Com. v. Allen, T.

J-S14006-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOBIAS WADE ALLEN :
:
Appellant : No. 986 WDA 2022
Appeal from the Judgment of Sentence Entered July 11, 2022
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000348-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: July 28, 2023
Tobias Wade Allen appeals the judgment of sentence entered following
the revocation of his probation. He argues the trial court improperly held a
probation-revocation hearing (“Gagnon II hearing”)1 and revoked his
probation before it disposed of the new charges lodged against him while he
was on probation. He also asserts the trial court violated his due process rights
during the Gagnon II hearing. We are unable to reach the merits of either of
these issues, however, as we are constrained to quash Allen’s appeal as
untimely.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
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We focus on the procedural history of this case, as that is central to the
resolution of this appeal. On September 22, 2021, Allen was sentenced to one
year probation after pleading guilty to simple assault. The conditions of Allen’s
probation required Allen to comply with all laws, and prohibited him from
possessing a firearm, possessing or using controlled substances or alcohol,
and engaging in behavior which presented a clear and present danger to
himself or others.
Less than one month after he was sentenced to probation, Allen was
arrested for, among other offenses, attempted homicide, aggravated assault
and persons prohibited from possessing a firearm at docket number CP-16-
CR-462-2021. He was subsequently detained for violating several conditions
of his probation, and waived his right to a Gagnon I hearing on October 25,
2021. Allen’s Gagnon II hearing was scheduled for November 18, 2021, but
was continued several times for a variety of reasons.
The Gagnon II hearing was ultimately held on July 11, 2022. Following
the hearing, the trial court found that Allen had violated his probation by
possessing a firearm and by engaging in behavior that endangered himself
and others. The court therefore revoked Allen’s probation, and immediately
resentenced him to one to two years in state prison. It entered its sentencing
order that same day, July 11, 2022.
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On July 21, 2022, Allen filed a timely post-sentence motion. The court
denied the motion on July 27, 2022. However, Allen did not file a notice of
appeal from his judgment of sentence until August 25, 2022.
This Court issued a rule to show cause why the appeal should not be
quashed as untimely, as post-sentence motions do not toll the 30-day appeal
period for revocation-of-probation sentences, and Allen’s appeal was filed
more than 30 days after sentencing. See Pa.R.Crim.P. 708(E) (providing that
a motion to modify a sentence imposed after a revocation shall be filed within
ten days of the date of sentencing and will not toll the 30-day appeal period).
Counsel for Allen filed a response to the rule-to-show-cause order. In
the response, counsel conceded Allen’s notice of appeal was facially untimely
but argued this Court should not quash the appeal in the interests of justice.
Primarily, counsel asserted he did not file the appeal in the instant case until
August 25, 2022 because the issues raised in this appeal were related to the
charges at docket number CR-462-2021. He noted that Allen pled guilty to
charges at that docket on July 15, 2022, which was four days after his
probation in the instant matter had been revoked, and was not sentenced on
the charges at docket number CR-462-2021 until August 24, 2022. According
to counsel, he waited to file the appeal in the instant matter until after Allen
was sentenced in the other matter as “some of [the] issues [in the instant
appeal] were not fully ripe until [Allen] was sentenced at CR-462-2021.” Letter
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in Response to Show Cause Why Appeal Should Not be Quashed, 9/28/2022,
at 1 (unpaginated).
This Court discharged the rule-to-show-cause order and allowed the
appeal to proceed. The discharge order, however, specifically advised counsel
that the issue of timeliness may be revisited by the panel assigned to review
the merits of the appeal and counsel “should be prepared to address in
Appellant’s brief any concerns that panel may have regarding the issue.”
Order, 1/10/2023 (single page).
Counsel chose not to do so. However, we still must address the issue
given that the timeliness of an appeal implicates our jurisdiction. See
Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000) (stating
that the question of the timeliness of an appeal is jurisdictional). We find
Allen’s appeal is untimely under Rule 708 of the Rules of Criminal Procedure,
and we therefore do not have jurisdiction to consider the merits of the appeal.
Rule 708 governs hearings and dispositions related to the violation of
probation, intermediate punishment or parole. It provides that at the time of
sentencing, the court must advise the defendant on the record of the right to
file a motion to modify sentence and to appeal. See Pa.R.Crim.P. 708
(D)(3)(a). The trial court did that here. See N.T., 7/11/22, at 47. Rule 708(E)
also specifically addresses motions to modify sentences:
A motion to modify a sentence imposed after a revocation shall be
filed within 10 days of the date of imposition. The filing of a motion
to modify sentence will not toll the 30-day appeal period.
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Pa.R.Crim.P. 708(E).
Despite the clarity of this second statement, the Comment to Rule 708
provides even further clarification by stating:
Under this rule, the mere filing of a motion to modify sentence
does not affect the running of the 30-day period for filing a timely
notice of appeal. Any appeal must be filed within 30 days of the
imposition of sentence unless the sentencing judge within 30 days
of the imposition of sentence expressly grants reconsideration or
vacates the sentence. See Commonwealth v. Coleman, 721
A.2d 798, 799 fn.2 (Pa. Super. 1998).
Pa.R.Crim. P. 708 Cmt.
Here, Allen’s probation was revoked on July 11, 2022, and he was
resentenced that same day. Even though Allen filed a timely post-sentence
motion, Rule 708 makes abundantly clear that he still only had 30 days to file
an appeal from the imposition of the sentence on July 11, 2022, or by August
10, 2022. He did not file his notice of appeal, however, until August 25, 2022.
His appeal is therefore untimely.
The Comment to Rule 708 does provide two exceptions to this deadline,
specifically where the trial court expressly grants reconsideration or vacates
the sentence. The trial court took neither of these actions here. And while
Allen argued in his response to the rule-to-show-cause order that we should
allow his untimely appeal to proceed based on the interests of justice, that is
not one of the exceptions listed by the Comment or specified as an exception
in the Rule itself. Compare, e.g., Pa.R.Crim.P. 106, 500, 564, 578, 587
(providing for the taking of actions or the allowance of noncompliance when
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warranted by “the interests of justice”). In any event, we note that Allen
abandoned this argument on appeal. He did not renew this - or for that matter
any - argument regarding the timeliness of his appeal in his appellate brief
despite this Court’s instruction in its order discharging the rule-to-show-cause
advising him to do so.2
Based on the clear dictates of Rule 708, Allen’s notice of appeal was
untimely and we therefore are constrained to quash the appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
____________________________________________
2 We also note that this Court declined to quash an untimely appeal from a
revocation-of-probation sentence in Commonwealth v. Parlante, 823 A.2d
927, 929 (Pa.Super. 2003), because the trial court in that case misinformed
Parlante that she had 30 days to appeal her sentence after the denial of any
post-sentence motion she filed. Here, unlike in Parlante, the trial court did
not misadvise Allen that he could file a notice of appeal more than 30 days
after the imposition of his revocation-of-probation sentence.
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