Com. v. Velez-Nieves, L.

J-S28039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
LUIS ANGEL VELEZ-NIEVES :
:
Appellee : No. 1674 MDA 2021
Appeal from the Order Entered October 22, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000504-2020
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: DECEMBER 15, 2022
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the York County Court of Common Pleas, which granted the pretrial
motion of Appellee, Luis Angel Velez-Nieves, which sought to determine the
grading of a charge against him. We quash the appeal.
The trial court opinion set forth the relevant facts and procedural history
of this appeal as follows:
[Appellee] was charged with a first offense driving under the
influence (“DUI”) charge for docket CP-67-CR-0002344-
2018. [Appellee] successfully completed the Accelerated
Rehabilitative Disposition (“ARD”) program, and the charges
were expunged.
On December 16, 2019, [Appellee] was charged in the
instant case with DUI. On January 22, 2020, [Appellee]
waived his right to a preliminary hearing and the charges
were bound over. On February 24, 2020, the criminal
[information] was filed.
J-S28039-22
On February 26, 2020, formal arraignment was waived.
On September 10, 2020, [Appellee] filed a motion to
determine grading of offense….[1] On September 16, 2020,
the [trial court] filed an order directing the Commonwealth
to file a brief. The Commonwealth adhered to the order by
filing a memorandum in opposition to [Appellee’s] motion….
At the October 15, 2020 status conference, the [trial court]
stated the Commonwealth should be given the opportunity
to prove the first DUI occurred, under docket CP-67-CR-
0002344-2018, beyond a reasonable doubt. [Appellee]
argued the Commonwealth should be prohibited from
having such an opportunity. [The trial c]ourt granted
[Appellee] leave to file a supplemental motion with legal
argument.
On October 26, 2020, [Appellee] filed his notice of intent to
not file a supplemental motion.
On November 4, 2020, [Appellee] filed a motion for jury
trial.
On December 1, 2020, the Commonwealth filed a
memorandum in opposition to [Appellee’s] motion for jury
trial.
On January [20], 2021, [Appellee] filed a motion in limine,
specifically objecting to any evidentiary hearing based on
docket CP-67-CR-0002344-2018….
On February 23, 2021, the [trial court] denied both the
motion for jury trial and motion in limine.
After the evidentiary hearing on April 23, 2021, the [trial
court] found [Appellee] was driving under the influence for
docket CP-67-CR-0002344-2018, therefore, the current
____________________________________________
1 In the motion, Appellee complained that the Commonwealth planned to rely
on the 2018 ARD as a prior offense “so as to justify, in the event of conviction,
recidivist grading under 75 Pa.C.S. § 3803 and a mandatory minimum
sentence under 75 Pa.C.S. § 3804.” (Motion, filed 9/10/20, at 2). Appellee
argued that the ARD did not constitute a prior offense.
-2-
J-S28039-22
grading of charges was proper, and the case was placed on
the trial list for June 14, 2021. [The case was subsequently
reassigned to a different jurist.]
On October 22, 2021, [the new jurist] vacated the April 23,
2021 order and granted [Appellee relief by permitting leave]
to change grading.[2] Because of the change in gradation,
the case was scheduled for a non-jury trial on December 21,
2021.
On November 5, 2021, the Commonwealth filed a motion
for reconsideration and hearing. The hearing occurred on
November 9, 2021.
On November 30, 2021, the [trial court] denied the
Commonwealth’s motion for reconsideration.
On December 20, 2021, the Commonwealth filed a notice of
appeal. On December 21, 2021, [the trial c]ourt filed a
direction to [the Commonwealth] to file a statement of
matters complained of pursuant to Pa.R.A.P. 1925(b).
On January 12, 2022, the Commonwealth filed a statement
of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b).
(Trial Court Opinion, filed 2/3/22, at 1-3) (unnumbered) (some capitalization
omitted).
____________________________________________
2 Regarding the decision to revisit Appellee’s 2020 motion, the complete
transcript for the October 22, 2021 hearing is not included in the record on
appeal. Rather, the record contains a two-page excerpt from the transcript,
wherein the court provided an on-the-record announcement of its decision to
vacate the prior jurist’s April 23, 2021 order and grant Appellee’s 2020 motion.
(See N.T. Hearing, 10/22/21, at 1-2). Nevertheless, the record also contains
the complete transcript from the next hearing, which the court conducted on
November 9, 2021. At that time, the prosecutor explained that Appellee “had
asked for [the new jurist] to reconsider the decision to deny the previous
motions” based upon recent case law evaluating the effect of a prior ARD on
DUI sentencing. (See N.T. Hearing, 11/9/21, at 3).
-3-
J-S28039-22
The Commonwealth now raises two issues for this Court’s review:
The trial court erred in granting [Appellee’s] motion to
modify gradation of DUI charges where the court was bound
by the ruling of a prior court pursuant to the coordinate
jurisdiction rule.
The trial court erred in relying on Commonwealth v.
Richards, 2021 Pa.Super. Unpub. LEXIS 2731, a non-
published case that has been subsequently withdrawn by
the majority as of December 16, 2021, pending en banc
hearing.
(Commonwealth’s Brief at 5).
As a prefatory matter, we must evaluate the timeliness of this appeal.
A notice of appeal must be filed within thirty (30) days after the entry of the
order from which the appeal is taken. Pa.R.A.P. 903(a). Time limitations for
taking appeals are strictly construed and cannot be extended as a matter of
grace. Commonwealth v. Valentine, 928 A.2d 346 (Pa.Super. 2007). This
Court can raise the matter sua sponte, as the issue is one of jurisdiction to
entertain the appeal. Id. This Court has no jurisdiction to entertain an
untimely appeal. Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super.
2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). Generally, an
appellate court may not enlarge the time for filing a notice of appeal. Pa.R.A.P.
105(b). Extension of the appeal filing period is permitted only in extraordinary
circumstances, such as fraud or some breakdown in the court’s operation.
Commonwealth v. Braykovich, 664 A.2d 133 (Pa.Super. 1995), appeal
denied, 544 Pa. 622, 675 A.2d 1242 (1996).
When an appellant files a motion for reconsideration of a final order,
-4-
J-S28039-22
they must file a protective notice of appeal to ensure preservation of their
appellate rights, in the event the court does not expressly grant
reconsideration within the thirty-day appeal period. Commonwealth v.
Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000). In other words, the mere filing
of a motion for reconsideration does not toll the thirty-day appeal period:
It is well-settled that, upon the filing of a motion for
reconsideration, a trial court’s action in granting a rule to
show cause and setting a hearing date is insufficient to toll
the appeal period. Rather, the trial court must expressly
grant reconsideration within thirty days of entry of its order.
Failure to expressly grant reconsideration within the time
set by the rules for filing an appeal will cause the trial court
to lose its power to act on the application for
reconsideration.
Id. (internal citations omitted).
Moreover, “we have consistently held that an appeal from an order
denying reconsideration is improper and untimely.” Id. In this context, the
appeal does not lie from the order denying reconsideration; filing an appeal
from that order is insufficient to preserve appellate rights, as “[w]e will not
permit [a party] to do indirectly that which [the party] cannot do directly.”
Provident Nat. Bank v. Rooklin, 378 A.2d 893, 897 (Pa.Super. 1977).3
Instantly, the trial court initially decided that the grading of the DUI
____________________________________________
3 Generally, the Rules of Appellate Procedure apply to criminal and civil cases
alike; the principles enunciated in civil cases construing those rules are equally
applicable in criminal cases. See Commonwealth v. Levanduski, 907 A.2d
3, 29 n.8 (Pa.Super. 2006) (en banc), cert. denied, 552 U.S. 823, 128 S.Ct.
166, 169 L.Ed.2d 33 (2007) (stating rules of appellate procedure apply to
criminal and civil cases alike).
-5-
J-S28039-22
charge was proper on April 23, 2021. On October 22, 2021, however, the
current jurist vacated the April 2021 order and decided that the grading was
improper. The Commonwealth filed a motion for reconsideration on November
5, 2021. The court did not subsequently enter an order expressly granting
reconsideration. See Moir, supra. Instead, the court simply provided the
parties with notices announcing the reconsideration hearing, which were
generated through the court’s automated scheduling system. Ultimately, the
court denied reconsideration on November 30, 2021, and the Commonwealth
filed a notice of appeal on December 20, 2021.4
We emphasize that under these circumstances, the Commonwealth’s
current appeal does not lie from the November 30th order denying
reconsideration. See Provident Nat. Bank, supra. The thirty-day period
for filing a notice of appeal commenced on October 22, 2021, when the court
granted relief to Appellee. The Commonwealth did not file its notice of appeal
until December 20, 2021, which is patently untimely. Moreover, the record
contains no evidence of extraordinary circumstances, or a breakdown in the
operations of the court, to excuse the Commonwealth’s untimely filing. See
____________________________________________
4 Considering the underlying procedural history, this Court directed the
Commonwealth to show cause why the appeal should not be quashed as
untimely. (See Order, filed 2/23/22, at 1). In response, the Commonwealth
indicated that its motion for reconsideration included a draft order that
included “express grant” language. (See Response, filed 3/3/22, at 2). The
trial court, however, did not utilize the draft order because it relied on the
automated scheduling system rather than issuing “an order adopting or
rejecting the Commonwealth’s preferred wording.” (Id.)
-6-
J-S28039-22
Braykovich, supra. Therefore, the Commonwealth’s failure to file the notice
of appeal within thirty days of the October 22, 2021 order divested this Court
of appellate jurisdiction.5 See Pa.R.A.P. 903; Patterson, supra.
Accordingly, we quash this appeal as untimely.6
Appeal quashed.
____________________________________________
5 Moreover, we observe:
In a criminal case, under the circumstances provided by law,
the Commonwealth may take an appeal as of right from an
order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the
order will terminate or substantially handicap the
prosecution.
Pa.R.A.P. 311(d). “Although Rule 311(d) permits an appeal as of right, prior
case law has continually placed limits on the scope of this right as it pertains
to non-evidentiary issues.” Commonwealth v. Woodard, 136 A.3d 1003,
1005 (Pa.Super. 2016), appeal denied, 638 Pa. 764, 158 A.3d 1242 (2016).
“Thus, the court will not accept blindly the Commonwealth’s certification of
substantial hardship when appeal is sought for non-evidentiary interlocutory
orders.” Id. (internal citation and quotation marks omitted). Here, the
Commonwealth included a Rule 311(d) certification with its notice of appeal.
In this case, however, it is unclear how the trial court’s ruling regarding the
grading of the underlying offense would terminate or substantially handicap
the prosecution of the DUI offense.
6 To the extent that the issues on appeal concern the effect of a prior ARD on
DUI sentencing, we note that this Court recently addressed this topic in
Commonwealth v. Moroz, 2022 PA Super 169 (filed October 4, 2022) (en
banc) and Commonwealth v. Richards, 2022 PA Super 170 (filed October
4, 2022) (en banc). The changes in the relevant law set forth in these en
banc decisions will be applicable to this case as the parties continue in the trial
court. See Commonwealth v. Gaston, 239 A.3d 135, 140 (Pa.Super. 2020)
(reiterating that litigants are generally entitled to benefit from changes in law
that develop before judgments of sentence become final).
-7-
J-S28039-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2022
-8-