J-S85010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEVIN M. SOETH
Appellant No. 1386 EDA 2016
Appeal from the Judgment of Sentence April 9, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-SA-0001248-2014
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
JUDGMENT ORDER BY PANELLA, J. FILED DECEMBER 27, 2016
Appellant, Kevin M. Soeth, appeals pro se from the judgment of
sentence1 entered April 9, 2015, in the Court of Common Pleas of
Montgomery County. After reviewing the certified record, we quash the
appeal as untimely.
The relevant factual and procedural history is as follows. On August
18, 2014, Soeth was cited for several traffic violations by the Pennsylvania
State Police. A magisterial district judge convicted Soeth of all of the
violations and sentenced him to pay costs and fines. Soeth then appealed to
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1
Soeth purports to appeal from the “Order entered in this matter on the 9 th
day of April, 2015.” Notice of Appeal, 5/5/16. However, appeals from
convictions in criminal proceedings, which include summary convictions, lie
from the judgment of sentence. See Commonwealth v. Preacher, 827
A.2d 1235, 1236 n. 1 (Pa. Super. 2003). We have corrected the caption
accordingly.
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the Montgomery County Court of Common Pleas and was granted a trial de
novo. Soeth, however, failed to appear at his trial de novo. Therefore, on
April 9, 2015, the trial court dismissed Soeth’s appeal, and reinstated the
district court convictions.
On June 29, 2015, Soeth wrote a letter to the trial court requesting a
new trial de novo. The trial court denied Soeth’s request, citing its lack of
jurisdiction to modify the sentence after it had become final. On November
17, 2015, Soeth once again wrote a letter to the trial court seeking to
modify his sentence. In this letter, which Soeth also sent to the magisterial
district court, Soeth sought to alter his sentence to a term of incarceration in
lieu of the fines and costs imposed on April 9, 2015. Both the magisterial
district court and the trial court denied Soeth’s request due to a lack of
jurisdiction to alter the terms of the sentence.
On May 5, 2016, Soeth appealed the trial court’s April 9, 2015
judgment of sentence. On appeal, Soeth contends that both the trial court
and magisterial district court erred by determining that neither had
jurisdiction to alter the April 9, 2015 judgment of sentence.
Prior to reaching the merits of Soeth’s arguments, we must first
determine whether this Court has jurisdiction to hear this appeal. A
defendant in a summary appeal case in not permitted to file post-sentence
motions. See Commonwealth v. Dixon, 66 A.3d 794, 797 (Pa. Super.
2013). Thus, a defendant’s notice of appeal must be filed within 30 days of
the imposition of sentence. See Pa.R.Crim.P. 720(3); Pa.R.A.P. 903(a).
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Absent extraordinary circumstances, this Court has no jurisdiction to
entertain an untimely appeal. See Commonwealth v. Burks, 102 A.3d
497, 500 (Pa. Super. 2014).
Here, Soeth’s judgment of sentence was entered on April 9, 2015.
Thus, Soeth was required to file a notice of appeal by May 9, 2015. Soeth
did not file his notice of appeal until May 5, 2016—362 days later. His appeal
is patently untimely. Further, we cannot find extraordinary circumstances
here, see Burks, 102 A.3d at 500, as Soeth does not attempt to explain his
late filing and we cannot find any evidence that he asked for, or received,
nunc pro tunc relief, see Commonwealth v. Capaldi, 112 A.3d 1242,
1244-1245 (Pa. Super. 2015). Accordingly, we are without jurisdiction to
address Soeth’s claims and the appeal must be quashed. See
Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014).
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2016
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