Com. v. Zito, S. ( 2017 )

J-S62005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
SHELLY A. ZITO
Appellant No. 79 MDA 2017
Appeal from the Judgment of Sentence entered December 6, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No: CP-40-CR-0002450-2015
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2017
Appellant Shelly A. Zito appeals from the December 6, 2016 judgment
of sentence entered in the Court of Common Pleas of Luzerne County (“trial
court”). Upon review, we quash this appeal for want of jurisdiction.
Instantly, our review of the record shows that, on October 31, 2016,
following her guilty plea to theft by deception (18 Pa.C.S.A. § 3922(a)(1)),
Appellant was sentenced to six to twenty three months’ imprisonment. On
November 28, 2016, 28 days after sentencing, Appellant filed a motion for
reconsideration nunc pro tunc. On December 6, 2016, more than 30 days
after sentencing, the trial court granted the motion and modified Appellant’s
sentence. On December 15, 2016, Appellant filed another reconsideration
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* Retired Senior Judge assigned to the Superior Court.
J-S62005-17
motion, which she subsequently withdrew. On January 3, 2017, Appellant
appealed to this Court.
At the outset, before we address the merits of this appeal, we must
point out that the trial court here was without jurisdiction to enter any orders
thirty days after imposition of sentence. Under Section 5505 of the Judicial
Code, “a court upon notice to the parties may modify or rescind any order
within [thirty] days after its entry, notwithstanding the prior termination of
any term of court, if no appeal from such order has been taken or allowed.”
42 Pa.C.S.A. § 5505; see Commonwealth v. Liebensperger, 904 A.2d 40,
44 (Pa. Super. 2006) (noting that, “[i]f a court does not modify an order within
[thirty days], the court loses the authority to do so.”). Here, the trial court
granted Appellant’s reconsideration motion and modified her sentence on
December 6, 2016, more than thirty days after her October 31, 2016
judgment of sentence. Because the trial court was without jurisdiction, we
consider its December 6, 2016 order to be null and void.
Having concluded that the December 6, 2016, order is of no moment,
we must determine whether the instant appeal is timely. It is well-settled that
“[a]n untimely post-sentence motion does not toll the appeal period.”
Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015).
Indeed, “the time for filing an appeal can be extended beyond thirty days after
the imposition of sentence only if a defendant files a timely post-sentence
motion.” Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004)
(en banc), appeal denied, 882 A.2d 477 (Pa. 2005).
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We explained in Capaldi,
a post-sentence motion nunc pro tunc may toll the appeal period,
but only if two conditions are met. First, within [thirty] days of
imposition of sentence, a defendant must request the trial court
to consider a post-sentence motion nunc pro tunc. The request
for nunc pro tunc relief is separate and distinct from the merits of
the underlying post-sentence motion. Second, the trial court must
expressly permit the filing of a post-sentence motion nunc pro
tunc, also within [thirty] days of imposition of sentence. If the
trial court does not expressly grant nunc pro tunc relief, the time
for filing an appeal is neither tolled nor extended. Moreover,
“[t]he trial court’s resolution of the merits of the late post-
sentence motion is no substitute for an order expressly granting
nunc pro tunc relief.
Capaldi, 112 A.3d at 1244 (citation and quotation marks omitted) (emphasis
in original).
Here, consistent with Capaldi, Appellant’s reconsideration motion nunc
pro tunc did not toll the appeal period, because the trial court did not expressly
grant it within thirty days. As Appellant filed the instant appeal on January 3,
2017, more than thirty days after sentencing, we must quash it for want of
jurisdiction.1
Appeal quashed.
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1 Our review of the sentencing transcript does not reveal any breakdown in
the court’s operation to excuse Appellant’s untimely appeal. Appellant was
advised properly of the time for filing post-sentence motions and an appeal.
See N.T. Sentencing, 10/31/16, at 10.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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