Commonwealth v. Burks ( 2014 )

J-S58042-14
2014 PA Super 230COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELISE MARIE BURKS
Appellant No. 722 WDA 2014
Appeal from the Judgment of Sentence March 21, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000893-2007;
CP-02-CR-0005841-2007; CP-02-CR-0008288-2006
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
OPINION BY GANTMAN, P.J.: FILED OCTOBER 10, 2014
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
_________________________
*Retired Senior Judge assigned to the Superior Court.
J-S58042-14
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 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[Appellant’s] probation was revoked by this [c]ourt on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,
____________________________________________
1
The court conducted a Gagnon II hearing that day. See Gagnon v.
Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
2
42 Pa.C.S.A. §§ 9541-9546.
-2-
J-S58042-14
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[’] (31/3 TO 62/3 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
-3-
J-S58042-14
sentence 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, 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, 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, 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
-4-
J-S58042-14
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, 664 A.2d 133 (Pa.Super. 1995),
appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996) (extension of filing
____________________________________________
3
The order is incorrectly dated March 26, 2013.
4
The court order correctly stated: “[Appellant] has ten (10) days from the
date of this Order to file Post Sentencing Motions and/or thirty (30) days to
file a Notice of Appeal.” (Order of Court, issued 3/26/14). Additionally, the
court denied Appellant’s post-sentence motion on April 15, 2014. Thus,
Appellant still had ten days left, following the court’s ruling, to file a timely
notice of appeal.
-5-
J-S58042-14
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 appeal as untimely.5
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
____________________________________________
5
Counsel is directed to notify Appellant immediately of this disposition, so
she can take appropriate steps to seek reinstatement of her direct appeal
rights. As the case stands before us, we are without authority to overlook
the jurisdictional impediment involved in this current appeal.
-6-