J-S15039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                       v.

FRANCISCO SOSA,

                             Appellant                 No. 2082 EDA 2014


             Appeal from the Judgment of Sentence March 13, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0007184-2007


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED MARCH 02, 2016

        Appellant, Francisco Sosa, appeals from the judgment of sentence

entered following the revocation of his probation. For the reasons discussed

below, we quash.

        We take the underlying facts and procedural history in this matter

from the trial court’s July 16, 2015 opinion and our independent review of

the certified record.       On September 26, 2007, Appellant pleaded guilty to

corruption of minors and a related charge.       On January 9, 2008, the trial

court sentenced Appellant to an aggregate term of incarceration of not less

than eleven and one-half nor more than twenty-three months to be followed


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*
    Retired Senior Judge assigned to the Superior Court.
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by a consecutive, aggregate term of twelve years’ probation. Appellant did

not file a direct appeal.

      While on probation, in 2011, Appellant was arrested for a violation of

probation, namely, failing to attend a mandatory sexual offender treatment

program. The trial court held a violation hearing on January 25, 2011, and

continued the hearing to see if the out-patient treatment program would be

willing to re-admit Appellant.   A second hearing took place on March 1,

2011; defense counsel informed the trial court that the original program

would not re-admit Appellant but that there was a possibility that a different

out-patient treatment program would admit him.         After appointing new

counsel for Appellant, the trial court again continued the matter.       A third

hearing took place on April 15, 2011; new counsel informed the court that

the second program was unwilling to admit Appellant. Accordingly, the trial

court found that Appellant had violated probation and sentenced Appellant to

a term of incarceration of not less than two nor more than four years.

      On April 25, 2011, counsel filed a motion for reconsideration of

sentence, which the trial court denied on May 3, 2011. Appellant did not file

a direct appeal.

      On September 27, 2011, Appellant, acting pro se, filed a petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

The PCRA court subsequently appointed counsel, who filed an amended




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PCRA petition on August 20, 2012, seeking a new violation hearing and a

new sentencing hearing.

     On March 13, 2014, the trial court held a new sentencing hearing, and

after extensive argument, resentenced Appellant to a term of incarceration

of not less than two nor more than four years. That same day, counsel filed

a motion for reconsideration of sentence. The trial court denied that motion

by operation of law on July 15, 2014.

     On July 17, 2014, Appellant filed a notice of appeal. On January 26,

2015, the trial court ordered Appellant to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely

Rule 1925(b) statement on January 31, 2015. On July 16, 2015, the trial

court issued an opinion.

     On appeal, Appellant raises the following questions for our review:

           1. Did the resentencing [c]ourt abuse its discretion and
     make an error of law which prejudiced Appellant by failing to
     request a [p]re-[s]entence [i]nvestigation report which would
     have allowed the [c]ourt to familiarize itself with Appellant’s
     background and thereby would have allowed the [c]ourt to
     fashion an appropriate sentence?

           2. Did the resentencing [c]ourt abuse its discretion and
     make an error of law which prejudiced Appellant by failing to
     provide Appellant with written [n]otice of his violation offense
     and by basing Appellant’s violation determination on
     impermissible hearsay alone?

           3. Did the resentencing [c]ourt abuse its discretion and
     make an error of law which prejudiced Appellant by failing to
     consider the evidence presented by Appellant at his resentencing
     hearing (and accepted by the Commonwealth) that Appellant
     had not missed several sex counseling sessions when Appellant

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      provided documentation that he attended some of the classes
      that he was alleged to have missed and did the resentencing
      [c]ourt abuse its discretion by mandating that Appellant
      attended such classes when Appellant had no financial resources
      to pay for such classes?

(Appellant’s Brief, at 4).

      Prior to addressing the merits of these claims, we must decide if they

are properly before us.         Although neither party raises the issue, “the

[t]imeliness of an appeal is a jurisdictional question.”   Commonwealth v.

Pena, 31 A.3d 704, 706 (Pa. Super. 2011). Therefore, it may be raised sua

sponte.   See Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa.

Super. 2001).    Further, “[w]hen a statute fixes the time within which an

appeal may be taken, the time may not be extended as a matter of

indulgence or grace.”        See Pena, supra at 706.   Our Rules of Appellate

Procedure mandate that the notice of appeal “shall be filed within 30 days

after the entry of the order from which the appeal is taken.”       Pa.R.A.P.

903(a). Further, our Rules of Criminal Procedure provide that the filing of a

motion to modify sentence following a revocation hearing does not toll the

thirty-day appeal period.       See Pa.R.Crim.P. 708(E); Commonwealth v.

Coleman, 721 A.2d 798, 799 (Pa. Super. 1998). Time limitations on filing

appeals are strictly construed.     See Commonwealth v. Perez, 799 A.2d

848, 851 (Pa. Super. 2002).

      Here, the record reflects that, at resentencing, Appellant was

accurately informed of the correct appeal period. (See N.T. Resentencing,


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3/13/14, at 14). Despite this, Appellant did not file an appeal within thirty

days of the March 13, 2014 resentencing hearing. Rather, he filed his notice

of appeal on July 17, 2014, two days after the denial of his post-sentence

motion.1 Thus, the present appeal is untimely. As such, we lack jurisdiction

over this appeal and must, therefore, quash. See Coleman, supra at 799;

but cf. Coolbaugh, supra at 791 (declining to quash appeal as untimely

where trial court misstated appeal filing deadline following revocation

hearing).


       Appeal quashed.

       Judge Olson joins the Memorandum.

       President Judge Emeritus Bender notes his dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016



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1
    We note that the order denying Appellant’s post-sentence motion
incorrectly stated that Appellant could appeal within thirty days of the denial
of the motion. (See Order, 7/15/14, at unnumbered page 1). However, as
the trial court issued that order well after the expiration of the appeal period,
it is of no matter.



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