Com. v. Dinardo, M.

J-A14019-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCIA DINARDO :
:
Appellant : No. 1058 WDA 2019
Appeal from the Judgment of Sentence Entered January 14, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004090-2018
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
JUDGMENT ORDER BY McLAUGHLIN, J.:
Marcia Dinardo appeals from the judgment of sentence entered after
she pled guilty to 34 counts of Cruelty to Animals.1 We quash.
On January 14, 2019, Dinardo entered her guilty pleas and on that same
day, the trial court imposed for each count a sentence of 90 days’ probation
(consecutive) and a fine of $300. It also ordered Dinardo to pay restitution.
Eleven days after sentencing, on January 25, 2020, Dinardo filed a post-
sentence motion, styled as a Motion to Modify Sentence, arguing, among other
things, that the trial court erred in ordering her to pay fines without
considering her ability to pay. Before the court ruled on the motion, on March
____________________________________________
1 18 Pa.C.S.A. § 5511(c)(1) (repealed). The trial court also found Dinardo
guilty in summary appeals and sentenced her at a separate docket. Those
convictions and sentences are not part of the judgment presently before us
and no order on appeal here disposed of any issue relating to them.
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18, 2020, Dinardo filed a Post Conviction Relief Act (“PCRA”)2 petition asking
the trial court to reinstate her direct appeal rights nunc pro tunc. See PCRA
Petition, filed 3/18/19, at ¶ 25. Without waiting for the court to decide her
PCRA petition, Dinardo then filed a Motion to Extend Time Limit on Post-
Sentence Motion Decision, asking the court to increase the 120-day period for
it to decide her post-sentence motion by 30 days, citing the trial court’s
unavailability. See Motion to Extend, filed 5/22/19, at ¶¶ 3-6.
The trial court granted the extension and extended the 120-day deadline
to June 12, 2020. See Order, filed 5/28/19. The trial court then denied the
PCRA petition on June 7, 2020, as premature. It later held hearings in June
and July 2020 regarding Dinardo’s ability to pay the fines, and subsequently
denied Dinardo’s post-sentence motion on July 11, 2020. Dinardo filed the
instant appeal on July 17, 2020.
Dinardo raises the following issues before this Court:
I. Was the trial court’s sentence illegal because it
imposed a fine on [Dinardo] without making the
mandated determination of her ability to pay those
fines pursuant to 42 Pa.C.S. § 9726(c) and (d), which
prohibit a court from imposing any mandatory or
discretionary fine without considering [Dinardo’s]
ability to pay?
II. Was the trial court's sentence illegal because it
imposed a fine on [Dinardo] without determining if it
would prevent [Dinardo] from making restitution or
reparation to the victim of the crime pursuant to 42
Pa.C.S. § 9726(c)?
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2 42 Pa.C.S.A. §§ 9541-9546.
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Dinardo’s Br. at 3 (answers of trial court omitted).
We do not reach Dinardo’s issues because her appeal was untimely and
we therefore lack jurisdiction. We may raise questions about our jurisdiction
on our own motion. See Commonwealth v. Andre, 17 A.3d 951, 958
(Pa.Super. 2011). In criminal cases, the deadline for a defendant to file a
timely appeal turns on whether the defendant has filed a timely post-sentence
motion. See Pa.R.Crim.P. 720(A). This is because a timely post-sentence
motion tolls the running of the appeal period, but an untimely motion does
not. See id.; see also Commonwealth v. Capaldi, 112 A.3d 1242, 1244
(Pa.Super. 2015).
A defendant has ten days from the pronouncement of sentence to file a
timely post-sentence motion. Pa.R.Crim.P. 720(A)(1); see Commonwealth
v. Nahavandian, 954 A.2d 625, 629 (Pa.Super. 2008). The ten-day mark
here was January 24, 2020. However, Dinardo filed her post-sentence motion
on January 25, 2020, making it untimely. Dinardo thus had 30 days from the
imposition of sentence to file a timely notice of appeal, i.e., until February 13,
2020, inclusive. Pa.R.Crim.P. 720(A)(3). Because she did not file the instant
appeal until July 17, 2020, it was untimely. Under our precedents, the trial
court’s consideration of the untimely motion does not change the outcome.
See Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa.Super.2003) (en
banc).
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2020
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