J-S12045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILIP ROBERT ATKINS,                      :
                                               :
                       Appellant               :      No. 1425 MDA 2018

          Appeal from the Judgment of Sentence Entered June 4, 2018
                  in the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007574-2017

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                              FILED APRIL 16, 2019

        Philip Robert Atkins (“Atkins”) appeals from the judgment of sentence

imposed following his negotiated guilty plea to one count of possession of drug

paraphernalia and one count of driving under the influence (“DUI”) –

controlled substances, his second offense.1 We quash the appeal.

        Atkins was arrested on August 29, 2017, after admitting to the

possession of, and testing positive for the presence of, marijuana following an

automobile accident.2 The Commonwealth charged this incident as Atkins’s

second DUI offense, based on a previous DUI conviction on February 8, 2008.

____________________________________________


1   See 35 P.S. § 780-113(a)(32); 75 Pa.C.S.A. § 3802(d)(1)(i).

2 The Trooper responding to the accident observed that Atkins’s eyes were
glassy and bloodshot, and that he smelled of marijuana. Atkins failed multiple
field sobriety tests administered at the scene of the accident. After being
advised of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436
(1966), Atkins was taken to York Hospital where he consented to a blood draw
that revealed the presence of marijuana in his blood.
J-S12045-19



Atkins challenged this classification in his Omnibus Pretrial Motion (“OPM”).

On June 4, 2018, the trial court held a hearing on the OPM and determined

that, based on Atkins’s acceptance into Accelerated Rehabilitative Disposition

(“ARD”) on February 8, 2008, the instant offense constituted a second offense.

       That same day, Atkins entered into a negotiated guilty plea on the

above-mentioned offenses.          Pursuant to the plea agreement, Atkins was

sentenced to 12 months’ probation for his possession of drug paraphernalia,

and to 5 years of county intermediate punishment to include 45 days in prison,

with 43 days’ credit for time served, followed by 90 days of house arrest, with

alcohol monitoring, for the DUI offense.

       On June 15, 2018, Atkins filed a Post-Sentence Motion (“PSM”) alleging

that the imposition of a 5-year sentence for the DUI offense was illegal

because the current offense was not to be considered a second offense under

75 Pa.C.S.A. § 3806(b), which governs repeated DUI convictions. The trial

court denied Atkins’s PSM on July 31, 2018 and Atkins filed a Notice of Appeal

on August 27, 2018.3        On appeal, Atkins raises the following issue for our

review:

       1. Whether the lower court erred as a matter of law by sentencing
          [Atkins] as a second offender under 75 [Pa.C.S.A.] § 3806(a)
          instead of as a first offender under 75 [Pa.C.S.A.] § 3806(b)
          where the present offense occurred on August 29, 2017[,] and

____________________________________________


3 On September 13, 2018, this Court issued an Order directing Atkins to show
cause why the appeal should not be quashed. Following Atkins’s Response,
this Court discharged the show-cause Order and reserved the issue to the
merits panel.

                                           -2-
J-S12045-19


           [Atkins’s] first DUI offense, which resulted into [sic] ARD
           acceptance on February 8, 2008, occurred on August 1, 2007?

Brief for Appellant at 10.

         We begin by addressing the timeliness of Atkins’s appeal, “as it

implicates our jurisdiction.” Commonwealth v. Green, 862 A.2d 613, 615

(Pa. Super. 2004). “Jurisdiction is vested in the Superior Court upon the filing

of a timely notice of appeal.” Id. As we will explain below, the focus of our

inquiry is whether Atkins’s PSM was timely filed.

         As previously stated, Atkins was sentenced on June 4, 2018, filed his

PSM on June 15, 2018, and filed his Notice of Appeal on August 27, 2018.

Pa.R.Crim.P. 720(A)(1) provides a 10-day period for the filing of post-

sentence motions. As such, Atkins had until June 14, 2018 to timely file the

PSM. Although Atkins’s counsel asserts, in the Response to the show-cause

Order, that the PSM was mailed on June 12, 2008, the record reflects that the

PSM was not received by the clerk of courts until June 15, 2008.4 Pa.R.Crim.P.

576(A)(2)(b) states that, “[e]xcept as provided by law, filing by mail shall be

timely only when actually received by the clerk of courts within the time fixed

for filing….” Since Atkins’s PSM was not “actually received” by the clerk of

courts within the allotted time period, we conclude that the PSM was untimely

filed.

         It is well-established that untimely post-sentence motions do not toll

the 30-day appeal period provided in Pa.R.A.P. 903(a). See Commonwealth
____________________________________________


4We note that the “Prisoner Mailbox Rule,” see Pa.R.A.P. 121(a), does not
apply to Atkins, as he was neither pro se nor imprisoned at the relevant times.

                                           -3-
J-S12045-19



v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en banc). “The Comments to

Pa.R.Crim.P. 720(A)(3) also reaffirm that if no timely post-sentence motion is

filed, the defendant's appeal period runs from the date sentence is imposed.”

Green, 862 A.2d at 616 (internal quotation marks and citation omitted). As

such, because Atkins was sentenced on June 4, 2018, he had until July 5,

2018 to file his Notice of Appeal. Since the Notice of Appeal was not filed until

well after this date, on August 27, 2018, the Notice of Appeal was untimely.

Accordingly, this Court is without jurisdiction to review Atkins’s claim and the

appeal must be quashed. Id. at 619.

      Even if we were to address the merits of Atkins’s claim, we would

nonetheless affirm the judgment of sentence for the following reasons.

      Atkins’s claim presents an issue of statutory interpretation, which is a

question of law. Accordingly, our standard of review is de novo and our scope

of review is plenary. Commonwealth v. Haag, 981 A.2d 902 (Pa. 2009).

      Atkins contends that the trial court’s sentence is contrary to the plain

language of the grading statute, 75 Pa.C.S.A. § 3806. Brief for Appellant at

20. Atkins asserts that because the commission of his first DUI offense, as

opposed to its disposition, occurred more than 10 years prior to the

commission of the instant DUI offense, then under 75 Pa.C.S.A. § 3806(b) the

first offense should not be considered a prior offense for sentencing purposes.

Brief for Appellant at 29. Atkins further states that the trial court’s reliance

on Commonwealth v. Mock, 186 A.3d 434 (Pa. Super. 2018), appeal

granted, 198 A.3d 1049 (Pa. 2018), was an error, as Mock is currently on

                                      -4-
J-S12045-19



appeal to our Supreme Court. Brief for Appellant at 29. Atkins recognizes

that “a Superior Court panel is generally bound by prior panel decisions of

[this] Court,” but urges this Court to reconsider Mock. Brief for Appellant at

28.

      Section 3806 provides, in pertinent part, as follows:

      a) General rule.— Except as set forth in subsection (b), the term
         “prior offense” as used in this chapter shall mean any
         conviction for which judgment of sentence has been imposed
         … acceptance of Accelerated Rehabilitative Disposition or other
         form of preliminary disposition before the sentencing on the
         present violation for any of the following:

         (1) an offense under section 3802 (relating to driving under
         influence of alcohol or controlled substance);

                                      ***
      (b) Timing.—

         (1) For purposes of sections … 3803 (relating to grading) [and]
         3804 (relating to penalties) … the prior offense must have
         occurred:

         (i) within 10 years prior to the date of the offense for which the
         defendant is being sentenced ….

75 Pa.C.S.A. § 3806 (emphasis added).

      Atkins relies on subsection (a)’s use of the phrase “[e]xcept as set forth

in subsection (b)” to support his claim that subsection (a) yields to subsection

(b). Brief for Appellant at 27. We agree with Atkins, as we did in Mock, to

the extent that “subsection (b) does, in fact, modify subsection (a) by limiting

the universe of dispositions relevant to determining the applicability of

recidivist sentencing enhancements….” Mock, 186 A.3d at 437. However,



                                      -5-
J-S12045-19


we disagree with Atkins that the definition of “prior offense,” as set forth in

subsection (a), must be disregarded when looking at the qualifying language

of

subsection (b). See Brief for Appellant at 28 (advancing that the omission of

the word “conviction” in subsection (b), in contrast to its inclusion in

subsection (a), necessarily intimates that the Legislature intended that the

occurrence of an offense, not its disposition, be the touchstone for purposes

of calculating prior offenses during sentencing).

      In Mock, the appellant challenged the classification of a previous DUI

conviction as a “prior offense” occurring within 10 years of a subsequent DUI

conviction because, although convicted on March 27, 2007, the previous DUI

occurred on June 3, 2006, and the subsequent DUI occurred on July 10, 2006.

Mock, 186 A.3d at 437. There, the appellant claimed that the language of

Section 3806(b) mandates that the focus be on the date of the offense, not

its conviction or disposition.   Id. at 436-37.     In determining that it is the

appellant’s conviction date which controls, the Mock Court explained,

      the language “except as set forth in subsection (b)” appearing at
      the beginning of subsection (a) does not alter, for purposes of
      subsection (b), the essential definition of “prior offense” as being
      the disposition (i.e., conviction for which judgment of sentence
      has been imposed, et al.) rather than the actual commission of
      the offense. Rather, the phrase merely signals that, for purposes
      of subsection (b), a “prior offense” does not encompass “any”
      disposition, as it does in subsection (a). Instead, as the heading
      (“Timing”) suggests, “prior convictions” that may be considered
      for purposes of grading and sentencing under subsection (b) are
      only those that occurred within the more limited time frames
      delineated therein.

                                      -6-
J-S12045-19



Id. at 437 (emphasis added) (footnote omitted). Thus, where a disposition

occurs fewer than 10 years before a subsequent offense, the prior disposition

is to be construed as a prior offense for purposes of sentencing.

       Like the appellant in Mock, Atkins committed a subsequent offense

within 10 years of the date on which he accepted ARD for a previous offense.

The acceptance of ARD qualifies as a “prior offense” under Section 3806(a)

without regard to timing, and qualifies under Section 3806(b) where the

acceptance, i.e., the “prior offense,” occurs within 10 years of the commission

of the second offense.    Atkins accepted ARD on February 8, 2008, and

committed the instant offense less than 10 years later, on August 29, 2017.

Based on our rationale and holding in Mock, we conclude that the trial court

properly classified Atkins’s previous DUI conviction as a “prior offense” under

both Section 3806(a) and Section 3806(b) for sentencing purposes.

       Because Atkins’s Notice of Appeal was untimely, we are constrained to

quash the appeal. We additionally note, as detailed above, that even if were

we to address the merits of Atkins’s appeal, Atkins still would not be entitled

to relief.

       Appeal quashed.




                                     -7-
J-S12045-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/16/2019




                          -8-
