J-S60014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL GILBERT                             :
                                               :
                       Appellant               :   No. 708 MDA 2018

           Appeal from the Judgment of Sentence February 6, 2018
     In the Court of Common Pleas of Sullivan County Criminal Division at
                       No(s): CP-57-CR-0000061-2017


BEFORE:      SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                           FILED NOVEMBER 13, 2018

       Appellant, Daniel Gilbert, appeals from the judgment of sentence

entered on February 6, 2018, in the Court of Common Pleas of Sullivan

County.    After careful consideration, we quash the appeal and remand for

further proceedings.

       This appeal stems from charges filed against Appellant for crimes related

to his theft of a pickup truck in Cherry Township, Sullivan County, and his

eventual disposition of that truck in a Demolition Derby in New York state.

Appellant entered a guilty plea to one count of theft by unlawful taking or

disposition,1 a felony of the third degree,2 on January 17, 2018.             On


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1   18 Pa.C.S. § 3921(a).

2   18 Pa.C.S. § 3903(a.1).
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* Retired Senior Judge assigned to the Superior Court.
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February 6, 2018, Appellant was sentenced to confinement in a state

correctional institution for forty to eighty months, was directed to pay the

costs of prosecution and a $500.00 fine, and was ordered to make restitution

to Progressive Insurance in the amount of $10,648.68. Sentencing Order,

2/12/18, at 1.    Appellant was not eligible for a Recidivism Risk Reduction

Incentive program minimum sentence due to his prior criminal record.

      On   February       16,   2018,   Appellant   filed   a   timely    motion    for

reconsideration of his sentence. Prior to a ruling on the motion by the trial

court, Appellant filed a notice of appeal on March 6, 2018. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      On August 2, 2018, this Court issued a rule to show cause why this

appeal should not be quashed as interlocutory.              Counsel failed to file a

response. On August 20, 2018, this Court entered an order referring the issue

to the merits panel for consideration.

      Appellant presents the following issue for our review:             “Did the Trial

Court commit an abuse of discretion in sentencing [Appellant] to a sentence

at the top of the standard range, despite the fact that [Appellant] waived his

preliminary hearing and entered a guilty plea in the above-captioned matter?”

Appellant’s Brief at 4.

      “As a preliminary matter, we must first ascertain whether the judgment

of sentence is properly appealable, because the question of appealability




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implicates the jurisdiction of this court.”3 Commonwealth v. Borrero, 692

A.2d 158, 159 (Pa. Super. 1997).               This Court lacks jurisdiction over non-

appealable orders. Commonwealth v. Claffey, 80 A.3d 780, 782 (Pa. Super.

2013); see also Commonwealth v. Kennedy, 876 A.2d 939, 943 (Pa. 2005)

(indicating appellate court lacks jurisdiction over non-appealable orders).

       The Judicial Code provides that the Superior Court shall have exclusive

appellate jurisdiction of all appeals from final orders of the courts of common

pleas, except such classes of appeals as are within the exclusive jurisdiction

of the Supreme Court or the Commonwealth Court. 42 Pa.C.S. § 742. In the

context of a criminal proceeding where, as here, the case has proceeded

through the sentencing phase, the appeal lies from the entry of the final

judgment of sentence.           Borrero, 692 A.2d at 159.            Pursuant to the

Pennsylvania Rules of Criminal Procedure, the question of whether the

judgment of sentence is final and appealable depends upon whether a

defendant files post-sentencing motions.

       When post-sentencing motions are not filed, the judgment of sentence

constitutes a final and appealable order for purposes of appellate review, and

any appeal therefrom must be filed within thirty days of the imposition of

sentence.    Pa.R.Crim.P. 720(A)(3).           If post-sentencing motions are timely



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3   We note that the Commonwealth asserts that this Court does not have
jurisdiction over this appeal, as it was not final at the time the appeal was
filed. Commonwealth’s Brief at 1.

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filed, however, the judgment of sentence does not become final for purposes

of appeal until the trial court disposes of the motion, or the motion is denied

by operation of law.       Pa.R.Crim.P. 720(A)(2)(a) and (b).   If the motion is

denied by operation of law, the clerk of courts shall enter an order reflecting

that denial. Pa.R.Crim.P. 720(B)(3)(c). Moreover, the comments to Rule 720

explicitly provide that “[n]o direct appeal may be taken by a defendant while

his or her post-sentence motion is pending.” Pa.R.Crim.P. 720 cmt.

        In this case, the certified record reflects that Appellant was sentenced

on February 6, 2018. He thereafter exercised his right to file post-sentence

motions on February 16, 2018, within the ten-day period prescribed by

Pa.R.Crim.P. 720(A)(1). Once the post-sentence motion was timely filed, the

trial court had 120 days in which to decide the motion unless, for good cause

shown, a thirty-day extension of time in which to decide the motion was

granted. Pa.R.Crim.P. 720(B)(3)(a).4 If the motion was not decided within

120 days or within the thirty-day extension period, it would have been deemed

denied by operation of law. Id.


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4   Pa.R.Crim.P. 720(B)(3)(a) provides as follows:

        (a) Except as provided in paragraph (B)(3)(b) [regarding a 30-
        day extension of time], the judge shall decide the post-sentence
        motion, including any supplemental motion, within 120 days of
        the filing of the motion. If the judge fails to decide the motion
        within 120 days, or to grant an extension as provided in paragraph
        (B)(3)(b), the motion shall be deemed denied by operation of law.



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       Appellant, however, prematurely filed his notice of appeal on March 6,

2018, well before the 120-day period expired and before the trial court ruled

on the motion.5 Although the 120-day period obviously has now expired, thus

resulting in the denial of Appellant’s post-sentence motions by operation of

law, the judgment of sentence has not yet been finalized because an

appropriate order has not been duly entered upon the docket. The entry of

an appropriate order is a prerequisite to this Court’s exercise of jurisdiction.

See Borrero, 692 A.2d at 159-160 (appeal was premature when filed while

post-sentence      motion was       still   pending   in   trial   court);   Pa.R.Crim.P.

720(B)(3)(c). We thus cannot regard this appeal as having been filed within

thirty days of the date on which the post-sentence motion was denied. In

view of these circumstances, we conclude that the instant appeal is from an

interlocutory judgment of sentence.               Because we are precluded from

exercising jurisdiction over appeals from non-final orders or judgments, we

are compelled to quash this appeal.6

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5   Because the 120th day, June 16, 2018, fell on a Saturday, the 120-day
period expired on Monday, June 18, 2018. See 1 Pa.C.S. § 1908 (stating
that, for computations of time, whenever the last day of any such period shall
fall on Saturday or Sunday, or a legal holiday, such day shall be omitted from
the computation.); Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super.
2004).

6 Although this Court does have jurisdiction to consider appeals from collateral
orders or certain classes of interlocutory orders which are appealable as of
right, see Pa.R.A.P. 311 and 313, the judgment entered in this case is not
appealable pursuant to either of these rules. Moreover, Appellant has not



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       Furthermore, the fundamental purpose underlying the filing of post-

sentence motions is to provide the trial court with the first chance to correct

any errors.     In this case, the trial court may have been deprived of this

opportunity, albeit mistakenly, by virtue of Appellant’s premature appeal. As

the Court in Borrero explained:

              While the reasons underlying the trial court’s failure to act
       on appellant’s post-sentencing motions do not appear of record,
       the trial judge may have been reluctant to proceed based on a
       mistaken assumption that jurisdiction over this matter was
       divested by appellant’s appeal. However, the appeal did not
       divest the trial court of jurisdiction in this instance. As previously
       indicated, the comment to Rule [720] explicitly prohibits the filing
       of an appeal while post-sentencing motions are pending. The
       comment further provides that a judgment of sentence does not
       become final until post-sentencing motions are ruled upon by the
       trial court or are denied by operation of law. Moreover, a trial
       court may proceed further in any matter in which a nonappealable
       order has been entered, notwithstanding the filing of a notice of
       appeal. Consequently, appellant’s improper appeal did not divest
       the trial court of jurisdiction to decide appellant’s post-sentencing
       motion or deny it by operation of law.

Borrero, 692 A.2d at 161 n.4 (internal citations omitted). Thus, we remand

for purposes of the trial court’s entry of an order addressing Appellant’s post-

sentence motion.7

       Appeal    quashed     as   interlocutory.   Case   remanded    for   further

proceedings consistent with this memorandum. Jurisdiction relinquished.
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sought permission to pursue an interlocutory appeal in accordance with
Pa.R.A.P. 312. Nor is the judgment here appealable under any other rule or
statute of which we are aware.

7 If the trial court intended to allow the motion to be denied by operation of
law, the clerk of courts is directed to enter an order reflecting that denial.
Pa.R.Crim.P. 720(B)(3)(c).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2018




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