Com. v. Rojas

• Citation: 874 A.2d 638
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Eugenio ROJAS, Appellant.
• Decision Date: 02 May 2005
• Court: Pennsylvania Supreme Court

874 A.2d 638

COMMONWEALTH of Pennsylvania, Appellee v. Eugenio ROJAS, Appellant.

Superior Court of Pennsylvania.

Submitted March 28, 2005.

Filed May 2, 2005.

MaryAnn F. Swift, Philadelphia, for appellant.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before: STEVENS, BENDER, and POPOVICH, JJ.

STEVENS, J.

¶ 1 Appellant Eugenio Rojas appeals a judgment of sentence entered in the Court of Common Pleas of Philadelphia County following his conviction for possession of a controlled substance¹ and possession of a controlled substance with intent to deliver.²

¶ 2 Before reaching the merits of Appellant's claims, we first note that Attorney Maryann Swift, his court-appointed counsel, has petitioned to withdraw and has submitted an Anders³ brief in support thereof. Court-appointed counsel who seek to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous must:

(1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) file a brief referring to anything that arguably might support the appeal but which does not resemble a "no-merit" letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise the defendant of his or her right to retain new counsel or raise any additional points that he or she deems worthy of the court's attention.

Commonwealth v. Miller, 715 A.2d 1203 (Pa.Super.1998) (citation omitted). "When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.Super.1997).

¶ 3 Here, Appellant's counsel has requested our permission to withdraw, thereby meeting the first requirement of Anders and its progeny. Additionally, she has filed a brief referring to anything that might arguably support the appeal but which does not resemble a "no-merit" letter or amicus curiae brief, meeting the second requirement. Finally, counsel has indicated that she provided Appellant with a copy of the brief and advised Appellant of his right to file a pro se brief or retain other counsel, meeting the third requirement. As such, we will make an independent evaluation of the record in order to determine the accuracy of counsel's averment that this appeal is wholly frivolous.

¶ 4 Prior to a review of the merits of this appeal, we address one additional procedural question raised by the Commonwealth. Must the appeal be quashed as untimely? During his bench trial, Appellant was represented by an attorney from the Defender Association of Philadelphia. On July 18, 2001, Appellant was found guilty of one count of possession of a controlled substance, and one count of possession of a controlled substance with the intent to deliver. Still represented by a public defender, Appellant was subsequently sentenced to twenty-four to forty-eight months' imprisonment on September 10, 2001. Three days later, on September 13, 2001 a pro se motion from Appellant entitled "Petition for Extraordinary Relief and/or Motion for Acquittal" was time stamped and docketed in the certified record.⁴

¶ 5 Apparently unaware that Appellant had filed a post-sentence motion on his own behalf, the Defender Association filed a direct appeal to this Court on Appellant's behalf five days later, on September 18, 2001. With Appellant's consent, however, the Defender Association praeciped for discontinuance of the appeal on November 7, 2001, "on the basis of their communication with [Appellant] that there was `no arguable legal issue.'" Trial Court Opinion filed 7/6/04 at 2; 3/11/02 letter from Defender Association. The appeal was thereafter discontinued by order filed November 14, 2001. Superior Court Order dated 11/8/01, filed 11/14/01.

¶ 6 Thereafter, on January 14, 2002, an order was filed by the lower court indicating that Appellant's pro se post-sentence motions were denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3). This prompted Appellant to file a second direct appeal to this Court on February 7, 2002, asserting that his judgment of sentence became final upon the denial of his post-sentence motions on January 14, 2002.⁵ As was his earlier post-sentence motion, this appeal was taken pro se. When the Defender Association was again appointed to represent Appellant, it sent him a letter on March 11, 2002, indicating, among other things, that it was not aware that post-sentence motions had ever been filed.

¶ 7 On May 29, 2002, Appellant was ordered to file a Pa.R.A.P.1925(b) statement of matters complained of on appeal by June 12, 2002, but the deadline was extended until July 3, 2002 after this Court directed the lower court to appoint new counsel to represent Appellant. Attorney Michael Marryshow was appointed, and although Appellant's Rule 1925(b) statement was not filed by Attorney Marryshow until August 2, 2002, the lower court filed a Rule 1925(a) opinion in response to the issues it raised on August 23, 2002. When Appellant failed to file an appellate brief, however, his direct appeal was dismissed on November 15, 2002, without prejudice to his filing for post conviction collateral relief.

¶ 8 Appellant did so on June 3, 2003, Attorney John Belli was appointed to represent him, and Appellant's direct appeal rights were reinstated nunc pro tunc on February 10, 2004. On February 18, 2004, Appellant filed a pro se direct appeal, and Attorney Maryann Swift was appointed to represent him. Attorney Swift filed a court-ordered Rule 1925(b) statement on Appellant's behalf, then filed the Anders brief dealt with above.

¶ 9 The Commonwealth now asserts that we should quash Appellant's appeal because it is untimely. The Commonwealth directs us to Appellant's original September 18, 2001 appeal, which, it asserts, divested the lower court of jurisdiction over the post-sentence motions previously filed by Appellant on September 13, 2001. Commonwealth brief at 4. As a result, the Commonwealth argues, the lower court's January 14, 2002 order dismissing Appellant's post-sentence motion was a nullity, because it was entered into without jurisdiction. Id. at 5. "As such, [Appellant's] second appeal on February 7, 2002, was untimely and this Court was without jurisdiction to entertain it. Accordingly, [Appellant's] judgment of sentence became final on December 14, 2001, 30 days after he withdrew his timely first appeal." Id. Appellant's June 3, 2003 PCRA petition, the Commonwealth asserts, was untimely because it was filed more than two and a half years after Appellant's judgment of sentence became final. Id. Therefore, the PCRA court had no jurisdiction to grant Appellant the right to appeal nunc pro tunc, and its order purporting to do so is a nullity. Id.

¶ 10 The Commonwealth is incorrect in its assertion that Appellant's September 18, 2001 appeal divested the lower court of jurisdiction to hear Appellant's previously filed post-sentence motion. Commonwealth v. Borrero, 692 A.2d 158 (Pa.Super.1997). In a situation similar to that which we currently face, the Borrero court was confronted with an appellant who prematurely filed a direct appeal before his timely post-sentence motions were disposed of by the trial court or denied by operation of law. The Court noted that "[a]s a preliminary matter, we must first ascertain whether the judgment of sentence is properly appealable, because the question of appealability implicates the jurisdiction of this court." Borrero, 692 A.2d at 159.⁶

The Judicial Code provides that the Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, except such classes of appeals as are within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court. 42 Pa.C.S.A. § 742. In the context of a criminal proceeding where, as here, the case has proceeded through the sentencing phase, the appeal lies from the entry of the final judgment of sentence. Commonwealth v. Alvarado, 437 Pa.Super. 518, 520, 650 A.2d 475, 476 (1994). Pursuant to the Pennsylvania Rules of Criminal Procedure, the question of whether the judgment of sentence is final and appealable depends upon whether a defendant files the now optional post-sentencing motions.

When post-sentencing motions are not filed, the judgment of sentence constitutes a final and appealable order for purposes of appellate review and any appeal therefrom must be filed within thirty (30) days of the imposition of sentence. Pa.R.Crim.P., Rule 1410A(3),⁷ 42 Pa.C.S.A. and comments thereto; Commonwealth v. Alvarado, 437 Pa.Super. at 520, 650 A.2d at 476-477. If post-sentencing motions are timely filed, however, the judgment of sentence does not become final for purposes of appeal until the trial court disposes of the motion, or the motion is denied by operation of law. Id., at Rule 1410A(2) and comments thereto; Commonwealth v. Chamberlain, 442 Pa.Super. 12, 16, 658 A.2d 395, 397, appeal quashed, 543 Pa. 6, 669 A.2d 877 (1995). Moreover, the comments to Rule 1410 explicitly provide that "no direct appeal may be taken by a defendant while his or her post-sentence motion is pending." Comments to Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. Application of these authorities convinces us that at the time appellant filed his notice of appeal, the judgment of sentence had not been made final via either the disposition of appellant's post-sentencing motions by the trial court or the entry of an order denying the motions by operation of law.

Borrero, 692 A.2d at 159-160 (emphasis added). The Borrero court further explained:

While the reasons underlying the trial court's failure to act on appellant's post-sentencing motions do not appear of record, the trial judge may have been reluctant to proceed based on a mistaken assumption that jurisdiction over this matter was...