J-S35037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRANCIS GALLO,

                            Appellant                  No. 62 EDA 2015


            Appeal from the Judgment of Sentence October 8, 2014
              in the Court of Common Pleas of Delaware County
              Criminal Division at No.: CP-23-CR-0001793-2014


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JUNE 02, 2015

        Appellant, Francis Gallo, appeals from the judgment of sentence

imposed after the revocation of his probation.1 Appellant’s counsel seeks to

withdraw from representation pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

We quash and deny counsel’s application to withdraw as moot.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant purports to appeal from the court’s denial of his post-sentence
motion. (See Notice of Appeal, 12/31/14, at 1). However, an appeal
properly lies from the judgment of sentence. See Commonwealth v.
Rojas, 874 A.2d 638, 642 (Pa. Super. 2005). We have amended the
caption accordingly.
J-S35037-15


        On March 28, 2014, Appellant entered a negotiated guilty plea to one

count of possession of marijuana.2             While serving his twenty-four month

probationary sentence, (see Guideline Sentence Form, 4/11/14, at 1),

Appellant failed to report, and tested positive for morphine and oxycodone.

(See Request for Bench Warrant, 6/13/14, at 1).             At his October 8, 2014

Gagnon II3 hearing, he stipulated to the probation violation.           (See N.T.

Gagnon II Hearing, 10/08/14, at 3).              The same day, the court adopted

Adult Probation’s recommendation and imposed a sentence of not less than

nine nor more than twenty-three months’ incarceration, plus drug and

alcohol evaluation, and community service.             (See id. at 4, 9; see also

Judgment of Sentence, 10/08/14, at 1). On December 9, 2014, the court

denied Appellant’s nunc pro tunc post-sentence motion.            Appellant filed a

notice of appeal on December 31, 2014. On March 12, 2015, counsel filed

an application to withdraw and an Anders brief on the basis that the appeal

is frivolous.4

        Preliminarily, we must address this appeal’s timeliness. As this Court

recently stated:

        Rule 720 of the Pennsylvania Rules of Criminal Procedure in
        general governs the timing of post-sentence motion procedures
____________________________________________


2
    35 P.S. § 780-113(a)(16).
3
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4
    Appellant did not respond to counsel’s application to withdraw.



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J-S35037-15


      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) (emphasis added).        Rule 708
      makes clear Rule 720 does not apply to revocation cases. Id.
      Comment. See also Commonwealth v. Parlante, 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 her
      sentence from the day her sentence is [imposed], regardless of
      whether . . . she files a post-sentence motion. Therefore, if an
      appellant chooses to file a motion to modify her revocation
      sentence, she does not receive an additional 30 days to file an
      appeal from the date her motion is denied”).

            Time limitations for taking appeals are strictly construed
      and cannot be extended as a matter of grace. This Court can
      raise the matter sua sponte, as the issue is one of jurisdiction to
      entertain the appeal. Absent extraordinary circumstances, this
      Court has no jurisdiction to entertain an untimely appeal.

Commonwealth v. Burks, 102 A.3d 497, 499 (Pa. Super. 2014) (some

case citations omitted).

      Here, the court revoked Appellant’s probation and resentenced him on

October 8, 2014. Although Appellant filed a post-sentence motion nunc pro

tunc on November 5, 2014, this did not toll the thirty-day appeal period.

See id. Therefore, Appellant had until November 7, 2014 to file an appeal,




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J-S35037-15


regardless of the post-sentence motion.5 However, he did not file his notice

of appeal until December 31, 2014.

       Therefore, Appellant's failure to file his notice of appeal within thirty

days of the sentence imposed after the probation revocation divested this

Court of appellate jurisdiction. See id. Accordingly, we quash this appeal

as untimely.

       Appeal quashed. Counsel’s application to withdraw denied as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




____________________________________________


5
  Counsel advised Appellant at sentencing that he had thirty days from the
date of sentencing to file a notice of appeal. (See N.T. Hearing, 10/08/14,
at 9).



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