J-A08003-16

                                  2016 PA Super 153

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRIAN A. DUFFY,

                            Appellant                 No. 1279 EDA 2015


              Appeal from the Judgment of Sentence April 2, 2015
                 In the Court of Common Pleas of Pike County
              Criminal Division at No(s): CP-52-CR-0000005-2012


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

OPINION BY BOWES, J.:                                  FILED JULY 15, 2016

       Brian A. Duffy appeals from the April 2, 2015 order, which was

docketed on April 7, 2015. In the order, the trial court revoked his parole

and re-sentenced him to serve the balance remaining on his original

sentence.1 We quash the appeal as untimely.

       On April 12, 2012, Appellant entered into a negotiated plea to charges

of driving under the influence and driver required to be licensed, which arose




____________________________________________


1
  Appellant’s parole was revoked and he was ordered to serve the balance of
his sentence at a hearing on April 2, 2015. He purported to appeal from an
April 7, 2015 order, which was the date the April 2, 2015 sentencing order
was entered on the docket. The caption reflects our determination that any
appeal properly lies from the date when parole was revoked and sentence
imposed. See Pa.R.Crim.P. 708(E).



* Retired Senior Judge assigned to the Superior Court.
J-A08003-16



from his arrest on July 10, 2011.2 A bench warrant issued when he failed to

appear for his sentencing on July 12, 2012.                 Appellant was eventually

apprehended and, after determining that he was not eligible for Recidivism

Risk Reduction Incentive (“RRRI”) sentencing, the court sentenced Appellant

on August 23, 2012, to one to three years in the Pike County Correctional

Facility.

       On    August    14,    2013,    having     served    his    minimum    period    of

incarceration, Appellant filed a petition for parole.             Following a hearing on

August 23, 2013, Appellant was released on parole. Approximately one year

later, Appellant’s parole officer filed a violation petition alleging that

Appellant failed to report as scheduled, went to Florida without permission,

and failed to abstain from possession and/or use of a controlled substance,

i.e., methamphetamine.

       When Appellant failed to surrender, he became a fugitive.                        He

thereafter    was     arrested   in   South     Carolina.     He     was   extradited   to

Pennsylvania on or about February 20, 2015, and, after a defense

continuance, a parole violation hearing was held on April 2, 2015. The court

found Appellant to be in violation of his parole, noting that he was in

noncompliance with his sentencing order, his parole conditions, and that he

____________________________________________


2
  The record indicates that three counts of DUI were pending against
Appellant when he entered the negotiated plea to one DUI count herein.



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had failed to benefit from the court’s leniency.             The court sentenced

Appellant to confinement in Pike County for the remainder of his original

sentence without re-parole.        Appellant was advised on the record that he

had a right to file a motion to modify sentence within ten days and to appeal

his sentence within thirty days, and that he “must exercise those rights

within those timeframes or he loses those rights.” N.T., 4/2/15, at 46.

      Appellant filed a timely motion in which he asked the court to

reconsider his sentence.       That motion was denied on April 13, 2015.

Appellant filed the within appeal on May 6, 2015, complied with the court’s

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal, and the trial court penned its Rule 1925(a) opinion.             Appellant

presents two questions for our review:

             1. Did the trial court commit errors of law or abuse of
                discretion in determining the defendant to be in
                violation of the terms of his parole?

             2. Did the trial court commit errors of law or abuse of
                discretion in remanding the defendant to serve the
                balance of his term of incarceration without
                consideration for re-parole, where there were
                fundamental flaws in the determination of the nature
                and extent of the defendant’s parole violations?

Appellant’s brief at 5.

      Preliminarily, we address the timeliness of the instant appeal. Since it

implicates   our   jurisdiction,    we   may   raise   the    issue   sua    sponte.

Commonwealth v. Dreves, 839 A.2d 1122, 1126 n. 4 (Pa.Super. 2003)



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(en banc); see Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.

2005) (sua sponte raising timeliness of an appeal where Pa.R.Crim.P.

720(A)(1) post-sentence motion was filed more than ten days after

imposition of sentence and did not toll appeal period).

       Appellant’s parole was revoked and he was recommitted to serve the

balance of his original sentence at the April 2, 2015 parole revocation

hearing. A sentencing order was not docketed until April 7, 2015. Appellant

characterizes the order from which he appeals as the April 7, 2015 order,

the date when the order was entered on the docket, which would make the

instant appeal, filed May 6, 2015, timely.            As analyzed, infra, time

commences to run in the sentencing context when sentence is imposed, i.e.,

from the date sentence is pronounced in open court. Thirty days from April

2, 2015 was May 2, 2015, a Saturday.             Thus, utilizing the date of the

hearing, Appellant had until Monday, May 4, 2015, to file a timely appeal.

The issue before us is what triggers the running of the 30-day appeal period

in the parole revocation context: the imposition of the sentence in open

court or the date a sentencing order was docketed.3

____________________________________________


3
  The fact that Appellant filed a timely motion for reconsideration of his
sentence does not implicate our decision. In contrast to Pa.R.Crim.P. 720,
where a timely-filed post-sentence motion tolls the 30 day appeal period,
probation and parole revocation are governed by Pa.R.Crim.P. 708(E). That
rule specifically provides that the filing of a motion to modify sentence within
ten days of its imposition does not toll the thirty-day appeal period.
(Footnote Continued Next Page)


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      We turn first to Pa.R.Crim.P. 708(E), the rule applicable to violation of

parole hearings.       It provides that the ten-day period for filing a motion to

modify sentence commences to run when sentence is imposed.                 It also

states that the filing of a motion to modify does not toll the running of the

thirty-day period for the filing of an appeal.         Thus, whether a sentence is

imposed when pronounced or docketed is determinative of when the appeal

period starts to run and the timeliness of the instant appeal.

      This question was addressed in the context of Pa.R.Crim.P. 720(A)(1)

in Commonwealth v. Green, 862 A.2d 613 (Pa.Super. 2004).                      Rule

720(A)(1) provides: "(1) Except as provided in paragraph (D) [dealing with

summary cases], a written post-sentence motion shall be filed no later than

10 days after imposition of sentence."            Id. The issue before us in Green

was whether the appellant's August 2, 2002 post-sentence motion was

timely filed where sentence was pronounced on July 22, 2002, but not

docketed until July 31, 2002. The question turned on whether sentence was

imposed when pronounced or docketed. Utilizing the date when sentence
                       _______________________
(Footnote Continued)

Pa.R.Crim.P. 708(E). See also Commonwealth v. Parlante, 823 A.2d
927, 929 (Pa.Super. 2003)("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 entered, 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.”) Accord Commonwealth v. Coleman, 721 A.2d 798 (Pa.Super.
1998).



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was pronounced, July 22, 2002, the appellant had until August 1, 2002 to

file her post-sentence motion, or the motion would be untimely. The post-

sentence motion, if untimely, would not operate to toll the running of the

thirty-day appeal period and hence, the appeal would have been untimely.

See Dreves, supra. However, using the date on which the sentence was

entered on the docket, July 31, 2002, the post-sentence motion and appeal

would have been timely.

     We set out to determine whether the ten-day period prescribed in Rule

720(A)(1) began to run on the date sentence was pronounced or the date it

was entered on the docket. We concluded that the ten-day period for filing

a post-sentence motion under Rule 720 commenced on the date sentence

was imposed, which was the date the trial court pronounced the sentence.

This interpretation comported with the plain language of Pa.R.Crim.P.

720(A)(1). We viewed the choice of the word “imposition” rather than “date

of entry” as a strong indicator that our High Court intended the date when

sentence was pronounced to be the reference point for computing the time

for filing post-sentence motions. We found support for our position in Rule

720(A)(4), which addressed the situation where the Commonwealth filed a

motion to modify sentence pursuant to Rule 721.       In that case, the rule

expressly provided that “the defendant's notice of appeal shall be filed

within   30   days   of   the   entry   of   the   order   disposing    of   the

Commonwealth's motion[,]" as distinguished from imposition.            Pa.R.A.P.

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720(A)(4) (emphasis added).           Thus, the use of “imposition” in subdivision

(a)(1) was not inadvertent.

       We also found this interpretation to be consistent with our treatment

of Pa.R.Crim.P. 704(A)’s requirement that a sentence be imposed within

ninety days of conviction or plea. In determining whether a sentence was

imposed within that timeframe, we have consistently used the date of the

sentencing hearing, that is, the date the sentence was pronounced rather

than the date of docketing.         See generally, Commonwealth v. Anders,

699 A.2d 1258, 1260-62 (Pa.Super. 1997), reversed on other grounds,

Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999) (interpreting former

Rule 1405, requiring that sentence be imposed within 60 days of conviction

or plea).4

       Furthermore, we found this construction reasonable in light of the

requirement that courts inform defendants immediately after imposing

sentence of their right to file a post-sentence motion and an appeal and the

____________________________________________


4
  In Commonwealth v. Green, 862 A.2d 613, 618 (Pa.Super. 2004), we
noted that the Rules Committee stated, "As a general rule, the date for
sentencing should be scheduled at the time of conviction or entry of a plea
of guilty or nolo contendere." We reasoned that, if date of sentencing was
synonymous with the date of docketing of the sentence, the trial court would
be handicapped in its efforts to schedule sentencing as “docketing of a
sentence is a ministerial act performed by the trial court's prothonotary or
the clerk of courts and the trial court has little or no control over when a
sentence is docketed.” Id.




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time periods in which these actions must be taken.       Recognizing that trial

courts have no control over when the order is docketed, we concluded that

“the better course” was to interpret Pa.R.Crim.P. 720(A)(1) as providing

that, regardless of the date the sentence was entered on the docket, a

written post-sentence motion must be filed no later than 10 days after the

date of imposition of sentence.5          See Commonwealth v. Nahavandian,

954 A.2d 625, 629 (Pa.Super. 2008) (notice of appeal filed within thirty days

of the court’s denial of a post-sentence motion that was filed within ten days

of the order’s docketing, but more than ten days after sentence was

pronounced in open court, was untimely).




____________________________________________


5
   We also recognized in Commonwealth v. Green, 862 A.2d 613, 620
(Pa.Super. 2004), that if imposition of sentence was construed to mean
docketing, it would lead to absurd results in the allocution context. It would
permit a sentencing court to deny a defendant his right of allocution prior to
the pronouncement of sentence as long as the court permitted the defendant
to exercise his right prior to the docketing of the sentence. We rejected that
interpretation in Commonwealth v. Hague, 840 A.2d 1018 (Pa.Super.
2003) (finding arguable merit in claim that the appellant had been denied
his right of allocution at sentencing where he was asked immediately after
he was sentenced if he had anything to say, and that counsel was ineffective
for not raising the issue at sentencing or on direct appeal). We equated
imposition of sentence with pronouncement of sentence, stating, “The
significance of allocution lies in its potential to sway the court toward
leniency prior to imposition of sentence. Permitting the defendant to speak
after sentence has been imposed fails to meet the essence of the right of
allocution.” Id. at 1020.



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       Pa.R.Crim.P. 708(E), like Pa.R.Crim.P. 720(A)(1), looks to the date

when sentence was imposed as the triggering event for the running of the

period to file a motion to modify sentence. It provides:

       (E) Motion to Modify Sentence

       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 period.

Pa.R.Crim.P. 708(E) (emphasis added).

       Based upon our reasoning in Green, we find that the date of

imposition of sentence in Pa.R.Crim.P. 708(E) is the date when sentence was

pronounced in open court.6 Since the filing of a motion to modify sentence

does not toll the running of the appeal period, it logically follows that the

thirty-day appeal period also commences to run when sentence is imposed

at the hearing, rather than when the order is docketed.

       Sentence was imposed herein on April 2, 2015. Appellant had thirty

days from that date to file a timely appeal. Since the thirtieth day, May 2,

2015, fell on a Saturday, Appellant had until Monday, May 4, 2015, to file a



____________________________________________


6
  The trial court correctly advised Appellant at sentencing of his post-
sentence motion and appeal rights. Thus, there was no breakdown that
would justify the untimely appeal as in Commonwealth v. Parlante, 823
A.2d 927, 929 (Pa.Super. 2003) (declining to quash untimely appeal as
court’s misstatement of the appeal period constituted a breakdown in the
court’s operation).



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timely appeal. The instant appeal filed May 6, 2015 is untimely, and we lack

jurisdiction to entertain it.

      Appeal quashed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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