J-S53014-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

ZEBRICK HYRESHIE JONES

                        Appellee                   No. 1991 MDA 2015


          Appeal from the Judgment of Sentence October 8, 2015
            In the Court of Common Pleas of Schuylkill County
           Criminal Division at No(s): CP-54-CR-0001256-2014



BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 05, 2016

     Zebrick Hyreshie Jones appeals from the judgment of sentence of

ninety days to five years incarceration that was imposed after a jury found

him guilty of driving under the influence (“DUI”) high rate and DUI general

impairment. We quash this appeal as untimely filed.

     The relevant facts and procedural history are as follows. On April 4,

2014, Trooper Michael Allar arrived alongside a disabled vehicle facing north

on the southbound shoulder of Interstate-81.          Trooper Allar observed

damage to the hood and passenger side of the vehicle as well as a broken

front-passenger window.     At the time, Appellant was in the process of

changing the left rear tire while his girlfriend remained in the front

passenger seat. Trooper Allar questioned Appellant as to the cause of the

* Former Justice specially assigned to the Superior Court.
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accident, to which he replied, “I slipped and hit a tractor trailer[.]”   N.T.

Trial, 8/27/15, at 63. During this conversation, the officer detected the odor

of an alcoholic beverage emanating from Appellant, noticed that he had

bloodshot eyes, and saw an empty can of Bud Ice in the rear compartment

of the vehicle. Trooper Allar took Appellant into custody under suspicion of

DUI. A subsequent consensual blood test revealed Appellant had a BAC of

0.174%.

      As a result of this incident, Appellant was charged with one count of

DUI – high rate and one count of DUI – general impairment. Following trial,

a jury convicted Appellant of both counts of DUI. On October 8, 2015, the

court sentenced Appellant to ninety days to five years incarceration.      On

October 21, 2015, Appellant filed a petition requesting that the court modify

his sentence so that he could serve his time in York County prison. The trial

court granted Appellant’s petition on that same day. Appellant then filed a

notice of appeal on November 12, 2015. The trial court directed him to file a

Rule 1925(b) statement of matters complained of on appeal, to which he

complied.   Subsequently, the court authored its Rule 1925(a) opinion.

Before we reach the merits of Appellant’s appeal, we must first consider

whether it is properly before us.

      The rules of criminal procedure governing the timeliness of a post-

sentence motion, provide that, except in summary appeals or where an

after-discovered evidence claim is being raised, “a written post-sentence

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motion shall be filed no later than 10 days after imposition of sentence.”

Pa.R.Crim.P. 720(A). This Court has interpreted the language “imposition of

sentence” as the date the trial court pronounced the sentence in open court.

Commonwealth v. Green, 862 A.2d 613, 618-619 (Pa.Super. 2004) (en

banc). “The time for filing an appeal can be extended beyond [thirty] days

after the imposition of sentence only if the defendant files a timely post-

sentence motion.”    Id. at 618; Pa.R.A.P. 720(A)(2).     An untimely post-

sentence motion does not toll the thirty-day appeal period. Green, supra,

at 618.

     Instantly, Appellant’s sentence was imposed on October 8, 2015.

Appellant had ten days to file a post-sentence motion, which fell on Sunday,

October 18, 2015. Thus, Appellant had until Monday, October 19, 2015 to

file a timely post-sentence motion. Pa.R.Crim.P. 720(A)(1). Appellant filed

his petition on October 21, 2015. Hence, it was patently untimely.

     Since Appellant filed an untimely post-sentence motion, the appeal

period could be tolled “only if the trial court accepted it under its limited

authority to allow the filing of a post-sentence motion nunc pro tunc.”

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa.Super. 2015).

Appellant did not request that the trial court consider his motion as filed

nunc pro tunc. Furthermore, the trial court’s resolution of the merits of an

untimely post-sentence motion is no substitute for an order expressly

granting nunc pro tunc relief. Commonwealth v. Dreves, 839 A.2d 1122,

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1128-1129 (Pa.Super. 2003) (en banc). As the trial court did not consider

Appellant’s post-sentence motion nunc pro tunc, the period to file a timely

appeal was not tolled. Thus, under Pa.R.Crim.P. 720(A)(3), Appellant was

required to file his notice of appeal within 30 days of the date of imposition

of sentence.

      Appellant filed his notice of appeal on November 12, 2015, more than

thirty days after the imposition of the October 8, 2015             sentence.

Pa.R.Crim.P. 720(A)(2), which extends the time for filing an appeal, does

not apply to Appellant because he did not file a timely post-sentence motion.

Therefore, Appellant’s notice of appeal was clearly untimely.    Accordingly,

we must quash this appeal.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2016




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