J-A29006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARK GRABER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 995 EDA 2018

Appeal from the Judgment of Sentence November 27, 2017

In the Court of Common Pleas of Bucks County 

Criminal Division at No(s): CP-09-CR-0001409-1990

BEFORE: OTT, J., DUBOW, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 30, 2018

Mark Graber appeals from the judgment of sentence imposed on 

November 27, 2017, in the Bucks County Court of Common Pleas, made final 

by the grant of post-sentence motions on January 11, 2018. Graber pled 

guilty to criminal homicide, aggravated assault, reckless endangering another 

person, and possession of an instrument of crime1in July of 1990. As will be 

explained infra, the court resentenced Graber in November of 2017 to a term 

of 45 years to life imprisonment. Graber now challenges the legality of his 

sentence, claiming it “creates a de facto life without parole sentence that 

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 Former Justice specially assigned to the Superior Court.

1

 18 Pa.C.S. §§ 2501(a), 2702(a)(1)/2702(a)(4), 2705(a), and 907, 

respectively.
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unconstitutionally deprives him of a meaningful opportunity for parole as he 

is not one of the rare and uncommon juveniles who is irreparably corrupt.” 

Graber’s Brief at 18 (footnote omitted). Based on the following, we are 

constrained to quash this appeal as untimely filed.

The facts and procedural history underlying this appeal are well known 

to the parties, and not necessary to our disposition herein. See Trial Court 

Opinion, 5/17/2018, 1-10. We briefly note that on February 10, 1990, Graber, 

16 years old at the time, shot and killed the victim, 18-year-old Shane Reilly. 

On the same date, and involving the same shooting incident, Graber shot at 

but missed a neighbor, David Girard. On July 9, 1990, Graber pled guilty to 

criminal homicide, aggravated assault, reckless endangering another person, 

and possession of an instrument of crime.2 Following a degree of guilt hearing, 

Graber was found guilty of first-degree murder on July 10, 1990. On 

December 21, 1990, the court sentenced Graber to a term of life imprisonment 

without the possibility of parole. 

Graber did not file a direct appeal, but did file numerous petitions for 

collateral relief pursuant to the Post Conviction Relief Act (“PCRA”).3 With 

respect to his fourth petition, filed on March 16, 2016, the PCRA court 

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2

 18 Pa.C.S. §§ 2501(a), 2702(a)(1)/2702(a)(4), 2705(a), and 907, 

respectively.

3 42 Pa.C.S. §§ 9541-9546.
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determined Graber was entitled to relief under Miller v. Alabama, 567 U.S. 

460 (2012),4 and Montgomery v. Louisiana, 136 S. Ct. 718 (January 25, 

2016).5 

Subsequently, at a November 27, 2017, resentencing hearing, the trial 

court vacated Graber’s original sentence, and imposed a negotiated sentence 

of 45 years to life imprisonment, crediting Graber with time served from the 

date of his arrest on February 10, 1990. The court also ordered his court and 

transportation costs be waived for the proceeding.

On December 6, 2017, counsel for Graber filed a motion to reconsider 

his sentence, requesting the court enforce its order waiving Graber’s court 

costs. On January 5, 2018, Graber filed a pro se notice of appeal, which was 

assigned to Docket No. 238 EDA 2018, and thereafter quashed as interlocutory 

on February 26, 2018.6

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4

In Miller, the United States Supreme Court held that “mandatory life without 

parole for those under the age of 18 at the time of their crimes violates 

the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” 

Miller, 567 U.S. at 465 (emphasis added).

5

 In Montgomery, the Supreme Court held that Miller was a new substantive 

right that, under the United States Constitution, must be applied retroactively 

in cases on state collateral review. Montgomery, 136 S.Ct. at 736.

6

 By per curiam order, this Court determined Graber’s pro se appeal was 

interlocutory because the trial court had not entered an order regarding the 

post-sentence motion filed on December 6, 2017. See Order, 2/26/2018 [238 

EDA 2018]; Order – Rule to Show Cause, 1/23/2018 [238 EDA 2018]. See 

also Commonwealth v. Borrero, 692 A.2d 158, 160 (Pa. Super. 1997) 

(appeal quashed as interlocutory where defendant filed the notice of appeal 
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During this time, on January 11, 2018, the court granted Graber’s postsentence motion, remitting the challenged costs. On March 16, 2018, Graber 

filed a counseled notice of appeal. 

Before we can address the merits of this appeal, we must determine 

whether it is properly before us as it implicates our jurisdiction. 

Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999) (appellate courts 

may consider issue of jurisdiction sua sponte). Generally, an appellant has 30 

days from the imposition of sentence, or the denial of his post-sentence 

motions following the same, to file an appeal. See Pa.R.A.P. 903(a) (“the 

notice of appeal ... shall be filed within 30 days after the entry of the order

from which the appeal is taken”); Pa.R.Crim.P. 720(a)(2)(c) (“If the defendant

files a timely post-sentence motion, the notice of appeal shall be filed ... within

30 days of the entry of the order deciding the motion[.]). “This Court does 

not have jurisdiction to hear an untimely appeal.” Commonwealth v.

Wrecks, 931 A.2d 717, 720 (Pa. Super. 2007). 

Here, the court resentenced Graber on November 27, 2017, and granted 

his post-sentence motion regarding the challenged costs on January 11, 2018. 

Counsel for Graber did not file a notice of appeal until March 16, 2018, making 

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before 120-day period had expired, and prior to the entry of an order finalizing 

the judgment of sentence).
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it patently untimely.7 On May 16, 2018, this Court issued a rule to show cause 

why Graber’s appeal should not be quashed as untimely filed. Counsel filed a 

response on July 10, 2018.8

We begin with the following: “Pennsylvania Rule of Criminal Procedure 

114(C)(2) provides that all orders and court notices must be docketed, and 

the docket must contain the date the clerk received the order, the date of the 

order, and the date and manner of service of the order or court notice.” 

Commonwealth v. Davis, 867 A.2d 585, 586 (Pa. Super. 2005). “The 

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7

 In the notice of appeal, counsel alleges:

[counsel] did not receive notice of the January 11, 2018 granting 

of the Defendant's December 6, 2017 petition for reconsideration 

of sentence until, checking the docket entries on the CPCMS 

system, he learned of it on March 8, 2018. A physical copy of the 

order was given to him in Chambers on March 14, 2018, and 

electronic notice of it was sent to him by the Clerk of Courts on 

March 16, 2018.

Notice of Appeal, 3/16/2018, at unnumbered 1-2.

8

 Counsel states he first learned that Graber filed a pro se notice of appeal on 

January 10, 2018 from the trial judge’s chambers, and based upon his prior 

experience with another Bucks County case, Commonwealth v. Diaz 981 

A.2d 915 [1804 EDA 2008] (Pa. Super. 2009) (unpublished judgment order), 

he believed the filing of the notice of appeal would render the post-sentence 

motion moot. Answer to May [16], 2018 Rule to Show Cause, 7/10/2018, at 

3. Moreover, counsel avers he never received written notice of the January 

11, 2018 order, which constituted a breakdown in the mailing processes of 

the trial court system. Id. at 5-6. Lastly, counsel alleges that because of 

these mailing problems, he periodically checks docket entries when he expects 

a final order that will require a time restricted action, but did not do so in this 

matter because Graber had filed the pro se notice of appeal. Id. at 6.
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comment to this Rule suggests that the notice and recording procedures are 

mandatory and not modifiable. The import of this requirement has been 

repeatedly upheld and reaffirmed by our Supreme Court and this Court.” Id.

at 587.

Here, the docket sheet plainly reflects that on January 11, 2018, the 

Clerk of Courts mailed Graber’s counsel the January 11, 2018, order. See

Criminal Docket No. CP-09-CR-0001409-1990. Therefore, we can ascertain 

that Graber was purportedly served with the trial court’s order on that date, 

and counsel failed to file a timely appeal.9 While we understand counsel may 

have had complications with the court’s mailing process, he avers he was 

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9

 This matter is distinguishable from case law where no notation was made 

on the docket, and therefore, the various filings were not considered untimely. 

See Commonwealth v. Carter, 122 A.3d 388, 391 (Pa. Super. 2015) 

(finding appeal period did not begin to run where clerk of courts did not serve 

the order on the defendant or note the date of service on the docket); 

Commonwealth v. Hooks, 921 A.2d 1199, 1202 (Pa. Super. 2007) (finding 

docket failed to indicate the date and manner of service of the court’s concise 

statement order); Commonwealth v. Davis, 867 A.2d 585, 587 (Pa. Super.

2005) (finding no evidence indicating that the clerk of courts furnished a copy 

of the concise statement order to defendant or counsel and no indication of 

the time and manner in which such service was made, if ever); 

Commonwealth v. Parks, 768 A.2d 1168, 1171 (Pa. Super. 2001) (holding 

no waiver of appellate issues where there was no recorded notation on the 

docket which indicated that the clerk of courts furnished defendant or counsel 

with a copy of concise statement order); Commonwealth v. Phinn, 761 A.2d

176 (Pa. Super. 2000) (refusing to find issues waived on appeal based on the 

fact that there was no indication on the docket regarding when or how the 

court’s order was furnished to appellant). See also Frazier v. City of

Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (holding the Commonwealth 

Court erred in quashing an appeal for untimeliness when the docket did not 

reflect the actual date of notice of entry of order appealed from).
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aware of these issues but did not check the docket because Graber had filed 

a pro se notice of appeal and he believed that document rendered the postsentence motion moot. His inaction is based on an inaccurate understanding 

of the law, and a misplaced reliance on an unpublished judgment order. See

Borrero, supra (appeal quashed as interlocutory because post-sentence 

motions were still outstanding (under former Pa.R.Crim.P. 1410)). See also

Commonwealth v. Claffey, 80 A.3d 780, 783 (Pa. Super. 2013) (an appeal 

filed while timely post-sentence motions were pending may be premature); 

Commonwealth v. Rojas, 874 A.2d 638 (Pa. Super. 2005) (a premature 

notice of appeal does not divest the trial court of jurisdiction to decide a timely 

filed post-sentence motion).10

Furthermore, Graber’s post-sentence motion only addressed the 

remittance of court and transportation costs, which was granted. Thus, the 

January 11, 2018, order is purely an administrative function. The order does 

not restate Graber’s negotiated sentence, which is the purpose of this appeal. 

Accordingly, we are compelled to quash Graber’s appeal as untimely filed.11

Appeal quashed.

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10

 See also Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) 

(“[T]he proper response to any pro se pleading is to refer the pleading to 

counsel, and to take no further action on the pro se pleading unless counsel 

forwards a motion.”).

11

 We note that if Graber so chooses, the proper avenue for him to seek relief 

would be to file a PCRA petition, requesting reinstatement of his direct appeal 

rights nunc pro tunc.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/18