Case Information
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA [1] IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
VERNADINE JONES
Appellant No. MDA 2016 Appeal from the Judgment of Sentence November 24, 2015 In the Court of Common Pleas Dauphin County Criminal Division at No(s): CP- 22 -CR- 0000464 -2015
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.* FILED OCTOBER 2016
MEMORANDUM BY GANTMAN, P.J.: Appellant, Vernadine Jones, appeals from judgment of sentence entered Dauphin County Court of Common pleas, following her guilty plea to false reports law enforcement authorities ( "false reports ").1 We affirm. relevant facts procedural history of this case are follows.
In August 2014, witness at preliminary hearing for a criminal charge filed against her now -husband, Charles Link. Appellant falsely testified Mr. Link had threatened with firearm during verbal altercation. Mr. Link spent one month county prison following his Pa.C.S.A. § 4906(a). *Retired Senior Judge assigned to the Superior Court.
arrest. On November 24, 2015, Appellant entered open guilty plea to false reports. On same date, the court sentenced Appellant to twelve (12) months' intermediate punishment, including three months' house arrest and electronic monitoring. While still represented counsel, Appellant faxed a pro se letter to trial court on December 2, 2015, seeking modification of her sentence. Specifically, Appellant sought elimination of house arrest and electronic monitoring requirements. The trial court forwarded copy of Appellant's correspondence to defense counsel. Appellant filed counseled motion nunc pro tunc on December 14, 2015, requesting the same relief sought Appellant's pro se filing. On December 2015, the denied Appellant's post- sentence the merits. notice of on January 19, 2016. The ordered file concise statement of errors complained of appeal, pursuant 1925(b); timely complied.
As preliminary matter, the Commonwealth raises issue timeliness of this appeal. time limitations for taking appeals are strictly construed cannot extended matter grace. Commonwealth Valentine, 928 A.2d 346, As general rule, this Court has jurisdiction entertain appeal. Commonwealth Patterson, A.2d 497 (Pa.Super. 2007), appeal Pa. (2008). "Nonetheless, this general rule does affect
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the power of the courts grant relief in the case of fraud or breakdown in the processes of the court." Id. at 498. also Commonwealth Parlante, 823 A.2d 927 (Pa.Super. 2003) trial court's (holding misstatement of appeal period in order denying post- sentence motion operated breakdown court's operation, which justified review of facially untimely appeal).
"[T]he notice of appeal...shall be filed within 30 days after the entry of order from which the appeal taken." 903(a). "A direct appeal criminal proceeding lies from judgment of sentence." Patterson, supra at 497. If defendant files timely post- sentence motion, the notice of appeal shall be filed within days of the entry order deciding the motion. Pa.R.Crim.P. 720(A)(2)(a). To be timely, post - sentence motion must be filed later than days after imposition of sentence. Pa.R.Crim.P. 720(A)(1). Absent post- motion, the notice of appeal shall within days of imposition of sentence. Pa.R.Crim.P. 720(A)(3); Dreves, 839 A.2d 1122, 1127 2003) (en banc).
"[A] post- sentence motion nunc pro tunc may toll the period, but only if two conditions are met." Capa /di, 112 A.3d 1244 (Pa.Super. 2015) (citing Dreves, supra at 1128).
First, within days imposition of sentence, defendant must request consider post- sentence motion nunc pro tunc. request for nunc pro tunc relief separate distinct from merits of the underlying -3-
post- sentence motion. Second, the trial court must expressly permit the filing of post- sentence motion nunc pro tunc, also within days of imposition of sentence. If trial court does expressly grant nunc pro tunc relief, the time for filing neither tolled nor extended. Moreover, [t]he court's resolution of merits of late post- sentence motion no substitute for order expressly granting nunc pro tunc relief.
Capaldi, supra at 1244 (internal citations and quotation marks omitted) (emphasis original).
Additionally, defendant may not engage hybrid representation by submitting pro se filings while represented by counsel. Willis, A.3d 393 (Pa.Super. Pro se filings submitted by counseled defendants are legal nullities. Nischan, A.2d 349 2007), appeal Pa. (2007).
Instantly, imposed sentence November 24, 2015. waived the court's reading of her post- sentence rights. Therefore, had until December 4, 2015, file post- motion. Pa.R.Crim.P. 720(A)(1). faxed pro se letter on December seeking modification her sentence. Appellant, however, was still represented counsel at time. Thus, Appellant's pro se filing constituted hybrid representation legal nullity. See Nischan, supra. The court forwarded copy of Appellant's filing defense counsel, who filed motion nunc pro tunc December 14, 2015. record, however, gives indication the court granted
J-S72010-16 Appellant permission file post- sentence motion nunc pro tunc outside of the ten -day window. The denied the motion the merits, but that ruling was no substitute for order explicitly granting permission file a motion nunc pro tunc. See Capaldi, supra. Therefore, Appellant's counseled post- sentence motion was untimely and did toll the appeal period. Dreves, supra. Consequently, the last day for file notice of appeal was December 24, 2015. Appellant's notice of appeal, filed January was facially untimely.2
Nevertheless, its order denying Appellant's post- motion, the court stated: "[Appellant] hereby notified of the right to appeal this order within days of the date of this order." (See Post Sentence Motion Order, filed 12/21/15). order incorrectly informed she had thirty days to appeal following the court's denial of the post- sentence motion, even though and did not toll the appeal period. filed her notice of appeal within period specified by the In response to this Court's order directing Appellant to show cause why this appeal should not dismissed as untimely, defense counsel claimed she immediately contacted the deputy district attorney upon receiving copy of Appellant's pro se filing from the trial court. Counsel stated she sought the deputy district attorney's "concurrence" with Appellant's motion but received no response. Counsel averred she then the post- sentence motion nunc pro tunc directed court. Nevertheless, certified record contains evidence directed counsel to file motion nunc pro tunc.
J-S72010-16 court's order. misstatement order constituted breakdown in court's operation. Therefore, we decline dismiss this outright. See Patterson, supra; Parlante, supra.
Appellant raises one issue appeal:
WHETHER THE IMPOSITION OF AN AGGREGATE SENTENCE OF TWELVE (12) MONTHS OF INTERMEDIATE PUNISHMENT WITH THE FIRST THREE MONTHS TO BE SERVED ON HOUSE ARREST WITH ELECTRONIC MONITORING WAS EXCESSIVE GIVEN THE CIRCUMSTANCES OF APPELLANT[ ?]
(Appellant's Brief at 4).
Appellant argues the trial court failed to give appropriate weight her character and background when imposing sentence. contends she was remorseful, and she informed the she could not move forward with adoption due to her house arrest. Appellant claims she has prior record and flight risk. asserts the gave little consideration to her potential for rehabilitation minimum sentence necessary for the protection of the public. Appellant submits sentence based solely the negative aspects of the offense. Appellant concludes she entitled resentencing because court's imposition of house arrest electronic monitoring resulted excessive sentence. challenges the discretionary aspects of her sentence.3 See "[W]hile a...plea which includes negotiation ordinarily precludes defendant from contesting validity of...her sentence other than to (Footnote Continued Next Page)
Commonwealth v. Lee, 876 A.2d 408 (Pa.Super. 2005) (stating claim that is manifestly excessive challenges discretionary aspects of sentence sentencing); Commonwealth v. Cruz -Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. (1996) (stating claim that sentencing failed to consider did not adequately consider certain factors implicates discretionary aspects of sentencing).
Challenges to discretionary aspects of sentencing do not entitle an appellant to as of right. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. Prior to reaching merits discretionary sentencing issue: four -part analysis to determine: (1)
[W]e conduct whether appellant has notice of appeal, see Pa.R.A.P. 902 903; (2) whether issue was properly preserved at sentencing or in reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has fatal defect, 2119(f); and whether there is substantial question that sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Evans, 901 A.2d 2006), appeal Pa. 727, 909 A.2d (2006) (internal citations omitted). "To
(Footnote Continued)
argue the sentence is illegal or the sentencing did have jurisdiction, open plea agreements are exception in which defendant will not precluded from appealing the discretionary aspects sentence." Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005) (emphasis original). "An 'open' plea agreement is one which there negotiated sentence." Id. at n.1. Here, Appellant's plea "open" sentencing, so challenge discretionary aspects of available.
J-S72010-16 preserve issues concerning the discretionary aspects of sentencing, a defendant must raise them during sentencing a post- sentence motion." Commonwealth v. Feucht, 955 A.2d 377, 383 2008), 600 Pa. 728, 963 A.2d 467 (2008). "An post - does not preserve issues for appeal." Commonwealth v. Wrecks, 931 A.2d 717, 719 (Pa.Super. 2007).
When appealing the discretionary aspects of a sentence, a defendant must also invoke the appellate court's jurisdiction including brief separate concise statement demonstrating that there substantial question the appropriateness of the sentence under the Sentencing Code. Commonwealth Mouzon, Pa. 812 A.2d 617 (2002); 2119(f). determination of what constitutes substantial question must evaluated case -by -case basis. Anderson, 830 A.2d 1013 (Pa.Super. A substantial question exists "only when appellant advances colorable argument that the sentencing judge's actions were either: inconsistent with specific provision Sentencing Code; or (2) contrary the fundamental norms which underlie Sierra, supra at 912 -13 the sentencing process." (quoting Brown, A.2d (Pa.Super. 1999) (en banc), appeal denied, Pa. (2001)). Generally, "[a]n allegation sentencing failed consider or did not adequately consider certain factors does raise substantial question
J-S72010-16 inappropriate." Cruz -Centeno, supra at 545.
Instantly, failed to raise her sentencing claims at the sentencing hearing post- sentence motion. Appellant's did not preserve those claims. Therefore, waived. See Feucht, supra; Wrecks, supra. Appellant's issue Moreover, even if had properly preserved issue, her challenge the manner which the weighed various sentencing factors would not raise substantial question warranting review. Cruz -Centeno, supra. Based on foregoing, Appellant entitled sentencing relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
J: seph D. Seletyn,
Prothonotary
Date: 10/24/2016