J-S42017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

 MICHAEL BERNARD WOOLFORK

                             Appellant                  No. 1821 MDA 2016


               Appeal from the Judgment of Sentence June 13, 2016
                   In the Court of Common Pleas of York County
                Criminal Division at No(s): CP-67-CR-0001990-2016


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                        FILED NOVEMBER 13, 2017

       Michael Bernard Woolfork appeals from the June 13, 2016 judgment of

sentence entered in the York County Court of Common Pleas. We quash the

appeal.

       The trial court set forth the following factual history:

               On June 13, 2016, [Woolfork] ple[]d guilty to counts 2
            and 5 of the Information, which are Driving Under
            Suspension-DUI Related and Alcohol in System and Driving
            Under the Influence of Alcohol or Controlled Substance-3rd
            And/Or Subsequent Offense,[1] respectively. On count 2,
            [Woolfork] was sentenced to ninety days in York County
            Prison (hereinafter: YCP) and a $1,000.00 fine. On Count
            5, [Woolfork] was sentenced to 5 years of intermediate
            punishment with the first six months at YCP, six months of
            house arrest with alcohol monitoring, and nine months of


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       1   75 Pa.C.S. §§ 1543(b)(1.1)(i) and 3802(d)(3), respectively.
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           Avertest with the first six months concurrent with the house
           arrest. Counts 2 and 5 were to run consecutively.

               On June 23, 2016, the Supreme Court of the United
           States issued Birchfield v. North Dakota, which, inter
           alia, forbids warrantless blood tests attending drunken
           driving arrests and deems consent to blood testing to be
           invalid when it is coerced by threats of new criminal offenses
           for refusing to submit to such testing. 136 S.Ct. 2160,
           []2163-65 [(2016)]. Based upon these holdings, on July 1,
           2016, [Woolfork’s] counsel submitted a Motion to Withdraw
           Guilty Plea Nunc Pro Tunc. Following some scheduling
           delays, at the conclusion of a Hearing on our jurisdiction to
           countenance the proffered motion on October 5, 2016, this
           Court denied [Woolfork’s] motion to withdraw his guilty plea
           nunc pro tunc.

Opinion in Support of Order Pursuant to Rule 1925(a) of the Rules of Appellate

Procedure, 3/10/17, at 1-2 (“1925(a) Op.”) (footnote omitted).

       On November 3, 2016, Woolfork filed a notice of appeal. He raises the

following issue on appeal:

           The trial court erred in denying [Woolfork’s] request for a
           hearing on his Motion to Withdraw Plea Nunc Pro Tunc as
           the U.S. Supreme [C]ourt’s holding in Birchfield v. North
           Dakota “demonstrates sufficient cause” for filing the motion
           more than 10 days after sentencing and that Birchfield
           constitutes an “extraordinary circumstance[”] which
           “excuses the tardiness.”

Woolfork’s Br. at 4.2

       Pennsylvania Rule of Criminal Procedure 720(A)(1) provides: “Except

as provided in paragraphs (C) and (D), a written post-sentence motion shall

be filed no later than 10 days after imposition of sentence.” In addition, Rule


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       2In Woolfork’s statement of questions involved section of his brief, he
states the same issue twice.

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720(A)(3) states:       “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 . . . .” We have held that “[a]n untimely post-sentence

motion does not toll the [30-day] appeal period.”          Commonwealth v.

Capaldi, 112 A.3d 1242, 1244 (Pa.Super. 2015); Pa.R.A.P. 903(a). We have

further held that:

           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. . . . 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. (emphasis in original). In Capaldi, we concluded that an order scheduling

a hearing on the nunc pro tunc motion was not an “express grant” of nunc pro

tunc relief. Id. at 1245.

       Woolfork was sentenced on June 13, 2016. He did not file his motion to

withdraw guilty plea nunc pro tunc until July 1, 2016. Further, the trial court

did not grant nunc pro tunc relief within the 30-day appeal period. Because

we are constrained to conclude that Woolfork’s appeal from his judgment of

sentence is untimely, we must quash the appeal.3
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       3On October 20, 2016, Woolfork filed a petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. His judgment of
sentence became final on July 13, 2016, 30 days after imposition of sentence.
See 42 Pa.C.S. § 9545(b)(3). Therefore, his PCRA petition, filed within one
year of when his judgment of sentence became final, was timely. See 42
Pa.C.S. § 9545(b)(1). On December 2, 2016, the trial court denied the



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       Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2017




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petition, reasoning it was premature because his direct appeal was pending.
Order, 12/2/16. The trial court dismissed the PCRA petition without prejudice
and “grant[ed] [Woolfork] leave to refile it after his direct appeal was
concluded.” Id.

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