J-S30009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WENDELL LAVENTURE                          :
                                               :
                       Appellant               :   No. 1758 EDA 2017

               Appeal from the Judgment of Sentence May 1, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000378-2009


BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                          FILED OCTOBER 17, 2019

        Appellant, Wendell Laventure, challenges the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following the

revocation of his probation. Appellant argues the resentencing court abused

its discretion by imposing a manifestly excessive sentence, given that this was

his first probation violation, and failed to consider his rehabilitative needs.

After careful consideration, we remand with instructions.

        The relevant facts and procedural history of this case are as follows. In

2008, Appellant was arrested after he and another man used a BB gun to rob

a 16-year-old boy. Appellant later entered a negotiated guilty plea to robbery,

criminal conspiracy, and possession of an instrument of crime.1 The court




____________________________________________


1   18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a)(1), and 907(a), respectively.
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sentenced Appellant to an aggregate term of 2½–5 years’ incarceration, to be

followed by 3 years of probation.

      While on probation, Appellant twice acquired new criminal charges. The

Commonwealth ultimately declined to prosecute the first set of charges, which

included charges of receiving stolen property, theft, and fleeing police. At the

violation hearing after these charges, the court continued Appellant’s

probation. Shortly thereafter, police again arrested Appellant; he was

convicted of unauthorized use of an automobile and fleeing a police officer,

and sentenced to three years’ probation for those crimes.

      As the new convictions represented a probation violation, Appellant

appeared before the court for a hearing. In addition to the direct violation,

Appellant’s probation officer informed the court that Appellant had two

technical violations from the previous year after he tested positive for

marijuana use. Ultimately, the court acceded to requests from the

Commonwealth and the probation officer to revoke Appellant’s probation and

sentence him to incarceration. The court resentenced Appellant to 1½–3

years’ incarceration each on the robbery charge and the criminal conspiracy

charge, to run consecutively for an aggregate sentence of 3–6 years’

imprisonment.

      Appellant filed a post-sentence motion eleven days after sentencing,

requesting consideration nunc pro tunc. Appellant thereafter filed a timely

notice of appeal and complied with Pa.R.A.P. 1925(b). This appeal is now

before us.

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      Appellant challenges the discretionary aspects of his new sentence. He

alleges the court imposed a manifestly excessive sentence, in light of his first

probation violation, and failed to consider Appellant’s rehabilitative needs. He

concludes this Court should vacate the sentence, and remand for a new

sentencing hearing. The Commonwealth concedes the court failed to consider

Appellant’s rehabilitative needs, and agrees this Court should vacate and

remand for resentencing.

      The right to challenge the discretionary aspects of sentencing on appeal

is not absolute. See Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super.

2018). An appellant “must petition this Court for permission to appeal the

discretionary aspects of his sentence.” Id. (citation omitted).

      We conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence, see
      Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect,
      Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
      that the sentence appealed from is not appropriate under the
      Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super. 2017) (en banc)

(citations omitted).

      “[A] written post-sentence motion shall be filed no later than 10 days

after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). “An untimely post-

sentence motion does not preserve issues for appeal.” Commonwealth v.

Wrecks, 931 A.2d 717, 719 (Pa. Super. 2007) (citation omitted). A defendant

who wishes to file a post-sentence motion nunc pro tunc must demonstrate,


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within 30 days after his sentence is imposed, sufficient cause to excuse the

late filing. See Commonwealth v. Wright, 846 A.2d 730, 734 (Pa. Super.

2004). Merely labeling the motion as nunc pro tunc is insufficient. See

Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en

banc). Even if the court “chooses to permit a defendant to file a post-sentence

motion nunc pro tunc, the court must do so expressly.” Id.

      Here, Appellant’s post-sentence motion was filed eleven days after

resentencing, on May 12, 2017. The motion is styled “Petition to Vacate and

Reconsider Nunc Pro Tunc,” and avers the late filing occurred because counsel

did not receive Appellant’s request to file a motion for reconsideration until

May 10, 2017. See Motion for Reconsideration, filed 5/12/17, at 3

(unpaginated). The certified record does not reflect any decision on this

motion by the court. The next entry on the docket after the motion is

Appellant’s notice of appeal, which was timely filed 30 days after his

resentencing.

      However, the court’s opinion pursuant to Pa.R.A.P. 1925(a) and the

Commonwealth’s appellate brief both state that the court denied the motion.

See Sentencing Court Opinion, filed 9/19/18, at 3 (unpaginated); Appellee’s

Brief, at 4. Neither avers whether the court expressly permitted Appellant to

file with nunc pro tunc status, though both writings assume the timeliness of

Appellant’s post-sentence motion by addressing the merits of the issue as

though it was preserved. And Appellant’s own brief makes no mention of the




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court’s alleged decision on the motion, though it also proceeds as though the

post-sentence motion was timely filed. See Appellant’s Brief, at 4.

      The trial court opinion and the parties’ briefs indicate the possibility the

post-sentence motion was decided, though not recorded. Based on this

apparent conflict, and the resulting ambiguity regarding whether Appellant

was expressly permitted to file his motion nunc pro tunc, we are unable to

determine from the record whether Appellant’s discretionary aspects issue

was properly preserved. As this determination is essential for our review, we

remand for explanation and a supplemental record if necessary. Specifically,

the court is instructed to clarify whether nunc pro tunc filing status was

expressly granted to Appellant.

      Case remanded with instructions. Trial court to inform this Court, in

writing, within thirty days of the date this memorandum is filed whether it

granted Appellant the right to file his post-sentence motion nunc pro tunc. If

it did, the court should also supplement the record with the order granting

such relief. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/19




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