Com. v. Credico, J. ( 2017 )

J-S56007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JUSTIN M. CREDICO
Appellant No. 841 EDA 2017
Appeal from the Order February 14, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001148-2011
BEFORE: BOWES, STABILE, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 27, 2017
Justin M. Credico appeals pro se from the order denying his motion for
leave to appeal nunc pro tunc. We affirm.
The trial court ably set forth the relevant procedural and factual
history as follows:
On November 30, 2011, after a non-jury trial, Appellant
was convicted of two counts of harassment. 18 Pa.C.S.A. §
2709(a). He was sentenced on December 11, 2011 to serve 146
days to 12 months, was given credit for time served, and was
granted parole that day. His appeal of his judgment of sentence
was dismissed by the Superior Court on March 5, 2012, after
Appellant failed to file a docketing statement as is required by
Pa.R.A.P. 3517.
On July 2, 2012, Appellant was found to be in violation of
his parole and his parole was revoked. He was reparoled that
same date, with the condition that he undergo a mental health
examination within 15 days.
* Retired Senior Judge specially assigned to the Superior Court.
J-S56007-17
On September 27, 2013, Appellant was again found to be
in violation of his parole. At the hearing held on that date he
was given credit for the 12 months and 10 days that he had
spent in custody and was released from custody. In addition,
the detainer against him was removed and his case closed.
On February 2, 2016, Appellant filed in [the trial court] a
“petition for writ of error coram nobis.” In it Appellant wished to
raise the defense of entrapment to his original charges. Since
an action under the Post-Conviction Relief Act is the sole means
of obtaining collateral relief, 42 Pa.C.S.A. § 9452, and since
Appellant was not eligible for PCRA relief in that he had
completed serving his sentence in its entirety, 42 Pa.C.S.A. §
9543(a)(1)(i), we denied his petition on February 16, 2016.
Appellant appealed our order of February 16, 2016. On
May 6, 2016, the Superior Court dismissed Appellant’s appeal
after he again failed to file a Pa.R.A.P. 3517 docketing
statement.
On January 17, 2017, Appellant filed with [the trial court]
a motion for leave to appeal nunc pro tunc, requesting yet
another opportunity to appeal the order of February 16, 2016.
Trial Court Opinion, 5/18/17, at 1-2. The trial court denied Appellant’s
motion for nunc pro tunc relief. Appellant filed a timely notice of appeal to
this Court. The trial court did not direct Appellant to file a Rule 1925(b)
concise statement of errors complained of on appeal, but it authored a Rule
1925(a) opinion. This matter is now ready for our review.
Appellant presents one issue for our consideration: “When the [trial
court’s] known address for a defendant is incorrect, and not the cause or
fault of the defendant, causing the defendant to miss orders[,] opinions[,]
and deadlines, does such an error satisfy the “extraordinary circumstances”
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necessary for nunc pro tunc appeal and/or equitable tolling? Appellant’s
brief at 4.
We review an order denying a motion to reinstate appellate rights
nunc pro tunc for an abuse of discretion. Commonwealth v. Williams,
893 A.2d 147, 150 (Pa.Super. 2006). Nunc pro tunc relief is “intended to be
an extraordinary remedy to vindicate the right to an appeal where that right
has been lost due to some extraordinary circumstance.” Commonwealth
v. White, 806 A.2d 45, 46 (Pa.Super. 2002) (citation omitted). We have
previously held that such extraordinary circumstances include “fraud or
some breakdown in the processes of the court.” Commonwealth v.
Braykovich, 664 A.2d 133, 136 (Pa.Super. 1995).
Appellant avers that from November 2011 until 2017, the trial court
listed his address as Chester County Prison. However, since he was released
from prison in 2012, he no longer received mail at that address. Appellant
argues that the court failed to explain to him that he was required to notify
the clerk of courts of his release from prison in order to update his official
address. As such, he maintains that he did not receive any correspondence
from this Court regarding his appeals, causing his cases to be dismissed.
Appellant concludes that the court’s error constitutes a breakdown in the
processes of the court, and thus, the trial court erred in denying his motion
for leave to appeal nunc pro tunc.
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The trial court observed that nunc pro tunc relief was appropriate
“when the right to an appeal has been lost due to some extraordinary
circumstance not of a defendant’s own doing.” Trial Court Opinion, 5/18/17,
at 4 (citing Commonwealth v. White, 806 A.2d 45, 46 (Pa.Super. 2002).
Implicitly, the court determined that Appellant’s failure to notify the court of
his new mailing address upon release from prison did not constitute a
breakdown in the court’s processes, and thus, nunc pro tunc relief was not
warranted. We agree.
At the time of sentencing, the court had a duty to advise Appellant of,
among other things, his “right to file a post-sentence motion and to appeal,
of the time within which [he] must exercise those rights, and of the right to
assistance of counsel in the preparation of the motion and appeal.”
Pa.R.Crim.P. 704(C)(3)(a). The Rules of Criminal Procedure did not require
the court, as Appellant suggests, to inform him that he bore the burden of
contacting the court when he was released for prison in order to update his
mailing address. Rather, the duty to ensure that the court has an accurate
and up-to-date address is shouldered by the defendant. Contrary to
Appellant’s assertions herein, his failure to apprise the court of an accurate
home address was not a breakdown in the processes of the court. Thus, the
trial court did not abuse its discretion in denying Appellant’s motion for leave
to appeal nunc pro tunc.
Order affirmed.
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Judge Platt joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2017
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