Case Information

*1 NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellee

v.

HECTOR VARGAS -TORRES, JR.

Appellant No. 2009 MDA 2015 Appeal from the Judgment of Sentence In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP- 21 -CR- 0003636 -2014 BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ. FILED OCTOBER 2016

MEMORANDUM BY BOWES, J.: Hector Vargas- Torres, Jr. has this from the August of sentence of one to two years imprisonment entered a negotiated guilty plea a single count of simple assault. quash. charged action with count of aggravated

harassment by prisoner, felony carrying a maximum sentence of seven years imprisonment. On 2015, Appellant entered negotiated guilty plea reduced charge of simple assault (placing someone fear by physical menace), exchange for sentence of one to two years imprisonment. "run consecutively any sentence that [Appellant was] presently serving." N.T. Guilty Plea, 8/20/15, At that * Former Justice specially assigned the Superior Court.

time, Appellant admitted to following. On August 21, 2014, he was incarcerated at the State Correctional Institution --Camp Hill. Appellant had been placing covering over his cell door that prevented correctional officers from viewing the inside his cell. Appellant continued place the obstruction over his cell door even though he had been repeatedly warned he not permitted do so. On August 21, 2014, Correctional Officer Brent McBeth, security precaution, installing plexiglass inside cell when Appellant spit him, striking Correctional Officer McBeth's chest and forearm.

On August 20, 2015, after accepting guilty plea, court imposed the negotiated sentence of two years jail, Appellant apprised of post- sentence rights. Id. 7 -8. On 8, 2015, Appellant filed seeking credit for time from October 21, 2014, when arrested for the present crime, August The did not seek any form PCRA relief, did ask to file the motion nunc pro tunc.

Following hearing, the court denied November period for filing direct appeal from the August of sentence expired. court found any time Appellant spent jail prior been credited to sentences imposed other matters. Appellant from of 2015.

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Counsel has filed petition to withdraw from representation and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). However, we are without jurisdiction to address counsel's request as this appeal was untimely filed. In Commonwealth v. Capaldi, 112 A.3d 1242 (Pa.Super. 2015), one week after his post- sentence motions be filed, the defendant filed a motion for credit for time -served. Upon appeal from motion's denial, noted for time served timely filed, and quashed.' We articulated:

In cases where post- sentence motions (or no Commonwealth's motions modify sentence) are filed, a defendant must file an appeal within 30 days of imposition of ' are aware of the precept "all motions filed after judgment of sentence is final are to be construed as PCRA petitions." Commonwealth v. Taylor, 65 A.3d 466 (Pa.Super. 2013) (citing Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super. 2007)) (collecting cases); accord Commonwealth v. Jackson, A.3d 516 (Pa.Super. 2011). However, the present motion not filed of sentence became final. was imposed and became final on Appellant's motion presented September 8, prior finality of of sentence. Hence, it must be analyzed under which applies reasoning employed long line of cases.

Moreover, even if we were characterize the motion question as a PCRA petition timely from denial of PCRA relief, would concur with counsel's finding frivolity affirm trial court's refusal grant credit for time basis its March 2016 opinion.

-3 *4 in open court. Pa.R.Crim.P. 720(A)(3); Pa.R.A.P.

sentence 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, defendant must file a post - motion within ten days imposition of sentence. Pa.R.Crim.P. 720(A)(1).

An untimely post- sentence 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 can be extended beyond days imposition of sentence only if the defendant files timely post- sentence motion. ").

Id. at 1244 (emphases original).

Herein, of sentence was on 2015, and, since tenth day fell on weekend, he until Monday file timely post- sentence motion. in question Tuesday, untimely. Appellant never asked for, nor was granted, the right file the motion nunc pro tunc. Therefore, even though the motion question entertained merits by trial court, it did not operate extend the from the August sentence. appeal period Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super. 2003) (en banc).

In response to rule issued by this Court to show cause why the appeal should be quashed, argued for credit for time an attack legality of the sentence, which cannot be waived. However, explained supra before

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may address non -waivable legality -of- issue, "we must first have jurisdiction." nature issue simply does confer jurisdiction upon us.

In response to the rule, also suggested that motion subject timeliness requirements Pa.R.Crim.P. 720. He provided

no legal support for position, observe docket sheet characterizes the motion as post- sentence motion. Indeed, Capaldi, treated for credit for time that week late as a post- sentence motion. are therefore constrained to quash appeal from the August 20, 2015 of sentence under the jurisprudence applied Dreves, supra, supra.

Appeal quashed. Counsel's withdraw dismissed moot. Judgment Entered.

J: seph D. Seletyn,

Prothonotary

Date: 10/24/2016

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