J-A25018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellant

v.

CHRISTOPHER JAMES FRANZKE

Appellee No. 433 EDA 2017

Appeal from the Judgment of Sentence imposed December 28, 2016

In the Court of Common Pleas of Monroe County

Criminal Division at No: CP-45-CR-0001636-2013

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellant

v.

CHRISTOPHER JAMES FRANZKE

Appellee No. 436 EDA 2017

Appeal from the Judgment of Sentence imposed December 28, 2016

In the Court of Common Pleas of Monroe County

Criminal Division at No: CP-45-CR-0002690-2013

BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED JANUARY 11, 2018

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-A25018-17

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The Commonwealth argues the trial court abused its discretion in 

granting Appellee time credit for time he spent in an in-patient rehabilitation 

facility. For the reasons stated below, we vacate the judgment of sentence 

and remand for resentencing.

The underlying facts and procedural facts of the instant matter are not 

in dispute. Briefly, on June 9, 2016, following a hearing, the trial court 

revoked Appellee’s placement in the State Intermediate Punishment (SIP) 

program, and sentenced him to an aggregate period of incarceration of 24 to 

60 months, with time credit of 378 days. On June 17, 2016, Appellee filed a 

motion for additional time credit, which the trial court treated as a motion for 

reconsideration of sentence. See, e.g., Trial Court Opinion, 4/20/17, at 18-

19. On June 23, 2016, the trial court set a hearing on said motion for July 7, 

2016, which was eventually rescheduled to August 26, 2016. On that day, 

after the hearing, the trial court took the matter under advisement. On 

December 28, 2016, the trial court issued an order granting Appellee’s motion 

for reconsideration. The Commonwealth filed an appeal from that order on 

January 25, 2017. 

The instant appeal involves a challenge to the discretionary aspects of 

sentence. See Commonwealth v. Shull, 148 A.3d 820, 847 n.14 (Pa. 

Super. 2016).1 

____________________________________________

1 See also Commonwealth v. Fowler, 930 A.2d 586, 596 (Pa. Super. 2007) 

(“Generally, it is within the trial court’s discretion whether to credit time spent 
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Under Pennsylvania law, neither the defendant nor the 

Commonwealth may take an appeal as of right from the 

discretionary aspects of sentence. Rather, “[t]he defendant or the 

Commonwealth may file a petition for allowance of appeal of the 

discretionary aspects of sentence for a felony or a misdemeanor 

to the appellate court that has initial jurisdiction for such appeals. 

Allowance of appeal may be granted at the discretion of the 

appellate court where it appears that there is a substantial 

question that the sentence imposed is not appropriate under [the 

Sentencing Code].”

Commonwealth v. Darden, 531 A.2d 1144, 1146 (citation omitted) 

(alteration in original). 

Additionally, 

[o]ur jurisdiction to hear such a challenge is discretionary, and we 

may not exercise our discretion to review such an issue unless we 

first determine that: (1) the appeal is timely; (2) Appellant 

preserved his issue; (3) Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of an appeal 

with respect to the discretionary aspects of his sentences, as 

required by Rule 2119(f) of the Pennsylvania Rules of Appellate 

Procedure; and (4) that concise statement raises a substantial 

question that the sentences were inappropriate under the 

Sentencing Code. If the appeal satisfies each of these 

prerequisites, we may accept it and proceed to the substantive 

merits of the case.

Commonwealth v. Flowers, 149 A.3d 867, 870-71 (Pa. Super. 2016)

(citation omitted) (footnote omitted). A review of the record shows that the 

____________________________________________

in an institutionalized rehabilitation and treatment program as time served in 

custody”) (internal quotation marks omitted) (citing Commonwealth v. 

Conahan, 589 A.2d 1107 (Pa. 1991) and Commonwealth v. Mincone, 592 

A.2d 1375 (Pa. Super. 1991) (en banc)).
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instant appeal is untimely.2 As noted above, Appellee was sentenced on June 

9, 2016. He moved for reconsideration on June 17, 2016, which the trial court 

granted on December 28, 2016. The Commonwealth appealed from the order 

granting reconsideration on January 25, 2017. While the Commonwealth filed 

the instant appeal within 30 days from the order granting reconsideration, the 

Commonwealth failed to appreciate that this is an appeal from a sentence 

imposed after a revocation of SIP and that “the filing of a motion to modify 

sentence will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E); see 

also Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) 

(“An appellant whose revocation of probation sentence has been imposed after 

a revocation proceeding has 30 days to appeal her sentence from the day her 

sentence is entered, regardless of whether or not she files a post-sentence 

motion”); Commonwealth v. Coleman, 721 A.2d 798, 799 (Pa. Super. 

1998) (holding that the filing of a motion to modify sentence, following a 

revocation of probation,3 does not extend the appeal period; a party seeking 

____________________________________________

2 The trial court acknowledged that timeliness was a problem, but ultimately 

concluded it had jurisdiction to issue the order granting reconsideration. Trial 

Court Opinion, 4/20/17, at 31-37. The parties did not challenge or address 

the timeliness of the instant appeal before us. Regardless of whether the 

issues had been raised by the parties, the question of timeliness of an appeal 

is jurisdictional, which we can raise sua sponte. See, e.g., Commonwealth 

v. Trinidad, 96 A.3d 1031, 1033-34 (Pa. Super. 2014). 

3 See Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 

2010) (finding sentences of probation and sentences of state intermediate 

punishments to be analogous). 
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to appeal a revocation order must do so within 30-day time prescribed by 

Pa.R.A.P. 903(a)). Therefore, the instant appeal, to be timely, should have 

been filed within 30 days of the judgment of sentence, not of the order 

granting reconsideration. Because the Commonwealth filed the instant appeal 

well after the 30-day period limitation proscribed by Pa.R.A.P. 903(a), the 

instant appeal is untimely. 

Generally, an error like this would be fatal, requiring us to quash the 

appeal. See Coleman, 721 A.2d at 798. However, a review of the record 

reveals that the trial court stated incorrectly the law on this matter. Indeed, 

the trial court specifically advised the parties that Appellee could appeal from 

the judgment of sentence within 30 days of the order disposing of the 

reconsideration. See N.T. Sentencing, 6/9/16, at 20 (stating to Appellee that 

if a motion for reconsideration had been filed, “your time to appeal wouldn’t 

kick in until I decide that motion[.]”).4 “[I]n similar situations, we have 

declined to quash the appeal recognizing that the problem arose as a result of 

the trial court’s misstatement of the appeal period, which operated as a 

breakdown in the court’s operation. Commonwealth v. Coolbaugh, 770 

A.2d 788, 191 (Pa. Super. 2001) (citations omitted). 

____________________________________________

4 While at the time of sentencing the trial court addressed Appellee in 

summarizing its understanding of the rules pertaining to appeals, the trial 

court’s erroneous statement of the relevant law similarly affected the 

Commonwealth. Indeed, the same rules at issue here (i.e., Pa.R.A.P. 903 and 

Pa.R.Crim.P. 708(E)) are equally applicable to the Commonwealth. 
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However, there is another problem with the instant appeal. The trial 

court order granting reconsideration was issued approximately 6 months after 

the filing of the underlying motion, and approximately 5 months after the 

expiration of the appeal deadline. The trial court did not have the authority 

to act on the motion for reconsideration once the 30-day appeal period had 

expired. See Pa.C.S.A. § 5505;5 see also Commonwealth v. Moir, 766 

A.2d 1253, 1254 (Pa. Super. 2000). The appealed order is therefore null and 

void.6 See Commonwealth v. Benn, 680 A.2d 896, 900 (Pa. Super. 1996). 

Given the instant appeal has been substantially compromised by the 

trial court’s misstatement of the law at the time of sentencing, we are 

constrained to vacate the judgment of sentence and remand to the trial court 

for resentencing. 

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

____________________________________________

5 Section 5505 of the Judicial Code provides as follows: “Except as otherwise 

provided or prescribed by law, a court upon notice to the parties may modify 

or rescind any order within 30 days after its entry, notwithstanding the prior 

termination of any term of court, if no appeal from such order has been taken 

or allowed.” 42 Pa.C.S.A. § 5505. Beyond the 30-day limitation, a court may 

only correct errors that are “obvious and patent.” Commonwealth v. Cole, 

263 A.2d 339, 341 (Pa. 1970); see also Commonwealth v. Holmes, 933 

A.2d 57, 66 (Pa. 2007) (stating that courts have “the inherent power to 

correct patent errors despite the absence of traditional jurisdiction”). There 

is no contention that the order at issue here corrected obvious and patent 

errors. 

6 The trial court noted this much but ultimately concluded that, under the 

circumstances, the order was valid. Trial Court Opinion, 4/20/17, at 19. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/11/18