Commonwealth v. Dreves

JOYCE, J.

¶ 1 Jason Dreves appeals from the judgment of sentence entered on May 10, 2001 following his guilty plea to aggravated harassment by prisoner and terroristic threats.² After review, we quash this appeal.

¶ 2 The underlying facts and procedural history of this case are as follows. On August 15, 1999, while in the Shamokin City Police Department holding cell, Dreves spit at police officers. The saliva had blood mixed with it from a cut on Dreves’ upper lip. Dreves also urinated and spit on the cell door handle and floor. N.T. Guilty Plea Hearing, 2/22/2001, at 5-6. In a separate incident, which took place on April 28, 2000, Dreves threatened Rhonda Gillam, who previously had witnessed him assault another man, Michael Deitz. Dreves told Gillam not to tell police that he had a knife in his possession at the time of the assault. Id. at 6.

¶ 3 As a result of these incidents, Dreves was arrested and subsequently entered into a plea agreement with the Commonwealth. In exchange for his guilty pleas to the above charges, the Commonwealth nolle prossed two counts of intimidation of a witness and one count of resisting arrest,³ which also were filed against Dreves. The Commonwealth additionally agreed to the imposition of a sentence in the lower end of the standard range of the Sentencing Guidelines for Dreves’ conviction of terroristic threats. Finally, the Commonwealth agreed to the imposition of a concurrent sentence for Dreves’ conviction of aggravated harassment by prisoner.

¶ 4 On May 10, 2001, for his conviction of terroristic threats, the trial court sentenced Dreves to a prison term of 163 days already served to two years, a sentence at the lower end of the standard range of the Sentencing Guidelines. For his conviction of aggravated harassment by prisoner, the trial court sentenced Dreves to a concurrent prison term of 335 days of time already served to five years. The certified record shows that on the same date sentence was imposed (May 10, 2001), Dreves and his counsel signed a document entitled “Post Sentencing Procedures” and subtitled “Defendant’s Acknowledgment of Post Sentencing Procedures.” This document informed Dreves and his counsel, inter alia, that: a post-sentence motion must be in writing; a post-sentence motion must be filed within ten days of sentencing; a post-sentence motion must state with specificity and particularity the grounds for the relief requested; if a post-sentence motion is filed, the sentencing court must render a decision on the motion within 120 days; appeals to a higher court following the imposition of sentence are taken to the Pennsylvania Superior Court by filing a notice of appeal; if a post-sentence motion was filed, the appeal to the Superior Court cannot be taken until the trial judge disposes of the motion; notice of appeal must be filed within 30 days of the disposition of the post-sentence motion; and if no post-sentence was filed, the notice of appeal must be filed within 30 days of the date of sentencing.

¶ 5 Despite the above information provided to Dreves and his counsel, Dreves did not file a post-sentence motion within ten days of the imposition of sentence. Rather, on May 30, 2001, twenty days after the imposition sentence, Dreves filed a motion entitled “Motion to Modify Sentence or Withdraw Guilty Plea Nunc Pro Tunc.” On August 3, 2001, after a hearing, the trial court entered an order (docketed August 6, 2001) denying the motion. On September 4, 2001, Dreves filed the instant appeal. The single question presented is “whether the court abused [its] discretion by accepting a plea agreement then imposing a sentence [sic] where the minimum sentence imposed was greater than that bargained for?” Brief for Dreves, at 5 (full capitalization omitted).

¶ 6 In a supplemental brief, the Commonwealth asks this Court to quash Dreves’ appeal, claiming that the trial judge was without jurisdiction to rule on Dreves’ untimely post-sentence motion, and that the instant appeal was filed more than 30 days after the imposition of sentence. The Commonwealth contends that because the post-sentence motion was untimely, it did not toll the 30-day period within which an appeal must be filed following the imposition of sentence.⁴ We agree.

¶ 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. Dreves was sentenced on May 10, 2001. Pursuant to Rule 720(A)(1), Dreves had ten days from May 10, 2001 to file his post-sentence motion. Dreves filed his post-sentence motion on May 30, 2001. This motion was clearly untimely.

¶ 8 Despite the untimeliness, the trial court held a hearing and denied the motion on August 6, 2001. Dreves filed his notice of appeal on September 4, 2001. This notice of appeal was filed more than thirty days after the date of imposition of sentence (May 10, 2001). 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 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.

Id. (emphasis added). From the above, it can be seen that the time for filing an appeal can be extended beyond 80 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 80 days after the imposition of sentence. This interpretation of Rule 720 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).

¶ 9 In the case at bar, since Dreves did not file a timely post-sentence motion, his appeal period began to run from the date sentence was imposed, i.e., May 10, 2001. Accordingly, Dreves’ notice of appeal, which was filed on August 4, 2001, almost four months after the imposition of sentence, was clearly untimely. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken”). We are therefore, constrained to quash Dreves’ appeal as untimely. See Commonwealth v. Anwyll, 333 Pa.Super. 453, 482 A.2d 656, 657 (1984) (it is well established that when an Act of Assembly fixes the time within which an appeal may be taken, a court may not extend the time for filing an appeal).

¶ 10 In a recent en banc decision, Commonwealth v. Felmlee, 828 A.2d 1105, 1107 n. 1 (Pa.Super.2003), this Court observed that:

Only a timely-filed post-sentencing motion will trigger an extension of the time for fifing 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) [sic⁵].

Felmlee, 828 A.2d at 1107 n. 1.

¶ 11 We must point out that the instant case does not implicate a trial court’s powers to act under 42 Pa.C.S.A. § 5505 which reads:

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.

Id. Herein, the trial court did not modify or rescind its order within 30 days after its entry, and the court did not vacate or modify Dreves’ judgment of sentence within 30 days after entry. Thus, the present case must be controlled by the Rules of Criminal Procedure and the Rules of Appellate Procedure with respect to the timeliness of Dreves’ post-sentence motion and the timeliness of this appeal. Furthermore, the instant case does not present a situation where a defendant filed a motion seeking permission to file a post-sentence motion nunc pro tunc and giving reasons why such permission should be granted. Dreves simply entitled his untimely post-sentence motion: “Motion to Modify Sentence or Withdraw Guilty Plea Nunc Pro Tunc.” He did not seek permission to file the untimely post-sentence motion nunc pro tunc and he did not explain why his post-sentence motion was untimely and why that untimeliness should be overlooked. Consequently, the trial court was not presented with, and did not consider the reasons (if any) behind the untimeliness, and whether such reasons were sufficient to excuse the untimeliness.

¶ 12 We recognize that under 42 Pa.C.S.A. § 5505, if no appeal had been taken, within 30 days after the imposition of sentence, the trial court has the discretion to grant a request to file a post-sentence motion nunc pro tunc. Consistent with this principle, we recently observed that the decision to allow the filing of a post-trial motion nunc pro tunc is vested in the discretion of the trial court and that we will not reverse unless the trial court abused its discretion. See Lenhart v. Cigna Companies, 824 A.2d 1193, 1195 (Pa.Super.2003).

¶ 13 To be entitled to file a post-sentence motion nunc pro tunc, a defendant must, within 30 days after the imposition of sentence, demonstrate sufficient cause, i.e., reasons that excuse the late filing.⁶ Merely designating a motion as “post-sentence motion nunc pro tunc” is not enough. When the defendant has met this burden and has shown sufficient cause, the trial court must then exercise its discretion in deciding whether to permit the defendant to file the post-sentence motion nunc pro tunc. If the trial court chooses to permit a defendant to file a post-sentence motion nunc pro tunc, the court must do so expressly. In employing the above line of reasoning, we find instructive cases dealing with the restoration of direct appeal rights nunc pro tunc. In Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760, 764 (1996) for instance, our Supreme Court opined that in order for an appeal nunc pro tunc to be granted, the appellant would have to show an extraordinary circumstance wherein a direct appeal by right was lost. Accord, Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 643 n. 7 (1998). Similarly, in order for a petition to file a post-sentence motion nunc pro tunc to be granted, a defendant must, within 30 days after the imposition of sentence, demonstrate an extraordinary circumstance which excuses the tardiness.

¶ 14 If the trial court does not expressly grant nunc pro tunc relief, the time for filing an appeal is neither tolled nor extended. The request for nunc pro tunc relief is separate and distinct from the merits of the underlying post-sentence motion. The 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. Also, when the trial court grants a request to file a post-sentence motion nunc pro tunc, the post-sentence motion filed as a result must be treated as though it were filed within the 10-day period following the imposition of sentence.

¶ 15 It is important to note that the trial court never expressly granted Dreves the permission to file a post-sentence motion nunc pro tunc in this case. The trial court did not even acknowledge that the post-sentence motion was untimely under Pa. R.Crim.P. 720(A)(1). Further, the trial court did not modify, rescind or vacate Dreves’ sentence. Thus, 42 Pa.C.S.A. § 5505 is not implicated in this case despite the court’s consideration of the merits of the untimely post-sentence motion. Besides, there is no authority for the proposition or suggestion that 42 Pa.C.S.A. § 5505 in and of itself excuses noncompliance with the time requirements for the filing of post-sentence motions under Pa. R.Crim.P. 720(A)(1) or the time requirements for the filing of a notice of appeal under Pa.R.Crim.P. 720(A)(2) and Pa. R.A.P. 908(a).

¶ 16 In conclusion, we reiterate the following: Dreves was sentenced on May 10, 2001. Dreves was provided with sufficient and accurate information regarding the time requirements for filing a post-sentence motion and for filing a notice of appeal to this Court.⁷ Yet, he did not file a timely post-sentence motion. Therefore, under Pa.R.Crim.P. 720(A)(3), Dreves was required to file his notice of appeal within 30 days of the date of imposition of sentence. Dreves filed his notice of appeal on September 4, 2001, more than 30 days after the imposition of sentence. Pa. R.Crim.P. 720(A)(2), which extends the time for filing an appeal does not apply to Dreves because he did not file a timely post-sentence motion. Since Dreves did not file a timely post-sentence motion and did not receive permission to file a post-sentence motion nunc pro tunc, he was required to file his notice of appeal within 30 days of his sentence which was imposed on May 10, 2001. Dreves’ notice of appeal filed on September 4, 2001 was clearly untimely. Accordingly, we must quash this appeal.

¶ 17 Appeal quashed.

¶ 18 KLEIN, J. files a Dissenting Opinion in which P.J.E. McEWEN and BENDER, J. joins.

2 . 18 Pa.C.S.A. §§ 2703.1, and 2706.

3 . 18 Pa.C.S.A. §§ 4952(a)(2), 4952(a)(3), and 5104.

4 . Even if the Commonwealth did not raise this issue, it would have been proper for us to raise it sua sponte. See Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa.Super.1997) (the question of appealability implicates the jurisdiction of this Court and may be raised by this Court sua sponte).

5 . The correct citation is Pa.R.Crim.P. 720(A)(3).

6 . The trial court’s decision on a request to file a post-sentence motion nunc pro tunc must be rendered within 30 days of the imposition of sentence. See 42 Pa.C.S.A. § 5505. Likewise, any decision by the trial court to modify, rescind or vacate the sentence must be rendered within 30 days of the imposition of sentence. Id.

7 . It is noteworthy that the present case does not involve a circumstance where the trial court misstated or misinformed the parties regarding the rules governing the time for filing a post-sentence motion or the time for filing an appeal. Cf. Commonwealth v. Coolhaugh, 770 A.2d 788, 791 (Pa.Super.2001) (declining to quash an untimely appeal where the untimeliness was attributable to the trial court’s misstatement of the appeal period, which operated as a breakdown in the court’s operation); and Commonwealth v. Bogden, 364 Pa.Super. 300, 528 A.2d 168 (1987) (holding that an appeal would not be quashed as untimely when trial court misinformed the defendant by not advising him that an appeal had to be taken within thirty days of the imposition of sentence).