J-S58014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARLOS HERNANDEZ-ROBLEDO,

Appellant No. 2089 MDA 2015

Appeal from the Order Entered November 18, 2015

in the Court of Common Pleas of Berks County

Criminal Division at No.: CP-06-MD-0001910-2015

BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 07, 2016

Appellant, Carlos Hernandez-Robledo, appeals from the order of 

November 18, 2015, denying his petition for leave to appeal a summary 

conviction nunc pro tunc. For the reasons discussed below, we affirm.

We take the underlying facts and procedural history in this matter 

from the trial court’s January 12, 2016 opinion and our independent review 

of the certified record. 

In December 2014, Appellant appeared at the office of the Magisterial 

District Court and entered a guilty plea to his fifth violation for driving while 

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* Retired Senior Judge assigned to the Superior Court.
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operating privilege is suspended or revoked.1 (See N.T. Hearing, 11/18/15, 

at 4). Appellant, who has never possessed a valid driver’s license, (see id. 

at 17), took no further action with respect to this matter until October 4, 

2015, when he sought counsel. (See id. at 12). On October 7, 2015, 

Appellant filed the instant petition for leave to file a summary traffic appeal 

nunc pro tunc. 

On November 18, 2015, the trial court held an evidentiary hearing on 

Appellant’s petition. At the hearing, Appellant testified that he pleaded 

guilty and paid the fine to avoid problems “with my ticket. I want[ed] to do 

what I need[ed] to avoid problems.” (Id. at 7). Appellant claimed that in 

March 2015, he received a letter from the Pennsylvania Department of 

Transportation (PennDOT) advising him that any further convictions for 

driving with a suspended license would result in incarceration and that he 

needed to obtain counsel. (See id. at 9, 12-13). Appellant admitted that he 

did not immediately seek counsel. (See id. at 12). In July 2015, Appellant 

received his sixth citation for driving while operating privilege is suspended 

or revoked. (See id. at 14). Despite this, Appellant again acknowledged 

that he did not take any immediate action.

Following the hearing, the trial court denied the petition. (See id. at 

24-25). This timely appeal followed. On December 7, 2015, the trial court 

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1 75 Pa.C.S.A. § 1543(a).
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ordered Appellant to file a concise statement of errors complained of on 

appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) 

statement on December 16, 2015. See id. On January 12, 2016, the trial 

court issued an opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review:

1. Whether the trial court erred in denying Appellant’s 

petition to appeal nunc pro tunc where his plea of guilty was 

predicated upon mis-information provided to him by a clerk of 

the magisterial district court, thereby constituting a breakdown 

in court operations precluding a timely appeal[?]

2. Whether the trial court erred in denying Appellant’s 

petition to appeal nunc pro tunc on the basis of this Court’s 

holding in [Commonwealth v. White, 806 A.2d 45 (Pa. Super. 

2002)] where [Appellant] personally appeared in the magisterial 

district court and was not advised of his appellate rights by the 

issuing authority precluding a timely appeal[?]

3. Whether [Appellant] acted with due diligence in filing 

his petition to appeal nunc pro tunc upon learning of the ground 

relied upon for relief[?]

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

Our scope and standard of review are settled.

Initially, we note that the allowance of appeal nunc pro 

tunc is within the sound discretion of the trial court, and our 

scope of review of a decision of whether to permit an appeal 

nunc pro tunc is limited to a determination of whether the trial 

court has abused its discretion or committed an error of law. 

Orders granting or denying [a] petition to appeal nunc pro tunc

are reversible [only] in instances where the court abused its 

discretion or where the court drew an erroneous legal 

conclusion.

Commonwealth v. Yohe, 641 A.2d 1210, 1211 (Pa. Super. 1994) 

(citations and quotation marks omitted).
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Because Appellant’s issues are interrelated, we address them together. 

On appeal, Appellant claims that the trial court erred in denying his petition 

for leave to appeal a summary conviction nunc pro tunc. 

The Pennsylvania Rules of Criminal Procedure provide that a defendant 

has thirty days from the entry of the guilty plea or conviction to file an 

appeal from a summary proceeding to the Court of Common Pleas. See 

Pa.R.Crim.P. 460(A). This is the only means of challenging a summary 

conviction. See Pa.R.Crim.P. 460(E). Further, we have stated that: 

“[w]hen an Act of Assembly fixes the time within which an appeal may be 

taken, courts are without power to extend the period or allow an appeal 

nunc pro tunc absent fraud or its equivalent or some breakdown in the 

court’s operation.” Commonwealth v. Englert, 457 A.2d 121, 123 (Pa. 

Super. 1983) (citation omitted). This Court has recognized that, under 

limited circumstances, the trial court can hear an appeal nunc pro tunc. 

However, we only permit such an appeal where:

evidence of fraud or a wrongful or negligent act of a court official 

has caused a defendant to forego his/her right to a timely appeal 

of a conviction. Further, the individual seeking leave to appeal 

nunc pro tunc must establish that he/she acted promptly to 

assert such a right once learning of the existence of the grounds 

relied upon for such requested relief.

Commonwealth v. Stadtfeld, 665 A.2d 487, 490 (Pa. Super. 1995) 

(citation omitted, emphasis added).
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In the instant matter, Appellant contends that he received 

misinformation from a clerk at the Magisterial District Court. (See 

Appellant’s Brief, at 9). Appellant claims that he told the clerk that:

he wanted to avoid problems with his license,[2] [and] rather 

than inform him that he could have a trial, or, alternatively, that 

the court could not provide any advice to [Appellant] at all, he 

was advised that he could avoid problems with his license by 

making payment arrangements.

(Id. at 9). At the evidentiary hearing, Appellant admitted that the clerk told 

him that by paying the ticket he was pleading guilty. (See N.T. Hearing, 

11/18/15, at 8-9). However, he claimed to be unaware that the guilty plea 

constituted a conviction and that the clerk did not inform him of his right to 

appeal. (See id. at 9). Appellant acknowledged that he first became aware 

that the plea could cause him legal difficulties when he received a letter on 

or about March 16, 2015, from PennDOT.3 (See id. at 9-11). Appellant 

testified that the letter advised him to obtain counsel and warned him that 

further convictions for driving while operating privilege is suspended or 

revoked would result in incarceration. (See id. at 10-13). Appellant 

claimed the letter upset him; however, he took no action. (See id.). In July 

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2 While Appellant now claims that he told the clerk that he wanted to avoid 

problems with his license, at the evidentiary hearing he testified that he said 

that he wanted to avoid “problems with my ticket.” (N.T. Hearing, 

11/18/15, at 5-6). Again, we note that Appellant has never possessed a 

valid driver’s license. (See id. at 17). 

3 Appellant did not supply a copy of the letter to the trial court. (See N.T. 

Hearing, 11/18/15, at 10).
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2015, Appellant got a sixth ticket for driving while operating privilege is 

suspended or revoked. (See id. at 14). Again, Appellant took no action. 

(See id. at 12). Appellant did not seek counsel until October 2015. (See 

id.). Counsel then filed the instant petition on October 7, 2015, almost 

seven months after Appellant received the March 2015 letter.

In Stadtfeld, the appellant was cited in June 1989 for various motor 

vehicle violations including driving while under suspension. See Stadtfeld, 

supra at 489. The appellant did not respond to the citations until 

September 1992, when he learned that PennDOT has suspended his license 

indefinitely. See id. After PennDOT informed him that the suspension arose 

from the 1989 citation, the appellant contacted the Magisterial District Court, 

where an employee allegedly informed him that the only way to dispose of 

the outstanding charges was to pay the fine and court costs. See id. The 

appellant paid the ticket in January 1993, but notwithstanding this, PennDOT 

suspended his license for one year because of the January 1993 conviction. 

See id. 

In November 1993, the appellant filed a petition for allowance of 

appeal nunc pro tunc, arguing that the clerk misadvised him and that this 

constituted a breakdown in the judicial system. See id. The trial court 

denied the petition and the appellant appealed. See id. On appeal, this 

Court never reached the underlying issue of an alleged breakdown in the 
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judicial system; instead, we found that the appellant had not promptly filed 

his petition after learning of the impending suspension.4 See id. at 490-91.

Here, Appellant learned of impending difficulties caused by his guilty 

plea in the March 2015 PennDOT letter that advised him to obtain counsel. 

He received his sixth citation for driving while operating privilege is 

suspended or revoked in July 2015. Despite this, he took no action until 

October 2015, almost seven months after receipt of the letter. This simply 

does not constitute prompt action, even if a breakdown in the court system 

occurred. See id. at 491; see also White, supra at 47 (finding appellant 

failed to show he acted promptly in filing petition seeking nunc pro tunc

appeal where there was approximately four month delay between summary 

conviction and filing of petition). Therefore, because we conclude that 

Appellant did not promptly file his petition for nunc pro tunc relief, we need 

not address his remaining contentions of a breakdown in the judicial system. 

See Stadtfeld, supra at 490.

Order affirmed.

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4 Despite this holding, we ultimately remanded the matter for additional 

fact-finding with respect the appellant’s contention that he never received 

actual notice of the 1989 citation. See id. at 491-94.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/7/2016