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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

JAMES YELVERTON

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

PENNSYLVANIA

No. 1523 EDA 2022 Appeal from the Order Entered April 27, 2022 In the Court of Common Pleas of Delaware County Criminal Division at Nos

. : CP

- 23

- CR

- 0007473

- 1977, CP

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- MD

- 0004545

- 1978, CP

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- MD

- 0004546

- 1978, CP

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- MD

- 0004549

- 1978, CP

- 23

- MD

- 0004550

- 1978, CP

- 23

- MD

- 0004551

- 1978, CP

- 23

- MD

- 0004559

- 1978, CP

- 23

- MD

- 0004560

- 1978, CP

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- MD

- 0004561

- 1978

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J. MEMORANDUM BY STABILE, J.: FILED JUNE 30, 2023 Appellant, James Yelverton, appeals from the order entered on April 27, 2022 by the Court of Common Pleas of Delaware County denying as untimely his motion to withdraw his guilty pleas. 1 Upon review, we affirm. The factual and procedural background of the instant appeal is not at issue here

. Briefly, [ i ] n December , 1978, [ A ] ppellant pled guilty to one charge of rape and sixteen charges of burglary and property offenses

. On two subsequent occasions he moved t o withdraw his guilty pleas

. The motions were denied. On July 13, 1979, [A]ppellant was sentenced on his guilty pleas to an aggregate twenty
- one to forty

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_________________ __________ ______ ____ _______ 1 As it will be explained later , Appellant’s “ motion ” is in fact Appellant’s seventh Post Conviction Relief Act (“PCRA”) petitio n , 42 Pa.C.S.A. §§ 9541

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two years[’] imprisonment . Thereafter, he moved for reconsideration of the sentences. This motion also was denied

. On December 17, 1979, [A]ppellant filed a [Post Conviction Hearing Act 2 ( “ PCHA ” )] petition , pro se , challenging his sentences and the validity of his guilty pleas, and claiming that the trial court erred in not granting his petition to withdraw the pleas because the Commonwealth allegedly violated the plea bargain and because of ineffective assistance of counsel. New counsel was appointed to represent [A]ppellant. Afte r hearing on the issues, the PCHA court found that the guilty pleas were voluntarily, intelligently and knowingly made and not induced as a result of the ineffective assistance of counsel. The trial court, however, granted [A]ppellant the right to appeal his judgments of sentence to the Superior Court nunc pro tunc due to the failure of trial counsel to timely perfect an appeal from the judgments of sentence. An appeal was ta ken[.] Commonwealth v. Yelverton , No. 628 Philadelphia 1986, unpublished

memoran dum at *1

- 2 (Pa. Super. filed January 28, 1987).
O n December 28, 1984, we affirmed the judgments of sentence

. See Commonwealth v. Yelverton , No. 3555 Philadelphia 1982, unpublished memorandum (Pa. Super. filed December 28, 1984). As Appellant sought no additional review before our Supreme Court, Appellant’s sentence s became final on January 28, 1985.

_________________ __________ ______ ____ _______ 2 The PCHA was repealed in part, modified in part, and renamed the Post Conviction Relief Act ( “ PCRA ” ), effective April 13, 1988

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Following multiple unsuccessful PCRA petitions, on April 26, 2022, Appellant pro se filed a “Motion to W ithdraw Guilty Pleas , ” 3 , 4 which the l ower court denied on April 27, 2022. This appeal followed. There are several problems with the instant appeal

. First, it appears that th is appeal , which was filed on June 7, 2022, is untimely as it was not docketed w ithin 30 days of the service of the order denying relief ( i.e. , by June
3 , 2022)

. 5
The trial court record , however, reveals that Appellant filed with the trial
court a notice of appeal on May 26, 2022

. T he clerk of court s , however, failed

_________________ __________ ______ ____ _______ 3 In the underlying “motion , ” Appellant alleged ineffective assistance of trial counsel, which resulted in a denial of his right to a direct appeal. According to Appellant, trial counsel’s error can be redressed by allowing him to withdraw his guilty pleas

. See Motion to Withdraw Guilty Pleas , 4/26/22, at 2

- 3.

4 It should be noted that on April 4, 2022, Appellant filed a PCRA petition , his sixth

. On April 12, 2 022, the PCRA court issued a notice of intent to dismiss Appellant’s sixth PCRA petition pursuant to Pa.R.A.P. 907(1). It does not appear, however, that the PCRA court has entered a final order dismissing the April 12, 2022 PCRA petition. In the meantime, on April 26, 2022, Appellant filed the underlying “motion , ” which the lower court denied the following day . It appears, therefore, that the instant “motion” was filed and disposed of while the previous PCRA petition was still pending. Th e PCRA court was not precluded from considering the underlying “motion” because of the pendency of Appellant’s sixth PCRA petition. See Commonwealth v. Montgomery , 181 A.3d 359 (Pa. Super. 2018) ( en banc ) appeal denied , 647 Pa. 570 , 190 A.3d 1134 (2018).

5 The trial court docket shows that the April 27, 2022 order was mailed to A ppellant on May 4, 2022 via first

- class mail. Accordingly , the notice of appeal was due by June 3, 2022. See Pa.R.A.P. 105(b); Pa.R.A.P. 108 (a)(1); Pa.R.A.P. 121(f), and Pa.R.A.P. 903(a).J

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to timely forward it to this Court , as required u nder Pa.R.A.P. 905( b) , and decided instead to return it to Appellant

. 6 Subsequently, on June 7 , 2022, Appellant filed another notice of appeal from the April 27, 2022 order

. Given the June 3, 202 2 deadline , t he notice of appeal filed by Appellant on May 26, 2022 , was timely filed , w hereas the notice of appeal filed by Appellant on June 7, 2022 , was untimely

. Because the delay in docketing the instant appeal was due to the clerk of courts’ error and considering that Appellant filed a timely notice of appeal ,
we decline to find that the instant appeal violates Rul e 903. Commonwealth v. Valentine , 928 A.2d 346, 349 (Pa. Super. 2007) ( “Absent a breakdown in the operations of the court, [t]ime limitations on the taking of appeals are strictly construed and cannot be extended as a matter of grace.” )

. See also Stout v. Universal Underwriters Ins. Co. , 421 A.2d 1047 (Pa. 1980) ( Superior Court abused discretion in quashing appeal from decision ren dered by the court of common pleas due to failure to transmit copy of notice of appeal, proof of service, and docketing fee to prothonotary of appellate court, where appeal was otherwise timely perfected in all respects ). Accordingly, for the reasons stat ed above, the notice of appeal filed on June 7, 2022 , is deemed timely filed.

_________________ __________ ______ ____ _______ 6 The clerk of courts not only failed to forward the notice to this Court , but also apparently decided to return the notice to Appellant because the “numbers were wrong.” See Trial Court docket entry for May 26, 2022.J

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Next, the June 7, 2022 pro se notice of appeal docketed in this Court contained nine trial court docket numbers in the caption , 7 which is consistent with the caption of the lower court’s April 27, 2022 order. It appears , therefore, that Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018) is implicated here. 8 In Walker , which applies to all cases filed after June 1, 2018, our Suprem e Court held that appellants are required to file separate notices of appeal when a single order resolves issues arising on more than one lower court docket. While at first glance the instant notice of appeal appears to violat e Walker , there is an except ion to the rule announced in Walker that applies here. In Commonwealth v. Stansbury , 219 A.3d 157, 160 (Pa. Super 2019) , this Court concluded that a breakdown of the courts occurs when a PCRA court advises petitioners that they can pursue appellate review by filing a single notice of appeal, even though the order dispose d of petitions pending at two separate docket numbers. See also Commonwealth v. La rkin , 235 A.3d 350, 352

- 54 (Pa. Super. 2020) ( en banc ) (reaffirming Stansbury ). Here, in its April 27, 2022 order, the lower court completely failed to advise Appellant of his appellate rights , an error far worse than the one

_________________ __________ ______ ____ _______ 7 The caption of the May 26, 2022 notice of appeal also contain ed multiple trial court docket numbers.

8 It is worth noting that on October 14, 2022, we issued a rule directing Appellant to show cause why t he appeal should not be quashed in light of Walker . Appellant failed to file a response. On January 17, 2023, we entered an order discharging the rule to show cause.J

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sanctioned in Stansbury

. In light of the foregoing, we conclude the error by the lower court constituted a breakdown in the court’s operations , thus allowing us to proceed with Appellant’s instant appeal. See Stansbury , supra ; Larkin , supra . Next, Appellant filed a “ Motion to Withdraw Guilty Pleas, ” which the lower court, apparently, failed to treat as a PCRA petition. 9 Treating the underlying “ motion ” as a PCRA petition , the lower court should have determined the timeliness of the same as it wou ld under the PCRA. It did not do so.
U nder the PCRA, any PCRA petition, “including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes fin al “at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature, and a court may not address the merits of an untimely petition. See , e.g. , Commonwealth v. Rienzi , 827 A.2d 369, 371 (Pa. 2003).

_________________ __________ ______ ____ _______ 9 R egardless of how the pleading is titled, courts are to treat a pleading filed after a judgment of sentence becomes final as a PCRA petition if it requests relief contemplated by the PCRA. See Commonwealth v. Torres , 223 A.3d 715, 716 (Pa. Super. 2019) . Here, Appellant a ppears to arg ue ineffective assistance of counsel , see Motion t o Withdraw Guilty Pleas, 4/26/22, at 2

- 3, which is a claim cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(ii)

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Appellant’s judgment s of sentence became final on January 28, 1985, 30 days after this Court affirmed his judgment s of sentence, and the time for filing a petition for allowance of appeal with the Supreme Court of had Pennsylvania expired. Because Appellant filed the instant “motion” on April 26, 2022, his “motion” is facial ly untimely. 10 Pennsylvania courts may consider an untimely petition if the appellant plead s and prove s one of three exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)

- (iii). Any petition invoking one of these exceptions “shall be filed within one ye ar of the date the claim could have been presented.”
42 Pa.C.S.A. § 9545(b)(2). A review of the “motion” and Appellant’s brief reveals that Appellant never addressed the timeliness of the “ motion ” under the PCRA. Accordingly, given that the “motion” is facially untimely for purposes of the PCRA , and given th at Appella nt did not allege or prove th e applicability of one the exceptions to the one

- year time bar , we are unable to review the merits of his claim s . See 42 Pa.C.S.A. § 9545(b)(1) ; Commonwealth v. Woods , 179
A. 3 d 37 , 42 (Pa. Super. 2017 ) ( “ The petitioner bears the burden to plead and prove an applicable statutory exception. If the petition is untimely and the petitioner has not pled and proven an exception, the petition must be

_________________ __________ ______ ____ _______ 10 We note that since Appellant’s judgment s of sentence became final prior to the effec tive date of 42 Pa.C.S.A. § 9545, Appellant had until January 16, 1997, to file his first PCRA petition. However, because Appellant filed the instant “motion” on April 26, 2022, it is manifestly untimely.J

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dism issed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition. ” ). Finally, it is worth mentioning that the claim raised here (ineffective assistance of trial counsel , which resulted in a denial of hi s right to a direct appeal ) was addressed in connection with Appellant’s first PC H A petit ion

. A s noted above, t he record shows that : (i) the PCHA court found that trial counsel was ineffective in connection with the untimely filing of the direct appeal ; (ii ) the PCHA court granted Appellant the right to appeal nunc pro tun c from his judgment s of sentence, (iii) Appellant actually filed a nunc pro tunc direct appeal, and (iv) we affirmed the judgment s of sentence

. Yelverto n , No. 3555 Philadelphia 1982, at *1; Yelverton , No. 628 Philadelphia 1986, at *1

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. Thus, to the extent Appellant argues ineffective assistance of counsel in connection with the filing of the direct appeal, Appe llant was already granted relie f

. Id. To the extent A ppellant argues that trial counsel’s ineffectiveness prevented him from seeking and/or obtaining direct review from our Court, the claim is devoid of any merit as the record shows that he was able to seek and obtain direct review from this Court. In light of the foregoing , we conclude, therefore, that the lower court correctly denied relief. Th us, albeit on other grounds, we affirm the order of the lower court denying Appellant relief. See Commonwealth v. Charleston , 94 A.3d 1012, 1028 (Pa. Super. 2014) (citation omitted) (“[W]e may affirm the PCRA court ’ s decision on any basis.”). Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/30/2023