J-S75007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    MARC KINGSTON WELLS

                             Appellant                No. 477 WDA 2019


       Appeal from the Judgment of Sentence Entered February 26, 2019
               In the Court of Common Pleas of Allegheny County
               Criminal Division at Nos: CP-02-CR-0007647-2013
                             CP-02-CR-0016742-2012

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                            FILED APRIL 15, 2020

        Appellant, Marc Kingston Wells, appeals from his judgment of sentence

for various offenses relating to possession of controlled substances and driving

under the influence (“DUI”). He argues that the trial court committed an error

of law by refusing to give him credit for time served in three halfway houses.

We quash this appeal as untimely.

        Appellant was charged at CP-02-CR-0016742-2012 (“Case I”) with a

series of drug-related and DUI offenses1 that took place on May 24, 2012.
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*   Retired Senior Judge assigned to the Superior Court.

1 Appellant was charged with one count each of Possession with Intent to
Deliver a Controlled Substance under 35 P.S. § 780-113(a)(30), Possession
of a Controlled Substance under 35 P.S. § 780-113(a)(16), Possession of
Marijuana under 35 P.S. § 780-113(a)(31), DUI: Controlled Substance or
Metabolite (2d Offense) under 75 Pa.C.S.A. § 3802(d)(1), DUI: Controlled
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Appellant was charged at CP-02-CR-0007647-2013 (“Case II”) with additional

drug-related and DUI offenses2 arising from events on September 21, 2012.

       On June 26, 2013, Appellant entered a negotiated guilty plea in Case I

and was sentenced to eighteen months of intermediate punishment followed

by twelve months of probation.          On August 22, 2013, Appellant entered a

negotiated guilty plea in Case II and was sentenced to sixteen months of

intermediate punishment followed by twelve months of probation, all running

concurrently with the sentence in Case I.

       On June 26, 2017, following Appellant’s violations of the terms of his

intermediate     punishment      and    probation,   the   trial   court   revoked   his

intermediate punishment and probation and resentenced him to twenty-one

to forty-two months of incarceration in Case I and to nine to eighteen months

of incarceration in Case II, for a total of thirty to sixty months of imprisonment.
____________________________________________


Substance - Impaired Ability (2d Offense) under 75 Pa.C.S.A. § 3802(d)(2),
DUI: Controlled Substance - Combination Alcohol/Drug (2nd Offense) under
75 Pa.C.S.A. § 3802(d)(3), DUI: Highest Rate of Alcohol (BAC .16+) (2d
Offense) under 75 Pa.C.S.A. § 3802(c), DUI: General Impairment (3rd
Offense) under 75 Pa.C.S.A. § 3802(a)(1), Intersections Controlled by Signs
under 75 Pa.C.S.A. § 3323(a), and Driving While BAC .02 or Greater While
License Suspended under 75 Pa.C.S. § 1543(b)(1.1).

2 Appellant was charged with two counts of Possession with Intent to Deliver
a Controlled Substance under 35 P.S. § 780-113(a)(30), one count of Driving
While Operating Privilege Suspended or Revoked under 75 Pa.C.S.A.
§ 1543(b)(1.1)(iii), two counts of Possession of a Controlled Substance under
35 P.S. § 780-113(a)(16), one count of Suspension of Registration under 75
Pa.C.S.A. § 1371, one count of Operation of a Motor Vehicle Without Financial
Responsibility under 75 Pa.C.S.A. § 1786(f), and one count of General Lighting
Requirements under 75 Pa.C.S. § 4303(b).



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The trial court ordered these sentences to run consecutively to a sentence

imposed     by   another     judge    at   CP-02-CR-0008655-2016    (“Case   III”).

Additionally, the trial court sentenced Appellant to four years of probation in

Case II, consecutive to all imprisonment.

       On July 7, 2017, counsel for Appellant filed a motion to modify his

sentence in Cases I and II.          More than thirty days after resentencing, on

August 29, 2017, the trial court denied this motion.         Appellant requested

counsel to appeal the denial of this decision to the Superior Court, but by that

point, the appeal period had already expired under Pa.R.Crim.P. 708.3

       On May 11, 2018, Appellant filed a petition under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, alleging that his attorney

was ineffective for failing to file a direct appeal within thirty days after

resentencing.      Appellant requested that the trial court “reinstate [his]

appellate rights so that he may perfect and file a direct appeal on the June

26, 2017 order . . .” PCRA Petition, 5/11/18, ¶ 27. On June 20, 2018, the

trial court issued an order granting Appellant’s petition and directing that his

“appellate rights are hereby reinstated nunc pro tunc.” Order, 6/20/18.

       Eight days later, on June 28, 2018, instead of appealing to the Superior

Court, Appellant filed a new motion to modify sentence in the trial court

seeking credit for time served in his sentences in Cases I and II. Appellant
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3 See Pa.R.Crim.P. 708(E) (“A motion to modify a sentence imposed after a
revocation [of probation, parole or intermediate punishment] 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”) (emphasis added).

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argued in this motion that the judge in Case III had vacated his sentence, and

therefore he was entitled to credit in Cases I and II for three time periods

previously attributed to his Case III sentence.

        On February 26, 2019, the trial court granted Appellant’s motion to

modify sentence and awarded him credit for time served from July 10, 2013

to August 20, 2013, December 17, 2013 to February 19, 2014, and August

28, 2015 to September 11, 2015.4

        On March 27, 2019, Appellant filed a notice of appeal to this Court. Both

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

        Appellant raises a single issue in this appeal: “Whether the Trial Court

committed an error of law when it failed to give [Appellant] credit for time

spent in an intensive court-ordered drug program when reconsidering his

sentence?”5 Appellant’s Brief at 3.

        Before addressing this issue, however, we must determine whether this

appeal is timely. We construe time limitations for taking appeals strictly and

cannot extend them as a matter of grace. Commonwealth v. Banks, 102

A.3d 497, 500 (Pa. Super. 2014). We can raise the timeliness of an appeal

sua sponte, because it implicates our jurisdiction to entertain the appeal. Id.
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4   The validity of this order is not before us in this appeal.

5 Appellant claimed in this argument that he should receive credit for time
served in various inpatient programs in late 2013 and from early 2014 through
mid-2015 as “time spent in custody” under 42 Pa.C.S.A. § 9760. Appellant’s
Brief at 11-13. Appellant did not raise this argument during his violation of
probation and resentencing hearing on June 26, 2017, in his July 7, 2017 post-
sentence motions, or in his June 28, 2018 post-sentence motions.

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Absent extraordinary circumstances, we lack jurisdiction to entertain an

untimely appeal. Id.

      When, as here, the court revokes the defendant’s probation and

resentences him, the defendant has thirty days from the date of sentencing

to appeal his sentence, regardless of whether he files post-sentence motions.

Pa.R.Crim.P. 708(E); Banks, 102 A.3d at 500. If the defendant elects to file

post-sentence motions following a revocation sentence, he does not receive

an additional thirty days to file an appeal from the date the court denies his

motion. Id.

      This appeal plainly is untimely under Rule 708. The trial court revoked

Appellant’s probation and Intermediate Punishment and resentenced him on

June 26, 2017, making July 26, 2017 the original deadline for appealing to

this Court. Counsel for Appellant filed post-sentence motions, and while he

was waiting for the trial court to decide them, the appeal period expired under

Rule 708(E). In 2018, Appellant filed a PCRA petition seeking reinstatement

of his appellate rights nunc pro tunc. On June 20, 2018, the trial court entered

an order reinstating Appellant’s “appellate rights,” making July 20, 2018 his

new deadline for appealing. Instead of appealing, Appellant, eight days later

on June 28, 2018, filed a second round of post-sentence motions, which, once

again, did not toll the appeal deadline. Eight months later, on February 26,

2019, the trial court decided Appellant’s post-sentence motions. On March

27, 2019, Appellant finally appealed to this Court, but by then, his appeal was




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many months too late. Consequently, we lack jurisdiction to entertain this

appeal.

      It appears that Appellant interpreted the June 20, 2018 order as (1)

reinstating both his right of appeal and his right to file a post-sentence motion

to modify, and (2) extending the deadline for appeal until thirty days after the

order deciding the motion to modify. These constructions are incorrect. Our

Supreme Court has held that an order granting a PCRA petitioner leave to file

a notice of appeal nunc pro tunc does not automatically confer an additional

right to file post-sentence motions nunc pro tunc. Commonwealth v. Liston,

977 A.2d 1089, 1094 (Pa. 2009). Liston observed that a PCRA petitioner is

free to request leave to file post-sentence motions nunc pro tunc, and the

PCRA court can grant leave in appropriate circumstances, but this form of

relief is separate and apart from reinstatement of appellate rights.       Id. at

1094 n.9.   A mere request to reinstate appellate rights does not implicitly

include a request for leave to file post-sentence motions.           Id.   Here,

Appellant’s PCRA petition only requested reinstatement of his “appellate

rights,” and the trial court’s order only reinstated his “appellate rights” nunc

pro tunc. The order did not authorize him to file post-sentence motions and

consequently, Appellant had to file a notice of appeal within 30 days, or by

July 20, 2018. Appellant allowed this appeal period to expire by filing a post-




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sentence motion to modify and waiting until early 2019 for the trial court to

decide the motion.6

       Even assuming arguendo that the June 20, 2018 order permitted

Appellant to file a post-sentence motion to modify nunc pro tunc, he still would

have had to appeal to this Court within thirty days, or by July 20, 2018. The

trial court imposed the underlying sentence after it revoked his probation and

intermediate punishment.           The filing of a motion to modify following

revocation and resentencing “[does] not toll the 30-day appeal period.”

Pa.R.Crim.P. 708(E).        Appellant’s failure to appeal until March 27, 2019

likewise, rendered his appeal untimely.

       For these reasons, we quash this appeal as untimely.

     Appeal quashed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2020


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6 Even if Appellant's post-sentence motions were properly before the trial
court, the court's failure to decide the June 28, 2018 motions within 120 days
deemed the motions denied by operation of law. Pa.R.Crim.P. 720(B)(3)(a).
Appellant would have been required to file his notice of appeal within 30 days
from the expiration of that time to perfect a timely appeal to this Court.
Pa.R.Crim.P. 720(A)(b). His March 27, 2019 notice of appeal would have been
too late.

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