Com. v. Konetsco, M. ( 2016 )

J-S56025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL A. KONETSCO
Appellant No. 985 MDA 2015
Appeal from the Judgment of Sentence November 25, 2014
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-46-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY PANELLA, J. FILED AUGUST 19, 2016
Appellant, Michael A. Konetsco, appeals pro se from the judgment of
sentence entered on November 25, 2014. After reviewing the certified
record, we conclude that we lack jurisdiction over this appeal, and therefore
quash. We note, however, that Konetsco’s motion for dismissal of appellate
counsel alleged sufficient facts to establish a prima facie case that counsel
abandoned him during his direct appeal period. See Commonwealth v.
Lantzy, 736 A.2d 564, 572 (Pa. 1999). As such, we direct the trial court to
treat Konetsco’s motion as a petition under the Post Conviction Relief Act
(“PCRA”).
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S56025-16
As noted above, sentence was entered against Konetsco on November
25, 2014. His counseled post-sentence motions were denied on December 3,
2014. Counsel has not filed a document since. On April 28, 2015, Konetsco
filed a motion to proceed pro se. Prior to the hearing on his motion,
Konetsco filed this appeal. The trial court subsequently held a Grazier1
hearing, at which counsel did not appear, and permitted Konetsco to proceed
pro se.
Konetsco neither asked for or received nunc pro tunc relief, and thus,
this appeal is untimely. See Commonwealth v. Capaldi, 112 A.3d 1242,
1244-1245 (Pa. Super. 2015). Whether counsel abandoned Konetsco or not,
we lack jurisdiction to hear an appeal from a judgment of sentence filed
more than 30 days after post-sentence motions were denied. See Pa.R.A.P.
903(a); Pa.R.Crim.P. 720(A)(2)(a); Capaldi.
We furthermore note that under Commonwealth v. Brown, 943 A.2d
264 (Pa. 2008), any PCRA petition Konetsco might file seeking restoration of
his direct appeal rights would likely be considered untimely. Since Konetsco’s
motion for dismissal of appellate counsel contained allegations that counsel
abandoned him, we direct the trial court to treat that motion as a first
petition under the PCRA.
____________________________________________
1
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
-2-
J-S56025-16
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
-3-