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Commonwealth v. Burks

Superior Court of Pennsylvania

October 10, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ELISE MARIE BURKS, Appellant

Submitted August 18, 2014

Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, No(s): CP-02-CR-0000893-2007; CP-02-CR-0005841-2007; CP-02-CR-0008288-2006. Before NAUHAUS, J.

Scott Coffery, Pittsburgh, for appellant.

Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.[*]

OPINION

Page 498

GANTMAN, P.J.:

Appellant, Elise Marie Burks, appeals nunc pro tunc from the judgment of sentence entered in the Allegheny County Court of Common Pleas, following revocation of her probation. We dismiss this appeal as untimely.

The trial court set forth the relevant facts and procedural history of this case as follows:

On November 26, 2007, [Appellant] pled guilty at [No. 8288 of 2006], to one count of retail theft, one count of possession of altered, forged, or counterfeit documents or plates, two counts of receiving stolen property, one count of possession of marijuana, one count of possession of drug paraphernalia, [and] one count of criminal conspiracy (to engage in retail theft). [Appellant] pled guilty at [No. 0893 of 2007], to five counts of felony retail theft, one count of criminal conspiracy (to engage in retail theft), [and] one count of possessing instruments of crime. [Appellant] pled guilty at [No. 5841 of 2007], to one count of retail theft. On November 26, 2007, after accepting [Appellant's] guilty plea at the above-captioned matter[s], [the trial court] imposed an aggregate sentence of time served, followed by a consecutive five years of probation.
[Appellant] committed subsequent retail thefts.... On October 24, 2012, this [c]ourt revoked [Appellant's] probation

Page 499

at all of the above cases and imposed an aggregate sentence of 18 months of intermediate punishment followed by 1 year of probation. [Appellant] was further ordered to submit to random urinalysis and " must complete all treatment recommended by the drug court treatment team" and participate in the criminality group. [Appellant] was admitted into the Drug Court program, and this [c]ourt warned [Appellant] that if she violated probation again she would be going to a state prison.
[Appellant] did not cooperate with the drug court program....
* * *
[Appellant's] probation was revoked by this [c]ourt on March 21, 2013.[1] This [c]ourt resentenced [Appellant] to incarceration for 16 to 32 month[s] at [No. 5841 of 2007], plus a consecutive 1 to 2 years at both [No. 8288 at 2006] and [No. 0893 of 2007], for an aggregate sentence of 40 to 80 months of incarceration. [Appellant] filed a pro se post-sentence motion on April 10, 2013.
[Appellant] filed a timely Post-Conviction Relief Act[2] petition (PCRA Petition) on July 9, 2013. This [c]ourt appointed counsel, who filed an Amended PCRA petition on November 26, 2013, requesting reinstatement of [Appellant's] post-sentencing and appellate rights. ... This [c]ourt scheduled a PCRA hearing. On March 26, 2014, this [c]ourt reinstated [Appellant's] post-sentencing/appellate rights nunc pro tunc.... [Appellant] filed a post-sentence motion on April 3, 2014, which this [c]ourt denied on April 15, 2014.
On May 2, 2014, [Appellant] filed a notice of appeal...and [voluntary] Concise Statement of [Errors] Complained of on Appeal[, pursuant to Pa.R.A.P. 1925(b)].

(Trial Court Opinion, filed June 26, 2014, at 1-3) (internal citations to the record omitted).

Appellant raises a single issue for our review:

DID THE TRIAL COURT ERR IN DENYING APPELLANT'S POST SENTENCING MOTIONS SINCE THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO AN AGGREGATE SENTENCE OF 40-80 MONTHS['] (3 1/3 TO 6 2/3 YEARS[']) IMPRISONMENT (16-32 MONTHS AT 5841-2007, A CONSECUTIVE 1-2 YEARS AT 893-2007 AND A CONSECUTIVE 1-2 YEARS AT 8288-2006) SINCE THE AGGREGATE SENTENCE WAS MANIFESTLY EXCESSIVE (THE SENTENCES COULD HAVE BEEN RUN CONCURRENT TO ONE ANOTHER), AND THE TRIAL COURT FAILED TO CONSIDER ALL OF THE FACTORS CONTAINED AT 42 PA.C.S.A. § § 9721(b) & 9781(d)?

(Appellant's Brief at 3).

As a preliminary matter, we address the timeliness of this appeal. Rule 720 of the Pennsylvania Rules of Criminal Procedure in general governs the timing of post-sentence motion procedures and appeals. See Pa.R.Crim.P. 720. The disposition of a motion to modify a sentence imposed after a revocation hearing, however, is governed by Rule 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition). See Pa.R.Crim.P. 720 Comment. Rule 708(E) states: " A motion to modify a sentence

Page 500

imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period." Pa.R.Crim.P. 708(E) (emphasis added). Rule 708 makes clear Rule 720 does not apply to revocation cases. Id . Comment. See also Commonwealth v. Parlante, 2003 PA Super. 169, 823 A.2d 927, 929 (Pa.Super. 2003) (internal citation omitted) (stating: " An appellant whose revocation of probation sentence has been imposed after a revocation proceeding has 30 days to appeal her sentence from the day her sentence is [imposed], regardless of whether...she files a post-sentence motion. Therefore, if an appellant chooses to file a motion to modify her revocation sentence, she does not receive an additional 30 days to file an appeal from the date her motion is denied" ).

Time limitations for taking appeals are strictly construed and cannot be extended as a matter of grace. Commonwealth v. Valentine, 2007 PA Super. 198, 928 A.2d 346 (Pa.Super. 2007). This Court can raise the matter sua sponte, as the issue is one of jurisdiction to entertain the appeal. Id. Absent extraordinary circumstances, this Court has no jurisdiction to entertain an untimely appeal. Commonwealth v. Patterson, 2007 PA Super. 404, 940 A.2d 493 (Pa.Super. 2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008).

Instantly, the court revoked Appellant's probation and resentenced Appellant on March 21, 2013. Appellant did not file a post-sentence motion or direct appeal at that time. In her amended PCRA petition filed on November 26, 2013, Appellant asked the court to reinstate her post-sentence and appeal rights nunc pro tunc. The court reinstated Appellant's post-sentence and appeal rights nunc pro tunc on Wednesday, March 26, 2014.[3] Rule 708 governed Appellant's direct appeal rights from the judgment of sentence following revocation of her probation. Rule 708 continued to govern Appellant's post-sentence motions and/or appeal rights, even when they were reinstated nunc pro tunc via a PCRA petition. Although Appellant filed a post-sentence motion nunc pro tunc on April 3, 2014, that filing did not toll the thirty-day appeal period. See Pa.R.Crim.P. 708(E). Therefore, Appellant had until Friday, April 25, 2014, to file a notice of appeal, regardless of whether she chose to file a post-sentence motion. See id. Appellant did not file her notice of appeal until Friday, May 2, 2014.

Moreover, the record contains no evidence of extraordinary circumstances such as a court holiday or closing or a breakdown in the operations of the court, which might excuse Appellant's untimely filing.[4] See Commonwealth v. Braykovich, 444 Pa.Super. 397, 664 A.2d 133 (Pa.Super. 1995), appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996) (extension of filing period is permitted only in extraordinary circumstances, such as fraud or some breakdown in court's operation). Therefore, Appellant's failure to file her notice of appeal within thirty days of the order reinstating her direct appeal rights divested this Court of appellate jurisdiction. See Patterson, supra; Parlante, supra. Accordingly, we dismiss this

Page 501

appeal as untimely.[5]

Appeal dismissed.

Judgment Entered.


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