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COMMONWEALTH PENNSYLVANIA v. DAVID ROY MARTIN (06/21/85)

submitted: June 21, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DAVID ROY MARTIN, APPELLANT



Appeal From Judgment of Sentence, Court of Common Pleas, Criminal Division, Dauphin County No. 1727, 1727(B) CD 1983.

COUNSEL

Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.

Robert B. MacIntyre, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Cavanaugh, Cercone and Lipez, JJ.

Author: Cavanaugh

[ 346 Pa. Super. Page 133]

David Roy Martin was found guilty by a jury of driving under the influence of alcohol and by a judge of driving while his operating privileges were suspended. He was sentenced to 30 days imprisonment and a fine of $300.00 on the first offense, and a consecutive term of 90 days imprisonment and a $1,000.00 fine on the latter offense. He now appeals from those convictions.*fn1

Appellant was arrested on June 8, 1983 after his vehicle was observed traveling eastbound in the westbound lane of the Pennsylvania Turnpike by a Pennsylvania State policeman. He was charged with the above offenses. Trial was originally scheduled for November 14, 1983, but on that day appellant's public defender moved to withdraw from the case. The court granted that motion and continued the matter to December 13, 1983, the appellant's run date for purposes of Rule 1100. On December 13, the case was again continued until January 16, 1984.

On January 16, 1984, appellant filed a counseled waiver of his right to a speedy trial specifically waiving the computation of time under Rule 1100 for the period between January 16, 1984 and the March, 1984 term of the Dauphin County Criminal Court.

Trial commenced on February 10, 1984, before a judge and a jury on the driving under the influence charge, and

[ 346 Pa. Super. Page 134]

    before the same judge without a jury on the driving while suspended charge. On February 13, the jury was charged and sent out to deliberate. In the interim, further testimony was heard on the driving while suspended offense before the judge alone. The appellant was found guilty by the judge on this count and immediately sentenced to ninety days imprisonment, plus a $1,000.00 fine. The court then "defer[red] the effectiveness of the sentence" for ten days or until February 23. N.T. at 51 (February 13, 1984).*fn2 Subsequently, the jury returned a verdict of guilty on the DUI charge.

Appellant then retained new counsel to pursue his post-verdict motions. These motions and supplemental post-verdict motions were filed*fn3 and later denied by the trial court without a hearing.

A second sentencing hearing was then held on July 24, 1984. At that proceeding the court sentenced the appellant to pay a fine of $300.00 plus the costs of prosecution and to undergo imprisonment for a period of not less than thirty days, nor more than six months. The court then continued:

[W]e will reaffirm our sentence in connection with driving under suspension filed to 1727(b) CD 1983.

And now, July 24, 1984, the sentence of the Court is the defendant pay a fine of $1000, the cost of prosecution, that he undergo imprisonment in the Dauphin County

[ 346 Pa. Super. Page 135]

Prison for a period of 90 days, to begin and be computed at the expiration of the sentence imposed at 1727 CD 1983 [driving under the influence of alcohol].

N.T. at 4-5 (July 24, 1984).*fn4

Appellant was thereafter re-appointed counsel from the Public Defender's Office. On July 31, 1984, appellant filed a motion for modification of sentence as to each conviction. This motion was denied and, on August 7, 1984, appellant filed his appeal from the judgments of sentence entered on July 24, 1984.

Pursuant to the rules of appellate procedure, "the notice of appeal . . . shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). In appeals from criminal convictions, therefore, the time for the filing of the notice is within thirty days of sentence. See Commonwealth v. Gordon, 329 Pa. Super. 42, 477 A.2d 1342 (1984). Appellant was sentenced on the driving under suspension charge on February 13, 1984, although the court delayed the effectiveness of that sentencing order until February 23, 1984. Under our rules of appellant procedure, appellant therefore should have filed his notice of appeal from that judgment of sentence within thirty days of February 23, 1984. Because appellant did not file his notice of appeal until August 7, 1984, the present appeal as to 1727(b) CD 1983, driving under suspension, is untimely.

Nevertheless, we will consider appellant's arguments. "To constitute an effective waiver [of appellate rights], it must appear that there was an 'intentional relinquishment or abandonment of a known right.'" Commonwealth v. Collins, 295 Pa. Super. 380, 383, 441 A.2d 1283, 1284 (1982) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); U.S. ex rel. Boyd v. Rundle, 308 F.Supp. 184, aff'd. 437 F.2d 405 (3rd Cir. 1970); Commonwealth v. Mack, 451 Pa. 319, 304 A.2d 93 (1973);

[ 346 Pa. Super. Page 136]

    definitively admonished such motion practice. We ...


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