J-S81006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    DANIEL HENRY BRAYMAN

                             Appellant                No. 1002 MDA 2018


        Appeal from the Judgment of Sentence imposed March 13, 2018
            In the Court of Common Pleas of Lackawanna County
               Criminal Division at No: CP-35-CR-0001849-2017


BEFORE: STABILE, J., DUBOW, J., and STEVENS,* P.J.E.

MEMORANDUM BY STABILE, J.:                            FILED MARCH 22, 2019

        Appellant, Daniel Henry Brayman, appeals from the judgment of

sentence the Court of Common Pleas of Lackawanna County imposed on March

13, 2018.     Appellant challenges the discretionary aspects of his sentence.

Because we have no jurisdiction over this untimely appeal, we quash it.

        The relevant procedural background can be summarized as follows. On

March 13, 2018, the trial court sentenced Appellant to an aggregate term of

70 to 144 months’ imprisonment, followed by 12 years of probation. Appellant

filed a motion for reconsideration on March 27, 2018.1 “[H]owever, it does
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 It is uncontested that said motion was filed on March 27, 2018. See
Appellant’s Brief at 6. Despite the motion being facially untimely, Appellant
did not address its timeliness or the trial court’s comment about Appellant’s
failure to serve “properly” the motion on the trial court. Trial Court Opinion,
8/9/18, at 4.
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not appear it was properly served upon th[e trial court].           [Appellant]

subsequently filed a new Petition for Reconsideration of Sentence Nunc pro

Tunc on May 22, 2018, which was promptly denied by [the trial court] on May

24, 2018.” Trial Court Opinion, 8/9/18, at 4. Appellant filed the instant appeal

on June 15, 2018.

      As explained below, we cannot address the merits of the instant appeal

because we have no jurisdiction to entertain it due to its untimeliness.

Because timeliness implicates our jurisdiction, we can raise a jurisdictional

issue sua sponte. Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super.

2014).

      In cases where no post-sentence motions (or Commonwealth’s
      motions to modify sentence) are filed, a defendant must file an
      appeal within 30 days of imposition of sentence in open court.
      Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3). If a defendant files
      a timely post-sentence motion, the appeal period does not begin
      to run until the motion is decided. Pa.R.Crim.P. 720(A)(2);
      Pa.R.A.P. 903(a). Except in circumstances not applicable here, a
      defendant must file a post-sentence motion within ten days of
      imposition of sentence. Pa.R.Crim.P. 720(A)(1).

      An untimely post-sentence motion does not toll the appeal period.
      Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004)
      (en banc) (“[T]he time for filing an appeal can be extended beyond
      30 days after the imposition of sentence only if the defendant files
      a timely post-sentence motion.”).

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015).

      Here, Appellant filed his post-sentence motion on March 27, 2018, or 14

days after imposition of sentence.     Therefore, the untimely post-sentence




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motion can toll the appeal period only if the trial court accepted it under its

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

      Under Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa.
      Super. 2003) (en banc), a post-sentence motion nunc pro tunc
      may toll the appeal period, but only if two conditions are met.
      First, within 30 days of imposition of sentence, a defendant must
      request the trial court to consider a 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.”
      Id. at 1128-29. 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. Id. at 1128 & n.6. “If the trial
      court does not expressly grant nunc pro tunc relief, the time for
      filing an appeal is neither tolled nor extended.” Id. at 1128.
      Moreover, “[t]he 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 1129.

Id. (emphasis in original).

      Applying the above standards, we conclude Appellant’s March 27, 2018

untimely post-sentence motion did not toll the appeal period. Thus, to be

timely, Appellant was required to file the instant appeal within 30 days of the

judgment of sentence. Having failed to do so, the instant appeal is untimely.

      Additionally, Dreves does not apply because Appellant did not satisfy

either prerequisite for nunc pro tunc relief.       Regarding Dreves’ first

prerequisite, Appellant’s post-sentence motion included no explanation for the

late filing, and he did not request the trial court to consider the motion nunc

pro tunc. Regarding the second prerequisite, the trial court did not “expressly

grant” nunc pro tunc relief. Indeed, not only did the trial court not expressly

grant the post-sentence motion, but also it did not issue an order addressing


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the post-sentence motion because, as noted above, Appellant did not properly

serve it on the trial court.

      As noted, on May 22, 2018, or 70 days after the imposition of sentence,

Appellant filed a petition for reconsideration of sentence nunc pro tunc, which

is similarly flawed.   As with the first post-sentence motion, Dreves is not

applicable to the second post-sentence motion because Appellant’s May 22,

2018 post-sentence motion did not include an explanation for the late filing,

and did not include a request to the trial court to consider the motion nunc

pro tunc. Appellant merely included the words “nunc pro tunc” in the motion’s

title. However, it is well-established that “[m]erely designating a motion as

‘post-sentence motion nunc pro tunc’ is not enough.” Dreves, 839 A.2d at

1128. Rather, the moving party must ask for nunc pro tunc relief and provide

reasons to warrant it. Appellant did neither of these things here.

      Regarding the second prerequisite, in response to the May 22, 2018

post-sentence motion, the trial court did not “expressly grant” nunc pro tunc

relief. Rather, it denied it altogether. Additionally, we cannot construe either

the May 24, 2018 order denying the motion or the trial court’s Rule 1925(a)

opinion in which the trial court addressed the merits of the appeal as an

“express grant” of nunc pro tunc relief. See Commonwealth v. Wright, 846

A.2d 730, 734 (Pa. Super. 2004) (“the trial court’s resolution of [defendant]’s

belated post-sentence motion was no substitute for an order expressly

restoring the right to file a post-sentence motion nunc pro tunc.”).


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      Because Appellant’s untimely post-sentence motion nunc pro tunc did

not toll the appeal period, he needed to file his appeal within 30 days of

imposition of sentence.      Pa.R.Crim.P. 720(A)(2); Pa.R.A.P. 903(c)(3).

Appellant was sentenced on March 13, 2018. He filed the instant appeal on

July 18, 2014, or 94 days later. The appeal is therefore untimely.

      Moreover, no extraordinary circumstances, for example, a breakdown in

the court’s operations, exist that might excuse Appellant’s late filing.   See

Burks, 102 A.3d at 500 (noting only extraordinary circumstances permit

extension of time to file an appeal). Therefore, we must quash this appeal for

lack of jurisdiction.

      Appeal quashed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2019




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