J-S35032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
           v.                             :
                                          :
EMMETT W. COLEMAN,                        :
                                          :
                 Appellant                :           No. 2044 EDA 2015

            Appeal from the Judgment of Sentence April 1, 2015
           in the Court of Common Pleas of Montgomery County,
             Criminal Division, No(s): CP-46-CR-0006463-2010

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED JUNE 28, 2016

     Emmett W. Coleman (“Coleman”) appeals from the judgment of

sentence imposed following the revocation of his parole.          Additionally,

Coleman’s counsel, Henry Hilles, III, Esquire (“Attorney Hilles”), has filed a

Petition to Withdraw as counsel and an accompanying brief pursuant to

Anders v. California, 386 U.S. 738, 744 (1967). We dismiss the appeal

and deny Attorney Hilles’s Petition to Withdraw as moot.

     The trial court set forth the relevant procedural history as follows:

            On March 15, 2011, [Coleman] pled guilty to one count of
     retail theft and was sentenced to time served to twenty-three
     months of incarceration, with a consecutive period of two years
     of probation. [Coleman] was paroled from prison on March 21,
     2011.

           Subsequently, [Coleman] violated his parole. On June 7,
     2011, [Coleman] admitted to technical parole violations and was
     resentenced. [Coleman] was paroled on June 28, 2011. He
     again violated the terms of his parole by failing to report on July
     26, 2011.
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           [Coleman] admitted to the second violation of his parole
     on February 22, 2012. On the same day, he was sentenced to
     serve the balance of his sentence. For the third time, [Coleman]
     was made eligible for re-parole.

           On February 24, 2012, [Coleman’s] request for parole was
     granted. On October 19, 2012, [Coleman] was arrested by
     Philadelphia Police for robbery, burglary and criminal trespass
     [(hereinafter “the Philadelphia charges”)].    The Philadelphia
     charges are the basis for [Coleman’s] present parole violation.

            [Coleman] was eventually convicted of the Philadelphia
     charges.      Subsequently, th[e trial c]ourt held a contested
                  [1]
     Gagnon II hearing on January 15, 2015. At the hearing, th[e
     trial c]ourt determined that [Coleman] violated the terms of his
     parole.

Trial Court Opinion, 8/11/15, at 1-2 (footnote added, some capitalization

omitted).

     On April 1, 2015, the trial court conducted a sentencing hearing (“the

Sentencing Hearing”), wherein Coleman was represented by an attorney

from the Public Defender’s Office. The trial court sentenced Coleman to a

“time served” sentence of one to two years in prison, to run from October

23, 2012, to the date of sentencing. This sentence was to run concurrently

with the sentence of 19 to 60 months in prison that Coleman was serving for

the Philadelphia charges.

     After sentencing, Coleman terminated the services of his attorney by

pro se correspondence that Coleman had dated April 3, 2015. By separate

pro se correspondence bearing the same date, Coleman requested the trial

1
  See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (holding that due
process requires that a probationer/parolee be given preliminary (Gagnon
I) and final (Gagnon II) hearings prior to revoking probation/parole).


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J-S35032-16


court to (1) order the preparation of copies of the Sentencing Hearing

transcript; and (2) issue a ruling on Coleman’s purported post-sentence

motion.2 By an Order dated May 11, 2015, the trial court denied Coleman’s

“post sentence motion.”3 Coleman then filed a pro se Notice of Appeal, while

he was in state prison.    The Notice of Appeal was postmarked as being

mailed from the prison on June 4, 2015.4

      In August 2015, Coleman filed an application with this Court seeking

the appointment of new counsel. This Court deferred the matter to the trial

court, which thereafter granted relief and appointed Attorney Hilles to

represent Coleman on appeal.5 In January 2016, Attorney Hilles filed with




2
   We observe that no such motion is contained in the certified record or
listed on the trial court’s docket.     Attorney Hilles maintains that the
purported motion was filed on April 29, 2015. See Anders Brief at 9.
3
  In the Order, the trial court informed Coleman that he had the right to
appeal within 30 days of entry of his judgment of sentence, and to the
assistance of counsel if appealing in forma pauperis. However, Coleman was
not advised at the Sentencing Hearing of his appeal rights.
4
  Though the Notice of Appeal was not filed with the clerk of courts until June
18, 2015, the trial court properly deemed the date of filing as June 4, 2015,
the date the prison authorities postmarked the mailing.                     See
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (stating
that the “prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”
(citation omitted)); see also Trial Court Opinion, 8/11/15, at 3 n.1.
5
  The trial court did not order Coleman to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.


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this Court an Anders Brief6 and Petition to Withdraw as counsel, opining

that Coleman’s appeal was untimely and that the issue Coleman wished to

raise on appeal is wholly frivolous.    Subsequently, the trial court issued a

Pa.R.A.P. 1925(a) Opinion determining that Coleman’s appeal must be

dismissed as untimely filed.

      This Court lacks jurisdiction to consider untimely appeals from a

probation/parole revocation sentence. See Commonwealth v. Burks, 102

A.3d 497, 500 (Pa. Super. 2014); see also Commonwealth v. Patterson,

940 A.2d 493, 497 (Pa. Super. 2007) (stating that “[j]urisdiction is vested in

the Superior Court upon the filing of a timely notice of appeal.”). A notice of

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). “Time limitations for taking appeals

are strictly construed and cannot be extended as a matter of grace.” Burks,

102 A.3d at 500.

      This Court has explained that


6
  Attorney Hilles states in his Brief that Coleman wishes to raise the following
issue on appeal:

      Did the Honorable Trial Court err by imposing a judgment of
      sentence in connection with a probation revocation proceeding
      (on April 1, 2015), 13½ months following a December 2, 2013
      criminal conviction [that] caused the probation violation, on a
      theory that [Coleman] was denied a speedy revocation
      proceeding[,] in violation of Pennsylvania Rule of Criminal
      Procedure 708(B)?

Anders Brief at 2.



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     Rule 720 of the Pennsylvania Rules of Criminal Procedure in
     general governs the timing of post-sentence motion procedures
     and appeals. See Pa.R.Crim.P. 720. The disposition of a motion
     to modify a sentence imposed after a revocation hearing,
     however, is governed by Rule 708 (Violation of Probation,
     Intermediate Punishment, or Parole: Hearing and Disposition).
     See Pa.R.Crim.P. 720 Comment. Rule 708(E) states: “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) []. Rule 708 makes clear Rule 720 does not
     apply to revocation cases.         Id. Comment[; s]ee also
     Commonwealth v. Parlante, 2003 PA Super 169, 823 A.2d
     927, 929 (Pa. Super. 2003) (internal citation omitted) (stating:
     “An appellant whose revocation of probation sentence has been
     imposed after a revocation proceeding has 30 days to appeal
     [his or] her sentence from the day [the] sentence is [imposed],
     regardless of whether … [he or] she files a post-sentence
     motion. Therefore, if an appellant chooses to file a motion to
     modify [his or] her revocation sentence, [the appellant] does not
     receive an additional 30 days to file an appeal from the date
     [the] motion is denied”).

Burks, 102 A.3d at 499-500 (emphasis omitted).

     Here, the trial court revoked Coleman’s parole and resentenced him on

April 1, 2015. Coleman did not file his pro se Notice of Appeal until June 4,

2015, 34 days after the expiration of the 30-day period for filing an appeal

from the judgment of sentence, and after having discharged his counsel.

Coleman’s purported filing of a post-sentence motion did not toll the appeal

period.   See Pa.R.Crim.P. 708(E).      Moreover, the record contains no

evidence of extraordinary circumstances that might excuse Coleman’s

untimely filing. See Burks, 102 A.3d at 500 (observing that an extension of

the filing period is permitted only in extraordinary circumstances, such as

fraud or some breakdown in the court’s operation).


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J-S35032-16


     Based upon the foregoing, Coleman’s failure to file his Notice of Appeal

within thirty days of the entry of his judgment of sentence divested this

Court of appellate jurisdiction, and we must therefore dismiss the appeal as

untimely filed.   Id.     Additionally, we deny Attorney Hilles’s Petition to

Withdraw as moot.

     Petition to Withdraw as counsel denied as moot; appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/28/2016




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