Opinion
J-S20023-14 No. 1286 WDA 2013
04-30-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DARRIN WHITE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Judgment of Sentence July 8, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0008182-2010
BEFORE: GANTMAN, P.J., DONOHUE and FITZGERALD, JJ. MEMORANDUM BY DONOHUE, J.:
Former Justice specially assigned to the Superior Court.
Darrin White ("White") appeals from the July 8, 2013 judgment of sentence entered by the Court of Common Pleas of Allegheny County following the revocation of his probation. Finding the appeal prematurely filed, we quash.
On August 20, 2010, White pled guilty to possession of a controlled substance (heroin) and possession of a controlled substance (heroin) with intent to deliver. Pursuant to an agreement with White, the Commonwealth recommended that the court sentence White to 30 months of probation, which the sentencing court accepted.
35 P.S. § 780-113(a)(16), (30).
Within a year of receiving his sentence of probation, White committed three additional crimes, to which he pled guilty. He came back before the sentencing court on July 8, 2013 for a violation of probation hearing, following which it imposed a sentence of 14 to 36 months of incarceration at a state correctional institution, to run consecutive to any other sentence White was already serving.
On February 11, 2011, White was charged with, and subsequently pled guilty to possession with intent to deliver heroin; on May 25, 2011, White was charged with, and subsequently pled guilty to, escape from the Renewal Center and possession and false identification to law enforcement. N.T., 7/8/13, at 2-3.
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White filed a timely post-sentence motion seeking modification of his sentence on July 18, 2013. There is no indication in the docket nor any order contained in the certified record on appeal indicating that the sentencing court ruled on White's motion. He filed the instant notice of appeal on August 7, 2013. He raises one issue for our review: "Was the [14] to [36] month sentence of incarceration imposed manifestly excessive, unreasonable, and an abuse of discretion where the court did not consider Mr. White's rehabilitative needs or his nature and characteristics?" White's Brief at 4.
Prior to addressing the issue raised, we must first determine whether the appeal is properly before us at this time. As stated above, the record reflects that White filed a timely post-sentence motion. Rule of Criminal Procedure 720 provides:
(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:Pa.R.Crim.P. 720(A)(2). A motion is denied by operation of law 120 days after the filing of the motion, Pa.R.Crim.P. 720(B)(3)(a). The Official Comment to Rule 720 provides that "[n]o direct appeal may be taken by a defendant while his or her post-sentence motion is pending." Pa.R.Crim.P. 720 (Comment); see also Commonwealth v. Cooper, 611 Pa. 437, 27 A.3d 994, 1005 (2011) (recognizing that "no direct appeal may proceed while a timely post-sentence motion or motion to modify sentence is pending, and any such appeal is rendered premature"); Commonwealth v. Borrero, 692 A.2d 158, 160 (Pa. Super. 1997) (finding an appeal taken prior to the trial court ruling on timely filed post-sentence motions to be interlocutory, precluding this Court from exercising jurisdiction).
(a) within 30 days of the entry of the order deciding the motion;
(b) within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion; or
(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.
Here, White filed his notice of appeal prior to the sentencing court ruling upon his timely filed post-sentence motion or the time passing for its denial by operation of law. No order disposing of the post-sentence motion appears in the record, nor does the docket reflect the entry of any such order. There is no indication that White withdrew his post-sentence motion. As the appeal is premature, we are constrained to quash the appeal.
Appeal quashed. Judgment Entered. ___________________
Joseph D. Seletyn, Esq.
Prothonotary