17, 2023. App ellant’s Response to Rule to Show Cause Order, 9/18/23, at *1 (unpaginated). Appellant’s counsel stated that she did so because she was court

- appointed to represent Appellant and, as such, was proceeding in forma pauperis wherein no filing fees are requir ed. Id

. Appellant’s counsel further stated, however, that , on August 18, 2023, she “discovered” that the notice of appeal was rejected. Id

. Counsel then contacted the Allegheny County Clerk of Courts to determine the reason for its rejection and was informed that “[n]otices of [a]ppeal normally cannot be filed via the PACfile system” because, presumably, there is no way to pay the required filing fee thereon. Id

. Accordingly, counsel “re

- file[d]” Appellant’s notice of appeal on August 18, 2023 and was advised that it would be “docketed as having been timely filed.” Id

. Because Appellant’s notice of appeal was not officially filed until August 18, 2023, 31 days after the PCRA court dismissed his PCRA petition, it appears untimely.

Importantly, however, this Court recently addressed a substantially similar situation in Commonwealth v. Shelton , 2023 WL 5097214 *1, *3

- *4 (Pa. Super. Aug. 9, 2023) ( non

- precedential decision). In particular, counsel for the appellant in Shelton “attempted to electronically file the notice of appeal” in a timely manner via PACFile but subsequently noticed that it was rejected. Id

. at *3. Counsel was then informed th at “she could not use the PACFile (Footnote Continued Next Page)J

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Appellant raises the following issues on appeal:

_________________ __________ ______ ____ _______ system to file the notice of appeal because there was no way to pay filing fees on that system as a privately

- retained attorney.” Id

. Accordingly, this Court considered whether Shelton ’s notice of appeal, timely submitte d but ultimately rejected , co uld be considered timely. Id

. In so doing, the Shelton Court noted that this Court previously considered whether “the failure to file a filing fee require [d] the dismissal of an appeal” in First Union Nat. Bank v. F.A. Realty Invs. Corp

. , 812 A.2d 719, 723 (Pa. Super. 2002). Id

. at *3. Initially
, the First U

nion Nat. Bank Court recognized that, pursuant to Pa.R.A.P. 902(b), the “[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is subject to such action as the appellat e court deems appropriate.” First Union Nat. Bank , 812 A.2d at 723. Ultimately, the First Union Nat. Bank Court instructed that the decision to dismiss an appeal based on the “ failure to tender the required fee” is discretionary and provided examples of incidents in which dismissal is appropriate. Id

. at 723 (noting that dismissal is appropriate if, inter alia , “the filing party unduly delays paying the requisite fee or undue delays seeking leave to appeal in forma pauperis ”)

. Based upon the foregoing, as well as the fact that “none of the factors mentioned in First Union Nat. Bank . . . [made] it appropriate to quash the appeal, the Shelton Court declined to dismiss the appellant’s appeal. Shelton , 2023 WL 5097214 at *5.

We similarly decl ine to quash Appellant’s appeal

. We note that, like in Shelton
, Appellant’s counsel timely submitted a notice of appeal, but it was rejected. In addition, we find it significant that Appellant is proceeding in this appeal in forma pauperis and, as such, no filing fee is required. Finally, we note that none of the factors mentioned in First Union Nat. Bank apply. We therefore decline to quash Appellant’s appeal and will consider it to be timely filed.

3 On August 23, 2023, the PCRA court ordered Appell ant to file a Rule 1925(b) statement within 21 days of the docketing of the order, i.e. , on or before September 13 , 2023. PCRA Court Order, 8/23/23, at *1 (unpaginated). The order also informed Appellant that “[a]ny issues not properly included in the [s ]tatement, timely filed and served, shall be deemed waived.” Id

. On September 22, 2023, Appellant filed a motion for leave to file a Rule 1925 (b) statement nunc pro tunc , as well as a substantive Rule 1925(b) statement. The PCRA court issued an order on September 26, 2023 granting Appellant nunc pro tunc relief and accepting Appellant’s substantive Rule 1925(b) statement “as timely filed.” PCRA Court Order, 9/26/23, at *1 (unpaginated ).J

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1. Did the [ PCRA ] court abuse its discretion in denying [Appellant’s] PCRA [p]etition[], as amended, without a hearing on the grounds that it lack[ed] jurisdiction to address the substantive claims because the petition was untimely?

2. Did the [PCRA] court err in denying [Appellant’s PCRA petition] without a hearing insofar as [Appellant] raised a meritorious claim that his plea was unknowing and i nvoluntary due to counsel’s failure to discuss the merits of filing a motion to suppress evidence, and failure to file a motion to suppress?

Appellant’s Brief at 4.

Our standard of review is as follows:

Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal

error. We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing pa rty. With respect to the PCRA court's decision to deny a request for an evidentiary hearing, or to hold a limited evidentiary hearing, such a decision is within the discretion of the PCRA court and will not be overturned absent an abuse of discretion. Th e PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions[.]

Commonwealth v. Mason , 130 A.3d 601, 617 (Pa. 2015) (citations

omitt ed).

We have reviewed the briefs of the parties, the relevant law, the certified

record, and the opinion of the able PCRA court judge, the Honorable Susan F.

Evashavik

- DiLucente . We conclude that Appellant is not entitled to relief in

this case for the reasons expressed in Judge Evashavik

- DiLucente’s November

13, 2023 opinion. Therefore, we affirm based on Judge Evashavik

- DiLucente’sJ

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opinion and adopt it as our own. In any fut ure filing with this or any other

court addressing this ruling, the filing party shall attach copies of Judge

Evashavik

- DiLucente’s November 13, 2023 opinion.

Order affirmed.

6/20/2024Circulated 05/28/2024 02:37 PM