J. S27024/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
                    v.                      :
                                            :
JOSHUA SCOTT SCHAUER,                       :
                                            :
                          Appellant         :     No. 722 MDA 2015

             Appeal from the Judgment of Sentence March 18, 2015
               In the Court of Common Pleas of Lebanon County
               Criminal Division No(s): CP-38-CR-0000761-2012


BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                FILED JULY 28, 2016

        Appellant Joshua Scott Schauer appeals from the Judgment of

Sentence entered on remand on March 18, 2015 by the Court of Common

Pleas of Lebanon County. Appellant challenges the discretionary aspects of

his sentence. Because the trial court did not comply with either Pa.R.Crim.P.

704(C)(3)(a) or 42 Pa.C.S. § 9721(b), we vacate and remand for

resentencing.

        The underlying facts are as follows. On March 7, 2013, a jury found

Appellant Joshua Scott Schauer guilty of Delivery of a Controlled Substance

(crack cocaine), Criminal Use of a Communication Facility, and two counts of



*
    Former Justice specially assigned to the Superior Court.
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conspiracy.1    On June 26, 2013, the trial court sentenced him to an

aggregate term of 2 to 10 years’ incarceration, with RRRI eligibility at 18

months.     The sentence included a mandatory minimum pursuant to 18

Pa.C.S. § 6317, Drug-free school zones. After the denial of post-sentence

motions, Appellant filed a timely direct appeal and began serving his

sentence. In December 2014, Appellant was released on parole after serving

18 months.

        On February 24, 2015, this Court reversed and remanded for

resentencing as a result of the decision in Alleyne v. United States, 133

S.Ct.    2151   (2013),   which   rendered   Section   6317   unconstitutional.

Commonwealth v. Schauer, No. 2019 MDA 2013 (Pa.Super. filed Feb. 24,

2015) (unpublished memorandum).         See Commonwealth v. Bizzel, 107

A.3d 102 (Pa.Super. 2014), appeal denied, 126 A.3d 1281 (Pa. 2015)

(noting unconstitutionality of Section 6317).

        On March 18, 2015, the trial court resentenced Appellant to 18 months

to 10 years’ incarceration. At the resentencing hearing, Appellant’s counsel

told the court that they were there “on the issue of constitutional fault in the

mandatory minimum sentence.” N.T. at 2. Counsel then informed the court

of Appellant’s successful participation in addiction and treatment programs

while he was incarcerated for 18 months and after his release. Id., at 2 – 4.


1
  35 P.S. §780-113(a)(30), 18 Pa.C.S. § 7512(a); 18 Pa.C.S. § 903(a)(1),
respectively.



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Following argument, the court stated: “So what I’m going to do is just a

technical resentencing.   It’s the same thing only we’ll just do time served

and he’s immediately released on parole. All the other conditions will remain

the same as they would have previously been imposed.” N.T., 3/18/15, at

5.2   Appellant did not object, and the proceeding concluded.      Neither the

sentencing court nor Appellant’s counsel determined in open court that

Appellant was aware of his post-sentence or appeal rights. Appellant did not

file a post-sentence motion.

      On March 30, 2015, Appellant’s counsel filed a Petition to Withdraw as

Counsel. During the pendency of that withdrawal motion, Appellant asked

counsel to file a direct appeal. Counsel filed a Notice of Appeal on April 22,

2015, 35 days after the court had re-sentenced Appellant in open court. The

trial court filed a Pa.R.A.P. 1925(a) statement requesting this Court to quash

the appeal as untimely. See “Order,” dated May 5, 2015. The court did not




2
  The written resentencing Order provides the following details with respect
to the imposition of terms of incarceration for each offense: (1) for Violation
of the Controlled Substance Act, 35 P.S. §780-113(a)(30), time served to 10
years, with RRRI eligibility at 18 months; (2) for Conspiracy to Violate the
Controlled Substance Act, a concurrent term of 1 to 10 years’ incarceration
with RRRI eligibility at 9 months; (3) for Criminal Use of Communication
Facility, 18 Pa.C.S. § 7512(a), a concurrent term of 1 to 7 years; and (4) for
Conspiracy to Commit Criminal Use of Communication Facility, a concurrent
term of one year to seven years, with RRRI eligibility at nine months. After
the recitation of each sentence, the court ordered: “Since the Defendant has
served the minimum, he is immediately released on parole.” Trial Court
Order, dated March 18, 2015, and entered March 23, 2015.



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order Appellant to file a Pa.R.A.P. 1925(b) statement, concluding it would be

a “futile act.” Id., at 2 n.1.

      This Court directed Appellant to show cause why the appeal should not

be quashed as untimely.           In response, Appellant’s counsel acknowledged

that he had filed the notice of appeal 35 days after the sentence had been

imposed in open court, but noted that nothing in the record indicates that

Appellant had been apprised of his post-sentence and appeal rights. By per

curiam Order, this Court discharged the show-cause order to defer the

timeliness issue to this merits panel.

      On appeal, Appellant raises the following issue for our review:

      Did the Resentencing Court abuse its discretion in resentencing
      Appellant to a sentence of eighteen (18) months to ten (10)
      years in a state correctional facility where the standard range
      was nine (9) to (16) months?

Appellant’s Brief at 4.

      Before we address the merits of the issue raised, we must first

determine whether Appellant timely filed the present appeal.        “[I]t is well

settled that the timeliness of an appeal implicates our jurisdiction and may

be considered sua sponte.” Commonwealth v. Crawford, 17 A.3d 1279,

1281 (Pa. Super. 2011). A Notice of Appeal must be filed within 30 days of

the   entry   of   the    Order    being   appealed.   See   Pa.R.A.P.   903(a);

Commonwealth v. Moir, 766 A.2d 1253 (Pa. Super. 2000). In a criminal

case in which no post-sentence motion is filed, the Notice of Appeal must be

filed within 30 days of the imposition of the judgment of sentence in open


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court. Pa.R.A.P. 903(c)(3). Generally, this Court cannot extend the time for

filing a Notice of Appeal. Pa.R.A.P. 105(b). However, “this general rule does

not affect the power of the courts to grant relief in the case of fraud or

breakdown in the processes of the court.” Commonwealth v. Patterson,

940 A.2d 493, 498 (Pa. Super. 2007).

      Here, Appellant filed his Notice of Appeal on April 22, 2015, 35 days

after the trial court imposed judgment of sentence in open court. Because

Appellant did not file within 30 days as required by Pa.R.A.P. 903(c)(3), his

notice of appeal was untimely.    Before quashing the appeal, however, we

must ascertain whether an administrative breakdown in the court system

excuses the untimely filing of the Notice of Appeal.

      Pa.R.Crim.P. 704(C)(3)(a) requires that, at the time of sentencing “the

judge shall determine on the record that the defendant has been advised …

of the right to file a post-sentence motion and to appeal, … [and] of the time

within which the defendant must exercise those rights.”       Where the trial

court at the time of sentencing departs from the obligations of Rule 704, i.e.,

either fails to advise a defendant of his or her post-sentence and appellate

rights or misadvises him or her, an administrative breakdown has occurred

which excuses the untimely filing of the Notice of Appeal. See Patterson,

supra at 498-499 (citing cases).    See also Commonwealth v. Meehan,

628 A.2d 1151 (Pa. Super. 1993) (holding that notwithstanding an

appellant’s experience with the appellate system, quashal of an untimely



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appeal is inappropriate where the lower court has not informed the appellant

of his appellate rights).

       In the instant case, the trial court did not determine in open court that

Appellant knew of his post-sentence and appeal rights, as required by Rule

704.    There was, thus, an administrative breakdown which excuses the

untimely filing of Appellant’s Notice of Appeal.    Accordingly, we decline to

quash this appeal.

       However, in addition to the Rule 704(C)(3)(a) violation, there was an

additional error in the resentencing proceedings which requires that we

remand for resentencing.

       Our Sentencing Code provides that “[i]n every case in which the court

… resentences following remand, the court shall make as a part of the

record, and disclose in open court at the time of sentencing, a statement of

the reason or reasons for the sentence imposed.” 42 Pa.C.S. § 9721(b);

Commonwealth v. Mouzon, 812 A.2d 617, 620–21 (Pa. 2002). In the

instant case, the court concluded at Appellant’s resentencing hearing: “So

what I’m going to do is just a technical resentencing. It’s the same thing

only we’ll just do time served and he’s immediately released on parole. All

the other conditions will remain the same as they would have previously

been imposed.” N.T. at 5. The trial court provided no further explanation

for its reasons for imposing the sentence.




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      We cannot construe the sentencing court’s characterization of the

proceeding as a “technical resentencing” to be an adequate “statement of

reason or reasons” for the sentence imposed, as contemplated by Section

9721(b) and the Mouzon Court.         Accordingly, we vacate and remand for

resentencing, after which Appellant may file a post-sentence motion with the

trial court asserting a challenge to the discretionary aspect of his sentence. 3

      Judgment of sentence vacated.           Case remanded.         Jurisdiction

relinquished.

      Judge Shogan files a Concurring Memorandum.

      PJE Judge Stevens files a Dissenting Memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2016




3
  Issues challenging the discretionary aspects of a sentence “must be raised
in a post-sentence motion or by presenting the claim to the trial court during
the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Commonwealth v. Griffin,
65 A.3d 932, 936 (Pa.Super. 2013) (citations omitted).




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