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[U] Commonwealth v. Rivera

Superior Court of Pennsylvania

November 22, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
GABRIEL ALFONZO CARSON RIVERA, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
GABRIEL ALFONZO CARSON RIVERA, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence January 9, 2013 In the Court of Common Pleas of Franklin County Criminal Division at Nos.: CP-28-CR-0002084-2011; CP-28-CR-0002087-2011

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Gabriel Alfonzo Carson Rivera, appeals from the judgment of sentence imposed following his conviction of two counts each of robbery and conspiracy to commit robbery and one count of conspiracy to commit theft.[1] After careful review, we quash.

In December of 2011, the Commonwealth filed informations charging Appellant with the above crimes for his participation in the attempted robbery of the Kenmar Hotel in Newburg and the armed robbery of a Super 8 motel in Chambersburg. The trial court consolidated the cases for purposes of trial and the case proceeded to a jury trial on November 19, 2012. On November 20, 2012, the jury convicted Appellant of all charges. On January 9, 2013, the court sentenced Appellant to an aggregate term of not less than seventy-two nor more than 144 months' incarceration.

Appellant's trial counsel moved for the appointment of new appellate counsel and Appellant filed a pro se supplemental motion accusing trial counsel of ineffective assistance.[2] On January 29, 2013, the trial court rescinded its appointment of trial counsel and appointed new appellate counsel. On February 11, 2013, on Appellant's behalf, appellate counsel filed a notice of appeal dated February 7, 2013. The trial court ordered Appellant to file a Rule 1925(b) statement of errors, which he timely did on March 22, 2013.[3] See Pa.R.A.P. 1925(b). On April 4, 2013, the court filed an opinion pursuant to Rule 1925(a).

On appeal, Appellant challenges the sufficiency and the weight of the evidence. (See Appellant's Brief, at 6). "Before addressing the merits of Appellant's claims, we must address the timeliness of this appeal as it implicates our jurisdiction. Jurisdiction is vested in the Superior Court upon the filing of a timely notice of appeal." Commonwealth v. Nahavandian, 954 A.2d 625, 629 (Pa.Super. 2008) (citations omitted). "Because the timeliness implicates our jurisdiction, we may consider the matter sua sponte." Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999) (citations omitted). Pennsylvania Rule of Criminal Procedure 720(A)(3) provides: "If the defendant does not file a timely post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence[.]" Pa.R.Crim.P. 720(A)(3); see also Commonwealth v. Dreves, 839 A.2d 1122, 1126 (Pa.Super. 2003) (same). The post- sentence motions expressly identified by this Rule are those that directly contest the trial and sentencing proceedings and include those challenging the entry of a guilty plea or requesting judgment of acquittal, arrest of judgment, a new trial, or sentence modification. See Pa.R.Crim.P. 720(B)(1); see also, e.g., Commonwealth v. Lincoln, 72 A.3d 606, 611 (Pa.Super. 2013) (noting that appellant failed to file motion to withdraw guilty plea pursuant to Rule 720(B)(1)(a)(i)); Commonwealth v. Brown, 956 A.2d 992, 994 n.2 (Pa.Super. 2008), affirmed, 981 A.2d 893 (Pa. 2009) (observing that timely post-sentence motion to modify sentence tolled appeal period).

In this case, the court imposed Appellant's sentence on January 9, 2013. No post-sentence motion was filed, other than the collateral request for trial counsel's withdrawal, which the court granted on January 29, 2013, appointing appellate counsel the same day.[4] Therefore, the notice of appeal due date was February 8, 2013. See Pa.R.Crim.P. 720(A)(3); Dreves, supra at 1126. However, although he dated the notice of appeal February 7, 2013, Appellant did not file it until February 11, 2013. Therefore, this appeal is untimely and we lack jurisdiction to review its merits. See Nahavandian, supra at 629.

Appeal quashed. Jurisdiction relinquished.

Judgment Entered.


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