Com. v. McDevitt, R.

J-A25017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
RYAN S. MCDEVITT
Appellee No. 412 EDA 2017
Appeal from the Judgment of Sentence imposed June 9, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-CR-0000758-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
RYAN S. MCDEVITT
Appellee No. 413 EDA 2017
Appeal from the Judgment of Sentence imposed June 9, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-CR-0000759-2014
BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JANUARY 11, 2018
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A25017-17
The Commonwealth argues the trial court abused its discretion in
granting Appellee time credit for time he spent in an in-patient rehabilitation
facility. For the reasons stated below, we vacate the judgment of sentence
and remand for resentencing.
The underlying facts and procedural facts of the instant matter are not
in dispute. Briefly, on June 9, 2016, following a hearing, the trial court
revoked Appellee’s placement in the State Intermediate Punishment (SIP)
program, and sentenced him to an aggregate period of incarceration of 20 to
65 months, with time credit of 364 days. On June 17, 2016, Appellee filed a
motion for additional time credit, which the trial court treated as a motion for
reconsideration of sentence. See, e.g., Trial Court Opinion, 4/20/17, at 18-
19. On June 23, 2016, the trial court set a hearing on said motion for July 7,
2016, which was eventually rescheduled to August 26, 2016. On that day,
after the hearing, the trial court took the matter under advisement. On
December 28, 2016, the trial court issued an order granting Appellee’s motion
for reconsideration. The Commonwealth filed an appeal from that order on
January 25, 2017.
The instant appeal involves a challenge to the discretionary aspects of
sentence. See Commonwealth v. Shull, 148 A.3d 820, 847 n.14 (Pa.
Super. 2016).1
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1 See also Commonwealth v. Fowler, 930 A.2d 586, 596 (Pa. Super. 2007)
(“Generally, it is within the trial court’s discretion whether to credit time spent
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Under Pennsylvania law, neither the defendant nor the
Commonwealth may take an appeal as of right from the
discretionary aspects of sentence. Rather, “[t]he defendant or the
Commonwealth may file a petition for allowance of appeal of the
discretionary aspects of sentence for a felony or a misdemeanor
to the appellate court that has initial jurisdiction for such appeals.
Allowance of appeal may be granted at the discretion of the
appellate court where it appears that there is a substantial
question that the sentence imposed is not appropriate under [the
Sentencing Code].”
Commonwealth v. Darden, 531 A.2d 1144, 1146 (citation omitted)
(alteration in original).
Additionally,
[o]ur jurisdiction to hear such a challenge is discretionary, and we
may not exercise our discretion to review such an issue unless we
first determine that: (1) the appeal is timely; (2) Appellant
preserved his issue; (3) Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of an appeal
with respect to the discretionary aspects of his sentences, as
required by Rule 2119(f) of the Pennsylvania Rules of Appellate
Procedure; and (4) that concise statement raises a substantial
question that the sentences were inappropriate under the
Sentencing Code. If the appeal satisfies each of these
prerequisites, we may accept it and proceed to the substantive
merits of the case.
Commonwealth v. Flowers, 149 A.3d 867, 870-71 (Pa. Super. 2016)
(citation omitted) (footnote omitted).
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in an institutionalized rehabilitation and treatment program as time served in
custody”) (internal quotation marks omitted) (citing Commonwealth v.
Conahan, 589 A.2d 1107 (Pa. 1991) and Commonwealth v. Mincone, 592
A.2d 1375 (Pa. Super. 1991) (en banc)).
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A review of the record shows that the instant appeal is untimely. 2 As
noted above, Appellee was sentenced on June 9, 2016. He moved for
reconsideration on June 17, 2016, which the trial court granted on December
28, 2016. The Commonwealth appealed from the order granting
reconsideration on January 25, 2017. While the Commonwealth filed the
instant appeal within 30 days from the order granting reconsideration, the
Commonwealth failed to appreciate that this is an appeal from a sentence
imposed after a revocation of SIP and that “the filing of a motion to modify
sentence will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E); see
also Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003)
(“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 entered, regardless of whether or not she files a post-sentence
motion”); Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa. Super.
1998) (holding that the filing of a motion to modify sentence, following a
____________________________________________
2 The trial court acknowledged that timeliness was a problem, but ultimately
concluded it had jurisdiction to issue the order granting reconsideration. Trial
Court Opinion, 4/20/17, at 31-37. The parties did not challenge or address
the timeliness of the instant appeal before us. Regardless of whether the
issues had been raised by the parties, the question of timeliness of an appeal
is jurisdictional, which we can raise sua sponte. See, e.g., Commonwealth
v. Trinidad, 96 A.3d 1031, 1033-34 (Pa. Super. 2014).
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revocation of probation,3 does not extend the appeal period; a party seeking
to appeal a revocation order must do so within 30-day time prescribed by
Pa.R.A.P. 903(a)). Therefore, the instant appeal, to be timely, should have
been filed within 30 days of the judgment of sentence, not of the order
granting reconsideration. Because the Commonwealth filed the instant appeal
well after the 30-day period limitation proscribed by Pa.R.A.P. 903(a), the
instant appeal is untimely.
Generally, an error like this would be fatal, requiring us to quash the
appeal. See Coleman, 721 A.2d at 798. However, a review of the record
reveals that the trial court stated incorrectly the law on this matter. Indeed,
the trial court specifically advised Appellee that he could appeal from the
judgment of sentence within 30 days of the order disposing of the
reconsideration. See N.T. Sentencing, 6/9/16, at 20 (stating to Appellee that
if a motion for reconsideration had been filed, “your time to appeal wouldn’t
kick in until I decide that motion[.]”).4 “[I]n similar situations, we have
declined to quash the appeal recognizing that the problem arose as a result of
____________________________________________
3 See Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super.
2010) (finding sentences of probation and sentences of state intermediate
punishments to be analogous).
4 While at the time of sentencing the trial court addressed Appellee in
summarizing its understanding of the rules pertaining to appeals, the trial
court’s erroneous statement of the relevant law similarly affected the
Commonwealth. Indeed, the same rules at issue here (i.e., Pa.R.A.P. 903 and
Pa.R.Crim.P. 708(E)) are equally applicable to the Commonwealth.
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the trial court’s misstatement of the appeal period, which operated as a
breakdown in the court’s operation. Commonwealth v. Coolbaugh, 770
A.2d 788, 191 (Pa. Super. 2001) (citations omitted).
However, there is another problem with the instant appeal. The trial
court order granting reconsideration was issued approximately 6 months after
the filing of the underlying motion, and approximately 5 months after the
expiration of the appeal deadline. The trial court did not have the authority
to act on the motion for reconsideration once the 30-day appeal period had
expired. See Pa.C.S.A. § 5505;5 see also Commonwealth v. Moir, 766
A.2d 1253, 1254 (Pa. Super. 2000). The appealed order is therefore null and
void.6 See Commonwealth v. Benn, 680 A.2d 896, 900 (Pa. Super. 1996).
Given the instant appeal has been substantially compromised by the
trial court’s misstatement of the law at the time of sentencing, we are
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5 Section 5505 of the Judicial Code provides as follows: “Except as otherwise
provided or prescribed by law, a court upon notice to the parties may modify
or rescind any order within 30 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. Beyond the 30-day limitation, a court may
only correct errors that are “obvious and patent.” Commonwealth v. Cole,
263 A.2d 339, 341 (Pa. 1970); see also Commonwealth v. Holmes, 933
A.2d 57, 66 (Pa. 2007) (stating that courts have “the inherent power to
correct patent errors despite the absence of traditional jurisdiction”). There
is no contention that the order at issue here corrected obvious and patent
errors.
6 The trial court noted this much but ultimately concluded that, under the
circumstances, the order was valid. Trial Court Opinion, 4/20/17, at 19.
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constrained to vacate the judgment of sentence and remand to the trial court
for resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/18
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