Com. v. Starr, E. ( 2019 )

J-S73010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EDMUND STARR :
:
Appellant : No. 268 WDA 2018
Appeal from the Judgment of Sentence November 28, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012082-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 30, 2019
Appellant, Edmund Starr, appeals nunc pro tunc from the judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
revocation of his probation. We dismiss the appeal as untimely.
The relevant facts and procedural history of this case are as follows. On
February 20, 2014, Appellant entered a negotiated guilty plea to unlawful
contact with a minor, statutory sexual assault, corruption of minors, indecent
assault with a person less than 16 years old, and selling or furnishing alcohol
to a minor, in connection with Appellant’s inappropriate conduct with his wife’s
15-year-old sister. The court sentenced him on March 3, 2014, to the
negotiated aggregate term of 8 to 16 months’ imprisonment, plus 10 years’
probation. The terms of Appellant’s probation included a condition restricting
his internet access. While on probation, Appellant committed numerous
J-S73010-18
technical violations, including repeated violations of the internet restriction.
On November 28, 2016, the court held a revocation hearing, revoked
Appellant’s probation, and resentenced him to an aggregate term of 2 to 6
years’ imprisonment, plus 6 years’ probation, with the same term of internet
access restriction.
Appellant initially filed a timely direct appeal on December 27, 2016. On
December 12, 2017, Appellant filed a counseled petition pursuant to the Post
Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546, seeking to
reinstate his post-sentence motion rights nunc pro tunc. Appellant voluntarily
discontinued his direct appeal on January 4, 2017. In the PCRA petition,
Appellant claimed he wanted to challenge the condition of his probation
restricting his internet access. The Commonwealth did not oppose Appellant’s
request. Thus, the court entered an order on January 16, 2018, restoring
Appellant’s post-sentence motion and attendant rights nunc pro tunc.
On January 22, 2018, Appellant timely filed a post-sentence motion
nunc pro tunc, which the court denied that day. Appellant filed a counseled
notice of appeal nunc pro tunc on February 20, 2018. On February 28, 2018,
the court ordered Appellant to file a concise statement of errors complained
of on appeal per Pa.R.A.P. 1925(b); Appellant complied on March 20, 2018.
Appellant raises two issues for our review:
WHETHER THE EVIDENCE PRESENTED AT THE [GAGNON
V. SCARPELLI, 411 U.S. 778, 93 S.CT. 1756, 36 L.ED.2D
656 (1973)] HEARING ON NOVEMBER 28, 2016, WAS
INSUFFICIENT TO SUPPORT THE TRIAL COURT’S FINDING
-2-
J-S73010-18
THAT [APPELLANT] VIOLATED THE TERMS OF HIS
PROBATION?
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AT
SENTENCING WHEN IT IMPOSED AN INTERNET/COMPUTER
RESTRICTION AS A CONDITION OF [APPELLANT’S]
PROBATION REVOCATION SENTENCE ON NOVEMBER 2[8],
2016?
(Appellant’s Brief at 4).1
Preliminarily, 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). Pennsylvania Rule of
Appellate Procedure 903 provides: “Except as otherwise prescribed by this
rule, the notice of appeal…shall be filed within 30 days after the entry of the
order from which the appeal is taken.” Pa.R.A.P. 903(a). Time limitations for
taking appeals are strictly construed and cannot be extended as a matter of
grace. Commonwealth v. Valentine, 928 A.2d 346 (Pa.Super. 2007).
Generally, an appellate court may not enlarge the time for filing a notice of
appeal. Pa.R.A.P. 105(b). Extension of the filing period is permitted only in
____________________________________________
1 Appellant cites Packingham v. North Carolina, ___ U.S. ___, 137 S.Ct.
1730, 198 L.Ed.2d 273 (2017) (declaring unconstitutional North Carolina
statute that banned registered sex offenders from accessing commercial social
networking website where sex offender knows that site permits children to
become members or to create or maintain personal web pages on commercial
social networking website; statute at issue imposed unprecedented burden on
free speech that was overly broad; explaining states can enact more specific
laws, so long as restrictions are limited in context and narrowly tailored; states
cannot enact complete bar to exercise of First Amendment rights on websites
integral to fabric of our modern society and culture). Due to our disposition,
however, we decline to address Appellant’s claims.
-3-
J-S73010-18
extraordinary circumstances, such as fraud or a breakdown in the court’s
operation. Commonwealth v. Braykovich, 664 A.2d 133 (Pa.Super. 1995),
appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996).
“A direct appeal in a criminal proceeding lies from the judgment of
sentence.” Patterson, supra at 497. When rights are reinstated nunc pro
tunc, the clock runs from the day the rights are reinstated. Commonwealth
v. Wright, 846 A.2d 730 (Pa.Super. 2004). Significantly, [t]he filing of a
motion to modify [a revocation] sentence will not toll the 30-day appeal
period.” Pa.R.Crim.P. 708(E).
Instantly, the court reinstated Appellant’s rights nunc pro tunc on
January 16, 2018. Although Appellant timely filed a post-sentence motion
nunc pro tunc on January 22, 2018, the filing of the post-sentence motion did
not toll the 30-day appeal period; and his appeal was still due to be filed on
or before Thursday, February 15, 2018. See Wright, supra; Pa.R.Crim.P.
708(E). Appellant late filed his notice of appeal on Tuesday, February 20,
2018 (Monday, February 19, 2018 was Presidents’ Day). Moreover, the record
contains no evidence of extraordinary circumstances, such as a breakdown in
the operations of the court, to excuse Appellant’s untimely filing. See
Braykovich, supra. Accordingly, we dismiss the appeal as untimely.
Appeal dismissed.
-4-
J-S73010-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2019
-5-