J-S12026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

FRANK PICCOLO,

                            Appellant                       No. 1060 EDA 2014


           Appeal from the Judgment of Sentence November 15, 2013
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0002621-2013, CP-51-CR-0002622-
                          2013, CP-51-CR-0002645-2013


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.:                         FILED JUNE 04, 2015

        Because I believe our rules of appellate procedure require quashal of

this appeal, I respectfully dissent.

        After reviewing Appellant’s pre-sentence investigation report and

mental     health    evaluation,     the   trial   court   sentenced   Appellant   on

November 15, 2013, to incarceration for an aggregate term of one to two

years, followed by six and one-half years of probation.            Appellant did not

immediately advise his attorney that he wanted to file a post-sentence

motion. Rather, Appellant allegedly sent a letter dated November 18, 2013,

requesting counsel to file a post-sentence motion. Counsel claims he did not

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*
    Former Justice specially assigned to the Superior Court.
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receive the letter until November 27, 2013, due to a problem with the mail.

Upon receipt of the letter, counsel filed a post-sentence motion the same

day, requesting the trial court to accept the filing nunc pro tunc.             Post

Sentence Motion, 11/27/13, at ¶ 6.         Almost three months later, the trial

court accepted the post-sentence motion nunc pro tunc, but denied it.

Order, 3/31/14.

     “Jurisdiction is vested in the Superior Court upon the filing of a timely

notice of appeal.”      Commonwealth v. Green, 862 A.2d 613, 615 (Pa.

Super. 2004) (en banc) (citation omitted).          “A direct appeal in a criminal

proceeding lies from the judgment of sentence.”                Commonwealth v.

Preacher, 827 A.2d 1235, 1236 n.1 (Pa. Super. 2003).              Sitting en banc,

this Court has interpreted the language “imposition of sentence” as the date

the trial court pronounced the sentence in open court. Green, 862 A.2d at

618–619.    “The time for filing an appeal can be extended beyond [thirty]

days after the imposition of sentence only if the defendant files a timely

post-sentence motion.”        Id. at 618; Pa.R.A.P. 720(A)(2).        Pursuant to

Pa.R.Crim.P. 720(A)(1), a post-sentence motion must be filed no later than

ten days after the imposition of sentence.            An untimely post-sentence

motion does not toll the thirty-day appeal period. Green, 862 A.2d at 618.

     In    the   case    at   hand,   Appellant’s   sentence    was   imposed    on

November 15, 2013; he had until November 25, 2013, to file a timely post-

sentence motion.        Pa.R.Crim.P. 720(A)(1).      However, Appellant filed his


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post-sentence motion on November 27, 2013, twelve days after entry of the

judgment of sentence. As Appellant filed an untimely post sentence motion,

the appeal period could be tolled “only if the trial court accepted it under its

limited authority to allow the filing of a post-sentence motion nunc pro

tunc.” Commonwealth v. Capaldi, ___ A.3d ___, 2015 PA Super 51 (Pa.

Super. 2015) (filed March 17, 2015).

      “[A] post-sentence motion nunc pro tunc may toll the appeal period,

but only if two conditions are met.” Capaldi, ___ A.3d at ___, 2015 PA

Super 51 at *3 (citing Commonwealth v. Dreves, 839 A.2d 1122 (Pa.

Super. 2003) (en banc)) (emphasis supplied).

            First, within 30 days of imposition of sentence, a defendant
      must request the trial court to consider the post-sentence
      motion nunc pro tunc. The request for nunc pro tunc relief is
      separate and distinct from the merits of the underlying post-
      sentence motion.       Second, the trial court must expressly
      permit the filing of a post-sentence motion nunc pro tunc, also
      within 30 days of imposition of sentence. If the trial court does
      not expressly grant nunc pro tunc relief, the time for filing an
      appeal is neither tolled nor extended. Moreover, the trial court’s
      resolution of the merits of the late post-sentence motion is no
      substitute for an order expressly granting nunc pro tunc relief.

Id. at 3–4 (quoting Dreves, 839 A.2d at 1128–1129, n.6) (internal

quotation marks and citations omitted) (emphasis supplied).

      Applying the above standard, I submit that Appellant’s untimely post-

sentence motion did not toll the appeal period. Pa.R.Crim.P. 720(A)(2) does

not operate to toll the appeal period because Appellant failed to file a timely

post-sentence motion.    Capaldi, slip op. at 4 (citing Green, 862 A.2d at


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618). Additionally, Dreves does not apply because Appellant did not satisfy

both of the prerequisites for nunc pro tunc relief.       Regarding the first

prerequisite, Appellant did include in his untimely post-sentence motion a

request that the trial court receive it as filed nunc pro tunc because the

untimeliness was “due to issues with the mail.”        Post Sentence Motion,

11/27/13, at ¶ 6.     Giving Appellant the benefit of the doubt that this

qualified as a request for nunc pro tunc relief with reasons to warrant it, the

second prerequisite remains unfulfilled. The trial court did not expressly

grant permission to file the post-sentence motion nunc pro tunc inside the

original thirty-day appeal period. Even the Majority acknowledges that “the

trial court purported to expressly grant Appellant’s request to consider his

post-sentence motion nunc pro tunc.”       Majority at 6 (emphasis supplied).

The trial court’s action of accepting Appellant’s untimely post-sentence

motion as filed nunc pro tunc and denying it on the merits “is not a proper

substitute for an order expressly granting the right to file a post-sentence

motion nunc pro tunc.” Capaldi, slip op. at 5 (citation omitted).

      Because Appellant’s post-sentence motion nunc pro tunc did not toll

the appeal period, he was required to file his appeal within thirty days of

imposition of sentence.      Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3).

Appellant was sentenced on November 15, 2013. He filed his appeal on April

4, 2014—140 days later.     Thus, this appeal is untimely.   Moreover, unlike

the Majority, I discern no extraordinary circumstances—a breakdown in the


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court’s operations, for example—that would excuse Appellant’s late filings.

Indeed, the record indicates that Appellant was properly advised of the time

for filing post-sentence motions and an appeal at sentencing.            N.T.,

11/15/13, at 18.

        I acknowledge that, after implicitly granting Appellant’s motion for

nunc pro tunc relief, the trial court misinformed Appellant that he had thirty

days to appeal from its order denying his post-sentence motion. However,

the trial court’s mistake occurred after the appeal period had already

expired, a fact the Majority acknowledges. Majority at 4.1 Hence, as of the

date of any breakdown in the court system, Appellant was already out of

time.

        In addition, because the trial court’s initial failure to act and

subsequent misinformation arose beyond the appeal period, any breakdown

in the judicial system was of no consequence.2       Capaldi illustrates this
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1
  Indeed, the Majority opines, “Cautious counsel should have filed an appeal
within thirty days.” Majority at 4.
2
    The Majority cites to numerous cases in support of its position that a
breakdown in the judicial system occurred herein. However, I note that the
post-sentence motions filed in Braykovich and Perry were timely.
Similarly, none of the defendants in Patterson, Bogden, Hurst, and Katz
filed a motion within thirty days of sentencing requesting the trial court to
consider the untimely post-sentence motion nunc pro tunc. Additionally, in
Coolbaugh, the trial court erred in advising the defendant of his post-
sentence rights after it imposed sentence, not after the appeal period had
expired.    Given such relevant procedural dissimilarities, the Majority’s
reliance on these cases appears untenable.



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point.3 Therein, we distinguished Commonwealth v. Patterson, 940 A.2d

493 (Pa. Super. 2007), in which “we held a breakdown in the court’s

operations occurred where [the trial court] denied the defendant’s untimely

post-sentence motion within the appeal period, but failed to apprise him he

still had fifteen days to file an appeal.” Capaldi, ___ A.3d at ___, 2015 PA

Super 51 at *6 n.3 (citing Patterson, 940 A.2d at 499–500).          Contrarily,

the Capaldi Court indicated that no breakdown in the court’s operations

existed where “the trial court denied Appellant’s untimely post-sentence

motion . . . after the appeal period expired.”      Id.   The case sub judice

warrants the same conclusion.

       Because Appellant’s post-sentence motion and appeal were untimely, I

conclude we lack jurisdiction to hear this appeal. Burks, 102 A.3d at 500.

Lacking jurisdiction, quashal is appropriate.    Accord Capaldi, ___ A.3d at
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3
   The instant trial court’s purported grant of nunc pro tunc relief strikes me
as implicit a grant of relief as the trial court in Capaldi scheduling a hearing
on the defendant’s untimely “Post-Sentence Motion for Nunc Pro Tunc
Relief,” neither of which was a proper substitute for an order expressly
granting the right to file a post-sentence motion nunc pro tunc pursuant to
the second prong of Dreves. Furthermore, the fact that the defendant in
Capaldi was not precluded from seeking reinstatement of his direct appeal
rights nunc pro tunc through the PCRA should not determine whether this
Court has jurisdiction to entertain an untimely appeal.                  Accord
Commonwealth v. Brown, 943 A.2d 264 (Pa. 2008) (quashing appeal as
untimely based on underlying PCRA petition being filed outside one-year
time bar). In the case at hand, no breakdown in the court’s operations
existed where “the trial court denied Appellant’s untimely post-sentence
motion . . . after the appeal period expired.” Capaldi, 2015 PA Super 51 at
*6 n.3




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___, 2015 PA Super 51 at *6 (quashing untimely appeal for lack of

jurisdiction). Therefore, I would quash.




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