J-S65025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY MICHAEL FLOWERS,
Appellant No. 165 WDA 2016
Appeal from the Judgment of Sentence of December 22, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0002589-2012
BEFORE: LAZARUS, OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 02, 2016
Appellant, Anthony Michael Flowers, appeals from the judgment of
sentence entered on December 22, 2015. We are constrained to quash this
appeal.
The trial court has ably explained the underlying facts and procedural
posture of this appeal:
On November 21, 2013, [Appellant] entered a general guilty
plea . . . to the following counts: 1) criminal attempt – rape
forcible compulsion, in violation of 18 Pa.C.S.A. § 901(a); 2)
unlawful restraint/serious bodily injury, in violation of 18
Pa.C.S.A. § 2902(a)(1); 3) simple assault, in violation of 18
Pa.C.S.A. § 2701(a)(1); and[,] 4) simple assault, in
violation of 18 Pa.C.S.A. § 2701(a)(3).
[Appellant] was sentenced on February 18, 2014. At count
one [(criminal attempt at rape)], he was sentenced to two
[years’] intermediate punishment with two [years’] home
electronic monitoring. Further, [Appellant] was found to be
a Tier III violator of Megan’s Law and was ordered to
participate in sex offender’s treatment. At count two,
*Retired Senior Judge assigned to the Superior Court.
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[Appellant] was sentenced to serve two [years’] probation
consecutive to count one. At counts three and four, no
further penalty was ordered.
On April 29, 2014, [Appellant] was discharged from sex
offender’s treatment because “his mental health and low IQ
prohibit [him] from learning abstract concepts.” [N.T.
Detainer Hearing, 6/24/14, at 9]. [On June 10, 2014, the
trial court issued an “order for warrant of arrest and to
detain” because: “on [April 29 2014, Appellant] was
unsuccessfully discharged from [the] sex offender program”
and “on [May 16, 2014, Appellant] had a violent episode
while on EHM that resulted in a 302 commitment[,
Appellant] was not taking his prescribed meds.” Detainer
Warrant, 6/10/14, at 1]. . . .
A revocation hearing was [held] on June 24, 2014. . . . At
the conclusion of the hearing, [the trial court] vacated the
requirement that [Appellant] attend sex offender’s
treatment and continued the detainer hearing so that
[Appellant’s] counsel could attempt to find an appropriate
treatment placement for [Appellant].
On November 13, 2015, an intermediate punishment
revocation hearing was held before th[e trial] court. Nancy
Packe of Westmoreland Case Management testified that,
despite extensive efforts, she was unable to locate a
residential placement for [Appellant] either due to the
charges for which he was convicted or the lack of
state/county funding for such a placement. Ms. Packe
further testified that [Appellant’s] mother was fearful of
having [Appellant] return to her home. Th[e trial] court
found [Appellant] in violation of the terms and conditions of
[his] intermediate punishment and probation. [The trial
court then resentenced Appellant to two-and-a-half to five
years in prison at count one, and to serve a consecutive
term of two years’ probation at count two. Appellant] was
also ordered to participate in sex offender’s treatment and
be evaluated for high intensity mental health treatment
while in state prison.
On November 23, 2015, [Appellant] filed a motion to modify
sentence[,] arguing that the sentence requiring [him] to
complete sex offender’s treatment violated the [Eighth]
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Amendment in that it imposed a condition that [Appellant]
was not capable of satisfying. . . .
On November 25, 2015, [the trial court] granted
[Appellant’s] motion to modify and vacated the November
13, 2015 sentence.
On December 22, 2015, [Appellant] appeared before th[e
trial] court for [resentencing]. After argument and hearing,
[Appellant was resentenced to serve a term of two-and-a-
half to five years in prison at count one, and to serve a
consecutive term of two years’ probation at count two.
Further, at the conclusion of the sentencing hearing, the
trial court informed Appellant:
You [] have a right of a direct appeal to the Superior
Court. If you wish to appeal the sentence that I’ve
imposed upon you today, you have 30 days from today’s
date to file a direct appeal to the Superior Court of
Pennsylvania. And if you have any further questions,
your attorney can explain that to you.
N.T. Resentencing Hearing, 12/22/15, at 10]. . . .
On December 31, 2015, [Appellant] filed a motion to
reconsider and modify sentence, which [the trial court
denied] on January 5, 2016.
Trial Court Opinion, 3/24/16, at 1-3 (some internal capitalization and
formatting omitted).
On Friday, January 22, 2016 – or, 31 days after the trial court
resentenced Appellant following the revocation of his intermediate
punishment sentence – Appellant filed a notice of appeal to this Court. We
must now quash this appeal.
Before we are able to consider the merits of Appellant’s claims, we
must first determine whether the appeal is timely. Indeed, even though
neither party has claimed that the appeal is untimely, “we are required to
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consider the [timeliness of this appeal] sua sponte because the issue
[implicates] our subject matter jurisdiction.” Commonwealth v. Cooper,
710 A.2d 76, 78 (Pa. Super. 1998).
Pennsylvania Rule of Criminal Procedure 708 establishes the required
procedure for revocation of probation, intermediate punishment, or parole
proceedings. With respect to post-sentence proceedings in revocation cases,
Rule 708 declares:
(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).
Thus, pursuant to the plain terms of the above 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
the 30-day appeal period unless the sentencing judge within 30 days of the
imposition of sentence expressly grants reconsideration or vacates the
sentence.” Pa.R.Crim.P. 708 cmt.
In the case at bar, the trial court revoked Appellant’s intermediate
punishment and, on December 22, 2015, the trial court resentenced
Appellant to serve a term of two-and-a-half to five years in prison, followed
by a term of two years of probation. Appellant then filed a timely motion to
modify his sentence. Yet, since the trial court denied Appellant’s motion to
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modify, Appellant’s motion did not toll the 30-day appeal period.
Pa.R.Crim.P. 708(E). As such, Appellant was required to file his notice of
appeal on or before January 21, 2016. Appellant did not file his notice of
appeal until January 22, 2016. Therefore, the current appeal is untimely.
We do not have subject matter jurisdiction over this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2016
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