J-S42012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOEL BALLANCE,
Appellant No. 2302 EDA 2014
Appeal from the Judgment of Sentence May 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006785-2012, CP-51-CR-0006787-
2012, CP-51-CR-0006788-2012, CP-51-CR-0006789-2012, CP-51-CR-
0006790-2012, CP-51-CR-0006792-2012, CP-51-CR-0006796-2012, CP-51-
CR-0006797-2012, CP-51-CR-0006798-2012, CP-51-CR-0006799-2012,
CP-51-CR-0006800-2012, CP-51-CR-0006807-2012, CP-51-CR-0006809-
2012
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 17, 2015
Appellant, Joel Ballance, appeals from the judgment of sentence
entered on May 21, 2014, in the Philadelphia County Court of Common
Pleas. Following our careful review, we quash the appeal.
The trial court set forth the procedural history of this matter as
follows:
On or about January 10, 2012, Appellant, Joel Ballance,
was arrested and charged with various offenses: Regarding
Docket No. CP-51-CR-0006785-2012, [Appellant] was charged
with burglary (F-1), conspiracy (F-1), and theft by unlawful
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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taking (M-2). All other charges were nolle prossed. Regarding
Docket No. CP-51-CR-0006787-2012, [Appellant] was charged
with burglary (F-1), conspiracy (F-1), theft by unlawful taking
(M-2) and VUF[A] 6106 (F-3). All other charges were nolle
prossed. Regarding Docket No. CP-51-CR-0006788-2012,
[Appellant] was charged with burglary (F-2), conspiracy (F-2),
and theft by unlawful taking (M-2). All other charges were nolle
prossed. Regarding Docket No. CP-51-CR-0006789-2012,
[Appellant] was charged with burglary (F-1), conspiracy (F-1),
theft by unlawful taking (M-2), VUFA 6106 (F-3). All other
charges were nolle prossed. Regarding Docket No. CP-51-CR-
0006790-2012, [Appellant] was charged with criminal attempt
(F-1) and criminal mischief (M-2). All other charges were nolle
prossed. Regarding Docket No. CP-51-CR-0006792-2012,
[Appellant] was charged with receipt of stolen property (M-2).
Regarding Docket No. CP-51-CR-0006796-2012, [Appellant] was
charged with criminal attempt burglary (F-1), conspiracy (F-1),
and criminal mischief (M-2). Regarding Docket No. CP-51-CR-
0006797-2012, [Appellant] was charged with attempted
burglary (F-1), conspiracy (F-1), and amended criminal mischief.
Regarding Docket No. CP-51-CR-0006798-2012,
[Appellant] was charged with VUFA 6110.2 (F-2) and all other
charges [were] nolle prossed. Regarding Docket No. CP-51-CR-
0006799-2012, [Appellant] was charged with burglary (F-1) and
conspiracy (F-1). Regarding Docket No. CP-51-CR-0006800-
2012, [Appellant] was charged with robbery (F-3), conspiracy
(F-1), Burglary (F-1), theft by unlawful taking (M-2) and all
other charges were nolle prossed. Regarding Docket No. CP-51-
CR-0006807-2012, [Appellant] was charged with burglary (F-1),
conspiracy (F-1), theft by unlawful taking (M-2) and all other
charges were nolle prossed. Regarding Docket No. CP-51-CR-
0006809-2012, [Appellant] was charged with burglary (F-1),
conspiracy (F-1), theft by unlawful taking (M-2) and all other
charges were nolle prossed.
Trial Court Opinion, 1/7/15, at 1-2.
On March 13, 2014, Appellant entered a guilty plea to the charges
listed above. The trial court accepted Appellant’s guilty plea, and on May
21, 2014, the trial court sentenced Appellant to an aggregate term of ten to
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twenty years of incarceration. Appellant filed a post-sentence motion that
was denied in an order filed on June 19, 2014, and Appellant filed his notice
of appeal on August 1, 2014.
On October 15, 2014, this Court issued a Rule to Show Cause directing
Appellant to explain why this appeal should not be quashed as untimely. On
October 24, 2014, Appellant’s counsel filed a response and conceded that
Appellant’s appeal was untimely.
The question of timeliness of an appeal is jurisdictional.
Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). Time
limitations on appeal periods are strictly construed and cannot be extended
as a matter of grace. Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.
Super. 2002) (citing Commonwealth v. Hottinger, 537 A.2d 1, 3 (Pa.
Super. 1987)). See also Pa.R.A.P. 105(b) (stating that, although an
appellate court may enlarge the time prescribed in the rules of appellate
procedure for good cause shown, the court may not enlarge the time for
filing a notice of appeal).
The time limit for filing challenges to a judgment of sentence is set
forth in the Judicial Code as follows:
§ 5571. Appeals generally
(a) General rule.—The time for filing an appeal, a petition for
allowance of appeal, a petition for permission to appeal or a
petition for review of a quasi-judicial order, in the Supreme
Court, the Superior Court or the Commonwealth Court shall be
governed by general rules. No other provision of this
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subchapter shall be applicable to matters subject to this
subsection.
42 Pa.C.S. § 5571(a) (emphasis added).
The relevant rules of appellate procedure promulgated by the
Pennsylvania Supreme Court provide as follows:
Rule 902. Manner of Taking Appeal
An appeal permitted by law as of right from a lower
court to an appellate court shall be taken by filing a notice
of appeal with the clerk of the lower court within the time
allowed by Rule 903 (time for appeal). Failure of an
appellant to take any step other than the timely filing of a notice
of appeal does not affect the validity of the appeal, but it is
subject to such action as the appellate court deems appropriate,
which may include, but is not limited to, remand of the matter to
the lower court so that the omitted procedural step may be
taken.
Pa.R.A.P. 902 (emphasis added).
Rule 903. Time for Appeal
(a) General Rule. 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.
Pa.R.A.P. 903(a) (emphasis added).
In addition, we are mindful that Pa.R.Crim.P. 720 addresses post-
sentence procedures. Specifically, Pa.R.Crim.P. 720(A) provides that “a
written post-sentence motion shall be filed no later than 10 days after
imposition of sentence.” Pa.R.Crim.P. 720(A)(1). Rule 720 further provides
as follows:
(2) If the defendant files a timely post-sentence motion, the
notice of appeal shall be filed:
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(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.
Pa.R.Crim.P. 720(A)(2) (emphasis added). However, “[i]f 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, ...” Pa.R.Crim.P.
720(A)(3).
In Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en
banc), this Court offered the following discussion concerning the timing of a
post-sentence motion:
From the above, it can be seen that the time for filing an appeal
can be extended beyond 30 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 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 (Pa.
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
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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).
Dreves, 839 A.2d at 1127 (emphasis in original). Therefore, “[f]or
purposes of triggering the appeal period, [the] filing of an untimely post-
sentence motion is equivalent to a complete failure to file a post-sentence
motion.” Bilger, 803 A.2d at 202.
Here, our review of the record reflects that on May 21, 2014, the trial
court entered its judgment of sentence. Therefore, in order to be deemed
timely, Appellant’s post-sentence motion was due on or before Monday, June
2, 2014, because May 31, 2014, was a Saturday. See 1 Pa.C.S. § 1908
(stating that, for computations of time, whenever the last day of any such
period shall fall on Saturday or Sunday, or a legal holiday, such day shall be
omitted from the computation). However, Appellant did not file his post-
sentence motion until Tuesday, June 3, 2014. Because Appellant’s post-
sentence motion was untimely filed, it is the equivalent of a complete failure
to file a post-sentence motion. Bilger, 803 A.2d at 202. Thus, Appellant’s
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untimely post-sentence motion did not toll the period for filing a direct
appeal.1
Based on the record before us, Appellant’s untimely post-sentence
motion did not toll the appeal period. Accordingly, the notice of appeal was
due on or before Friday, June 20, 2014. However, because Appellant’s
notice of appeal was not filed until August 1, 2014, it was untimely, and we
are constrained to quash the appeal.
Appeal quashed. Jurisdiction relinquished.
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1
We are cognizant that the trial court filed an order denying Appellant’s
untimely post-sentence motion on June 19, 2014. An untimely post-
sentence motion does not toll the appeal period. Pa.R.Crim.P. 720(A)(3).
However, even if Appellant’s post-sentence motion had been timely filed and
denied on June 19, 2014, in order for the appeal to have been considered
timely, it would have been due on or before July 21, 2014. Pa.R.Crim.P.
720(A)(2). Thus, even if the appeal period had been tolled by the filing of a
timely post-sentence motion, Appellant’s August 1, 2014 notice of appeal
was untimely. Additionally, we are aware that the trial court held a hearing
on Appellant’s untimely post-sentence motion. We noted in Dreves that the
trial court did have the power to grant the filing of a post-sentence motion
nunc pro tunc within thirty days of the judgment of sentence, but specifically
ruled that the fact that the trial court entertained and denied the untimely
motion did not toll the appeal period. We explained that unless a defendant
specifically files a motion seeking permission to file a post-sentence motion
nunc pro tunc, and unless the trial court expressly grants the request within
thirty days of the imposition of the sentence, the appeal period continues to
run. See Dreves, 839 A.2d at 1128-1129 (stating that “[t]he trial court’s
resolution of the merits of a late post-sentence motion is no substitute for an
order expressly granting nunc pro tunc relief”). Here, even though the trial
court considered the merits of the untimely post-sentence motion, the trial
court failed to acknowledge that the post-sentence motion was untimely,
and it did not expressly grant Appellant permission to file a post-sentence
motion nunc pro tunc.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2015
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