*1 ¶21 in holding appropriate does not was October is now The H.S.W.C.-B. moot. control this case as the issue there was goal and termination and the change ¶24 For the reasons set forth place issue here is of commitment follow- above, conclude that the order appealed However, adjudication delinquency. from in is not a final order and is this case Supreme arguably Court’s rationale result, subject to As a we are appeal.4 may applies to this case. Like a minor who compelled appeal. carе, in by languishing be harmed foster ¶ Appeal quashed. may
minor be harmed continu- likewise facility ing to be committed to is possibility for him. That mi-
inappropriate in this allowing appeals
litates in favor
context, in just they permitted now are
the context set out H.S.W.C.-B. course, Pennsylva- whether the Of
nia the ratio- Supreme Court would extend Pennsylvania, COMMONWEALTH of nale of to these facts is uncer- H.S.W.C-B. Appellee, Although tain. the concerns here are they Fur- analogous, are identical. ther, in that it significant the issue is a one DREVES, Appellant. Jason of Pa.R.A.P. 1701 implicates operation authority and the of the trial court Pennsylvania. Superior Court would proceed mаtters We Argued Nov. extension of decline to institute broad Filed Dec. left to H.S.W.C.-B. as such a task is best Supreme the state Court its Rules Com-
mittee. event, if any 23 In even we did extend case,
the rationale of H.S.W.C.-B. the merits. The
we would not reach Su- very clearly period- held that
preme Court during ap-
ic should continue reviews an order entered
peal period and can
trial court after the making
have the effect of moot. occurred here. precisely
This is what agreed January
M.D. 2003 that contin- therefore, placement appropriate;
ued placement of whether continued
the issue postponed until final if review is argues that the order such that 4. M.D. in the alternative case, right will judgment claimed Rule in the appealable as a collateral order under N.B., irreparably supra. The review lost. exception, an order is imme- 313. Under this (1) a collateral order. separable order in this case is not diately appеalable if: it is action; (2) continuing M.D.'s commitment the main cause of The order and collateral to separable main de- the Center is not from the right important too to be involved is action; review; (3) action. presented it is the main cause of question cause nied *3 incidents, Dreves these As a result of subsequently entered was arrested with Common- plea agreement into a guilty pleas for his exchange wealth. charges, the above Broda, Sunbury, appellant. D. John of intimidation two counts prossed nolle resisting ar- count of and one a witness Atty., Sun- Targonski, Ann Asst. Dist. Dreves. rest,3 against also were which Com., bury, appellee. additionally agreed The Commonwealth in the lower a sentence imposition of SOLE, McEWEN, P.J., DEL Before: range of the Sentenc- standard end of the *4 JOYCE, STEVENS, P.J.E., HUDOCK, for Dreves’ conviction ing Guidelines GRACI, TODD, KLEIN, BENDER and Finally, the Common- threats. terroristic JJ. a con- imposition to the agreed wealth conviction of for Dreves’ current sentence JOYCE, J. by prisoner. harassment aggravated ¶ 1 from the appeals Jason Dreves 2001, 10, conviction May for his On 10, May on judgment of sentence entered threats, the trial court sen- of terroristic aggravat following guilty plea his days to a term of 163 prison tenced Dreves by prisoner ed harassment and terroristic at years, to two a sentence already served review, ap threats.2 After range of the of the standard the lower end peal. For his conviction Sentencing Guidelines. underlying procedural and The facts by prisoner, the aggravated harassment history of this case are as follows. On to a concur- Dreves trial court sentenced 15, 1999, in the August days while Shamokin of time al- rent term of 335 prison cell, City Department holding years. Police The certified ready served five spit police at saliva Dreves officers. The that on the same date sen- record shows 2001), 10, (May from a cut on Dreves imposed had blood mixed with it tence was signed urinated a document entitled upper lip. Dreves also and his counsel Sentencing Procedures” and subti- spit and on the cell door handle and floor. “Post 2/22/2001, Acknowledgment of Post Guilty Hearing, at 5- tled “Defendant’s N.T. Plea incident, This document place Sentencing In a took Procedures.” separate 6. which counsеl, 28, 2000, inter informed Dreves and his April on Dreves threatened alia, must Gillam, motion be previously post-sentence had wit- that: a Rhonda who man, motion must be writing; post-sentence him a nessed assault another Michael post- sentencing; police filed within ten Deitz. Dreves told Gillam not tell specificity state with sentence motion must possession that he had a knife in his grounds for the relief particularity the time of the assault. Id. at 6. 2703.1, §§ and 2706. 2. 18 Pa.C.S.A. 4952(a)(2), 4952(a)(3), §§ 3. 18 Pa.C.S.A. 5104. was un- post-sentence motion post-sentence if a motion is because
requested; filed, 30-day period nоt toll the timely, court must render days; filed fol- decision on the motion within 120 within which an must be following the appeals higher lowing imposition to a of sentence.4 We are taken to the imposition agree. of sentence Pennsylvania Superior by filing Court 720(A)(1) Pennsylvania 7 Rule of the if motion appeal; post-sentence notice of provides Procedure Rules of Criminal filed, Superior to the Court “(1) provided para- Except follows: until the trial dis- cannot be taken (D) cases], a [dealing summary with graph motion; must poses of the post-sentence mоtion shall be written disposition be filed imposition no later than 10 motion; post- and if no Id. Dreves was sentenced sentence.” filed, the notice of sentence was 720(A)(1), Pursuant to Rule May must filed within 30 of the date of May 2001 to had ten Dreves sentencing. Dreves filed file his motion. ¶ Despite pro- the above information May counsel, Dreves
vided to Dreves and his
*5
clearly untimely.
This motion was
motion within
post-sentence
did not file a
days
imposition
¶
of the
of sentence.
ten
untimeliness,
the
the
Despite
8
2001,
Rather,
30,
twenty days
May
on
and denied the
hearing
trial court held a
imposition
after the
Dreves filed
6,
Dreves filed
August
motion on
Modify
a motion entitled “Motion
Sen-
4, 2001.
appeal
September
notice of
Guilty Plea Nunc Pro
tence or Withdraw
than
appeal
of
was filed more
This notice
3, 2001,
hearing,
August
Tunc.” On
after a
of
thirty days
imposition
after the date of
(docketed
an order
the trial court entered
2001).
10,
Ordinarily, if a
(May
sentence
2001)
6,
motion.
August
denying the
On
defendant does not file
4, 2001,
September
Dreves filed the instant motion,
appeal
the defendant’s notice of
is
single question presented
The
days
imposition
30
of
shall be filed within
court abusеd
discretion
[its]
“whether the
720(A)(3).
of
sentence.
Pa.R.Crim.P.
impos-
then
by accepting plea agreement
720(A)(2):
However, under Pa.R.Crim.P.
the minimum
[sic]
a sentence
where
timely
(2)
files a
If the defendant
than that
imposed
greater
sentence
was
motion,
ap-
the notice of
Dreves,
for
at 5
bargained for?” Brief
peal shall be filed:
omitted).
(full capitalization
(a)
entry of the
30
of the
brief,
In a
the
supplemental
6
motion;
deciding
order
the
quash
asks this Court to
(b)
entry
the
days of the
within 30
appeal, claiming that
Dreves’
by operation
denying the motion
order
jurisdiction to rule on
judge was without
fails to
of law in cases which
motion,
untimely post-sentence
Dreves’
motion; or
decide the
more
appeal
that the instant
was filed
(c)
entry of the
of sen
imposition
after the
than 30
memorializing the withdrawal
order
contends
tence. The Commonwealth
(the
implicates
question
appealability
did not raise
4. Even if the Commonwealth
issue,
proper
may
us to
jurisdiction
it would have been
Court and
be raised
this
of this
v.
sponte.
sua
See Commonwealth
sponte).
raise it
Court sua
this
158,
Borrero,
(Pa.Super.1997)
A.2d
159
692
bar,
9 In
since Dreves
the case
cases which the defendant withdraws
motion, his
timely post-sentence
not file
motion.
to run
the date
appeal period began
from
added).
above,
From the
(emphasis
Id.
i.e.,
10,
May
imposed,
sentence was
filing
can
seen that
time for
an
be
appeal,
Dreves’
Accordingly,
notice
beyond
can be
80
appeal
extended
2001,
4,
almost
August
was
which
only if the
imposition
after the
of sentence
imposition
of sen-
four months after
a timely post-sentence
defendant files
mo-
tence,
untimely.
clearly
Pa.R.A.P.
See
720 empha-
tiоn. The Comment to Rule
903(a)
prescribed
as otherwise
(“Except
“If no
point
sizes this
follows:
rule,
appeal required
filed,
motion is
defen-
(manner
appeal)
902
shall
taking
Rule
period
to run
appeal
begins
dant’s
entry
be filed within 30
Thus,
imposed.”
the date sentence is
taken”).
the order from which
file a
where the defendant does not
therefore,
are
constrained to
We
post-sentence motion, there is no basis to
untimely.
See Common-
permit
filing
beyond
an
Anwyll,
Pa.Super.
wealth
days after
imposition
sentence.
(it
(1984)
well established
interpretatiоn
720 is amply
This
of Rule
Assembly
that when
Act of
fixes the
an
by this
supported
recent decision
Court’s
taken,
appeal may
time within
which
Bilger,
in Commonwealth v.
720, ordinarily,
post-sentence
when
mo-
Only
timely-filed post-sentencing
appellant
thirty
motion is filed an
has
tion will
an extension of the time
trigger
(30) days from
of the post-
the denial
appeal.
a notice of
fifing
motion
sentence
which to
file a
720(A)(2). If
Appel-
R.Crim.P.
indeed
However,
the ex-
filed,
untimely
lant’s
the no-
motion was
720(A)(2),
terms of
plicit
Pa.R.Crim.P.
subsequently
tice of
filed after
provision allowing thirty days
the
from
ruled on
court considered and
post-trial
the denial
motions is contin-
motion,
in
Appellant’s
excess of 30
gent upon
timely filing
post-trial
of a
sentence,
judgment
from
original
motion.
720(A)(3)
untimely.
would be
Pa.R.A.P.
[sic5].
Bilger,
1128 unless the entry, and that we will not reverse 30 after its
order within Len trial court abused its discretion. See notwithstanding prior termination A.2d Cigna Companies, hart v. court, if such any term of no (Pa.Super.2003). order has been taken or allowed. Herein, modify not
Id. the trial court did post- to file a 13 To be entitled within 30 after its or rescind its order tunc, a defen pro sentence motion nunc not vacate or entry, and the court did must, imposi after the dant modify judgment of sentence with- sufficient tion of demonstrate Thus, entry. present i.e., cause, the late reasons that excuse controlled the Rules of case must be Merely designating a motion filing.6 Ap- and the Rules of Criminal Procedure tunc” is “post-sentence pro motion nunc pellate respect with to the time- Procedure enough. the defendant has met When post-sentence liness of Dreves’ motion shown sufficient this burden has appeal. Further- cause, the timeliness of this then exercise its the trial court must more, present instant case does not permit deciding discretion whether a defendant filed a motion situation where mo the defendant to file the seeking permission to file a If pro nunc tunc. the trial court tion pro giving nunc tunc and reasоns to file a permit chooses to a defendant tunc, granted. why permission pro such should motion nunc In untimely post- expressly. employing his must do so simply Dreves entitled in Modify reasoning, line of we find sentence motion: “Motion to Sen- the above dealing with the restoration Guilty Plea Nunc Pro structive cases tence or Withdraw appeal rights pro nunc tunc. to file of direct permission Tunc.” He did not seek Stock, 545 Pa. Commonwealth v. motion nunc untimely post-sentence (1996) instance, our Su explain why did not pro tunc and he for an opined that order preme Court untimely and post-sentence motion was granted, the pro nunc tunc to be why untimeliness should be over- appellant would have to show extraordi the trial court was Consequently, looked. nary circumstance wherein a direct with, and did not consider presented Accord, by right was lost. (if the untimeli- any) the reasons behind *7 Peterkin, 547, 638, 643 554 Pa. 722 A.2d ness, suffi- and whether such reasons were (1998). Similarly, peti in order for a n. 7 to excuse the untimeliness. cient nunc post-sentence a motion tion to file ¶ that under 42 recognize 12 We must, a pro granted, tunc to be defendant 5505, § if had bеen appeal no Pa.C.S.A. of days imposition within 30 after the sen taken, imposition after the tence, extraordinary an cir demonstrate court has the discre of the trial which excuses the tardiness. cumstance request post- a to file a grant tion to ¶ If court does not pro motion nunc tunc. Consis 14 the trial sentence relief, the recently grant pro ob nunc tunc principle, expressly tent with this filing appeal an is neither tolled filing to allow the time for served that the decision request pro for nunc tunc is extended. The pro motion nunc nоr post-trial of a separate and distinct trial court tunc relief is vested the discretion wise, modify, any decision the trial court to request to file court’s decision on a 6. The trial must be ren- or vacate the sentence pro tunc must be rescind post-sentence motion nunc imposition days of the of imposition dered within 30 days of the rendered within 30 § sentence. Id. 42 Pa.C.S.A. 5505. Like- sentence. See Yet, he did not file post-sentence appeal to this Court.7 underlying the merits of the Therefore, timely motion. The trial court’s resolution motion. post-sentеnce 720(A)(3), post-sentence motion merits the late Dreves was under Pa.R.Crim.P. grant- no an order expressly substitute for required to file his notice of within Also, pro ing nunc tunc relief. when the imposition the date of of sen- 30 request post- grants trial to file tence. Dreves his tunc, pro post- sentence nunc 2001, motion 4, than 30 September more sentence filed as must motion a result Pa. imposition of sentence. though treated as it were filed within the 720(A)(2), R.Crim.P. which extends the 10-day period following imposition filing time for does not apply sentence. he not file a Dreves because did did post-sentence motion. Since Dreves
¶ 15 It is that the important note trial post-sentence not file a motion and expressly granted court never Dreves the permission post- did not to file a receive permission to file a motion tunc, pro sentence motion nunc he was pro nunc tunc this The trial court case. required to file his notice of post- not even that acknowledge imposed 30 of his sentence which was untimely sentence motion was under Pa. May notice of appeal 2001. Dreves’ 720(A)(1). Further, R.Crim.P. the trial clеarly September filed on 2001 was modify, court did or not rescind vacate untimely. quash must Accordingly, we Thus, 42 sentence. Pa.C.S.A. this § implicated 5505 in this case de- spite court’s consideration of the mer- ¶ 17 Appeal quashed. untimely post-sentence
its of the motion. Besides, authority no the prop- there is ¶ KLEIN, Dissenting J. files a or suggestion osition Pa.C.S.A. Opinion in McEWEN and which P.J.E. § and of itself noncompli- excuses BENDER, joins. J. requirements ance with the time for the filing motions under Pa. KLEIN, J., Dissenting. 720(A)(1) require- R.Crim.P. the time relief, give I would Dreves While ments for of appeal a notice I do not believe wе should 720(A)(2) under Pa.R.Crim.P. deny appeal but instead believe we should 908(a).
R.A.P. it on the merits. conclusion, we reiterate case, Dreves 2 In following: accepted was sentenced on May provided 2001. Dreves a nunc tunc pro with regard ten sufficient and accurate information which was filed late immedi- *8 filing post- ately the a on it. the first requirements time for acted He scheduled days filing hearing thirty and for a that within sentence motion appeal period, noteworthy present case the It is that the does court’s misstatement of a operated the which as breakdown in the court’s not involve a circumstance where trial Bogden, parties operation); and v. court misstated or misinformed the Commonwealth 300, (1987) Pa.Super. 168 regarding governing the time 364 the rules for 528 filing post-sentence (holding quashed a the time that an would not motion or for filing untimely misinformed the an Cool when trial court Commonwealth Cf. 788, (Pa.Super.2001) by advising haugh, him an 770 A.2d 791 defendant days thirty the (declining quash untimely appeal taken of to where had to be within sentence). imposition was to the trial the untimeliness attributable 1130 ¶ 10, 2001, May 6 The was on sentencing,
of the datе of
while he still had
jurisdiction
and the docket reflects the motion to modi-
over the case.
fy
guilty plea
sentence or withdraw his
¶
brief,
supplemental
appeal,
3 On
a
May
pro
nunc
tunc was filed on
the
asks this Court
to
judge
trial
The docket reflects that
trial
appeal, claiming
that the
accepted
filing
day
on the
it was filed
judge
power
accept
without
to
was
immediately
hearing
scheduled a
It
pro
motion nunc
tunc.
7, 2001,
days
within
June
also
30
sen-
nul-
untimely
claims the motion was
and a
tencing.8
modify
The motion to
sentence
run
lity
30-day period
and Drеves let
tunc was
guilty plea
pro
or withdraw
nunc
majority
to
to our
The
Court.
ultimately
denied
its merits.
quash.
respectfully disagree.
would
I
by
motion was denied
the trial
The
judge
proper
1. It
the trial
to
days
sentencing,
court within 120
entertain the
motion nunc
720(B)(3)(a).
allowed
Pa.R.Crim.P.
As
pro tunc.
judge accepted
trial
the motion nunc
date,
pro
hearing
tunc and set a
he consid-
¶ 4
days
Once 30
run from the date of
Therefore,
timely
ered it
filed.
once he
sentencing,
judge
jurisdiction;
a trial
loses
timely,
it
under
considered
Pa.R.Crim.P.
however,
30-day period
within that
720(B)(3)
720(B)(3)(a),
judge
the trial
jurisdiction.
ju-
still has
This
judge
is directed but to
vacate sentence
risdiction is
provided
Pa.C.S.A.
days.
decide the motion within 120
The
§
which reads:
I
judge complied with that directive and
Except
provided
pre-
as otherwise
or
doing
see no error
so.
law,
upon
scribed
a court
notice to
v. Fral
8 The
of Commonwealth
case
parties may modify
any
or rescind
(1993)
ic,
Pa.Super.
ther the 720(B)(3). 9. Pa.R.Crim.P. *10 plea agreement. trial court. Dreves that ience At specified by claims motion,
trial court its accept- hearing abused discretion on Dreves’s his coun- plea his agreement, imposed presented following explanation but then sel greater minimum sentence than the sen- Dreves’s claim: agreed tence to Dreves. to According arguing legality We’re not of the Dreves, in guilty he his pleas tendered imposed. sentence that was What we’re exсhange for at a sentence the lower end client, basically, my here to do as I told range of the standard his conviction mercy is throw at ourselves aggravated by prisoner. harassment He court. claims that he should have been permitted After imposed, my the sentence was plea to withdraw his because the trial spoke client to people and became his court high sentenced him near the end spend belief he have to would 85% of his the standard for that range charge. How- prison maximum state because of the ever, present Dreves this claim in current trend of violent offenders not modify his motion to his sentence or with- being upon parole released their earliest guilty draw his or at the plea, hearing on time. this motion. 13 In his motion, Dreves stated, [*] [*] [*] [*] [*] [*] part, relevant follows: The reason we filed the Motion is that it our was belief that the court intended to probation At sentencing, informed impose a time sentence and he would served then probably [Dreves] that wait supervision have Mr. Dreves under state sixty days parole before from the State upon being paroled. As a technical mat- Correctional Institution. ter, exactly what happened. that’s has jfc % ‡ ifc ifc matter, But practical as a he will have to believes and therefore [Dreves] avers spend prison much time in more then he that to pursuant parole policies, state actually had time served at the time of because he has been convicted of Aggra- guilty plea. basically So we’re ask- Prisoner, vated Harassment he ing the Court do whatever it can to to do eligible parole would not until [be] implement] thought [to what was the (85%) eighty-five serving percent [after] at beginning. Court’s intention of his maximum sentence. 2-3.) (N.T., 8/3/01, at ‡ ‡ ij* ‡ ifc [Dreves] believes therefore avers ¶ 14 apparent It that counsel for serving eighty-five percent of five Dreves did not the issue that raise the trial years state time would contrary be imposed greater court a sentence than that spirit imposed sentence which specified plea agreement. Because time served. the issue on appeal Dreves raises ¶¶ 5/30/01, Modify, court, Motion presented 5-7. first the trial Dreves did not claim the trial court was unable to address the issue in a 1925(a) greater imposed opinion, a sentence than the it is waived.10 sen- so See properly preserved Carpenter, 10. Even had monwealth 555 Pa. 725 A.2d if Dreves v. claim, (1999). plea "A he would not entitled to relief. The rises to the level of guilty plea injustice when it standard for the withdrawal manifest was entered into requires showing involuntarily, unknowingly, unintelligent- preju- Stork, injustice. ly.” dice on the order manifest Com- *11 302(a) (claim for raised R.A.P. cannot be appeal);
the first time (Pa.Su- Lopata, 754 A.2d
v. (same).
per.2000) I it Although improper believe judg- I affirm the appeal, would
ment sentence. BENDER, McEWEN and J. P.J.E. Dissenting
join Opinion.
M.A., Appellant, Jr., BRABENDER,
Daniel J. an individ Cowell, R.
ual and W. Richard John Fuller,
Wingerter, Lee Ted J. Pad C.
den, Rogala, Bradley K. J. En Donald Mary Jarvie,
terline, Payton individu partners, Carney Good,
als and and & professional partnership, Appellees.
Superior Pennsylvania. Court of Jamiolkowski, Pittsburgh, Alexander J.
Argued Sept. appellant. Filed Dec. Schadel, Pittsburgh, appel- James lees. (citation omitted). (Pa.Super.1999) tic at the bottom of the threats]. At It is guilty plea hearing, [aggravated court summa- range. On 1087 standard plea rized the terms of Dreves’s says prisoner] it sentences to harassment agreement as follows: concurrently. run Aggravated 2/22/01, (N.T., 5.) [0]n the Harassment Pris- challenge at Dreves did not oner, punishment maximum is seven interpretation plea the trial court’s $15,000 years prison, or both. fine Moreover, sentencing, agreement. at Thrеats, years On Terroristic five terms set forth Dreves’s counsel reiterated the $10,000 jail up to a fine or both. Un- 5/10/01, evidence, 2.) (N.T., at This above. law, der the sentences could run con- motion to the statements set forth Dreves’s secutively, that means one after other. guilty modify his sentence withdraw plea agreement There is a sen- presented plea, argument hear- and the concurrently, which tences would run motion, negate claim of Dreves’s time, they run at the means same unknowing plea and not rise to the do at the bottom of the standard would be injustice. manifest level of range. [terroris- At least that is on 99-905