The Superior Court of Pennsylvania recently quashed Zebrick Hyreshie Jones’s appeal from his DUI judgement as untimely.
In April 2014, Trooper Allar arrived beside a disabled vehicle on the shoulder of I-81. Trooper Allar observed damage to the hood and passenger side of the vehicle and a broken front-passenger window. The appellant was in the process of changing the left rear tire, while his girlfriend remained in the passenger seat. Trooper Allar inquired Jones as to the cause of the accident, to which he replied: “I slipped and hit a tractor trailer.”
During the conversation, Allar smelled alcohol on Jones’ breath, noticed that Jones had bloodshot eyes, and saw an empty can of Bud Ice in the back of the car. Allar took Jones into custody under suspicion of DUI. A later blood test revealed that Jones had a BAC of .174%.
Jones was charged with one count of DUI-high rate and one count of DUI-general impairment. Following a jury trial, the appellant was convicted of both counts of DUI. In October 2015, the court sentenced Jones to 90 days to five years in jail. The appellant thereafter filed a petition requesting that the court modify his sentence so that he could serve his time in York County prison, which the trial court granted that same day. Jones filed a notice of appeal in the following month. The trial court directed him to file a Rule 1925(b) statement of matters complained of on appeal, with which he complied. Subsequently, the court authored its Rule 1925(a) opinion. Before reaching the merits of the case, the appeals court first determined that the case was not properly before it.
The Pennsylvania rules of criminal post-sentence procedure provide that, except in summary appeals or when an after-discovered evidence claim is being raised, “a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.” Pennsylvania courts have interpreted the term “imposition of sentence” as the date the trial court pronounced the sentence in open court. According to the rules, the time for filing an appeal can be extended beyond 30 days after the imposition of sentence only if the defendant files a timely post-sentence motion. An untimely post-sentence motion does not toll the 30-day appeal period.
Here, Jones’ sentence was imposed on October 8, 2015. Jones had 10 days to file a post-sentence motion, which expired on Sunday, October 18, 2015. Thus, he had until Monday, October 19, 2015 to file a timely post-sentence motion. Jones filed his petition on October 21, 2015. Hence, it was patently untimely.
Since Jones filed an untimely post-sentence motion, the appeal period could be tolled “only if the trial court accepted it under its limited authority to allow the filing of a post-sentence motion nunc pro tunc [a motion to retroactively correct an earlier ruling].” The appellant did not request that the trial court consider his motion as filed nunc pro tunc. Furthermore, the appeals court reasoned, the trial court’s resolution of the merits of an untimely post-sentence motion is not a substitute for an order expressly granting nunc pro tunc relief.
Since the trial court did not consider Jones’ post-sentence motion nunc pro tunc, the period to file a timely appeal was not tolled. Thus, Jones was required to file his notice of appeal within 30 days of the date of imposition of sentence. Since he failed to do so, Jones’ notice of appeal was clearly untimely. The Pennsylvania Superior Court therefore quashed his appeal.
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