J

- A01014

- 19

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

v.

TERESA COOPER

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

PENNSYLVANIA

No. 3140 EDA 2017 Appeal from the Order April 25, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP

- 23

- CR

- 0005582

- 2013

BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY OTT, J.: FILED APRIL 29, 2019 Teresa Cooper appeals from the order entered April 25, 2017 , 1 in the Delaware County Court of Common Pleas, denying her petition for
expung e ment of prior criminal charges. 2 On appeal, Cooper argues the trial court erred (1) when, relying upon t his Court’s decision in Commonwealth
v. Lutz , 788 A.2d 993 (Pa. Super. 2001), it failed to consider the equities of her expungement petition , and (2) in failing to determine whether her due process rights were violated when the Commonwealth presented no ev idence at the expungement hearing. For the reasons below , we are constrained to quash this appeal

.

_________________ __________ ______ ____ _______ 1 The order was not docketed until the next day

.
2 As we will discuss infra , Cooper filed the notice of appeal following the trial court’s August 7, 2017, order denying her motion for reconsideration of the April 2 5 th order

.J

- A01014

- 19

- 2

-

The facts underlying Cooper’s original charges are summarized by the trial court as follows: Cooper[] was arraigned in the Court of Common Pleas of Delawar e County on October 2, 2013, on charges of B ad C hecks, A ccess D evice is C ounterfeit, A ltered or I ncomplete, T heft by D eception

– F alse I mpression, T heft by unlawful taking

– moveable property, R eceiving S tolen P roperty and F orgery. [ See 18 Pa.C.S. §§ 4105(a)(1), 4106(a)(1), 3922(a)(1), 3921(a), 3925(a), and 4101(a)(2), respectively.] The foregoing charges were the result of an investigation by Detective Matthew Cresta of the Delaware County Criminal Investigation Division Economic Crime s Unit into [Cooper’s] conduct in “check kiting” wherein on May 7, 2013 she deposited a bad check in the amount of $4,800.00 into her Franklin Mint Federal Credit Union checking account and made withdrawals totaling $4,600.00 in allotments of $3,300.00 and $1,300.00. However, once the deposit check was dishonored her account became overdrawn in the amount of $4,863.91. The financial institution made multiple attempts to work with [Cooper] to rectify the overdrawn account but apparently these were fruitles s and the Detective was contacted. [Cooper] did not respond to the Detective who filed charges based on the foregoing on August 22, 2013. Trial Court Opinion, 5/8/2018, at 1

- 2 (footnotes, emphasis and record citation omitted). Cooper waived her right to a preliminary hearing, and, on January 27, 2014, entered a negotiated guilty plea to one count of bad checks, graded a s a first

- degree misdemeanor. 3 In exchange for the plea, the Commonwealth recommended a sentence of three years’ probation, with restitu tion in the

_________________ __________ ______ ____ _______ 3 Cooper was 19 years old when she committed the offense and entered her guilty plea.J

- A01014

- 19

- 3

-

amount of $4,863.91 to be paid to the Franklin Mint Credit Union , and agreed to dismiss the remaining charges at sentencing

. The court accepted the guilty plea, proceeded immediately to sentencing, and imposed the probationary sentence provide d for in the plea. On July 21, 2015, Cooper filed a pro se motion for partial expungement, which the trial court denied on Septe mber 23, 2015

. Subsequently, on April 24, 2017, Cooper filed a counseled petition for expungement , seeking to expunge only t he charges that were dismissed following her guilty plea . The next day the trial court entered the following order , denying the motion :

AND NOW, to wit, this 25 th day of April, 2017, upon consideration of [Cooper’s] Second Pro Se Petition for Expungement dated April 24, 2017 as well as [ the ] Commonwealth’s response in opposition of April 25, 2017, [ the ] same is hereby DENIED. The September 23, 2015 Order of Court denying [Cooper’s] First Pro Se Petition for Expungement is hereby incorporated into this Order by reference as though fully set forth herein. Order, April 25, 2017. It merits emphasis the April 24 th petition was filed by counsel, not pro se , and no response by the Commonw ealth was docketed or included in the certified record. O n May 24, 2017, Cooper filed a motion for reconsideration. In
response, on May 25, 2017, the trial court filed a notice of hearing on the reconsideration motion , which it scheduled for June 19, 201 7

. See Notice of Hearing, 5/25/2017. The hearing was later continued until June 26, 2017 , and subsequently, on August 7, 2017, the trial court entered an order denyingJ

- A01014

- 19

- 4

-

Cooper ’s motion for reconsideration. Cooper filed a notice of appeal on September 5, 2107

. 4 Before we proceed to an examination of the substantive issues raised by Cooper , we must first determine if the appeal was timely filed because our jurisdiction is dependent upon “the filing of a timely notice of appeal

. ” 5 Commonwealth v. Patterson , 940 A.2d 493, 497 (Pa. Super. 2007) (quotation omitted) , appeal denied , 960 A.2d 838 (Pa. 2008)

. It is well

- settled a notice of appeal must be filed within 30 days of the entry of the order from which the appeal is taken

. See Pa.R.A.P. 903(a). However, pursuant to Section 5505 of the Judicial Code , a trial court may “modify or rescind any order within 30 days after its entry, ... if no appeal from such order had been taken or allowed.” 42 Pa.C.S. § 5505. This Court has explained:
“Under sectio n 5505, the trial court has broad discretion to modify or rescind an order, and this power may be exercised sua sponte or invoked pursuant to a party’ s motion for reconsideration.” Haines v. Jones , 830 A.2d 579, 584 (Pa.Super.2003). “[T]he trial court ma y consider a motion for reconsideration only if the motion for reconsideration is filed within thirty days of the entry of the disputed order.” Id. “The

_________________ __________ ______ ____ _______ 4 On September 26, 2017, the trial court ordered Cooper to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Cooper complied with the court’s directive, and filed a concise statement on October 17, 2017.

5 On Januar y 3, 2018, this Court issued Cooper a Rule to Show Cause why the appeal should not be quashed as untimely. Cooper filed a response to the rule on January 16, 2018. Thereafter, on January 30, 2018, this Court entered an order referring the issue to the me rits panel.J

- A01014

- 19

- 5

-

mere filing of a motion for reconsideration, however, is insufficient to toll the appeal period.” Va lley Forge Center Associates [ v. Rib - It/K.P., Inc. ], 693 A.2d [242,] 245 [(Pa. Super. 1997)] . “If the trial court fails to grant reconsideration expressly within the prescribed 30 days, it loses the power to act upon both the [motion] and the original order.” Id. PNC Bank, N.A. v. Unknown Heirs , 929 A.2d 219, 226 ( Pa. Super. 2007)

. See Pa.R.A.P. 1701 (b)(3). Accordingly, the filing of a motion for reconsideration of an appealable order does not toll the 30

- day appeal period unless the trial court expr essly grants reconsideration during that same 30

- day period. In Commonwealth v. Moir , 766 A.3d 1253 (Pa. Super. 2000), a panel of this Court reiterated: “ [A] trial court’s action in granting a rule to show cause and setting a hearing date is insufficient to toll the appeal period.” Id. at 1254. Furthermore, “ [w] e have consistently held that the trial court lacks jurisdiction to modify a sentence once the 30 day period for filing an appeal has passed. ” Commonwealth v. Gordon , 477 A.2d 1342, 1345 ( Pa. Super. 1984)

. This Court’s decision in Commonwealth v. Cook , 518 A.2d 858 (Pa. Super. 1986), is instructive. In that case, the appellee file d a petition to expunge criminal records re garding a burglary conviction for which he had entered a guilty p lea

. Although the trial court issued the Commonwealth a rule to show cause why the petition should not be granted, the Commonwealth did not respond to or oppose the petition, and the court entered an order granting the petition on October 31, 1985. See i d. at 858

- 859. Thereafter, on December 27, 1985, the Pennsylvania State Police filed a petition for reconsideration, asserting it did not receive timely notice of the expungementJ

- A01014

- 19

- 6

-

order. See id. at 859, 861. The trial court conducted a hearing on the mat ter, and entered an order denying the petition for reconsideration on March 4, 1986. The Pennsylvania State Police then filed an appeal to this Court. On appeal, the Cook panel concluded, “while ... the [trial] court improperly granted appellee’s petition to expunge, we are without jurisdiction to consider this appeal.” Id. at 861. Indeed, the panel explained that the appellee did not meet any of the limited exceptions set forth in 18 Pa.C.S. § 9122, which permit the expungement of criminal history record information. 6 See id. at 860. Nevertheless, t he panel found that because the Pennsylvania State Police did not timely appeal from the October 31, 1985, expungement order, the panel was without jurisdiction to consider the appeal. See id. at 861. With regard to the motion for reconsideration, and the trial court’s subsequent order denying that motion, the panel opined:

The Order granting the expungement petition was handed down on October 31, 1985, and [the Pennsylvania State Police] filed a Petition f or Reconsideration and Rescission of the Expungement Order on December 27, 1985. A reconsideration hearing was held on February 13, 1986, and the Order denying [the] petition was handed down on March 4, 1986. Because the trial court was without authority to reconsider the petition beyond a thirty

- day period, we must vacate the March 4, 1986 Order. Id.

_________________ __________ ______ ____ _______ 6 Section 9122 permits the expungement of conviction data when the defendant (1) reaches 70 years old and is free from arrest or prosecution for 10 years, (2) has been dead for three years, or (3) seeks to expunge a summary conviction , and has been from arrest or prosecution for five years

. See 18 Pa.C.S. § 9122 (b)

.J

- A01014

- 19

- 7

-

Here, the order denying Cooper’s petition for expungement was entered on April 25, 2017, and docketed on April 26, 2017. Therefore, in order to challenge that order, one of two actions had to be taken by the end of the 30

- day period, May 26, 2017: either (1) the trial court had to expressly grant reconsideration and/or explicitly vacate the April 25 th o rder, or (2) Cooper had to file a notice of appeal. Neither of these events took place during the requisite 30

- day period. Rather, on May 24, 2017, Cooper filed a motion seeking reconsideration of the court’s denial o f her expungement petition and,
t he n ext day, the trial court filed a notice scheduling a hearing on the motion. The court did not vacate or expressly grant reconsideration of its April 25 th order. Nor did Cooper file a notice of appeal, until after the trial court entered

an untimely order denying her motion for reconsideration. Under these facts, Cooper’s appeal was untimely filed, and we have no jurisdiction to consider her substantive claims. Nevertheless, in her various appellate filings, Cooper provides three bases to support this Court’s jurisdiction over her appeal: (1) a trial court’s inherent power to correct obvious mistake s outside of the 30

- day appeal period; (2) the language in Pa.R.Crim.P. 790(B), which allows a trial court to grant a hearing following the Commonwealth’s o bjection to an expungement petition; and (3) this Court’s authority to excuse a late filing when there has been a breakdown in the trial court’s processes. See Cooper’s Brief at 1

- 2; Cooper’s Reply Brief at 1

- 3; Cooper’s Memorandum of Law in Answer to Rul eJ

- A01014

- 19

- 8

-

to Show Cause, 1/16/2018, at 5

- 7. None of these arguments provide a basis for relief. First, Cooper asserts the trial court “possesses the inherent power to correct obvious and patent mistakes beyond the expiration of the us ual thirty

day statutory limi t imposed on the filing notices of appeal.” Cooper’s Brief at 2, citing Commonwealth v. Klein , 781 A.2d 1133 (Pa. Super. 2001). She insists her reconsideration motion addressed certain incorrect facts upon which the trial court “premised its denial [; ]” s pecifically, the fact she had completed her probation and restitution, and the fact she was represented by counsel. Id. Cooper’s reliance on Klein is misplaced. In that case, the Pennsylvania Supreme Court reversed an order of this Court quashing the defendant’s appeal as untimely filed. See Klein , supra , 781 A.2d at 1136. Two days after the defendant was sentenced on June 23, 1999, to time

- served to one year im prisonment, the court learned that there

was an error in the defendant’s record concerning the calculation of his credit for time

- served. See id. at 1134. Accordingly , on June 25, 1999, the court issued an order, sua sponte , directing the defendant to re appear for sentencing on June 30, 1999 ; however, t he court did not vacate the prior sentencing order. Before the resentencing hearing , on June 28, 1999, the defendant filed a notice of appeal from the June 23 rd judgment of sentence. Nevertheless, t he res entencing hearing continued as scheduled, and, on June 30, 1999, the trial court corrected the calculation of time

- served in the originalJ

- A01014

- 19

- 9

-

sentencing order , but directed “[a]ll other aspects of the June 23 rd order were to remain in effect

. ” Id . (record cit ation omitted).
A panel of this Court quashed the defendant’s appeal, reasoning the court’s June 25 th order “ implicitly vacated” the June 23 rd sentencing order, and, therefore, the defendant filed an appeal from the wrong order. Id. However, the Supreme Court disagreed, noting , “this court has nev er indicated that an order may ‘ implicitly vacate’ an earlier order and § 5505 does not provide for such ambiguity.” Id. at 1135. Nevertheless, while the defendant’s notice of appeal divested the trial court of jurisdiction to modify its sentencing order after 30 days, the Supreme Court explained it was clear the trial court’s intent was to sentence the defendant to serve one month in prison, and the miscalculation of the time

- served undermined that intent; accordingly, the Court held “under the limited circumstances of this case, the [trial] court could take further action in this matter since it was merely correcting a pa tent defect or mistake in the record.” Id. Cooper’s attempt to justify the trial court’s actions herein as the correction of a patent mistake fails. Unlike in Klein , here, Cooper did not file a notice of appeal from the earlier order, which, on its fac e, denied Cooper’s petition for expungement on the merits. Even if we were to conclude the trial court did not thoroughly consider the relevant facts before denying Cooper’s petition, that error is not the type of patent defect that would justify correcti on by the trial court outside the 30

- day period. Moreover, instantly, the court did not simply issu e an order correcting a mistake; rather, it scheduled aJ

- A01014

- 19

- 10

-

hearing, and later issued another order denying Cooper’s petition. Accordingly, Klein does not prov ide Cooper with a basis for relief

. Second, Cooper maintains the trial court properly granted a hearing within the time prescribed by Pa.R.Crim.P. 790(B). 7 See Cooper’s Reply Brief
at 1

- 2. Pursuant to the rule, when a defendant files a petition for
expu ng e ment, the Commonwealth has 60 days to either consent, object or take no action. See Pa.R.Crim.P. 790(B)(1). Subsection 790 (B)(2) provides : (2) Upon receipt of the attorney for the Commonwealth’s response, or no later than 14 days after the expiration of the 60

- day period in paragraph (B)(1), the judge shall grant or deny the petition or shall schedule a hearing. Pa. R. Crim. P. 790(B)(2). Cooper insists : C ons istent with the terms of the ru l e , within 14 days of its assertion that it received an objec tion from the Commonwealth, the Court first denied [her] application for expungement an d then granted a hearing on it. The statute does not place any limit on what the Court may do during the intervening [60]

- day period with regard to the alternatives ava ilable. Following the plain language of the Rule, since the Court granted a hearing within [60] days, the prior dismissal was extinguished. Thus, no final disposition of the expungement application pending outcome of the hearing activated an appeal deadl ine. Reply Brief at 1 (footnote and record citation omitted). This argument fails based upon the holding in Klein . The April 25, 2017, order denying Cooper’s petition for expungement was a final, appealable

_________________ __________ ______ ____ _______ 7 We note Cooper mistakenly cites to Rule 791 in her reply brief. See Reply Brief at 1. That Rule pertains to when a defendant seeks to limit access to , and the dissemination of , her criminal history record. See Pa.R.Crim.P. 791.J

- A01014

- 19

- 11

-

order. See Cook , supra . The court’s May 25, 2017, notice of a hearing did not vacate the April 25, 2017, order either explicitly or implicitly. See Klein , supra . Therefore, in order to preserve her appellate rights, Cooper was obligated to file a notice of appeal within 30 d ays of the April 25, 2017, order. Her failure to do so divested this Court of jurisdiction. Nothing in the language of Rule 790 extends the appeal period, nor does it require the trial court to hold a hearing before granting or denying an expungement pet ition. Accordingly, this claim fails. Lastly, in response to the show cause order, Cooper argued there was a “breakdown in the administrative process” since the trial court’s April 25 th order (1) mistakenly stated she was unrepresented, and (2) failed to perceive the “circumstances leading to the dismissal of her prior petition had changed[,]” namely, she had completed her probation. 8 Cooper’s Memorandum of Law in Answer to Rule to Show Cause, 1/16/2018, at 6.
T his Court has declined to quash “an othe rwise untimely appeal if fraud or breakdown in the trial court’s processes resulted in an untimely appeal.” Commonwealth v. Khalil , 806 A.2d 415, 420 (Pa. Super. 2002) , appeal denied , 818 A.2d 503 (Pa. 2003)

. See also Commonwealth v. Braykovich , 664 A.2d 133 , 137

- 138 (Pa. Super. 1995) ; Commonwealth v. Rodriguez ,

_________________ __________ ______ ____ _______ 8 Cooper maintains the court’s denial of her first petition for expungement was based on its concerns that (1) she was unrepresented by counsel, and (2) she had not completed serving her probationary period. See Cooper’s Memorandum of Law in Answer to Rule to Show Cause, 1/16/2018, at 3

- 4, citing N.T., 8/25/2015, at 3

- 4, 8.J

- A01014

- 19

- 12

-

174 A.3d 1130, 1138

- 1139 (Pa. Super. 2017), appeal denied , 186 A.3d 941 (Pa. 2018)

. However, in those cases, the “breakdown” occurred when the clerk of court’s failed to notify the defendant that his timely

- filed post

sentence motion was denied by operation of law , but the defendant filed an appeal within 30 days of the trial court’s belated order denying his post

sentence motions. See Braykovich , supra , 664 A.2d at 1 38; Khalil , supra , 806 A.2d at 421; Rodriguez , supra , 174 A.3d at 1139. The Khalil Court emphasized an order denying post

- sentence motions by operation of law is “important in two respects[:] it informs a defendant that the 30

- day time limit for direct a ppeal has begun, and ... it appraises the defendant of his rights on appeal.” Khalil , supra , 806 A.2d at 421. The facts in the present case are not similar to those in Khalil , Braykovich , or Rodriguez . Cooper does not dispute that she received notice of t he trial court’s April 25, 2017, order denying her petition for expungement. That order was final and appealable. The trial court did not vacate or modify the order within the requisite 30

- day period . The court’s notice of a hearing on Cooper’s petition for reconsideration did not toll the appeal period. See
M oir , supra . Accordingly, Cooper was obligated to file a notice of appeal within 30 days of the court’s April 25, 2017, order to preserve her appealJ

- A01014

- 19

- 13

-

rights. Because she failed to do so, we have no jurisdiction to consider her claims. Therefore, we are constrained to quash this appeal. 9 Appeal quashed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/29/19

_________________ __________ ______ ____ _______ 9 We note that even if we were permitted to review Cooper’s substantive issues , we would agree with the ruling of the trial court that Cooper “is not entitled to expungement according to [ Commonwealth v. ] Lutz [ , 788 A.2d 993 (Pa. Super. 2001), ] because her remaining charges were dismissed pursuant to a negotiated guilty plea.” Trial Court Opinion, 5/8/2018, at 16

. See Lutz , supra , 788 A.2d at 1001 ( holding a defendant is not entitled to expungement of charges dismissed as part of plea agreement when defendant was bound over for trial on all charges, Commonwealth was prepare d to proceed on all charges, and defendant admitted facts that “could essentially constitute culpability for the dismissed charges”).