Com. v. Allen, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TODD P. ALLEN
Appellant No. 48 MDA 2019
Appeal from the Order Entered November 13, 2018
In the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0000019-2002
BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 15, 2019
Appellant Todd P. Allen pro se appeals from the November 13, 2018
order entered in the Court of Common Pleas of Lackawanna County ("trial
court").1 Upon review, we remand for further proceedings.
Because of Appellant's failure to pay his court costs and fines, on
November 13, 2018, the trial court found him in contempt of court, sentenced
him to six months' imprisonment and stayed the sentence upon payment of
$1,086.50 in outstanding court costs and fines.2 Appellant pro se appealed to
1 The certified docket in this case is incomplete insofar as it does not contain,
among other things, the November 13, 2018 order.
2 The trial court notes in its Pa.R.A.P. 1925(a) opinion that, on November 14,
2018, Appellant "paid the $1,086.50" in costs and fines. However, there is no
indication of a payment in the certified record. Additionally, the record does
not reflect whether the trial court conducted a hearing to determine whether
Appellant had the ability to pay the costs and fines at issue prior to issuing its
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this Court on December 19, 2018. The Commonwealth argues that this appeal
should be quashed as untimely, pointing out that Appellant's notice of appeal
fell outside of the thirty -day appeal period. Appellant, however, counters that
his notice of appeal was timely because he delivered it to the prison authorities
on December 12, 2018.3
Under the "prisoner mailbox rule," a pro se prisoner's document is
deemed filed on the date he delivers it to prison authorities for mailing.
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997); see also
Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998) ("[F]or
prisoners proceeding pro se, a notice is deemed filed as of the date it is
deposited in the prison mail system.").
Pennsylvania Rule of Appellate Procedure 121 provides, in relevant part:
A pro se filing submitted by a prisoner incarcerated in a
correctional facility is deemed filed as of the date it is delivered to
the prison authorities for purposes of mailing or placed in the
institutional mailbox, as evidenced by a properly executed
prisoner cash slip or other reasonably verifiable evidence of the
date that the prisoner deposited the pro se filing with the prison
authorities.
Pa.R.A.P. 121(a). A prisoner bears the burden of proving delivery of the notice
to prison authorities within the prescribed time period for its filing. See
Jones, 700 A.2d at 426. Reasonable verifiable evidence for proving timely
November 13, 2018 order. See Commonwealth v. Smetana, 191 A.3d 867,
870-73 (Pa. Super. 2018); see also 42 Pa.C.S.A. §§ 9730, 9772;
Pa.R.Crim.P. 706.
3 On March 14, 2019, in consideration of Appellant's response to our order to
show cause why this appeal should not be quashed as untimely, we discharged
the show cause order and referred the issue to the merits panel.
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delivery includes, but is not limited to, a Postal Form 3817 certificate of mailing
or a prison "cash slip" noting a prisoner account deduction and the date of
mailing. Id. The court may also consider a prisoner's affidavit attesting to
the date of deposit, as well as evidence regarding the operating procedures of
the mail delivery service in question. Id.
"Where . . . the facts concerning the timeliness [of the filing] are in
dispute, a remand for an evidentiary hearing may be warranted." Id. at 426
n.3. "Where, however, the opposing party does not challenge the timeliness
of the appeal and the prisoner's assertion of timeliness is plausible, we may
find the appeal timely without remand." Cooper, 710 A.2d at 79 (citation
omitted); see also Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa.
Super. 2007) (deeming appeal timely based on the date on the notice of
appeal and date of receipt three days after the thirty -day period expired).
In the present case, the certified record does not contain the envelope
in which the notice of appeal was mailed, nor a prisoner cash slip. The date
of filing, December 19, 2018, is six days beyond the last day of the appeal
period-December 13, 2018. Nonetheless, based on the hand-written date of
"December 12, 2018" on Appellant's notice of appeal and "proof of service," it
is possible that Appellant placed the pro se documents in the hands of prison
officials on or prior to December 13, 2018.
Moreover, the Commonwealth has challenged the timeliness of
Appellant's notice of appeal. As a result, on the record before us a factual
question exists as to whether the notice of appeal was timely filed pursuant
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to the "prisoner mailbox rule." Accordingly, we remand this case to the trial
court to hold an evidentiary hearing to determine whether Appellant delivered
his pro se notice of appeal to prison authorities within thirty days of the
November 13, 2018 contempt order. In other words, applying the "prisoner
mailbox rule," whether Appellant's appeal was timely filed on or before
December 13, 2018. In the event the trial court finds that Appellant's notice
of appeal was filed timely, it is directed to file a detailed supplemental Rule
1925(a) opinion within sixty (60) days following the conclusion of the
evidentiary hearing.
Case remanded for proceedings consistent with this memorandum.
Panel jurisdiction retained.
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