J-S20025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CHARLES OTTO HEMINGWAY                   :
                                          :
                     Appellant            :   No. 1235 WDA 2018

      Appeal from the Judgment of Sentence Entered August 15, 2018
     In the Court of Common Pleas of Butler County Criminal Division at
                      No(s): CP-10-CR-0001938-2013


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED MAY 31, 2019

      Charles Otto Hemingway appeals from the judgment of sentence

entered on August 15, 2018. Because Hemingway’s post-sentence motion was

untimely, we quash this appeal as untimely since it was filed beyond the 30

day appeal period.

      The timeliness of an appeal implicates our jurisdiction and we may raise

the issue sua sponte. Commonwealth v. Trinidad, 96 A.3d 1031, 1034

(Pa.Super. 2014). A post-sentence motion following revocation of probation

must be filed within ten days of the “date of imposition.” Pa.R.Crim.P. 708(E).

Filing a post-sentence motion “will not toll the 30-day appeal period” to this

Court unless, “the appellant files a motion seeking permission to file a post-

sentence motion nunc pro tunc and the trial court expressly grants this request

within thirty days of the imposition of the sentence.” Id.; Commonwealth v.

Patterson, 940 A.2d 493, 498 n.3 (Pa.Super. 2007). Thus, “absent a timely
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filed post-sentence motion, the triggering event remains the date sentence is

imposed.” Commonwealth v. Green, 862 A.2d 613, 618 (Pa.Super. 2004)

(en banc) (emphasis omitted). However, “before our Court may quash the

instant appeal, we must determine whether an administrative breakdown in

the court system excuses the untimely filing of the notice of appeal.”

Patterson, 940 A.2d at 498. A breakdown has occurred “where the trial court,

at the time of sentencing, either failed to advise Appellant of his post-sentence

and appellate rights or misadvised him.” Id.

      The procedural history of this appeal is as follows. The trial court held a

revocation hearing on May 21, 2018. Hemingway was represented by J.W.

Hernandez-Cuebas, Esq., who entered his appearance on January 2, 2018. At

the conclusion of the hearing, the trial court revoked Hemingway’s probation

and imposed sentence the same day. On the day of the hearing, Hemingway

signed a form acknowledging his post-sentence motion and appellate rights,

including that “[a] motion to modify a sentence” must be filed within ten days.

See Defendant’s Rights at Violation of Probation, Intermediate Punishment or

Parole Sentencing, dated 5/21/18. The following statement was just above his

signature: “I hereby acknowledge that I was present when the judge advised

me of my rights and I acknowledge receipt of a written copy of the same.” Id.

      Counsel filed a post-sentence motion on June 4, 2018. The trial court

held a hearing on the motion and denied it on August 16, 2018. Hemingway

filed a notice of appeal on August 27, 2018.




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      Upon receipt of the notice of appeal, we ordered appellate counsel to

show cause for why this appeal should not be quashed. See Order, filed

10/25/18, at 2. Counsel responded with a letter stating that there was a

breakdown in the court system because:

      Here the record reflects that a timely post-sentence motion was
      filed on June 4, 2018, the resolution of the timely-filed motion was
      delayed from the date of filing by the Court sua sponte on three
      (3) separate occasions extending the ruling on the Motion to
      approximately 72 days. In consequence, [Hemingway] was faced
      with the Hobbesian choice of having the Motion to Reconsider
      stopped by the filing of an appeal and robbing the lower court of
      jurisdiction to consider the already filed Motion, and possibly
      losing the ability to appeal the severity of the sentence or allowing
      the Court to rule on the already filed Motion to Reconsider.

Response to Rule to Show Cause, filed 11/5/18, at 2 (unpaginated).

      To begin, we note that the post-sentence motion was not timely.

Hemingway had until May 31, 2018 to file a timely post-sentence motion. He

missed this deadline by four days. Additionally, there was no breakdown in

the court system. Rather, the case proceeded as the criminal rules provide.

The trial court advised Hemingway of his post-sentence and appellate rights

exhibited by the written form that listed such rights:

      1. At the time of sentencing you may make a statement on your
         own behalf. Both counsel for defendant and Commonwealth
         may present argument and information relative to your
         sentencing. [Pa.R.Crim.P. 708(D)(1)]

      2. You have the right to an attorney to help prepare and file any
         motions to modify sentence and to appeal. A motion to modify
         a sentence imposed after a revocation shall be filed within ten
         (10) days of the date of imposition of sentence. You have the
         right to proceed with presently retained or assigned counsel. If
         you cannot afford an attorney, on your request, the Court will

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         appoint any attorney free of charge. You also have the right, if
         indigent, to proceed in forma pauperis. [Pa.R.Crim.P.
         708(D)(3)(a),(b),(E)]

      3. You have the right to appeal to the Pennsylvania Superior Court
         within thirty (30) days from today. The filing of a motion to
         modify sentence does not toll the 30-day appeal period. The
         appeals period is only tolled if the sentencing judge grants
         reconsideration or vacates the sentence within the 30-day
         period. [Pa.R.Crim.P. 708(E)].

Defendant’s Rights at Violation of Probation, Intermediate Punishment or

Parole Sentencing. Because there was not a breakdown in the court system,

the 30-day appeal period was not tolled. A timely appeal should have been

filed by June 21, 2018. The instant appeal was not filed until August 27, 2018.

We “cannot extend the time for filing an appeal,” therefore this appeal is

quashed. Patterson, 940 A.2d at 498.

      Appeal quashed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019




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