J. S83005/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
ROBERT VASILINDA,                      :         No. 1746 WDA 2015
                                       :
                       Appellant       :


           Appeal from the Judgment of Sentence, July 28, 2015,
             in the Court of Common Pleas of Cambria County
            Criminal Division at Nos. CP-11-CR-0001957-2008,
            CP-11-CR-0002402-2008, CP-11-CR-0002408-2008


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:       FILED DECEMBER 21, 2016

     Robert Vasilinda appeals1 from the July 28, 2015 aggregate judgment

of sentence of 8½ to 18 years’ imprisonment imposed following the

revocation of his probation. For the reasons that follow, we are constrained

to quash this appeal as untimely.

     An appeal from a sentence imposed following a revocation of probation

must be filed within 30 days after imposition of the new sentence.      See




* Retired Senior Judge assigned to the Superior Court.
1
  We note that although appellant purports to appeal from the October 2,
2015 order denying his post-sentence motion, a direct appeal in a criminal
case is properly taken from a judgment of sentence. Commonwealth v.
Yancoskie, 915 A.2d 111, 112 n.1 (Pa.Super. 2006), appeal denied, 927
A.2d 625 (Pa. 2007), cert. denied, 552 U.S. 1111 (2008). We have
corrected the caption accordingly.
J. S83005/16


Pa.R.App.P. 903(a). In contrast to other sentencing situations in which the

filing of a timely post-sentence motion extends the appeal period until after

the motion has been decided, see Pa.R.Crim.P. 720(a)(2), the filing of a

motion to modify a sentence imposed after revocation of probation does not

toll the 30-day appeal period. See Pa.R.Crim.P. 708(E) (stating, “[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.”).

            Under this rule, the mere filing of a motion to modify
            sentence does not affect the running of the 30-day
            period for filing a timely notice of appeal. Any
            appeal must be filed within the 30-day appeal
            period unless the sentencing judge within
            30 days of the imposition of sentence expressly
            grants reconsideration or vacates the sentence.

Id. at note (citations omitted; emphasis added).

      Here, appellant was resentenced on July 28, 2015, after the trial court

determined that he had violated the terms of his probation and vacated his

original March 19, 2010 judgment of sentence. On July 31, 2015, appellant

filed a timely post-sentence motion to modify his sentence, which was

denied by the trial court on October 2, 2015.      Appellant filed a notice of

appeal on October 28, 2015, which was within 30 days of the order denying

his post-sentence motion to modify, but more than 30 days from the

July 28, 2015 order imposing sentence. We found no place in the certified

record where the trial court had granted reconsideration of or vacated the



                                    -2-
J. S83005/16


July 28, 2015 sentence.    Moreover, the transcript of the July 28, 2015

sentencing hearing reveals that the trial court properly advised appellant

and his counsel “of the right to file a post-sentence motion and to appeal,

[and] of the time within which [appellant] must exercise those rights,” in

accordance with Pa.R.Crim.P. 704(C)(3). (See notes of testimony, 7/28/15

at 12.) Accordingly, appellant’s appeal must be quashed as untimely.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/21/2016




                                   -3-
