Commonwealth v. BurksCommonwealth v. Burks
Appellant, Elise Marie Burks, appeals nunc pro tunc from the judgment of sentence entered in the Allegheny County Court of Common Pleas, following revocation of her probation. We dismiss this appeal as untimely.
The trial court set forth the relevant faсts and procedural history of this case as follows:
On November 26, 2007, [Appellant] pled guilty at [No. 8288 of 2006], to one count of retail theft, one count of possession of altered, forged, or counterfeit documents or plates, two counts of receiving stolen property, one count of possession of marijuana, one count of possession of drug paraphernalia, [and] one count of criminal conspiracy (to engage in retail theft). [Appellant] pled guilty at [No. 0893 of 2007], to five counts of felony retail theft, one count of criminal conspiracy (to engage in retail theft), [and] one count of possessing instruments of crime. [Appellant] pled guilty at [No. 5841 of 2007], to one count of retail theft. On November 26, 2007, after accepting [Appellant‘s] guilty plea at the above-captioned matter[s], [the trial court] imposed an aggregate sentence of time served, followed by a consecutive five years of probation.
[Appellant] committed subsequent retail thefts.... On October 24, 2012, this [c]ourt revoked. [Appellant‘s] probation
at all of the above сases and imposed an aggregate sentence of 18 months of intermediate punishment followed by 1 year of probation. [Appellant] was further ordered to submit to random urinalysis and “must complete all treatment recommended by the drug court treatment team” and participate in the criminality group. [Appellant] was admitted into the Drug Court program, and this [c]ourt warned [Appellant] that if she violated рrobation again she would be going to a state prison. [Appellant] did not cooperate with the drug court program....
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[Appellаnt‘s] probation was revoked by this [c]ourt on March 21, 2013.1 This [c]ourt resentenced [Appellant] to incarceration for 16 to 32 month[s] at [No. 5841 оf 2007], plus a consecutive 1 to 2 years at both [No. 8288 of 2006] and [No. 0893 of 2007], for an aggregate sentence of 40 to 80 months of incarceratiоn. [Appellant] filed a pro se post-sentence motion on April 10, 2013.
[Appellant] filed a timely Post-Conviction Relief Act2 petition (PCRA Petition) on July 9, 2013. This [c]ourt appointed counsel, who filed an Amended PCRA petition on November 26, 2013, requesting reinstatement of [Appellant‘s] post-sentencing and appellate rights.... This [c]ourt scheduled a PCRA hearing. On March 26, 2014, this [c]ourt reinstated [Apрellant‘s] post-sentencing/appellate rights nunc pro tunc ... [Appellant] filed a post-sentence motion on April 3, 2014, which this [c]ourt denied on April 15, 2014.
On May 2, 2014, [Appellant] filed a notice of appeal ... and [voluntary] Concise Statement of [Errors] Complained of on Appeal[, pursuant to
Pa.R.A.P. 1925(b) ].
(Trial Court Opinion, filed June 26, 2014, at 1-3) (internal citations to the record omitted).
Appellant raises a single issue for our review:
DID THE TRIAL COURT ERR IN DENYING APPELLANT‘S POST SENTENCING MOTIONS SINCE THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO AN AGGREGATE SENTENCE OF 40-80 MONTHS[‘] (3½ TO 6⅔ YEARS[‘]) IMPRISONMENT (16-32 MONTHS AT 5841-2007, A CONSECUTIVE 1-2 YEARS AT 893-2007 AND A CONSECUTIVE 1-2 YEARS AT 8288-2006) SINCE THE AGGREGATE SENTENCE WAS MANIFESTLY EXCESSIVE (THE SENTENCES COULD HAVE BEEN RUN CONCURRENT TO ONE ANOTHER), AND THE TRIAL COURT FAILED TO CONSIDER ALL OF THE FACTORS CONTAINED AT
42 PA.C.S.A. §§ 9721(B) &9781(D) ?
(Appellant‘s Brief at 3).
As a preliminary matter, we address the timeliness of this appeal.
Time limitations for taking appeals are strictly construеd and cannot be extended as a matter of grace. Commonwealth v. Valentine, 928 A.2d 346 (Pa.Super.2007). This Court can raise the matter sua sponte, as the issue is one of jurisdiction to entertain the appeal. Id. Absent extrаordinary circumstances, this Court has no jurisdiction to entertain an untimely appeal. Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super.2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008).
Instantly, the court revoked Appellant‘s probation and resentenced Appellant on March 21, 2013. Appellant did not file a post-sentence motion or direct appeal at that time. In her amended PCRA petition filed on November 26, 2013, Appellant asked the court to reinstate her postsentence and appeal rights nunc pro tunc. The court reinstated Appellant‘s post-sentence and appeal rights nunc pro tunc on Wednesday, March 26, 2014.3
Moreover, the record contains no evidence of extraordinary circumstances such as a court holiday or closing or a breakdown in the operations of the court, which might excuse Appellant‘s untimely filing.4 See Commonwealth v. Braykovich, 444 Pa.Super. 397, 664 A.2d 133 (1995), appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996) (extension of filing period is permitted only in extraordinary circumstances, such as fraud or some breakdown in court‘s operation). Therefore, Appellant‘s failure to file her notice of appeal within thirty days of the order reinstating her direct appeal rights divested this Court of appеllate jurisdiction. See Patterson, supra; Parlante, supra. Accordingly, we dismiss this
Appeal dismissed.