Judges： Elliott, Joyce, Stevens, Musmanno, Lally-Green, Todd, Klein, Bender, Bowes
Filed Date： 11/16/2004
Status： Precedential
Modified Date： 10/26/2024
OPINION BY
¶ 1 Appellant, Edna L. Green, appeals from the judgment of sentence imposed by the trial court on July 22, 2002. The sentence was imposed subsequent to a jury trial in which Appellant was found guilty of terroristic threats, and a bench trial in which Appellant was found guilty of the summary offense of harassment. After careful review, we quash this appeal.
¶2 The record reveals the following chronology of events. On December 27, 2001, Appellant was involved in an altercation with her neighbors, Daryl Peters and his wife, Monica Peters. As a result of this incident, Appellant was charged with several offenses. On May 7, 2002, a jury trial was held at the conclusion of which the jury found Appellant guilty of terroristic threats
¶ 3 On July 22, 2002, the trial court sentenced Appellant to four years’ probation and ordered her to pay a fine in the amount of $250.00 plus costs. Appellant was also ordered to have no contact with Daryl Peters and his wife, Monica Peters. Although the sentence was imposed on July 22, 2002, the order of sentence was filed (docketed) on July 31, 2002.
¶4 On August 2, 2002, Appellant filed her post-sentence motion alleging that the jury verdict was against the weight of the evidence, and seeking arrest of judgment or a new trial. Appellant also sought a modification of her sentence. Without explanation, in an order dated August 13, 2002 (docketed August 15, 2002), the trial court released Appellant from probation supervision and revoked all costs and fines imposed on Appellant. On August 16, 2002, the trial court entered an order (docketed on August 19, 2002) denying Appellant’s post-sentence motion. Thereafter, on Septémber 12, 2002, Appellant appealed to this Court. The trial court ordered Appellant to file a concise statement of matters complained of on appeal (Pa.R.A.P. 1925(b)) and she complied.
¶ 5 On appeal, the single issue raised by Appellant is “whether the trial court erred in denying [Appellant’s] post-sentence motions when the jury’s verdict was contrary to the weight of the evidence as no reasonable jury could have found [Appellant] guilty of making terroristic threats and when such verdict should have shocked the
¶ 6 Before addressing the merits of Appellant’s claim, we must address the timeliness of this appeal as it implicates our jurisdiction. Commonwealth v. Yaris, 557 Pa. 12, 731 A.2d 581, 587 (1999) (appellate courts may consider the issue of jurisdiction sua sponte). Jurisdiction is vested in the Superior Court upon the filing of a timely notice of appeal. Commonwealth v. Miller, 715 A.2d 1203, 1205 (Pa.Super.1998). In the case at bar, the focus of our inquiry is whether Appellant’s post-sentence motion, which was filed on August 2, 2002, was timely even though Appellant’s sentence was pronounced on July 22, 2002 but was docketed on July 31, 2002. As we will explain below, the timeliness of Appellant’s post-sentence motion relates to the timeliness of Appellant’s notice of appeal.
¶ 7 Rule 720(A)(1) of the Pennsylvania Rules of Criminal Procedure provides as follows: “(1) Except as provided in paragraph (D) [dealing with summary cases], a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.” Id. (emphasis added). Herein, Appellant was sentenced on July 22, 2002. Pursuant to Rule 720(A)(1), Appellant had ten days from July 22, 2002 or until August 1, 2002, to file her post-sentence motion. Although dated August 1, 2002, Appellant’s post-sentence motion was entered on the docket on August 2, 2002. Using the date on which the sentence was entered on the docket (July 31, 2002), Appellant’s post-sentence motion would appear to be timely. However, utilizing the date on which Appellant’s sentence was pronounced (July 22, 2002), Appellant’s post-sentence motion would be untimely.
¶ 8 Against the above background we must determine whether the beginning of the ten-day period prescribed in Pa. R.Crim.P. 720(A)(1) refers to the date the sentence was pronounced or the date the sentence was entered on the docket. In our view, the beginning of the ten-day period refers to the date the sentence was pronounced and not the date the sentence was entered on the docket.
¶ 9 First, Pa.R.Crim.P. 720(A)(1) specifically refers to the date of imposition of sentence. Similarly, the comment to Rule 720(A)(1) also specifically refers to the date of imposition of sentence. Neither the rule nor the comment thereto refers to the date on which the sentence was docketed. These are strong indicators that in promulgating and adopting Rule 720(A)(1), the Pennsylvania Supreme Court intended the date of imposition of sentence as the reference point for computing the time for filing post-sentence motions and not the date on which the sentence was docketed. Secondly, had the intent been to begin the ten-day period on the date on which the sentence was docketed, it could have used the term “the date of entry”
(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:
(a) within 30 days of the entry of the order deciding the motion;
(b) within 30 days of the entry of the order denying the motion by operation*616 of law in cases in which the judge fails to decide the motion; or
(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.
Pa.R.Crim.P. 720(A)(2). Along the same lines, the word entry was used in Pa. R.Crim.P. 720(A)(4) which provides that: “If the Commonwealth files a motion to modify sentence pursuant to Rule 721, the defendant’s notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth’s motion.” Id.
¶ 10 Another strong indication that the intent behind utilizing the date of imposition of sentence as- the reference point rather than the date of docketing is Pa. R.CrimJP. 720(A)(3), which provides that “[i]f the defendant does not file a post-sentence motion, the defendant’s notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in paragraph (A)(4).” Id. (emphasis added). The Comments to Pa.R.Crim.P. 720(A)(3) also reaffirm that “[i]f no timely post-sentence motion is filed, the defendant’s appeal period runs from the date sentence is imposed.”
¶ 11 Since Pa.R.Crim.P. 720(A)(1) and Pa.R.Crim.P. 720(A)(3) refer to the date of imposition of sentence but referred to the date of entry of an order in other aspects of Pa.R.Crim.P. 720, this shows that the reference to the date of imposition of sentence in Pa.R.Crim.P. 720(A)(1) was not by inadvertence. Accordingly, we must accept and apply the specific language of Pa.R.Crim.P. 720(A)(1). Pursuant to that language, the beginning of the ten-day period refers to the date of imposition of sentence and not necessarily the date the sentence was entered on the docket.
¶ 12 Although the specific issue of whether date of imposition of sentence and not the date of docketing of the sentence should be utilized in computing the ten-day period for filing a post-sentence motion has not been addressed by our Courts, in computing this ten-day period, our Courts have often utilized the date of imposition of sentence as the reference point. These instances constitute implicit recognition that the date of imposition of the sentence should be used in the computation.
¶ 13 In Commonwealth v. Felmlee, 828 A.2d 1105, 1106-1107 (Pa.Super.2003) (en banc), we began our discussion of the issue of the untimeliness of Appellant’s post-sentence motion by noting that “our initial review of the record in this matter ... appears to indicate that Appellant’s post-sentence motion was filed 13 days after the imposition of sentence, which would make it untimely. Id. (emphasis added). We also noted that: “After receipt of [the] [a]ppellant’s guilty plea the trial court imposed sentence on November 30, 2000. [The] [a]ppellant had until Monday, December 11, 2000, in which to file his post-sentence motion.” Id. at 1107. From the above, it can be seen that the ten-day period was computed using the date of imposition of sentence. There was no reference to the date on which the sentence was docketed.
¶ 14 In Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super.2003), while addressing the issue of post-sentence motions, we noted that Dreves’ sentence was imposed on May 10, 2001. Id. at 1125. Dreves filed his post-sentence motion on May 30, 2001, twenty days after the imposition of sentence. Id. at 1126. Ultimately, we
¶ 15 In Commonwealth v. Hockenberry, 455 Pa.Super. 626, 689 A.2d 283, 288 (1997), we were faced with a situation where the appellant filed an untimely post-sentence motion in which he raised issues implicating the legality of his sentence. In our brief discussion of the timeliness issue, we noted that:
A motion to modify sentence must be filed within ten days of the imposition of the sentence, and an appeal from sentence must be filed within thirty days. Appellant was informed of these time limitations at the time of sentencing. N.T., 10/31/95, at 15. He filed the motion to modify his sentence over nine months after sentence was imposed. Normally, his sentencing claims would be waived.
Hockenberry, 689 A.2d at 288. Notably, the above discussion focused on the date of imposition of sentence without reference to the date the sentence was docketed.
¶ 16 The foregoing discussion leads us to conclude that for purposes of Pa. R.Crim.P. 720(A)(1), regardless of the date the sentence was entered on the docket, a written post-sentence motion must be filed no later than 10 days after the date of imposition of sentence. If for some reason, the sentence was not entered on the docket the day the sentence was imposed, a defendant who wishes to file a post-sentence motion must still do so no later than 10 days after the date of imposition of sentence. This interpretation comports with the plain language of Pa.R.Crim.P. 720(A)(1).
¶ 17 From a practical standpoint, the above interpretation is quite reasonable. Trial courts are required to inform defendants of their right to file post-sentence motions as well as the time period within which such motions must be filed. Since trial courts normally provide this information immediately after the imposition of sentence, informing the parties that a post-sentence motion must be filed no later than 10 days after the date of imposition of sentence presents a much clearer picture of the time frame involved. On the other hand, trial courts often do not know and have little or no control over when the sentence will be docketed. Docketing is normally the responsibility of the clerk of courts or the prothonotary. Thus, it would be very confusing and would create uncertainty if trial courts were to inform defendants that they must file post-sentence motions no later than 10 days after the docketing of the sentence when trial courts do not even know when the sentence will be docketed. This would saddle defendants with the task of determining when a sentence has been docketed in order to ascertain the period within which a post-sentence motion must be filed. In our view, the better course is to interpret Pa. R.Crim.P. 720(A)(1) as providing that, regardless of the date the sentence was entered on the docket, a written post-sentence motion must be filed no later than 10 days after the date of imposition of sentence.
¶ 18 Applying the aforementioned interpretation to the instant case, it can be seen that since Appellant’s sentence was imposed on July 22, 2002, Appellant was required to file her post-sentence motion no later than 10 days after July 22, 2002.
¶ 19 Ordinarily, if a defendant does not file a post-sentence motion, the defendant’s notice of appeal shall be filed within 30 days of imposition of sentence. Pa.R.Crim.P. 720(A)(3). However, under Pa.R.Crim.P. 720(A)(2):
(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:
(a) within 30 days of the entry of the order deciding the motion;
(b) within 30 days of the entry of the order denying the motion by operation of law in eases in which the judge fails to decide the motion; or
(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.
Id. (emphasis added). From the above, it can be seen that the time for filing an appeal can be extended beyond 30 days after the imposition of sentence only if the defendant files a timely post-sentence motion. The Comment to Rule 720 emphasizes this point as follows: “If no timely post-sentence motion is filed, the defendant’s appeal period begins to run from the date sentence is imposed.” Thus, where the defendant does not file a timely post-sentence motion, there is no basis to permit the filing of an appeal beyond 30 days after the imposition of sentence. This interpretation of Rule 720(A)(3) is amply supported by this Court’s recent decision in Commonwealth v. Bilger, 803 A.2d 199 (Pa.Super.2002), appeal denied, 572 Pa. 695, 813 A.2d 835 (2002) in which we stated:
As can be readily observed by reading the text of Rule of Criminal Procedure 720, ordinarily, when a post-sentence motion is filed an appellant has thirty (30) days from the denial of the post-sentence motion within which to file a notice of appeal. However, by the explicit terms of Pa.R.Crim.P. 720(A)(2), the provision allowing thirty days from the denial of post-trial motions is contingent upon the timely filing of a post-trial motion.
Bilger, 803 A.2d at 201. We further opined that “in order for the denial of post-sentence motions to become the triggering event, it is necessary that the post-sentence motions be timely filed. Second, absent a timely filed post-sentence motion, the triggering event remains the date sentence is imposed.” Id. at 202 (emphasis added).
¶ 20 In the case at bar, since Appellant did not file a timely post-sentence motion, her appeal period began to run from the date sentence was imposed, i.e., July 22, 2002. Accordingly, Appellant’s notice of appeal, which was filed on Sep
¶21 In Felmlee, supra, this Court observed that:
Only a timely-filed post-sentencing motion will trigger an extension of the time for filing a notice of appeal. Pa. R.Crim.P. 720(A)(2). If indeed Appellant’s motion was untimely filed, the notice of appeal subsequently filed after the trial court considered and ruled on Appellant’s motion, in excess of 30 days from the original judgment of sentence, would be untimely. Pa.R.A.P. 720(A)(3) [sic8 ].
Felmlee, 828 A.2d at 1107 n. 1.
¶22 Our decision today is consistent with and contemplates other rules pertaining to post-trial practice such as Rule 720(A)(3). We cited Rule 720(A)(2)(a)-(c), Rule 720(A)(3), and Rule 720(4), as strong indications that the Rules intentionally referred to the date of entry of an order or sentence in these rules while in Rule 720(A)(1), the reference is to the date of imposition of sentence. See pages 615-16, supra.
¶ 23 We have no reason to assume that the Supreme Court Rules Committee does not know the difference between the date a sentence is imposed and the date a sentence is entered on the docket. If indeed the Committee referred to the date of imposition of sentence when it intended to refer to the date of entry of the sentence on the docket, we invite the Committee to amend the rule accordingly. However, as it is written, Rule 720(A)(1) clearly refers to the date of imposition of sentence. The date of imposition of sentence is the date a trial court pronounces the sentence. It is implausible to argue that the date on which the trial court pronounces the sentence is not the date on which sentence is imposed.
¶ 24 It is noteworthy that in other matters dealing with sentencing, the date of imposition of sentence has been interpreted as the date of pronouncement of the sentence. For instance, under Pa. R.Crim.P. 704(A), the sentence in a court case shall ordinarily be imposed within 90 days of conviction or the entry of guilty pleas or nolo contendere. It is significant to note that in determining whether a sentence was imposed within 90 days of conviction or plea, our courts have never used the date of entry or docketing of the sentence in affixing the date sentence was imposed. Rather, ora1 courts have utilized the date of the sentencing hearing, that is, the date the sentence was pronounced. See generally, Commonwealth v. Anders, 699 A.2d 1258, 1260-62 (Pa.Super.1997) reversed on other grounds by Commonwealth v. Anders, 555 Pa. 467, 725 A.2d 170 (1999); (interpreting former Rule 1405, requiring that sentence be imposed within 60 days of conviction or plea). Furthermore, in commenting on Rule 704(A)(1) (dealing with the requirement that sentence be imposed within 90 days), the Rules Committee stated as follows: “As a general rule, the date for sentencing
¶ 25 Also, it is axiomatic that prior to the imposition of sentence, a defendant is entitled to the right of allocution. See Commonwealth v. Hague, 840 A.2d 1018, 1020 (Pa.Super.2003) (“the significance of allocution lies in its potential to sway the court toward leniency prior to imposition of sentence. Permitting the defendant to speak after sentence has been imposed fails to meet the essence of the right of allocution.”). If “imposition of sentence” means “entry of the sentence on the docket”, a defendant’s right to allocution is violated only if he was not permitted to speak prior to the docketing of the sentence. We have found no Pennsylvania cases that interpret a defendant’s right of allocution in that manner. If “imposition of sentence” means docketing of the sentence, and since in some cases the sentence is docketed days after its pronouncement, the above quote in Hague would permit a sentencing court to deny a defendant his right of allocution prior to the pronouncement of the sentence if the court permits the defendant to exercise this right in the interim period before the docketing of the sentence. This would be an absurd interpretation of the right of allocution. See Hague, supra. See also Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918, 919 (1989) (holding that a trial court must inform a defendant of his right to speak prior to being sentenced, and that the case must be remanded for resentencing at which time the court will inform the defendant of his right to speak and will hear the defendant, should he choose to speak, prior to reimposition of sentence).
¶ 26 As a practical matter, with very few exceptions (such as when the court grants bail pending appeal), a defendant begins to serve his or her sentence immediately after the pronouncement of the sentence. The pronouncement of the sentence is not merely informational. It is the actual imposition of the penalty. If it were merely informational, there would be no need to afford the defendant the right of allocution so as to attempt to sway the court toward leniency prior to the pronouncement of the sentence. Additionally, when a defendant is led from the courtroom after he or she is sentenced to begin serving a term of incarceration, that time is included in the computation of the time spent serving the sentence. See generally 42 Pa.C.S.A. § 9760. It would be unreasonable to believe that the days spent incarcerated between the time the sentence is imposed and the date the sentence is entered on the docket would not count towards the defendant’s service of the sentence.
¶ 27 Other aspects of the Pennsylvania Rules of Criminal Procedure also suggest that the date of imposition of sentence is the date of pronouncement of the sentence. Under Rule 702(B), “[a]fter a finding of guilt and before the imposition of sentence,” the sentencing judge may order the defendant to undergo a psychiatric or psychological examination. If “imposition of the sentence” (under Rule 720(A)(1)) were to mean “docketing of the sentence”, Rule 702(B) would permit a sentencing judge to order a defendant to undergo a psychiatric or psychological examination after the pronouncement of the sentence but before the docketing of the sentence. In other
¶ 28 In summary cases, under Pa. R.Crim.P. 462(F), following a de novo trial, “the verdict and sentence, if any, shall be announced in open court immediately upon the conclusion of the trial.” Id. (emphasis added). In commenting on the time period within which a sentence must be imposed, the comments to Pa.R.Crim.P. 704(A)(1), contrasted that rule with the sentencing in summary cases, stating as follows: “In summary appeal cases, however, sentence must be imposed immediately at the conclusion of the de novo trial.” Pa.R.Crim.P. 704(A)(1) Comment. (Emphasis added). Thus, the Rules Committee in the above instance equated the time a sentence is announced in open court with the time the sentence is imposed. Further, as we previously noted, the docketing of a sentence is a ministerial act performed by the trial court’s protho-notary or the clerk of courts and the trial court has little or no control over when a sentence is docketed. Against this background, if “imposition of the sentence” is synonymous with “docketing of the sentence,” it is difficult to imagine how a trial court in a summary case can impose a sentence immediately at the conclusion of the de novo trial as required by Rule 462(F).
¶ 29 Based on the foregoing discussion, we reiterate that under Pa.R.Crim.P. 720(A)(1), the date of imposition of the sentence is the date the sentencing court pronounces the sentence. Therefore, we conclude that in the instant case, Appellant’s post-sentence motion was filed in an untimely fashion. Appellant’s notice of appeal was also untimely as it was filed more than 80 days after the imposition of sentence. Accordingly, we must quash this appeal.
¶ 30 Appeal quashed.
¶ 31 KLEIN, J. files a Concurring Statement.
¶ 32 FORD ELLIOTT, J. files a Concurring and Dissenting Opinion, joined by KLEIN, J., BENDER, J. and BOWES, J.
. 18 Pa.C.S.A. § 2706(a)(1).
. 18 Pa.C.S.A.§ 2701(a)(1).
. 18 Pa.C.S.A. § 2709(a)(1).
.Appellant waived her right to be sentenced within 90 days.
. The use of the term "date of entry of an order” has been interpreted to mean the date of docketing of the order. See e.g. Pa.R.A.P. 108 (stating that the day of entry of an order shall be the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties, or if such delivery is not otherwise required by law, the day the clerk or office of the government unit makes such copies public).
. Of course, the sentence can be entered on the docket the same day the sentence is imposed.
. 1 Pa.C.S.A. § 1908 provides as follows:
When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this title (relating to publication for successive weeks) and section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.
Id.
. The correct citation is Pa.R.Crim.P. 720(A)(3).