Opinion · Superior Court of Pennsylvania
Commonwealth v. Capaldi
Commonwealth v. Capaldi, 2015 Pa. Super. 51 (Pa. Super. Ct. 2015)
- Type
- Opinion
- Court
- Superior Court of Pennsylvania
- Jurisdiction
- Pennsylvania
- Date
- 2015-03-17
- Topic
- general
holding that a breakdown in the judicial system did not occur because the trial court denied the appellant's untimely post-sentence motion after the appeal period expired | recognizing that an untimely post-sentence motion does not toll the 30-day appeal period | explaining that the timeliness of an appeal impacts our jurisdiction, and this Court lacks jurisdiction over an untimely appeal | explaining that a nunc pro tunc post-sentence motion tolls the appeal period only if 1 | explaining that a nunc pro tunc post-sentence motion tolls the appeal period only if 1 | recognizing that this Court may raise jurisdictional issues sua sponte | recognizing that this Court may raise jurisdictional issues sua sponte | stating that “[a]n untimely post- sentence motion does not toll the appeal period.” (emphasis in original) | finding that appeal was quashed for lack of jurisdiction because notice of appeal was untimely; therefore, petition to withdraw and Anders brief could not be reviewed | providing that a post-sentence motion nunc pro tunc impacts the time for filing an appeal only if, within thirty days of sentencing, the motion is filed and expressly granted | stating that this Court has no jurisdiction to consider an untimely appeal | explaining that in a criminal case, where a defendant files a timely post- sentence motion, the period in which to file a direct appeal is tolled and does not begin to run until the trial court decides the motion | holding an untimely post-sentence motion cannot toll the 30-day appeal period unless the trial court grants leave to file said motion nunc pro tunc upon good cause shown even if the trial court addresses the merits of the motion | explaining that in a criminal case, where a defendant files a timely post- sentence motion, the period in which to file a direct appeal is tolled and does not begin to run until the trial court decides the motion | explaining that a post- sentence motion nunc pro tunc filed within the 30-day appeal period may toll the appeal period if the appellant properly requests nunc pro tunc relief, and the trial court expressly permits the filing within the appeal period | explaining that the timeliness of an appeal impacts our jurisdiction | explaining that the timeliness of an appeal impacts our jurisdiction | quashing appeal for lack of jurisdiction where appellant failed to file appeal within thirty days of imposition of sentence | explaining that the timeliness of an appeal impacts our jurisdiction | explaining that the timeliness of an appeal impacts our jurisdiction | explaining that the timeliness of an appeal impacts our jurisdiction | reiterating that this Court lacks jurisdiction to consider untimely appeals | stating that a defendant’s untimely post- sentence motion may toll the appeal period where he explains the untimeliness and requests that the trial court accept his motion nunc pro tunc, and the court expressly permits the filing of the motion nunc pro tunc | noting that a post-sentence motion nunc pro tunc may toll the appeal period only if two conditions are met: (1) within 30 days of the imposition of sentence, the defendant must request the trial court’s permission to file a nunc pro tunc post-sentence motion; and (2 | quashing the appeal for lack of jurisdiction because the notice of appeal was untimely filed, and concluding that the petition to withdraw, Anders brief, and the record could not be reviewed | instructing that a post-sentence motion filed nunc pro tunc may toll the appeal period, but only if the following two conditions are met: (1) the defendant files a separate and distinct request to file a post-sentence motion nunc pro tunc within thirty days of sentencing; and (2 | stating: “With respect to the necessity of a timely order expressly granting reconsideration, the establishment of a briefing schedule, hearing date, or issuance of a rule to show cause does not suffice[.]” | stating: “With respect to the necessity of a timely order express
Citator
- Cited by
- 68 opinions
OPINION BY.
STABILE, J.:Appellant, David Joseph Capaldi, appeals from the judgment of sentence entered following his guilty plea to possession with intent to deliver a controlled substance (PWID),1 specifically, heroin. Counsel for Appellant has filed an Anders2 brief and petitioned to withdraw as counsel, alleging this appeal is wholly frivolous. Upon review, we find we lack jurisdiction over this untimely appeal. Therefore, we quash this appeal and dismiss as moot counsel’s petition to withdraw.
On May 19, 2014, Appellant was sentenced in four cases in which he had entered open guilty pleas. In the judgment appealed here, Appellant received a sentence of 9-23 months in jail for PWID. The trial court did not award Appellant credit for time served in pretrial detention in this case, later reasoning that Appellant had received credit for the same time served on a concurrently imposed sentence in another of his four cases. Following imposition of sentence, the trial court asked Appellant whether he had any questions about his post-sentence rights, and Appellant responded in the negative. See N.T. Sentencing, 5/19/14, at 7. Appellant received and signed a written notice informing him of those rights.
On June 5, 2014 — after the deadline to file post-sentence motions — Appellant filed ■a “Post-Sentence Motion for Relief Nunc Pro Tunc.” In the motion, counsel stated he conferred with Appellant after the deadline, but included no other reason for the late filing. Appellant contended the trial court should have awarded him credit
Before we address counsel’s Anders brief and his request to withdraw, we must consider whether this appeal is timely. We lack jurisdiction to consider untimely appeals, and we may raise such jurisdictional issues 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.”).
In this case, Appellant filed his post-sentence motion on June 5, 2014, or 17 days after imposition of sentence. Therefore, the untimely post-sentence 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 tune relief.” Id. at 1129.
Applying the above standard, we conclude Appellant’s post-sentence motion nunc pro tunc did not toll the appeal period. Rule 720(A)(2) does not apply, because Appellant failed to file a timely post-sentence motion. Green, 862 A.2d at 618.
Additionally, Dreves does not apply, because Appellant satisfies neither prerequisite for nunc pro tunc relief. Regarding Dreves’ first prerequisite, Appellant’s post-sentence motion included no explanation for the late filing. Appellant did not request the trial court to consider the motion nunc pro tunc, but rather merely included the words “nunc pro tunc ” in the motion’s title. “Merely designating a motion as ‘post-sentence motion nunc pro tunc’ is not enough.” Dreves, 839 A.2d at 1128. Rather, the moving defendant must ask for nunc pro tunc relief and provide reasons to warrant it. Appellant did neither of these things here.
The trial court may have impliedly granted Appellant’s (unstated) request for nunc pro tunc relief. Dreves, however, requires an express grant. In addition, the trial court’s reason for reaching the merits of the motion expressed in its Pa. R.A.P. 1925(a) opinion filed September 12, 2014, is not a proper substitute for an order expressly granting the right to file a post-sentence motion nunc pro tunc. See Commonwealth v. Wright, 846 A.2d 730, 734 (Pa.Super.2004) (holding trial court erred in addressing defendant’s post-sentence motion nunc pro tunc where defendant did not request reinstatement of, and trial court did not expressly grant, defendant’s ability to file a post-sentence motion nunc pro tunc).
Because Appellant’s 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 May 19, 2014. He filed his appeal on July 18, 2014 — 60 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.3 See Burks, 102 A.3d at 500 (noting only extraordinary circumstances permit extension of time to file an appeal). Indeed, the record shows that Appellant was properly and thoroughly advised of the time for filing post-sentence motions and an appeal. Therefore, we must quash this appeal for lack of jurisdiction.
Having concluded we lack jurisdiction, we cannot review counsel’s petition to withdraw, the Anders brief, or the record to determine whether we agree with counsel’s assessment that the appeal is frivolous. We express no opinion whether the trial court’s failure to award credit for time served in pretrial detention in this case is a wholly frivolous issue.4 The appeal is quashed for lack of jurisdiction.
Appeal quashed. Petition to withdraw as counsel dismissed as moot.
. 35P.S. § 780-113(a)(30).
. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009) (refining Pennsylvania's technical requirements for Anders briefs).
. This case is not akin to Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super.2007). In Patterson, we held a breakdown in the court’s operation occurred where it denied the defendant’s untimely post-sentence motion within the appeal period, but failed to apprise him he still had fifteen days to file an appeal. Id. at 499-500. Here, the trial court denied Appellant's untimely post-sentence motion on June 26, 2014 — after the appeal period expired.
. Appellant’s sole issue implicates the legality of his sentence. We may address sentencing legality claims, which are non-waivable, sua sponte, but we must first have jurisdiction. See, e.g., Commonwealth v. Munday, 78 A.3d 661, 664 (Pa.Super.2013) (noting a challenge to the legality of a sentence may be entertained "so long as the reviewing court has jurisdiction”).