Com. v. Hemingway, C.

J-S20025-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES OTTO HEMINGWAY :
:
Appellant : No. 1235 WDA 2018
Appeal from the Judgment of Sentence Entered August 15, 2018
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0001938-2013
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 31, 2019
Charles Otto Hemingway appeals from the judgment of sentence
entered on August 15, 2018. Because Hemingway’s post-sentence motion was
untimely, we quash this appeal as untimely since it was filed beyond the 30
day appeal period.
The timeliness of an appeal implicates our jurisdiction and we may raise
the issue sua sponte. Commonwealth v. Trinidad, 96 A.3d 1031, 1034
(Pa.Super. 2014). A post-sentence motion following revocation of probation
must be filed within ten days of the “date of imposition.” Pa.R.Crim.P. 708(E).
Filing a post-sentence motion “will not toll the 30-day appeal period” to this
Court unless, “the appellant files a motion seeking permission to file a post-
sentence motion nunc pro tunc and the trial court expressly grants this request
within thirty days of the imposition of the sentence.” Id.; Commonwealth v.
Patterson, 940 A.2d 493, 498 n.3 (Pa.Super. 2007). Thus, “absent a timely
J-S20025-19
filed post-sentence motion, the triggering event remains the date sentence is
imposed.” Commonwealth v. Green, 862 A.2d 613, 618 (Pa.Super. 2004)
(en banc) (emphasis omitted). However, “before our Court may quash the
instant appeal, we must determine whether an administrative breakdown in
the court system excuses the untimely filing of the notice of appeal.”
Patterson, 940 A.2d at 498. A breakdown has occurred “where the trial court,
at the time of sentencing, either failed to advise Appellant of his post-sentence
and appellate rights or misadvised him.” Id.
The procedural history of this appeal is as follows. The trial court held a
revocation hearing on May 21, 2018. Hemingway was represented by J.W.
Hernandez-Cuebas, Esq., who entered his appearance on January 2, 2018. At
the conclusion of the hearing, the trial court revoked Hemingway’s probation
and imposed sentence the same day. On the day of the hearing, Hemingway
signed a form acknowledging his post-sentence motion and appellate rights,
including that “[a] motion to modify a sentence” must be filed within ten days.
See Defendant’s Rights at Violation of Probation, Intermediate Punishment or
Parole Sentencing, dated 5/21/18. The following statement was just above his
signature: “I hereby acknowledge that I was present when the judge advised
me of my rights and I acknowledge receipt of a written copy of the same.” Id.
Counsel filed a post-sentence motion on June 4, 2018. The trial court
held a hearing on the motion and denied it on August 16, 2018. Hemingway
filed a notice of appeal on August 27, 2018.
-2-
J-S20025-19
Upon receipt of the notice of appeal, we ordered appellate counsel to
show cause for why this appeal should not be quashed. See Order, filed
10/25/18, at 2. Counsel responded with a letter stating that there was a
breakdown in the court system because:
Here the record reflects that a timely post-sentence motion was
filed on June 4, 2018, the resolution of the timely-filed motion was
delayed from the date of filing by the Court sua sponte on three
(3) separate occasions extending the ruling on the Motion to
approximately 72 days. In consequence, [Hemingway] was faced
with the Hobbesian choice of having the Motion to Reconsider
stopped by the filing of an appeal and robbing the lower court of
jurisdiction to consider the already filed Motion, and possibly
losing the ability to appeal the severity of the sentence or allowing
the Court to rule on the already filed Motion to Reconsider.
Response to Rule to Show Cause, filed 11/5/18, at 2 (unpaginated).
To begin, we note that the post-sentence motion was not timely.
Hemingway had until May 31, 2018 to file a timely post-sentence motion. He
missed this deadline by four days. Additionally, there was no breakdown in
the court system. Rather, the case proceeded as the criminal rules provide.
The trial court advised Hemingway of his post-sentence and appellate rights
exhibited by the written form that listed such rights:
1. At the time of sentencing you may make a statement on your
own behalf. Both counsel for defendant and Commonwealth
may present argument and information relative to your
sentencing. [Pa.R.Crim.P. 708(D)(1)]
2. You have the right to an attorney to help prepare and file any
motions to modify sentence and to appeal. A motion to modify
a sentence imposed after a revocation shall be filed within ten
(10) days of the date of imposition of sentence. You have the
right to proceed with presently retained or assigned counsel. If
you cannot afford an attorney, on your request, the Court will
-3-
J-S20025-19
appoint any attorney free of charge. You also have the right, if
indigent, to proceed in forma pauperis. [Pa.R.Crim.P.
708(D)(3)(a),(b),(E)]
3. You have the right to appeal to the Pennsylvania Superior Court
within thirty (30) days from today. The filing of a motion to
modify sentence does not toll the 30-day appeal period. The
appeals period is only tolled if the sentencing judge grants
reconsideration or vacates the sentence within the 30-day
period. [Pa.R.Crim.P. 708(E)].
Defendant’s Rights at Violation of Probation, Intermediate Punishment or
Parole Sentencing. Because there was not a breakdown in the court system,
the 30-day appeal period was not tolled. A timely appeal should have been
filed by June 21, 2018. The instant appeal was not filed until August 27, 2018.
We “cannot extend the time for filing an appeal,” therefore this appeal is
quashed. Patterson, 940 A.2d at 498.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2019
-4-