J-S09028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DUSTIN LEE MORRIS                          :
                                               :
                       Appellant               :   No. 2054 EDA 2019

          Appeal from the Judgment of Sentence Entered May 29, 2019
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-SA-0000342-2017


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                               FILED APRIL 24, 2020

        Dustin Lee Morris appeals from the judgment of sentence, entered in

the Court of Common Pleas of Northampton County, following a bench trial

after which he was found guilty of driving while operating privilege is

suspended or revoked-DUI related.1 After careful review, we quash.

        On June 11, 2017, Officer Jared Gunshore of the Lower Saucon Township

Police Department was acting as security for a hill-climb event and was

running license plates to check for warrants and other violations. N.T. Trial,

5/29/19, at 3-4.       After Officer Gunshore ran the license plate of Morris’s

vehicle, he discovered that Morris’s license was suspended because of a DUI

conviction. After Morris identified himself and acknowledged that his license
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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 1543(b)(1).
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was suspended, Officer Gunshore cited him for driving while operating

privilege is suspended or revoked. Id. at 13.

        On October 30, 2017, a Magisterial District Judge found Morris guilty

and sentenced him to pay a $500.00 fine plus costs. Morris filed a timely

summary appeal on November 21, 2017. The court scheduled a de novo trial

for March 21, 2018, but the matter was continued to May 30, 2018. On May

29, 2018, one day prior to the scheduled trial, Morris withdrew his summary

appeal pursuant to Pennsylvania Rule of Criminal Procedure 462(E),2 and he

requested imposition of the district judge’s sentence.

        The Honorable Kimberly F.P. McFadden considered Morris’ request and

ordered the parties to brief the issue of whether the lower court’s sentence

could be imposed if it did not include the mandatory prison term of not less

than 60 days nor more than 90 days pursuant to 75 Pa.C.S.A. § 1543(b)(1).

On August 13, 2018, Judge McFadden ordered Morris’ appeal withdrawn and

remanded the case for resentencing for correction of the illegal sentence, as

it did not include the mandatory minimum. Order, 8/13/18.3
____________________________________________


2 “If the defendant withdraws the appeal, the trial judge shall enter judgment
in the court of common pleas on the judgment of the issuing authority.”
Pa.R.Crim.P. 462(E).
3   That order provides:

        AND NOW, this 13rd day of August, 2018, upon consideration of
        briefs from Defendant and the Commonwealth, it is hereby
        ORDERED and DECREED that Defendant’s Summary Appeal is
        WITHDRAWN and this matter is REMANDED to Magisterial District



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       On August 20, 2018, a magisterial district judge resentenced Morris in

absentia to sixty days of incarceration and a $500.00 fine plus costs. Because

he was not notified of his sentence until November 19, 2018,4 Morris filed a

summary appeal nunc pro tunc.             The court held a second de novo trial on

May 29, 2019, after which the court found Morris guilty of violating Section

1543(b)(1) of the Vehicle Code and sentenced him to sixty days of

incarceration, with a deferred report date of July 1, 2019, and a $500.00 fine

plus costs.5

       Morris did not file a timely appeal to this Court. Instead, on July 2,

2019, Morris filed a motion in the trial court for leave to appeal nunc pro tunc,

which the trial court granted on July 11, 2019. Morris then filed a notice of

____________________________________________


       Court #03·2·04 for correction of the illegal sentence originally
       imposed, which failed to include the mandatory sentence required
       by 75 Pa.C.S.A 1543(b). See Commonwealth v. Harrison, 661
       A.2d 6 (Pa. Super. 1995).

Trial Court Order, 8/13/18.

4The trial court notes that Morris presented no support for his claim that this
second sentence was a nullity because he had no notice. See Trial Court
Opinion, 9/11/19, at 3, n.4.

5  Section 1543(b) of the Vehicle Code provides that the defendant “shall be
sentenced to pay a fine of $500 and to undergo imprisonment of not less than
60 days nor more than 90 days.” 75 Pa.C.S.A. § 1543(b)(1) (emphasis
added). As section 1543(b) requires courts to sentence a defendant to at
least 60 days in jail, the trial court had no discretion to impose a lesser
sentence pursuant to Rule 462(e). See 42 Pa.C.S.A. § 9721(a.1)(1); see
also Commonwealth v. Kenney, 210 A.3d 1077, 1082-83 (Pa. Super. 2019)
(finding that sentence that fails to include mandatory term of imprisonment is
illegal).

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appeal and a court-ordered concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Morris presents the following issues

for our review:


      (1)   Did the trial court err in proceeding to remand the matter to the
            Magisterial District Judge for imposition of a sentence of
            imprisonment after [Morris] filed a [p]raecipe to withdraw
            [s]ummary [a]ppeal pursuant to Rule 462(E) of the Pennsylvania
            Rules of Criminal Procedure?

      (2)   Did the trial court err in imposing sentence without jurisdiction
            after failing to enter judgment in the Court of Common Pleas on
            the judgment of the issuing authority where [Morris] had
            withdrawn his [s]ummary [a]ppeal pursuant to Rule 462(E) of the
            Pennsylvania Rules of Criminal Procedure?

Appellant’s Brief, at 2.

      Before we address the merits of the case, we consider, sua sponte

whether this Court has jurisdiction. Barak v. Karolizki, 196 A.3d 208, 215

(Pa. Super. 2018). Since jurisdiction is a question of law, our standard of

review is de novo and our scope of review plenary.                   Id. (citing

Commonwealth v. Seiders, 11 A.3d 495, 496-97 (Pa. Super. 2010)).


      Pennsylvania Rule of Criminal Procedure Rule 720(D) states:

      There shall be no post-sentence motion in summary case appeals
      following a trial de novo in the court of common pleas. The
      imposition of sentence immediately following a determination of
      guilt at the conclusion of the trial de novo shall constitute a final
      order for purposes of appeal.

Pa.R.Crim.P. 720(D).




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      After judgment of sentence has been entered, the defendant has thirty

days to file an appeal.      See Pa.R.A.P. 903(a); see also Pa.R.Crim.P.

720(A)(3) (“If the defendant does not file a timely post-sentence motion, the

defendant’s notice of appeal shall be filed within 30 days of imposition of

sentence[.]”). If no appeal is taken within thirty days, the trial court loses

jurisdiction.   See Commonwealth v. Robinson, 837 A.2d 1157, 1162 (Pa.

2003) (“Far from continuing into perpetuity, the trial court's jurisdiction over

a matter generally ends once an appeal is taken from a final order or, if no

appeal is taken, thirty days elapse after the final order.”).     See also 42

Pa.C.S.A. § 5505 (“Modification of orders: 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.”); accord Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007)

(stating, “Section 5505 . . . recognizes the removal of jurisdiction upon appeal

. . . and the removal of jurisdiction upon the end of the term of court or the

statutory thirty-day expansion of that time [. ]”).

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

explained that if no post-sentence motion or motion by the Commonwealth to

modify sentence is filed, a defendant must file an appeal within 30 days of the

imposition of sentence in open court. Id. at 1244.           See Pa.R.Crim.P.

720(A)(3); see also Pa.R.A.P. 903(c)(3) (“In a criminal case in which no post-




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sentence motion has been filed, the notice of appeal shall be filed within 30

days of the imposition of the judgment of sentence in open court.”).

      Here, the court sentenced Morris on May 29, 2019. No post-sentence

was permitted to be filed. See Pa.R.Crim.P. 720(D) (“[t]here shall be no post-

sentence motion in summary case appeals following a trial de novo in the

court of common pleas. The imposition of sentence immediately following a

determination of guilt at the conclusion of the trial de novo shall constitute a

final order for purposes of appeal”). Therefore, Morris had thirty days, until

June 28, 2019, to appeal his judgment of sentence.          Instead of doing so,

Morris filed a motion for leave to appeal nunc pro tunc on July 2, 2019, which

the trial court granted on July 11, 2019, after it lost jurisdiction. Morris failed

to file an appeal within 30 days of entry of his judgment of sentence. We,

therefore, quash this appeal for want of jurisdiction. Pa.R.A.P. 903(c)(3).

     Appeal quashed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/20




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