Com. v. Gallo, F. ( 2015 )

J-S35037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANCIS GALLO,
Appellant No. 62 EDA 2015
Appeal from the Judgment of Sentence October 8, 2014
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0001793-2014
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 02, 2015
Appellant, Francis Gallo, appeals from the judgment of sentence
imposed after the revocation of his probation.1 Appellant’s counsel seeks to
withdraw from representation pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We quash and deny counsel’s application to withdraw as moot.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant purports to appeal from the court’s denial of his post-sentence
motion. (See Notice of Appeal, 12/31/14, at 1). However, an appeal
properly lies from the judgment of sentence. See Commonwealth v.
Rojas, 874 A.2d 638, 642 (Pa. Super. 2005). We have amended the
caption accordingly.
J-S35037-15
On March 28, 2014, Appellant entered a negotiated guilty plea to one
count of possession of marijuana.2 While serving his twenty-four month
probationary sentence, (see Guideline Sentence Form, 4/11/14, at 1),
Appellant failed to report, and tested positive for morphine and oxycodone.
(See Request for Bench Warrant, 6/13/14, at 1). At his October 8, 2014
Gagnon II3 hearing, he stipulated to the probation violation. (See N.T.
Gagnon II Hearing, 10/08/14, at 3). The same day, the court adopted
Adult Probation’s recommendation and imposed a sentence of not less than
nine nor more than twenty-three months’ incarceration, plus drug and
alcohol evaluation, and community service. (See id. at 4, 9; see also
Judgment of Sentence, 10/08/14, at 1). On December 9, 2014, the court
denied Appellant’s nunc pro tunc post-sentence motion. Appellant filed a
notice of appeal on December 31, 2014. On March 12, 2015, counsel filed
an application to withdraw and an Anders brief on the basis that the appeal
is frivolous.4
Preliminarily, we must address this appeal’s timeliness. As this Court
recently stated:
Rule 720 of the Pennsylvania Rules of Criminal Procedure in
general governs the timing of post-sentence motion procedures
____________________________________________
2
35 P.S. § 780-113(a)(16).
3
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4
Appellant did not respond to counsel’s application to withdraw.
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J-S35037-15
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 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. This Court can
raise the matter sua sponte, as the issue is one of jurisdiction to
entertain the appeal. Absent extraordinary circumstances, this
Court has no jurisdiction to entertain an untimely appeal.
Commonwealth v. Burks, 102 A.3d 497, 499 (Pa. Super. 2014) (some
case citations omitted).
Here, the court revoked Appellant’s probation and resentenced him on
October 8, 2014. Although Appellant filed a post-sentence motion nunc pro
tunc on November 5, 2014, this did not toll the thirty-day appeal period.
See id. Therefore, Appellant had until November 7, 2014 to file an appeal,
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J-S35037-15
regardless of the post-sentence motion.5 However, he did not file his notice
of appeal until December 31, 2014.
Therefore, Appellant's failure to file his notice of appeal within thirty
days of the sentence imposed after the probation revocation divested this
Court of appellate jurisdiction. See id. Accordingly, we quash this appeal
as untimely.
Appeal quashed. Counsel’s application to withdraw denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2015
____________________________________________
5
Counsel advised Appellant at sentencing that he had thirty days from the
date of sentencing to file a notice of appeal. (See N.T. Hearing, 10/08/14,
at 9).
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