J-S47015-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. NATHAN BLAZE MILLS Appellant No. 830 MDA 2020

Appeal from the Judgment of Sentence Entered April 2, 2020 In the Court of Common Pleas of the 39th Judicial District Franklin County Branch Criminal Division at No.: CP-28-CR-0001477-2017

BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.* MEMORANDUM BY STABILE, J.: FILED FEBRUARY 10, 2021 Appellant Nathan Blaze Mills appeals from the April 2, 2020 judgment of sentence entered in the Court of Common Pleas of the 39th Judicial District, Franklin County Branch (“trial court”), following the revocation of his intermediate punishment. Upon review, we quash.

Briefly, on March 27, 2019, in connection with a fentanyl-related overdose death, Appellant pled guilty to involuntary manslaughter (18 Pa.C.S.A. § 2504(a)) and unlawful delivery of a schedule II controlled substance (35 P.S. § 780-113(a)(30)). On the same day, the trial court sentenced Appellant to, inter alia, 36 months’ intermediate punishment.

Appellant also was directed to enroll in the Good Wolf Treatment Court ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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program and to comply with the program’s rules and conditions. Following Appellant’s multiple violations of the rules and conditions, a Gagnon I1 hearing was held on January 30, 2020, at which Appellant voluntarily stipulated to the violations. At the hearing, Appellant also waived his right to a Gagnon II hearing. On April 2, 2020, the trial court resentenced Appellant to an aggregate term of 60 to 120 months’ imprisonment. On April 16, 2020, Appellant filed a post-sentence motion, challenging only the discretionary aspects of his sentence.2 On May 20, 2020, the trial court denied the motion. ____________________________________________

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On June 5, 2020, Appellant appealed to this Court. Both the trial court and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant raises two identical issues for our review.

[I.] Whether the imposition of [Appellant’s] sentence of total confinement on Count 2, Involuntary Manslaughter, following revocation of probation for a technical parole/probation violation, and not for a new criminal offense, is, on its face, so disproportionate as to implicate the “fundamental norms which underlie the sentencing process?[”] [II.] Whether the imposition of [Appellant’s] sentence of total confinement on Count 3, Unlawful Delivery of a Schedule II Substance, following revocation of probation for a technical parole/probation violation, and not for a new criminal offense, is, on its face, so disproportionate as to implicate the “fundamental norms which underlie the sentencing process?[”] Appellant’s Brief at 4.

Before addressing the foregoing issues, however, we must determine whether this appeal is timely. We construe time limitations for taking appeals strictly and cannot extend them as a matter of grace. Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014) (citations omitted). We can raise the timeliness of an appeal sua sponte, because it implicates our jurisdiction to entertain the appeal. Id. Absent extraordinary circumstances, we lack jurisdiction to entertain an untimely appeal. Id.

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and its subsequent modification did not affect the timeline for filing an appeal.

Rather, as discussed infra, consistent with the Supreme Court’s March 16, 2020, Judicial Emergency Order, this Court issued an order on March 17, 2020, extending by 30 days the timeline for filing a notice of appeal from orders entered between March 17, 2020 and April 17, 2020.

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When, as here, a trial court revokes a defendant’s sentence of intermediate punishment and resentences him, the defendant has 30 days from the date of the resentencing to appeal the sentence, regardless of whether he files post-sentence motions. Pa.R.Crim.P. 708(E). In Burks, we explained: Rule 720 of the Pennsylvania Rules of Criminal Procedure in general governs the timing of post-sentence motion procedures and appeals. See Pa.R.Crim.P. 720. The disposition of a motion to modify a sentence imposed after a revocation hearing, however, is governed by Rule 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition).

See Pa.R.Crim.P. 720 Cmt. Rule 708(E) states: “A motion to modify a sentence imposed after a revocation shall be filed within days of the date of imposition. The filing of a motion to modify sentence will not toll the 30–day appeal period.”

Pa.R.Crim.P. 708(E) (emphasis added). Rule 708 makes clear Rule 720 does not apply to revocation cases. Id. Cmt.

Burks, 102 A.3d at 499-500 (emphasis in original). Thus, if the defendant elects to file post-sentence motions following a revocation sentence, he does not receive an additional 30 days to file an appeal from the date the court denies his motion. Id. at 500.

Although we recognize the general impact of the current and ongoing COVID-19 pandemic and its specific effect on the legal profession, we are constrained to conclude that the instant appeal is plainly untimely. As stated, the trial court revoked Appellant’s sentence of intermediate punishment and resentenced him to an aggregate term of 60 to 120 months’ imprisonment on April 2, 2020. At that time, this Court’s March 17, 2020 Administrative Order No. 3 was in effect. That Order, in accordance with the March 16, 2020 Judicial

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Emergency Order of the Supreme Court of Pennsylvania,3 provided in relevant part: C. All timelines imposed by Pennsylvania Rule of Appellate Procedure 903, for appeals from orders entered between March 17, 2020, and April 17, 2020, that would be subject to the Superior Court’s jurisdiction, are EXTENDED by 30 days. The courts of common pleas are directed to ensure all notices of appeals filed in their courts bear a date stamp of the court’s receipt of the notice of appeal, and that each notice of appeal either bears an electronic-filing stamp or is attached to the postmark from the envelope that contained the notice of appeal.

Notices of appeal in matters classified as Children’s Fast Track, see Pa.R.A.P. 102 (relating to definitions), are NOT SUBJECT to this extension[.]

In re: Statewide Judicial Emergency – Suspension Superior Court of Pennsylvania, No. 3 Administrative Docket (Pa. Super. filed March 17, 2020) (emphasis added). Because of our Administrative Order, a defendant received an additional 30 days to file an appeal from final orders entered between March 17, 2020, and April 17, 2020. Instantly, the trial court resentenced Appellant on April 2, 2020. As a result, Appellant had until Monday, June 1, 2020 to file a timely appeal. Appellant did not do so. Here, counsel for Appellant filed a post-sentence motion, and while he was waiting for the trial court to decide the motion, the appeal period expired ____________________________________________

See In re: General Statewide Judicial Emergency – Authorization for Superior Court and Commonwealth Court, No. 532 Judicial Administration Docket (March 16, 2020).

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under Rule 708(E). As mentioned, the filing of a post-sentence motion will not toll the 30-day appeal period. See Burks, supra. In other words, when a defendant is resentenced following the revocation of probation, parole or intermediate punishment, the defendant must file a notice of appeal within 30 days regardless of whether he or she chooses to file a post-sentence motion.

Here, Appellant did not file his notice of appeal until June 5, 2020, that is 4 days after the June 1, 2020 deadline. Accordingly, we quash this appeal for want of jurisdiction.4 Appeal quashed.

Judge Strassburger joins the memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/10/2021

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