J-A08003-16
2016 PA Super 153
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN A. DUFFY,
Appellant No. 1279 EDA 2015
Appeal from the Judgment of Sentence April 2, 2015
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000005-2012
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
OPINION BY BOWES, J.: FILED JULY 15, 2016
Brian A. Duffy appeals from the April 2, 2015 order, which was
docketed on April 7, 2015. In the order, the trial court revoked his parole
and re-sentenced him to serve the balance remaining on his original
sentence.1 We quash the appeal as untimely.
On April 12, 2012, Appellant entered into a negotiated plea to charges
of driving under the influence and driver required to be licensed, which arose
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1
Appellant’s parole was revoked and he was ordered to serve the balance of
his sentence at a hearing on April 2, 2015. He purported to appeal from an
April 7, 2015 order, which was the date the April 2, 2015 sentencing order
was entered on the docket. The caption reflects our determination that any
appeal properly lies from the date when parole was revoked and sentence
imposed. See Pa.R.Crim.P. 708(E).
* Retired Senior Judge assigned to the Superior Court.
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from his arrest on July 10, 2011.2 A bench warrant issued when he failed to
appear for his sentencing on July 12, 2012. Appellant was eventually
apprehended and, after determining that he was not eligible for Recidivism
Risk Reduction Incentive (“RRRI”) sentencing, the court sentenced Appellant
on August 23, 2012, to one to three years in the Pike County Correctional
Facility.
On August 14, 2013, having served his minimum period of
incarceration, Appellant filed a petition for parole. Following a hearing on
August 23, 2013, Appellant was released on parole. Approximately one year
later, Appellant’s parole officer filed a violation petition alleging that
Appellant failed to report as scheduled, went to Florida without permission,
and failed to abstain from possession and/or use of a controlled substance,
i.e., methamphetamine.
When Appellant failed to surrender, he became a fugitive. He
thereafter was arrested in South Carolina. He was extradited to
Pennsylvania on or about February 20, 2015, and, after a defense
continuance, a parole violation hearing was held on April 2, 2015. The court
found Appellant to be in violation of his parole, noting that he was in
noncompliance with his sentencing order, his parole conditions, and that he
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2
The record indicates that three counts of DUI were pending against
Appellant when he entered the negotiated plea to one DUI count herein.
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had failed to benefit from the court’s leniency. The court sentenced
Appellant to confinement in Pike County for the remainder of his original
sentence without re-parole. Appellant was advised on the record that he
had a right to file a motion to modify sentence within ten days and to appeal
his sentence within thirty days, and that he “must exercise those rights
within those timeframes or he loses those rights.” N.T., 4/2/15, at 46.
Appellant filed a timely motion in which he asked the court to
reconsider his sentence. That motion was denied on April 13, 2015.
Appellant filed the within appeal on May 6, 2015, complied with the court’s
order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal, and the trial court penned its Rule 1925(a) opinion. Appellant
presents two questions for our review:
1. Did the trial court commit errors of law or abuse of
discretion in determining the defendant to be in
violation of the terms of his parole?
2. Did the trial court commit errors of law or abuse of
discretion in remanding the defendant to serve the
balance of his term of incarceration without
consideration for re-parole, where there were
fundamental flaws in the determination of the nature
and extent of the defendant’s parole violations?
Appellant’s brief at 5.
Preliminarily, we address the timeliness of the instant appeal. Since it
implicates our jurisdiction, we may raise the issue sua sponte.
Commonwealth v. Dreves, 839 A.2d 1122, 1126 n. 4 (Pa.Super. 2003)
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(en banc); see Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.
2005) (sua sponte raising timeliness of an appeal where Pa.R.Crim.P.
720(A)(1) post-sentence motion was filed more than ten days after
imposition of sentence and did not toll appeal period).
Appellant’s parole was revoked and he was recommitted to serve the
balance of his original sentence at the April 2, 2015 parole revocation
hearing. A sentencing order was not docketed until April 7, 2015. Appellant
characterizes the order from which he appeals as the April 7, 2015 order,
the date when the order was entered on the docket, which would make the
instant appeal, filed May 6, 2015, timely. As analyzed, infra, time
commences to run in the sentencing context when sentence is imposed, i.e.,
from the date sentence is pronounced in open court. Thirty days from April
2, 2015 was May 2, 2015, a Saturday. Thus, utilizing the date of the
hearing, Appellant had until Monday, May 4, 2015, to file a timely appeal.
The issue before us is what triggers the running of the 30-day appeal period
in the parole revocation context: the imposition of the sentence in open
court or the date a sentencing order was docketed.3
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3
The fact that Appellant filed a timely motion for reconsideration of his
sentence does not implicate our decision. In contrast to Pa.R.Crim.P. 720,
where a timely-filed post-sentence motion tolls the 30 day appeal period,
probation and parole revocation are governed by Pa.R.Crim.P. 708(E). That
rule specifically provides that the filing of a motion to modify sentence within
ten days of its imposition does not toll the thirty-day appeal period.
(Footnote Continued Next Page)
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We turn first to Pa.R.Crim.P. 708(E), the rule applicable to violation of
parole hearings. It provides that the ten-day period for filing a motion to
modify sentence commences to run when sentence is imposed. It also
states that the filing of a motion to modify does not toll the running of the
thirty-day period for the filing of an appeal. Thus, whether a sentence is
imposed when pronounced or docketed is determinative of when the appeal
period starts to run and the timeliness of the instant appeal.
This question was addressed in the context of Pa.R.Crim.P. 720(A)(1)
in Commonwealth v. Green, 862 A.2d 613 (Pa.Super. 2004). Rule
720(A)(1) provides: "(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. The issue before us in Green
was whether the appellant's August 2, 2002 post-sentence motion was
timely filed where sentence was pronounced on July 22, 2002, but not
docketed until July 31, 2002. The question turned on whether sentence was
imposed when pronounced or docketed. Utilizing the date when sentence
_______________________
(Footnote Continued)
Pa.R.Crim.P. 708(E). See also Commonwealth v. Parlante, 823 A.2d
927, 929 (Pa.Super. 2003)("An appellant whose revocation of probation
sentence has been imposed after a revocation proceeding has 30 days to
appeal her sentence from the day her sentence is entered, regardless of
whether . . . she files a post-sentence motion. Therefore, if an appellant
chooses to file a motion to modify her revocation sentence, she does not
receive an additional 30 days to file an appeal from the date her motion is
denied.”) Accord Commonwealth v. Coleman, 721 A.2d 798 (Pa.Super.
1998).
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was pronounced, July 22, 2002, the appellant had until August 1, 2002 to
file her post-sentence motion, or the motion would be untimely. The post-
sentence motion, if untimely, would not operate to toll the running of the
thirty-day appeal period and hence, the appeal would have been untimely.
See Dreves, supra. However, using the date on which the sentence was
entered on the docket, July 31, 2002, the post-sentence motion and appeal
would have been timely.
We set out to determine whether the ten-day period prescribed in Rule
720(A)(1) began to run on the date sentence was pronounced or the date it
was entered on the docket. We concluded that the ten-day period for filing
a post-sentence motion under Rule 720 commenced on the date sentence
was imposed, which was the date the trial court pronounced the sentence.
This interpretation comported with the plain language of Pa.R.Crim.P.
720(A)(1). We viewed the choice of the word “imposition” rather than “date
of entry” as a strong indicator that our High Court intended the date when
sentence was pronounced to be the reference point for computing the time
for filing post-sentence motions. We found support for our position in Rule
720(A)(4), which addressed the situation where the Commonwealth filed a
motion to modify sentence pursuant to Rule 721. In that case, the rule
expressly provided that “the defendant's notice of appeal shall be filed
within 30 days of the entry of the order disposing of the
Commonwealth's motion[,]" as distinguished from imposition. Pa.R.A.P.
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720(A)(4) (emphasis added). Thus, the use of “imposition” in subdivision
(a)(1) was not inadvertent.
We also found this interpretation to be consistent with our treatment
of Pa.R.Crim.P. 704(A)’s requirement that a sentence be imposed within
ninety days of conviction or plea. In determining whether a sentence was
imposed within that timeframe, we have consistently used the date of the
sentencing hearing, that is, the date the sentence was pronounced rather
than the date of docketing. See generally, Commonwealth v. Anders,
699 A.2d 1258, 1260-62 (Pa.Super. 1997), reversed on other grounds,
Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999) (interpreting former
Rule 1405, requiring that sentence be imposed within 60 days of conviction
or plea).4
Furthermore, we found this construction reasonable in light of the
requirement that courts inform defendants immediately after imposing
sentence of their right to file a post-sentence motion and an appeal and the
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4
In Commonwealth v. Green, 862 A.2d 613, 618 (Pa.Super. 2004), we
noted that the Rules Committee stated, "As a general rule, the date for
sentencing should be scheduled at the time of conviction or entry of a plea
of guilty or nolo contendere." We reasoned that, if date of sentencing was
synonymous with the date of docketing of the sentence, the trial court would
be handicapped in its efforts to schedule sentencing as “docketing of a
sentence is a ministerial act performed by the trial court's prothonotary or
the clerk of courts and the trial court has little or no control over when a
sentence is docketed.” Id.
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time periods in which these actions must be taken. Recognizing that trial
courts have no control over when the order is docketed, we concluded that
“the better course” was to interpret Pa.R.Crim.P. 720(A)(1) as providing
that, regardless of the date the sentence was entered on the docket, a
written post-sentence motion must be filed no later than 10 days after the
date of imposition of sentence.5 See Commonwealth v. Nahavandian,
954 A.2d 625, 629 (Pa.Super. 2008) (notice of appeal filed within thirty days
of the court’s denial of a post-sentence motion that was filed within ten days
of the order’s docketing, but more than ten days after sentence was
pronounced in open court, was untimely).
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5
We also recognized in Commonwealth v. Green, 862 A.2d 613, 620
(Pa.Super. 2004), that if imposition of sentence was construed to mean
docketing, it would lead to absurd results in the allocution context. It would
permit a sentencing court to deny a defendant his right of allocution prior to
the pronouncement of sentence as long as the court permitted the defendant
to exercise his right prior to the docketing of the sentence. We rejected that
interpretation in Commonwealth v. Hague, 840 A.2d 1018 (Pa.Super.
2003) (finding arguable merit in claim that the appellant had been denied
his right of allocution at sentencing where he was asked immediately after
he was sentenced if he had anything to say, and that counsel was ineffective
for not raising the issue at sentencing or on direct appeal). We equated
imposition of sentence with pronouncement of sentence, stating, “The
significance of allocution lies in its potential to sway the court toward
leniency prior to imposition of sentence. Permitting the defendant to speak
after sentence has been imposed fails to meet the essence of the right of
allocution.” Id. at 1020.
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Pa.R.Crim.P. 708(E), like Pa.R.Crim.P. 720(A)(1), looks to the date
when sentence was imposed as the triggering event for the running of the
period to file a motion to modify sentence. It provides:
(E) Motion to Modify Sentence
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.
Pa.R.Crim.P. 708(E) (emphasis added).
Based upon our reasoning in Green, we find that the date of
imposition of sentence in Pa.R.Crim.P. 708(E) is the date when sentence was
pronounced in open court.6 Since the filing of a motion to modify sentence
does not toll the running of the appeal period, it logically follows that the
thirty-day appeal period also commences to run when sentence is imposed
at the hearing, rather than when the order is docketed.
Sentence was imposed herein on April 2, 2015. Appellant had thirty
days from that date to file a timely appeal. Since the thirtieth day, May 2,
2015, fell on a Saturday, Appellant had until Monday, May 4, 2015, to file a
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6
The trial court correctly advised Appellant at sentencing of his post-
sentence motion and appeal rights. Thus, there was no breakdown that
would justify the untimely appeal as in Commonwealth v. Parlante, 823
A.2d 927, 929 (Pa.Super. 2003) (declining to quash untimely appeal as
court’s misstatement of the appeal period constituted a breakdown in the
court’s operation).
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timely appeal. The instant appeal filed May 6, 2015 is untimely, and we lack
jurisdiction to entertain it.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
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