J-S56007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RALPH D. SHELLENHAMER,

                            Appellant                No. 322 MDA 2015


            Appeal from the Judgment of Sentence October 7, 2014
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0001035-2012


BEFORE: SHOGAN, JENKINS, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 12, 2015

       Appellant, Ralph D. Shellenhamer, appeals from the judgment of

sentence imposed after revocation of his probation. We dismiss the appeal

as untimely.

       The trial court succinctly summarized the procedural history as

follows:

             On July 11, 2014, [Appellant] appeared before the
       undersigned for a Probation Violation Hearing (“PV Hearing”), at
       which time [Appellant] was found to be in violation of the terms
       of his probation.    The court ordered . . . a Pre-Sentence
       Investigation report (“PSI”) and a sentencing hearing was held
       on October 7, 2014, at which time [Appellant] was sentenced as
       follows:

              Docket No. 5460-2010

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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            Count 1, Retail Theft (M1) Probation revoked, 1½-3 years’
      incarceration

            Docket No. 1035-2012

            Count 1, Terrorist Threats (M1) Probation Revoked, 1½-3
      years’ incarceration, consecutive to Docket Number 5460-2010

            Count 2, Terrorist Threats (MI) Probation Revoked, 1½-3
      years’ incarceration, consecutive to Count 1

      [Appellant’s] aggregate sentence on his probation violations was
      4 ½-9 years’ incarceration.

Trial Court Opinion, 1/21/2015, at 1–2 (footnote omitted).

      Appellant filed a post-sentence motion on October 17, 2014, and filed

supplemental post-sentence motions on October 28, 2014, and December

18, 2014. The trial court denied the motions on January 21, 2015; Appellant

filed a notice of appeal on February 18, 2015.

      On March 20, 2015, this Court directed Appellant to show cause why

his appeal should not be quashed as untimely.          On March 23, 2015,

Appellant responded to the show cause order and asserted that the trial

court failed to inform him of his appellate rights. On April 6, 2015, a panel

of this Court discharged the order to show cause, advising Appellant that the

“Court will take no action at this time but will refer the issue to the merits

panel to be assigned in this case.” Order, 4/6/15, 322 MDA 2015.

      In his appellate brief, Appellant now candidly admits that despite

earlier representing to the contrary, the trial court did provide a “general




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overview of appeal rights.” Appellant’s Brief at 10 (emphasis omitted). The

transcript of the sentencing proceeding so confirms, as follows:

            [Appellant], after you’re sentenced today, you have certain
      rights. And I’m going to explain those appellate rights to you
      very briefly and allow [defense counsel] to explain them to you
      further and answer any questions that you might have.

            First of all, the rules that apply following a sentence that is
      imposed after a probation or parole violation are a little different
      than rules that apply after a conviction or a guilty plea.

            While you have the right to file a post-sentence
      motion within ten days of being sentenced, that does not
      toll the 30-day period for you to appeal to the Superior
      Court for review of your case if you wish to do so.

                                    * * *
             So you need to make sure that you communicate very
      clearly with [defense counsel] if you wish to appeal your sentence
      or any aspect of the violation hearing on what I deem the
      violation.

            Both post-sentence motions and appeals must be in writing
      and you are entitled to an attorney to assist you in perfecting
      those post-sentence and appeal rights.

N.T., 10/7/14, at 3–4 (emphasis added).

      It is now incumbent upon us to address the timeliness of the appeal.

This Court has recently stated:

            Rule 720 of the Pennsylvania Rules of Criminal Procedure
      in general governs the timing of post-sentence motion procedure
      and appeals. See Pa.R.Crim.P. 720. The disposition of a motion
      to modify a sentence imposed after a revocation hearing,
      however, is governed by Rule 708 (Violation of Probation,
      Intermediate Punishment, or Parole: Hearing and Disposition).
      See Pa.R.Crim.P. 720 Comment. Rule 708(E) states: “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

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       period.” Pa.R.Crim.P. 708(E) (emphasis added). Rule 708
       makes clear Rule 720 does not apply to revocation cases. Id.
       Comment. See also Commonwealth v. Parlante, 823 A.2d
       927, 929 (Pa. Super. 2003) (internal citation omitted) (stating:
       “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 [imposed], 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”).

             Time limitations for taking appeals are strictly construed
       and cannot be extended as a matter of grace. This Court can
       raise the matter sua sponte, as the issue is one of jurisdiction to
       entertain the appeal. Absent extraordinary circumstances, this
       Court has no jurisdiction to entertain an untimely appeal.

Commonwealth v. Burks, 102 A.3d 497, 499 (Pa. Super. 2014) (some

case citations omitted).

       Here, the trial court revoked Appellant’s probation and resentenced

him on October 7, 2014. Although Appellant filed post-sentence motions on

October 17, 2014, October 28, 2014, and December 18, 2014,1 this did not

toll the thirty-day appeal period to appeal to this Court.      The trial court

clearly informed Appellant of this time limitation. Therefore, Appellant had

until November 6, 2014, to file an appeal, regardless of the pending post-

sentence motion. However, he did not file his notice of appeal until February

18, 2015. Appellant’s failure to file his notice of appeal within thirty days of
____________________________________________


1
   Additionally, a Pa.R.Crim.P. 720 post-sentence motion is not the
appropriate vehicle to challenge a sentence imposed after a probation
revocation. See Pa.R.Crim.P. 708 Comment (advising that “Rules 704, 720,
and 721 do not apply to revocation cases”).



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the sentence imposed after the probation revocation divests this Court of

appellate jurisdiction. Burks, 102 A.3d at 499. Accordingly, we quash this

appeal as untimely.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




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