J-A17033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                              Appellee

                       v.

ANGELA MCCLAIN

                              Appellant                     No. 3164 EDA 2015


          Appeal from the Judgment of Sentence September 8, 2015
               In the Court of Common Pleas of Carbon County
             Criminal Division at No(s): CP-13-CR-0000331-2014

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                                     FILED JULY 27, 2016

       Appellant, Angela McClain, appeals from the judgment of sentence

entered in Carbon County Court of Common Pleas, following her guilty plea

to multiple counts of acquisition or obtaining of possession of a controlled

substance by misrepresentation, fraud, forgery, deception or subterfuge;

knowingly or intentionally possessing a controlled or counterfeit substance;

corrupt organizations; criminal conspiracy; and theft by unlawful taking or

disposition.1 We affirm.

       The   relevant       facts   and   procedural   history    of   this   appeal   are

summarized briefly as follows. On April 27, 2015, Appellant pled guilty to 25
____________________________________________


1
  35 P.S. §§ 780-113(a)(12), (a)(16); 18 Pa.C.S.A. §§ 911, 903, and
3921(a), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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counts of acquisition or obtaining of possession of a controlled substance by

misrepresentation, fraud, forgery, deception or subterfuge; knowingly or

intentionally possessing a controlled or counterfeit substance; corrupt

organizations; criminal conspiracy; and 27 counts of theft by unlawful taking

or disposition.   Following the guilty plea and the preparation of a pre-

sentence investigation (“PSI”) report, the trial court sentenced Appellant on

September 8, 2015, to an aggregate term of imprisonment of thirty-six (36)

to seventy-two (72) months with a concurrent twelve (12)-month term of

probation. The trial court also deemed Appellant eligible for the Recidivism

Risk Reduction Incentive Program, making her minimum sentence of

incarceration twenty-seven (27) months. The trial court advised Appellant

of her appellate rights at the sentencing hearing, including her right to file

post-sentence motions and her right to appeal to the Superior Court as well

as the associated time limits.     Appellant did not file any post-sentence

motions.

        On September 28, 2015, twenty days after imposition of sentence and

ten days after the deadline for filing a post-sentence motion, Appellant

suffered a stroke.   Appellant suffered a second stroke shortly after being

transported to the hospital.    The second stroke caused Appellant partial

paralysis on her left side. On October 8, 2015, thirty days after sentencing,

Appellant filed a petition for leave to file a post-sentence motion nunc pro

tunc.    Appellant cited her recent stroke as justification for post-sentence


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relief.     The trial court denied this motion the same day, and Appellant

immediately filed a notice of appeal. By order dated October 9, 2015, the

trial court directed Appellant to file a concise statement of errors complained

of on appeal within twenty-one days of the date of entry on the order.

Appellant timely complied on October 20, 2015.

          Appellant raises the following issue on appeal:

             WHETHER THE TRIAL COURT SHOULD HAVE ALLOWED
             [APPELLANT] TO SEEK RECONSIDERATION OF HER
             SENTENCE NUNC PRO TUNC WHEN THE RELEVANT FACT
             OF HER PHYSICAL CONDITION DID NOT MANIFEST ITSELF
             UNTIL AFTER THE EXPIRATION OF DEADLINE TO SEEK
             RECONSIDERATION OF SENTENCE?

(Appellant’s Brief at 3).

          Appellant argues her looming stroke was a non-negligent condition

that warrants post-sentence relief nunc pro tunc.           Appellant maintains her

strokes and their effects were the extraordinary circumstances.           Appellant

avers she had no way of knowing her future status as partially-paralyzed,

and this health status constitutes a non-negligent condition sufficient to

trigger the expansive authority of the court to allow post-sentence motions

nunc pro tunc. Appellant submits that if she had suffered her stroke within

the ten-day post-sentence period, she would have raised this issue in a

timely post-sentence motion for modification of sentence.                 Appellant

concludes that the court should have considered her post-sentence medical

condition as the kind of non-negligent circumstance extraordinary enough to

warrant relief. We disagree.

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      “Trial courts have the power to alter or modify a criminal sentence

within thirty days after entry, if no appeal is taken.”   Commonwealth v.

Walters, 814 A.2d 253, 255 (Pa.Super. 2002), appeal denied, 574 Pa. 760,

831 A.2d 599 (2003). “To be entitled to file a post-sentence motion nunc

pro tunc, a defendant must…demonstrate sufficient cause, i.e., reasons that

excuse the late filing.” Commonwealth v. Dreves, 839 A.2d 1122, 1128

(Pa.Super. 2003) (en banc) (footnote omitted).

         [W]e recently observed that the decision to allow the filing
         of a post-trial motion nunc pro tunc is vested in the
         discretion of the trial court and that we will not reverse
         unless the trial court abused its discretion.

         … Merely designating a motion as “post-sentence motion
         nunc pro tunc” is not enough. When the defendant has
         met this burden and has shown sufficient cause, the trial
         court must then exercise its discretion in deciding whether
         to permit the defendant to file the post-sentence motion
         nunc pro tunc.

                                 *    *    *

         The request for nunc pro tunc relief is separate and distinct
         from the merits of the underlying post-sentence motion.
         The trial court’s resolution of the merits of the late post-
         sentence motion is no substitute for an order expressly
         granting nunc pro tunc relief.

Id. at 1128-29 (emphasis added). Our Supreme Court has validated nunc

pro tunc relief when there is “fraud or a breakdown in the court’s

operations,” a defendant has been hospitalized during the 10-day post-

sentence period, non-negligent attorney conduct results in a late filing, or a

late filing as the result of a third party. Commonwealth v. Stock, 545 Pa.


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13, 18-19, 679 A.2d 760, 763 (1996) (citations omitted).

     Instantly, the court addressed Appellant’s claim as follows:

        [Appellant] asserts that had she known she would suffer
        these strokes, or alternatively if the strokes occurred prior
        to the expiration of the time to file post-sentence motions,
        she would have filed a post-sentence motion requesting a
        modification of her sentence on the grounds that her
        medical condition was a mitigating factor supporting the
        imposition of a lesser sentence. [Appellant] argues that
        the timing of her strokes after the ten day period to file
        post-sentence motions had passed is an extraordinary
        circumstance entitling her to pursue her motion nunc pro
        tunc.    [Appellant] cites no case law to support this
        position.

        No authority has been found to support the proposition
        that an appellant’s hospitalization for a serious medical
        event after the deadline to file either post-sentence
        motions or a direct appeal has passed is an extraordinary
        circumstance that would excuse a late filing. To the
        contrary, logic dictates otherwise: if the only reason given
        for an untimely filing is an event that occurred after the
        period for timely filing has passed, then sufficient cause to
        excuse the late filing has not been demonstrated. Given
        the absence of any extraordinary circumstance justifying
        the late filing of post-sentence motions, our denial of
        Appellant’s Motion to File Post-Sentence Motions nunc pro
        tunc was not an abuse of discretion.

(Trial Court Opinion, filed November 3, 2015, at 6-7). The record supports

the court’s decision to deny Appellant’s motion for post-sentence relief nunc

pro tunc in which she sought a reduction or elimination of her sentence

based on her medical condition. Moreover, we recognize Appellant has the

option to seek alternative relief under 42 Pa.C.S.A. § 9777 (providing for

transfer of inmates in need of medical treatment). Accordingly, we affirm.

     Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2016




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