J-S42012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOEL BALLANCE,

                            Appellant                 No. 2302 EDA 2014


           Appeal from the Judgment of Sentence May 21, 2014
           In the Court of Common Pleas of Philadelphia County
 Criminal Division at No(s): CP-51-CR-0006785-2012, CP-51-CR-0006787-
   2012, CP-51-CR-0006788-2012, CP-51-CR-0006789-2012, CP-51-CR-
0006790-2012, CP-51-CR-0006792-2012, CP-51-CR-0006796-2012, CP-51-
  CR-0006797-2012, CP-51-CR-0006798-2012, CP-51-CR-0006799-2012,
 CP-51-CR-0006800-2012, CP-51-CR-0006807-2012, CP-51-CR-0006809-
                                   2012


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 17, 2015

       Appellant, Joel Ballance, appeals from the judgment of sentence

entered on May 21, 2014, in the Philadelphia County Court of Common

Pleas. Following our careful review, we quash the appeal.

       The trial court set forth the procedural history of this matter as

follows:

            On or about January 10, 2012, Appellant, Joel Ballance,
       was arrested and charged with various offenses: Regarding
       Docket No. CP-51-CR-0006785-2012, [Appellant] was charged
       with burglary (F-1), conspiracy (F-1), and theft by unlawful
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      taking (M-2). All other charges were nolle prossed. Regarding
      Docket No. CP-51-CR-0006787-2012, [Appellant] was charged
      with burglary (F-1), conspiracy (F-1), theft by unlawful taking
      (M-2) and VUF[A] 6106 (F-3). All other charges were nolle
      prossed. Regarding Docket No. CP-51-CR-0006788-2012,
      [Appellant] was charged with burglary (F-2), conspiracy (F-2),
      and theft by unlawful taking (M-2). All other charges were nolle
      prossed. Regarding Docket No. CP-51-CR-0006789-2012,
      [Appellant] was charged with burglary (F-1), conspiracy (F-1),
      theft by unlawful taking (M-2), VUFA 6106 (F-3). All other
      charges were nolle prossed. Regarding Docket No. CP-51-CR-
      0006790-2012, [Appellant] was charged with criminal attempt
      (F-1) and criminal mischief (M-2). All other charges were nolle
      prossed. Regarding Docket No. CP-51-CR-0006792-2012,
      [Appellant] was charged with receipt of stolen property (M-2).
      Regarding Docket No. CP-51-CR-0006796-2012, [Appellant] was
      charged with criminal attempt burglary (F-1), conspiracy (F-1),
      and criminal mischief (M-2). Regarding Docket No. CP-51-CR-
      0006797-2012, [Appellant] was charged with attempted
      burglary (F-1), conspiracy (F-1), and amended criminal mischief.

            Regarding     Docket    No.     CP-51-CR-0006798-2012,
      [Appellant] was charged with VUFA 6110.2 (F-2) and all other
      charges [were] nolle prossed. Regarding Docket No. CP-51-CR-
      0006799-2012, [Appellant] was charged with burglary (F-1) and
      conspiracy (F-1). Regarding Docket No. CP-51-CR-0006800-
      2012, [Appellant] was charged with robbery (F-3), conspiracy
      (F-1), Burglary (F-1), theft by unlawful taking (M-2) and all
      other charges were nolle prossed. Regarding Docket No. CP-51-
      CR-0006807-2012, [Appellant] was charged with burglary (F-1),
      conspiracy (F-1), theft by unlawful taking (M-2) and all other
      charges were nolle prossed. Regarding Docket No. CP-51-CR-
      0006809-2012, [Appellant] was charged with burglary (F-1),
      conspiracy (F-1), theft by unlawful taking (M-2) and all other
      charges were nolle prossed.

Trial Court Opinion, 1/7/15, at 1-2.

      On March 13, 2014, Appellant entered a guilty plea to the charges

listed above.   The trial court accepted Appellant’s guilty plea, and on May

21, 2014, the trial court sentenced Appellant to an aggregate term of ten to


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twenty years of incarceration. Appellant filed a post-sentence motion that

was denied in an order filed on June 19, 2014, and Appellant filed his notice

of appeal on August 1, 2014.

      On October 15, 2014, this Court issued a Rule to Show Cause directing

Appellant to explain why this appeal should not be quashed as untimely. On

October 24, 2014, Appellant’s counsel filed a response and conceded that

Appellant’s appeal was untimely.

      The    question    of   timeliness   of   an   appeal   is   jurisdictional.

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000).                Time

limitations on appeal periods are strictly construed and cannot be extended

as a matter of grace. Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.

Super. 2002) (citing Commonwealth v. Hottinger, 537 A.2d 1, 3 (Pa.

Super. 1987)).      See also Pa.R.A.P. 105(b) (stating that, although an

appellate court may enlarge the time prescribed in the rules of appellate

procedure for good cause shown, the court may not enlarge the time for

filing a notice of appeal).

      The time limit for filing challenges to a judgment of sentence is set

forth in the Judicial Code as follows:

      § 5571. Appeals generally

      (a) General rule.—The time for filing an appeal, a petition for
      allowance of appeal, a petition for permission to appeal or a
      petition for review of a quasi-judicial order, in the Supreme
      Court, the Superior Court or the Commonwealth Court shall be
      governed by general rules.         No other provision of this



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      subchapter shall be applicable to matters subject to this
      subsection.

42 Pa.C.S. § 5571(a) (emphasis added).

      The relevant rules of appellate procedure promulgated by the

Pennsylvania Supreme Court provide as follows:

      Rule 902. Manner of Taking Appeal

            An appeal permitted by law as of right from a lower
      court to an appellate court shall be taken by filing a notice
      of appeal with the clerk of the lower court within the time
      allowed by Rule 903 (time for appeal).               Failure of an
      appellant to take any step other than the timely filing of a notice
      of appeal does not affect the validity of the appeal, but it is
      subject to such action as the appellate court deems appropriate,
      which may include, but is not limited to, remand of the matter to
      the lower court so that the omitted procedural step may be
      taken.

Pa.R.A.P. 902 (emphasis added).

      Rule 903. Time for Appeal

      (a) General Rule. Except as otherwise prescribed by this rule,
      the notice of appeal required by Rule 902 (manner of taking
      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) (emphasis added).

      In addition, we are mindful that Pa.R.Crim.P. 720 addresses post-

sentence procedures.     Specifically, Pa.R.Crim.P. 720(A) provides that “a

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

imposition of sentence.” Pa.R.Crim.P. 720(A)(1). Rule 720 further provides

as follows:

      (2) If the defendant files a timely post-sentence motion, the
      notice of appeal shall be filed:

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             (a) within 30 days of the entry of the order deciding
             the motion;

             (b) within 30 days of the entry of the order denying
             the motion by operation of law in cases in which the
             judge fails to decide the motion; or

             (c) within 30 days of the entry of the order
             memorializing the withdrawal in cases in which the
             defendant withdraws the motion.

Pa.R.Crim.P. 720(A)(2) (emphasis added).       However, “[i]f the defendant

does not file a timely post-sentence motion, the defendant’s notice of appeal

shall be filed within 30 days of imposition of sentence, ...”    Pa.R.Crim.P.

720(A)(3).

     In Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en

banc), this Court offered the following discussion concerning the timing of a

post-sentence motion:

     From the above, it can be seen that the time for filing an appeal
     can be extended beyond 30 days after the imposition of
     sentence only if the defendant files a timely post-sentence
     motion. The Comment to Rule 720 emphasizes this point as
     follows: “If no timely post-sentence motion is filed, the
     defendant’s appeal period begins to run from the date sentence
     is imposed.” Thus, where the defendant does not file a timely
     post-sentence motion, there is no basis to permit the filing of an
     appeal beyond 30 days after the imposition of sentence. This
     interpretation of Rule 720 is amply supported by this Court’s
     recent decision in Commonwealth v. Bilger, 803 A.2d 199 (Pa.
     Super. 2002), appeal denied, 572 Pa. 695, 813 A.2d 835 (Pa.
     2002) in which we stated:

             As can be readily observed by reading the text of
             Rule of Criminal Procedure 720, ordinarily, when a
             post-sentence motion is filed an appellant has thirty
             (30) days from the denial of the post-sentence


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            motion within which to file a notice of appeal.
            However, by the explicit terms of Pa.R.Crim.P.
            720(A)(2), the provision allowing thirty days from
            the denial of post-trial motions is contingent upon
            the timely filing of a post-trial motion.

      Bilger, 803 A.2d at 201. We further opined that “in order for
      the denial of post-sentence motions to become the triggering
      event, it is necessary that the post-sentence motions be
      timely filed.   Second, absent a timely filed post-sentence
      motion, the triggering event remains the date sentence is
      imposed.” Id. at 202 (emphasis added).

Dreves, 839 A.2d at 1127 (emphasis in original).            Therefore, “[f]or

purposes of triggering the appeal period, [the] filing of an untimely post-

sentence motion is equivalent to a complete failure to file a post-sentence

motion.” Bilger, 803 A.2d at 202.

      Here, our review of the record reflects that on May 21, 2014, the trial

court entered its judgment of sentence. Therefore, in order to be deemed

timely, Appellant’s post-sentence motion was due on or before Monday, June

2, 2014, because May 31, 2014, was a Saturday.        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).      However, Appellant did not file his post-

sentence motion until Tuesday, June 3, 2014.       Because Appellant’s post-

sentence motion was untimely filed, it is the equivalent of a complete failure

to file a post-sentence motion. Bilger, 803 A.2d at 202. Thus, Appellant’s




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untimely post-sentence motion did not toll the period for filing a direct

appeal.1

       Based on the record before us, Appellant’s untimely post-sentence

motion did not toll the appeal period. Accordingly, the notice of appeal was

due on or before Friday, June 20, 2014.          However, because Appellant’s

notice of appeal was not filed until August 1, 2014, it was untimely, and we

are constrained to quash the appeal.

       Appeal quashed. Jurisdiction relinquished.

____________________________________________


1
   We are cognizant that the trial court filed an order denying Appellant’s
untimely post-sentence motion on June 19, 2014.            An untimely post-
sentence motion does not toll the appeal period. Pa.R.Crim.P. 720(A)(3).
However, even if Appellant’s post-sentence motion had been timely filed and
denied on June 19, 2014, in order for the appeal to have been considered
timely, it would have been due on or before July 21, 2014. Pa.R.Crim.P.
720(A)(2). Thus, even if the appeal period had been tolled by the filing of a
timely post-sentence motion, Appellant’s August 1, 2014 notice of appeal
was untimely. Additionally, we are aware that the trial court held a hearing
on Appellant’s untimely post-sentence motion. We noted in Dreves that the
trial court did have the power to grant the filing of a post-sentence motion
nunc pro tunc within thirty days of the judgment of sentence, but specifically
ruled that the fact that the trial court entertained and denied the untimely
motion did not toll the appeal period. We explained that unless a defendant
specifically files a motion seeking permission to file a post-sentence motion
nunc pro tunc, and unless the trial court expressly grants the request within
thirty days of the imposition of the sentence, the appeal period continues to
run. See Dreves, 839 A.2d at 1128-1129 (stating that “[t]he trial court’s
resolution of the merits of a late post-sentence motion is no substitute for an
order expressly granting nunc pro tunc relief”). Here, even though the trial
court considered the merits of the untimely post-sentence motion, the trial
court failed to acknowledge that the post-sentence motion was untimely,
and it did not expressly grant Appellant permission to file a post-sentence
motion nunc pro tunc.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2015




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