J-S65025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ANTHONY MICHAEL FLOWERS,

                          Appellant                    No. 165 WDA 2016


          Appeal from the Judgment of Sentence of December 22, 2015
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-CR-0002589-2012


BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 02, 2016

      Appellant, Anthony Michael Flowers, appeals from the judgment of

sentence entered on December 22, 2015. We are constrained to quash this

appeal.

      The trial court has ably explained the underlying facts and procedural

posture of this appeal:

          On November 21, 2013, [Appellant] entered a general guilty
          plea . . . to the following counts: 1) criminal attempt – rape
          forcible compulsion, in violation of 18 Pa.C.S.A. § 901(a); 2)
          unlawful restraint/serious bodily injury, in violation of 18
          Pa.C.S.A. § 2902(a)(1); 3) simple assault, in violation of 18
          Pa.C.S.A. § 2701(a)(1); and[,] 4) simple assault, in
          violation of 18 Pa.C.S.A. § 2701(a)(3).

          [Appellant] was sentenced on February 18, 2014. At count
          one [(criminal attempt at rape)], he was sentenced to two
          [years’] intermediate punishment with two [years’] home
          electronic monitoring. Further, [Appellant] was found to be
          a Tier III violator of Megan’s Law and was ordered to
          participate in sex offender’s treatment.     At count two,

*Retired Senior Judge assigned to the Superior Court.
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       [Appellant] was sentenced to serve two [years’] probation
       consecutive to count one. At counts three and four, no
       further penalty was ordered.

       On April 29, 2014, [Appellant] was discharged from sex
       offender’s treatment because “his mental health and low IQ
       prohibit [him] from learning abstract concepts.”      [N.T.
       Detainer Hearing, 6/24/14, at 9]. [On June 10, 2014, the
       trial court issued an “order for warrant of arrest and to
       detain” because:     “on [April 29 2014, Appellant] was
       unsuccessfully discharged from [the] sex offender program”
       and “on [May 16, 2014, Appellant] had a violent episode
       while on EHM that resulted in a 302 commitment[,
       Appellant] was not taking his prescribed meds.” Detainer
       Warrant, 6/10/14, at 1]. . . .

       A revocation hearing was [held] on June 24, 2014. . . . At
       the conclusion of the hearing, [the trial court] vacated the
       requirement that [Appellant] attend sex offender’s
       treatment and continued the detainer hearing so that
       [Appellant’s] counsel could attempt to find an appropriate
       treatment placement for [Appellant].

       On November 13, 2015, an intermediate punishment
       revocation hearing was held before th[e trial] court. Nancy
       Packe of Westmoreland Case Management testified that,
       despite extensive efforts, she was unable to locate a
       residential placement for [Appellant] either due to the
       charges for which he was convicted or the lack of
       state/county funding for such a placement. Ms. Packe
       further testified that [Appellant’s] mother was fearful of
       having [Appellant] return to her home. Th[e trial] court
       found [Appellant] in violation of the terms and conditions of
       [his] intermediate punishment and probation. [The trial
       court then resentenced Appellant to two-and-a-half to five
       years in prison at count one, and to serve a consecutive
       term of two years’ probation at count two. Appellant] was
       also ordered to participate in sex offender’s treatment and
       be evaluated for high intensity mental health treatment
       while in state prison.

       On November 23, 2015, [Appellant] filed a motion to modify
       sentence[,] arguing that the sentence requiring [him] to
       complete sex offender’s treatment violated the [Eighth]

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        Amendment in that it imposed a condition that [Appellant]
        was not capable of satisfying. . . .

        On November 25, 2015, [the trial court] granted
        [Appellant’s] motion to modify and vacated the November
        13, 2015 sentence.

        On December 22, 2015, [Appellant] appeared before th[e
        trial] court for [resentencing]. After argument and hearing,
        [Appellant was resentenced to serve a term of two-and-a-
        half to five years in prison at count one, and to serve a
        consecutive term of two years’ probation at count two.
        Further, at the conclusion of the sentencing hearing, the
        trial court informed Appellant:

           You [] have a right of a direct appeal to the Superior
           Court. If you wish to appeal the sentence that I’ve
           imposed upon you today, you have 30 days from today’s
           date to file a direct appeal to the Superior Court of
           Pennsylvania. And if you have any further questions,
           your attorney can explain that to you.

        N.T. Resentencing Hearing, 12/22/15, at 10]. . . .

        On December 31, 2015, [Appellant] filed a motion to
        reconsider and modify sentence, which [the trial court
        denied] on January 5, 2016.

Trial Court Opinion, 3/24/16, at 1-3 (some internal capitalization and

formatting omitted).

     On Friday, January 22, 2016 – or, 31 days after the trial court

resentenced   Appellant   following   the   revocation   of   his   intermediate

punishment sentence – Appellant filed a notice of appeal to this Court. We

must now quash this appeal.

     Before we are able to consider the merits of Appellant’s claims, we

must first determine whether the appeal is timely.       Indeed, even though

neither party has claimed that the appeal is untimely, “we are required to

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consider the [timeliness of this appeal] sua sponte because the issue

[implicates] our subject matter jurisdiction.”   Commonwealth v. Cooper,

710 A.2d 76, 78 (Pa. Super. 1998).

      Pennsylvania Rule of Criminal Procedure 708 establishes the required

procedure for revocation of probation, intermediate punishment, or parole

proceedings. With respect to post-sentence proceedings in revocation cases,

Rule 708 declares:

        (E) Motion to Modify Sentence

        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.

Pa.R.Crim.P. 708(E) (emphasis added).

      Thus, pursuant to the plain terms of the above 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.” Pa.R.Crim.P. 708 cmt.

      In the case at bar, the trial court revoked Appellant’s intermediate

punishment and, on December 22, 2015, the trial court resentenced

Appellant to serve a term of two-and-a-half to five years in prison, followed

by a term of two years of probation. Appellant then filed a timely motion to

modify his sentence. Yet, since the trial court denied Appellant’s motion to

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modify,   Appellant’s   motion   did   not   toll   the   30-day   appeal   period.

Pa.R.Crim.P. 708(E).    As such, Appellant was required to file his notice of

appeal on or before January 21, 2016. Appellant did not file his notice of

appeal until January 22, 2016.     Therefore, the current appeal is untimely.

We do not have subject matter jurisdiction over this appeal.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




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