J-S42017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MICHAEL BERNARD WOOLFORK
Appellant No. 1821 MDA 2016
Appeal from the Judgment of Sentence June 13, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001990-2016
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 13, 2017
Michael Bernard Woolfork appeals from the June 13, 2016 judgment of
sentence entered in the York County Court of Common Pleas. We quash the
appeal.
The trial court set forth the following factual history:
On June 13, 2016, [Woolfork] ple[]d guilty to counts 2
and 5 of the Information, which are Driving Under
Suspension-DUI Related and Alcohol in System and Driving
Under the Influence of Alcohol or Controlled Substance-3rd
And/Or Subsequent Offense,[1] respectively. On count 2,
[Woolfork] was sentenced to ninety days in York County
Prison (hereinafter: YCP) and a $1,000.00 fine. On Count
5, [Woolfork] was sentenced to 5 years of intermediate
punishment with the first six months at YCP, six months of
house arrest with alcohol monitoring, and nine months of
____________________________________________
1 75 Pa.C.S. §§ 1543(b)(1.1)(i) and 3802(d)(3), respectively.
J-S42017-17
Avertest with the first six months concurrent with the house
arrest. Counts 2 and 5 were to run consecutively.
On June 23, 2016, the Supreme Court of the United
States issued Birchfield v. North Dakota, which, inter
alia, forbids warrantless blood tests attending drunken
driving arrests and deems consent to blood testing to be
invalid when it is coerced by threats of new criminal offenses
for refusing to submit to such testing. 136 S.Ct. 2160,
[]2163-65 [(2016)]. Based upon these holdings, on July 1,
2016, [Woolfork’s] counsel submitted a Motion to Withdraw
Guilty Plea Nunc Pro Tunc. Following some scheduling
delays, at the conclusion of a Hearing on our jurisdiction to
countenance the proffered motion on October 5, 2016, this
Court denied [Woolfork’s] motion to withdraw his guilty plea
nunc pro tunc.
Opinion in Support of Order Pursuant to Rule 1925(a) of the Rules of Appellate
Procedure, 3/10/17, at 1-2 (“1925(a) Op.”) (footnote omitted).
On November 3, 2016, Woolfork filed a notice of appeal. He raises the
following issue on appeal:
The trial court erred in denying [Woolfork’s] request for a
hearing on his Motion to Withdraw Plea Nunc Pro Tunc as
the U.S. Supreme [C]ourt’s holding in Birchfield v. North
Dakota “demonstrates sufficient cause” for filing the motion
more than 10 days after sentencing and that Birchfield
constitutes an “extraordinary circumstance[”] which
“excuses the tardiness.”
Woolfork’s Br. at 4.2
Pennsylvania Rule of Criminal Procedure 720(A)(1) provides: “Except
as provided in paragraphs (C) and (D), a written post-sentence motion shall
be filed no later than 10 days after imposition of sentence.” In addition, Rule
____________________________________________
2In Woolfork’s statement of questions involved section of his brief, he
states the same issue twice.
-2-
J-S42017-17
720(A)(3) states: “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 . . . .” We have held that “[a]n untimely post-sentence
motion does not toll the [30-day] appeal period.” Commonwealth v.
Capaldi, 112 A.3d 1242, 1244 (Pa.Super. 2015); Pa.R.A.P. 903(a). We have
further held that:
a post-sentence motion nunc pro tunc may toll the appeal
period, but only if two conditions are met. First, within 30
days of imposition of sentence, a defendant must request
the trial court to consider a post-sentence motion nunc pro
tunc. . . . Second, the trial court must expressly permit
the filing of a post-sentence motion nunc pro tunc, also
within 30 days of imposition of sentence.
Id. (emphasis in original). In Capaldi, we concluded that an order scheduling
a hearing on the nunc pro tunc motion was not an “express grant” of nunc pro
tunc relief. Id. at 1245.
Woolfork was sentenced on June 13, 2016. He did not file his motion to
withdraw guilty plea nunc pro tunc until July 1, 2016. Further, the trial court
did not grant nunc pro tunc relief within the 30-day appeal period. Because
we are constrained to conclude that Woolfork’s appeal from his judgment of
sentence is untimely, we must quash the appeal.3
____________________________________________
3On October 20, 2016, Woolfork filed a petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. His judgment of
sentence became final on July 13, 2016, 30 days after imposition of sentence.
See 42 Pa.C.S. § 9545(b)(3). Therefore, his PCRA petition, filed within one
year of when his judgment of sentence became final, was timely. See 42
Pa.C.S. § 9545(b)(1). On December 2, 2016, the trial court denied the
-3-
J-S42017-17
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2017
____________________________________________
petition, reasoning it was premature because his direct appeal was pending.
Order, 12/2/16. The trial court dismissed the PCRA petition without prejudice
and “grant[ed] [Woolfork] leave to refile it after his direct appeal was
concluded.” Id.
-4-