J-S53004-16



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

COMMONWEALTH OF PENNSYLVANIA                                    IN THE SUPERIOR COURT OF
                                                                      PENNSYLVANIA
                               Appellee

                          v.

HECTOR VARGAS -TORRES, JR.

                               Appellant                           No. 2009 MDA 2015


           Appeal from the Judgment of Sentence August 20, 2015
            In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP- 21 -CR- 0003636 -2014


BEFORE:    BOWES, SHOGAN AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                                         FILED OCTOBER 24, 2016

      Hector Vargas- Torres, Jr. has filed this appeal from the August 20,

2015 judgment of sentence of one to two years imprisonment that was

imposed after he entered          a   negotiated guilty plea to     a   single count of simple

assault. We quash.

      Appellant was charged in this action with one count of aggravated

harassment by        a   prisoner,    a   felony carrying   a   maximum sentence of seven

years imprisonment.            On August 20, 2015, Appellant entered a negotiated

guilty plea to   a   reduced charge of simple assault (placing someone in fear by

physical menace), in exchange for                   a   sentence of one to two years

imprisonment. The sentence was to "run consecutively to any sentence that

[Appellant was] presently serving." N.T. Guilty Plea, 8/20/15, at 5. At that


* Former Justice specially assigned to the Superior Court.
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time, Appellant admitted to the following.             On August 21, 2014, he was

incarcerated at the State Correctional Institution --Camp Hill. Appellant had

been placing   a   covering over his cell door that prevented correctional officers

from viewing the inside of his cell.               Appellant continued to place the

obstruction over his cell door even though he had been repeatedly warned

that he was not permitted to do so.                On August 21, 2014, Correctional

Officer Brent McBeth, as          a   security precaution, was installing plexiglass

inside Appellant's cell when Appellant spit on him, striking Correctional

Officer McBeth's chest and forearm.

      On August 20, 2015,         after accepting the guilty plea, the court imposed

the negotiated sentence of one to two years in jail, and Appellant was

apprised of his post- sentence rights.          Id. at 7 -8.   On September 8, 2015,

Appellant filed    a    motion seeking credit for time served from October 21,

2014, when he was arrested for the present crime, to August 20, 2015. The

motion did not seek any form of PCRA relief, and Appellant did not ask to file

the motion nunc pro       tunc.


      Following     a   hearing, the court denied the motion on November 2,

2015, after the period for filing        a   direct appeal from the August 20, 2015

judgment of sentence expired.            The court found that any time Appellant

spent in jail prior to August 20, 2015, had been credited to sentences

imposed in other matters. Appellant filed this appeal from the judgment of

sentence imposed on August 20, 2015.

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         Counsel has filed   a   petition to withdraw from representation and   a


brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349             (Pa. 2009).   However, we are

without jurisdiction to address counsel's request as this appeal was untimely

filed. In Commonwealth v. Capaldi, 112 A.3d 1242 (Pa.Super. 2015), one

week after his post- sentence motions had to be filed, the defendant filed      a


motion for credit for time -served. Upon appeal from the motion's denial, we

noted that the motion for time served was not timely filed, and quashed.'

We articulated:

           In   cases   where     no   post- sentence   motions    (or
         Commonwealth's motions to modify sentence) are filed, a
         defendant must file an appeal within 30 days of imposition of


'  We are aware of the precept that "all motions filed after a judgment of
sentence is final are to be construed as PCRA petitions." Commonwealth
v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013) (citing Commonwealth v.
Fowler, 930 A.2d 586 (Pa.Super. 2007)) (collecting cases); accord
Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011). However, the
present motion was not filed after Appellant's judgment of sentence became
final. The sentence was imposed on August 20, 2015, and became final on
September 19, 2015. Appellant's motion was presented on September 8,
2015, prior to the finality of his judgment of sentence. Hence, it must be
analyzed under Capaldi, which applies reasoning employed in a long line of
cases.

    Moreover, even if we were to characterize the motion in question as a
PCRA petition and this appeal as timely filed from the denial of PCRA relief,
we would concur with counsel's finding of frivolity and affirm the trial court's
refusal to grant Appellant credit for time served on the basis of its March 1,
2016 opinion.



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      sentence in open court.               Pa.R.Crim.P.      720(A)(3); Pa.R.A.P.
      903(c)(3).

          If a defendant files a timely post- sentence motion, the
      appeal period does not begin to run until the motion is decided.
      Pa.R.Crim.P.   720(A)(2);    Pa.R.A.P.    903(a).   Except    in
      circumstances not applicable here, a defendant must file a post -
      sentence motion within ten days of imposition of sentence.
      Pa.R.Crim.P. 720(A)(1).

          An untimely post- sentence motion does not toll the appeal
      period. Commonwealth v. Green, 862 A.2d 613, 618
      (Pa.Super. 2004) (en banc) ( "[T]he 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. ").

Id. at 1244 (emphases         in   original).

      Herein, Appellant's judgment of sentence was imposed on August 20,

2015, and, since the tenth day fell on                 a   weekend, he had until Monday

August 31, 2015, to file           a   timely post- sentence motion.         The motion in

question was filed on Tuesday, September 8, 2015, and was untimely.

Appellant never asked for, nor was he granted, the right to file the motion

nunc pro tunc.       Therefore, even though the motion in question was

entertained on the merits by the trial court, it did not operate to extend the

appeal   period    from       the      August    20,       2015   judgment    of   sentence.

Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super. 2003) (en banc).
      In response to      a    rule issued by this Court to show cause why the

appeal should not be quashed, Appellant argued that the motion for credit

for time served was an attack on the legality of the sentence, which cannot

be waived.   However, as we explained in Capaldi, supra at 1245, before we

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may address       a   non -waivable legality -of- sentence issue, "we must first have

jurisdiction." The nature of Appellant's issue simply does confer jurisdiction

upon us.

      In response to the rule, Appellant also suggested that his motion was

not subject to the timeliness requirements of Pa.R.Crim.P. 720. He provided

no legal       support for that position, and we observe that the docket sheet

characterizes the motion as       a   post- sentence motion. Indeed, in Capaldi, we

treated    a   motion for credit for time served that was filed one week late as   a


post- sentence motion.         We are therefore constrained to quash the appeal

from the August 20, 2015 judgment of sentence under the jurisprudence

applied in Dreves, supra, and Capaldi, supra.

      Appeal quashed. Counsel's motion to withdraw dismissed as moot.




Judgment Entered.




J: sephD. Seletyn,
Prothonotary


Date: 10/24/2016




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