J-A25017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellant

                        v.

    RYAN S. MCDEVITT

                             Appellee                  No. 412 EDA 2017


          Appeal from the Judgment of Sentence imposed June 9, 2016
                In the Court of Common Pleas of Monroe County
               Criminal Division at No: CP-45-CR-0000758-2014


    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellant

                        v.

    RYAN S. MCDEVITT

                             Appellee                  No. 413 EDA 2017


          Appeal from the Judgment of Sentence imposed June 9, 2016
                In the Court of Common Pleas of Monroe County
               Criminal Division at No: CP-45-CR-0000759-2014


BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 11, 2018




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       The Commonwealth argues the trial court abused its discretion in

granting Appellee time credit for time he spent in an in-patient rehabilitation

facility. For the reasons stated below, we vacate the judgment of sentence

and remand for resentencing.

       The underlying facts and procedural facts of the instant matter are not

in dispute.    Briefly, on June 9, 2016, following a hearing, the trial court

revoked Appellee’s placement in the State Intermediate Punishment (SIP)

program, and sentenced him to an aggregate period of incarceration of 20 to

65 months, with time credit of 364 days. On June 17, 2016, Appellee filed a

motion for additional time credit, which the trial court treated as a motion for

reconsideration of sentence. See, e.g., Trial Court Opinion, 4/20/17, at 18-

19. On June 23, 2016, the trial court set a hearing on said motion for July 7,

2016, which was eventually rescheduled to August 26, 2016. On that day,

after the hearing, the trial court took the matter under advisement.           On

December 28, 2016, the trial court issued an order granting Appellee’s motion

for reconsideration. The Commonwealth filed an appeal from that order on

January 25, 2017.

       The instant appeal involves a challenge to the discretionary aspects of

sentence.     See Commonwealth v. Shull, 148 A.3d 820, 847 n.14 (Pa.

Super. 2016).1

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1 See also Commonwealth v. Fowler, 930 A.2d 586, 596 (Pa. Super. 2007)
(“Generally, it is within the trial court’s discretion whether to credit time spent



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       Under Pennsylvania law, neither the defendant nor the
       Commonwealth may take an appeal as of right from the
       discretionary aspects of sentence. Rather, “[t]he defendant or the
       Commonwealth may file a petition for allowance of appeal of the
       discretionary aspects of sentence for a felony or a misdemeanor
       to the appellate court that has initial jurisdiction for such appeals.
       Allowance of appeal may be granted at the discretion of the
       appellate court where it appears that there is a substantial
       question that the sentence imposed is not appropriate under [the
       Sentencing Code].”

Commonwealth v. Darden, 531 A.2d 1144, 1146 (citation omitted)

(alteration in original).

       Additionally,

       [o]ur jurisdiction to hear such a challenge is discretionary, and we
       may not exercise our discretion to review such an issue unless we
       first determine that: (1) the appeal is timely; (2) Appellant
       preserved his issue; (3) Appellant’s brief includes a concise
       statement of the reasons relied upon for allowance of an appeal
       with respect to the discretionary aspects of his sentences, as
       required by Rule 2119(f) of the Pennsylvania Rules of Appellate
       Procedure; and (4) that concise statement raises a substantial
       question that the sentences were inappropriate under the
       Sentencing Code. If the appeal satisfies each of these
       prerequisites, we may accept it and proceed to the substantive
       merits of the case.

Commonwealth v. Flowers, 149 A.3d 867, 870-71 (Pa. Super. 2016)

(citation omitted) (footnote omitted).



____________________________________________


in an institutionalized rehabilitation and treatment program as time served in
custody”) (internal quotation marks omitted) (citing Commonwealth v.
Conahan, 589 A.2d 1107 (Pa. 1991) and Commonwealth v. Mincone, 592
A.2d 1375 (Pa. Super. 1991) (en banc)).



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       A review of the record shows that the instant appeal is untimely. 2 As

noted above, Appellee was sentenced on June 9, 2016.                   He moved for

reconsideration on June 17, 2016, which the trial court granted on December

28,   2016.       The   Commonwealth           appealed   from   the   order   granting

reconsideration on January 25, 2017.             While the Commonwealth filed the

instant appeal within 30 days from the order granting reconsideration, the

Commonwealth failed to appreciate that this is an appeal from a sentence

imposed after a revocation of SIP and that “the filing of a motion to modify

sentence will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E); see

also Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003)

(“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 entered, regardless of whether or not she files a post-sentence

motion”); Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa. Super.

1998) (holding that the filing of a motion to modify sentence, following a




____________________________________________


2 The trial court acknowledged that timeliness was a problem, but ultimately
concluded it had jurisdiction to issue the order granting reconsideration. Trial
Court Opinion, 4/20/17, at 31-37. The parties did not challenge or address
the timeliness of the instant appeal before us. Regardless of whether the
issues had been raised by the parties, the question of timeliness of an appeal
is jurisdictional, which we can raise sua sponte. See, e.g., Commonwealth
v. Trinidad, 96 A.3d 1031, 1033-34 (Pa. Super. 2014).




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J-A25017-17


revocation of probation,3 does not extend the appeal period; a party seeking

to appeal a revocation order must do so within 30-day time prescribed by

Pa.R.A.P. 903(a)). Therefore, the instant appeal, to be timely, should have

been filed within 30 days of the judgment of sentence, not of the order

granting reconsideration. Because the Commonwealth filed the instant appeal

well after the 30-day period limitation proscribed by Pa.R.A.P. 903(a), the

instant appeal is untimely.

       Generally, an error like this would be fatal, requiring us to quash the

appeal. See Coleman, 721 A.2d at 798. However, a review of the record

reveals that the trial court stated incorrectly the law on this matter. Indeed,

the trial court specifically advised Appellee that he could appeal from the

judgment of sentence within 30 days of the order disposing of the

reconsideration. See N.T. Sentencing, 6/9/16, at 20 (stating to Appellee that

if a motion for reconsideration had been filed, “your time to appeal wouldn’t

kick in until I decide that motion[.]”).4        “[I]n similar situations, we have

declined to quash the appeal recognizing that the problem arose as a result of



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3 See Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super.
2010) (finding sentences of probation and sentences of state intermediate
punishments to be analogous).

4 While at the time of sentencing the trial court addressed Appellee in
summarizing its understanding of the rules pertaining to appeals, the trial
court’s erroneous statement of the relevant law similarly affected the
Commonwealth. Indeed, the same rules at issue here (i.e., Pa.R.A.P. 903 and
Pa.R.Crim.P. 708(E)) are equally applicable to the Commonwealth.

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J-A25017-17


the trial court’s misstatement of the appeal period, which operated as a

breakdown in the court’s operation.            Commonwealth v. Coolbaugh, 770

A.2d 788, 191 (Pa. Super. 2001) (citations omitted).

       However, there is another problem with the instant appeal. The trial

court order granting reconsideration was issued approximately 6 months after

the filing of the underlying motion, and approximately 5 months after the

expiration of the appeal deadline. The trial court did not have the authority

to act on the motion for reconsideration once the 30-day appeal period had

expired. See Pa.C.S.A. § 5505;5 see also Commonwealth v. Moir, 766

A.2d 1253, 1254 (Pa. Super. 2000). The appealed order is therefore null and

void.6 See Commonwealth v. Benn, 680 A.2d 896, 900 (Pa. Super. 1996).

       Given the instant appeal has been substantially compromised by the

trial court’s misstatement of the law at the time of sentencing, we are




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5 Section 5505 of the Judicial Code provides as follows: “Except as otherwise
provided or prescribed by law, a court upon notice to the parties may modify
or rescind any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been taken
or allowed.” 42 Pa.C.S.A. § 5505. Beyond the 30-day limitation, a court may
only correct errors that are “obvious and patent.” Commonwealth v. Cole,
263 A.2d 339, 341 (Pa. 1970); see also Commonwealth v. Holmes, 933
A.2d 57, 66 (Pa. 2007) (stating that courts have “the inherent power to
correct patent errors despite the absence of traditional jurisdiction”). There
is no contention that the order at issue here corrected obvious and patent
errors.

6 The trial court noted this much but ultimately concluded that, under the
circumstances, the order was valid. Trial Court Opinion, 4/20/17, at 19.

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J-A25017-17


constrained to vacate the judgment of sentence and remand to the trial court

for resentencing.

      Judgment of sentence vacated.      Case remanded for resentencing.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/18




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