J-A29036-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES COLEMAN, :
:
Appellant : No. 362 WDA 2014
Appeal from the Judgment of Sentence Entered September 4, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014342-2012
BEFORE: DONOHUE, ALLEN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 9, 2014
James Coleman (Appellant) appeals from the judgment of sentence
entered on September 4, 2013,1 following his convictions for driving under
the influence of alcohol (general impairment), driving under the influence of
alcohol (highest rate of alcohol), driving while operating privilege suspended
or revoked, and driving on roadways laned for traffic.2 We quash this appeal
as untimely filed.
On December 21, 2012, Appellant was charged with the above
offenses. On April 9, 2013, Dennis Biondo, Jr., Esquire, filed a motion on
1
Appellant purports to appeal from the order denying his post-sentence
motion and reaffirming his sentence. We have corrected the caption to
reflect that Appellant’s appeal properly lies from the judgment of sentence
entered on September 4, 2013, not the order denying his post-sentence
motion. See Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa.
Super. 2003) (en banc).
2
75 Pa.C.S. §§ 3802(a)(1), 3802(c), 1543(a), and 3309(1), respectively.
* Retired Senior Judge assigned to the Superior Court.
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Appellant’s behalf to suppress “all evidence and any evidence derived or
obtained as a result of the illegal stop of the vehicle.” Motion for
Suppression, 4/9/2013, at 2. Following a suppression hearing, the trial
court denied the motion.
The case proceeded to a stipulated nonjury trial on April 19, 2013.
The police testimony from the suppression hearing was incorporated into the
trial record. Moreover, the parties stipulated that the arresting officer
observed a blood draw, and the results of the draw were admitted into
evidence without objection. Following the trial, Appellant was convicted at
all counts.
Subsequently, Attorney Biondo filed a motion to withdraw as counsel,
which the trial court granted by order dated July 29, 2013. On August 6,
2013, Robert S. Carey, Jr., Esquire, entered his appearance on behalf of
Appellant.
On September 4, 2013, Appellant was sentenced to four days at the
DUI–Alternative to Jail Program and a concurrent six months’ probation.
The trial court stayed Appellant’s sentence pending an appeal.
On October 18, 2013, Appellant filed a petition pursuant to the Post
Conviction Relief Act (PCRA)3 and a supporting brief raising claims of
ineffective assistance of counsel. On October 21, 2013, the Commonwealth
filed a motion to lift the stay of sentence, which the trial court granted on
3
42 Pa.C.S. §§ 9541-9546.
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October 23, 2013. On October 25, 2013, Appellant filed a post-sentence
motion in which he sought to withdraw his PCRA petition and raise claims
regarding ineffective assistance of counsel, the sufficiency of the evidence,
and the weight of the evidence on direct appeal. On February 27, 2014, the
trial court denied Appellant’s post-sentence motion following a hearing.
Appellant then appealed to this Court on March 4, 2014.
Appellant raises the following issue on appeal: “Whether the trial
court erred in finding trial counsel effective when the record establishes that
counsel had no reasonable strategic basis for entering into a stipulation that
waived the challenge to the legality of the blood draw?” Appellant’s Brief
at 3.
Before we reach the merits of Appellant’s claim, we must address the
timeliness of this appeal, as it affects this Court’s jurisdiction. See
Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc)
(citing Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999) (holding
that appellate courts may raise the issue of jurisdiction sua sponte)).
“[A] direct appeal in a criminal proceeding lies from the judgment of
sentence.” Commonwealth v. Preacher, 827 A.2d 1235, 1236 n.1 (Pa.
Super. 2003). Pennsylvania Rule of Criminal Procedure 720(A) provides, in
relevant part, as follows:
(A) Timing.
(1) Except as provided in paragraphs (C) [relating to after-
discovered evidence] and (D) [relating to summary case
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appeals], a written post-sentence motion shall be filed no later
than 10 days after imposition of sentence.
***
(3) If the defendant does not file a timely 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)
[relating to a motion filed by the Commonwealth to modify a
sentence].
Id.
Instantly, the trial court imposed Appellant’s sentence on September
4, 2013. Appellant did not file his post-sentence motion until October 25,
2013, over a month late. In Commonwealth v. Dreves, 839 A.2d 1122
(Pa. Super. 2003) (en banc), we considered the consequences of a post-
sentence motion being filed untimely.
[W]here 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 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
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triggering event remains the date sentence is imposed.” Id. at
202 (emphasis added).
Dreves, 839 A.2d at 1127 (emphasis in original).4 Thus, because Appellant
untimely filed a post-sentence motion, his notice of appeal filed on March 4,
2014, was also untimely filed.
This Court has no jurisdiction to entertain an untimely appeal.
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007). Time
limitations for taking appeals are strictly construed and cannot be extended
as a matter of grace. Pa.R.A.P. 105; Commonwealth v. Braykovich, 664
A.2d 133, 136-37 (Pa. Super. 1995). Nonetheless, “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,” an
untimely appeal will be entertained based upon a finding of fraud or
breakdown in the court’s operation. Dreves, 839 A.2d at 1129 n.7;
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001).
However, there is no indication in this case that the trial court misstated the
4
In Dreves, this Court also held that unless a trial court has specifically
been asked, by motion, to permit untimely post-sentence motions and has
expressly granted such permission, the mere fact that the trial court
considers the motion does not toll the appeal period. Dreves, 839 A.2d at
1128-29. In its opinion issued pursuant to Pa.R.A.P. 1925(a), the trial court
represents that, following sentencing, it “reinstated [Appellant’s]
post[-]sentence motion rights in order that his sentence would be stayed
pending his appeal.” Trial Court Opinion, 5/16/2014, at 2-3. Upon review,
it does not appear from the record that Appellant filed a motion seeking
permission to file an untimely post-sentence motion or that the trial court
expressly granted such permission. Thus, notwithstanding the trial court’s
representation, the fact that the trial court considered Appellant’s motion is
irrelevant for purposes of this appeal.
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rules governing the filing of a post-sentence motion or filing an appeal, or
that it misinformed Appellant in that regard. Instead, at the sentencing
hearing, the trial court specifically stated that Appellant had 10 days in
which to file a post-sentence motion, and 30 days to file a direct appeal to
this Court. N.T., 9/4/2013, at 15. Accordingly, we quash this appeal as
untimely filed.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2014
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Com. v. Coleman, J.
Combined Opinion