J-S92035-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
               Appellee                  :
                                         :
        v.                               :
                                         :
ROYEZ LEETWAN LUDY,                      :
                                         :
               Appellant                 :    No. 890 WDA 2016

             Appeal from the Judgment of Sentence June 1, 2016
              in the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000133-2015

BEFORE:      SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:              FILED FEBRUARY 10, 2017

        Royez Leetwan Ludy (Appellant) appeals from the judgment of

sentence imposed after he pled guilty to possession of a controlled

substance with intent to deliver (PWID) and conspiracy for that crime. Upon

review, we vacate and remand.

        On December 15, 2015, Appellant appeared for sentencing after

pleading guilty to the aforementioned offenses.    During that hearing, the

trial court asked the Commonwealth if Appellant was eligible for the

Recidivism Risk Reduction Incentive (RRRI) program.1 The Commonwealth

responded that Appellant had a prior conviction for endangering the welfare

of children (EWOC), but was acquitted for simple assault for that incident.

N.T., 12/15/2015, at 18. However, the Commonwealth conceded that it did


1
    61 Pa.C.S. §§ 4502-4512.


* Retired Senior Judge assigned to the Superior Court.
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not “check … for whether or not [that EWOC conviction] is RRRI diseligible---

or uneligible [sic] or not.” Id.       The trial court sentenced Appellant to an

aggregate term of 24 to 48 months of incarceration.          The trial court also

determined that Appellant was RRRI eligible.

      On December 23, 2015, the Commonwealth timely filed a motion to

modify Appellant’s sentence.         In that motion, the Commonwealth averred

that it discovered that Appellant’s prior EWOC conviction did in fact

disqualify him for RRRI eligibility. Thus, it requested the trial court modify

Appellant’s sentence. The trial court held a hearing on the motion on March

30, 2016, and on June 1, 2016, the trial court granted Commonwealth’s

request and modified Appellant’s sentence to render him RRRI ineligible.

Appellant timely filed a notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      On appeal, Appellant contends the trial court “erred as a matter of law

or abused its discretion in determining that [Appellant] was not RRRI

eligible.” Appellant’s Brief at 5.

      Before we reach the issue presented on appeal by Appellant, we must

determine whether the trial court had jurisdiction to resentence Appellant on

June 1, 2016.2 The circumstances of this case are analogous to this Court’s



2
   “Whether a court has subject matter jurisdiction over an action is a
fundamental issue of law which may be raised at any time in the course of
the proceedings, including by a reviewing court sua sponte.” Com., Office
of Atty. Gen. ex rel. Corbett v. Locust Twp., 968 A.2d 1263, 1269 (Pa.
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decision in Commonwealth v. Martinez, 141 A.3d 485 (Pa. Super. 2016).

In that case, Martinez entered into an open nolo contendere plea and was

sentenced on November 13, 2012. The Commonwealth timely filed a post-

sentence motion “requesting that the sentencing court apply the deadly

weapon enhancement to [Martinez’s] sentence.” Id. at 486. The trial court

held a hearing on December 27, 2012. On January 16, 2013, the trial court

granted the Commonwealth’s motion, and scheduled a resentencing hearing

for February 26, 2013. That hearing was continued, and it finally took place

on April 5, 2013. Martinez’s sentence was modified in accordance with the

deadly weapon enhancement on that date.          The trial court also vacated

Martinez’s original sentence. After the reinstatement of his appellate rights

nunc pro tunc, Martinez filed a direct appeal.

        On appeal, Martinez argued that the trial court lacked jurisdiction to

resentence him on April 5, 2013, because it was beyond the 120-day period

prescribed by Pa.R.Crim.P. 721. That rule provides the following, in relevant

part.

        (B) Timing



2009).     Moreover, if a sentence was imposed by a court that lacked
jurisdiction, that sentence is illegal. See Commonwealth v. Tobin, 89 A.3d
663, 668 (Pa. Super. 2014) (“The two most basic and classic examples of an
illegal sentence are sentences that exceed the statutory maximum and a
sentence imposed by a court without jurisdiction.”). In addition, it is well-
settled that “[l]egality of sentence questions … may be raised sua sponte by
this Court.” Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super.
2013).
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      (1) Motion for Modification of Sentence. A Commonwealth
      motion for modification of sentence shall be filed no later than
      10 days after imposition of sentence.

                                     ***

      (C) Trial Court Action; Disposition. If the attorney for the
      Commonwealth files a timely motion for modification of sentence
      pursuant to paragraph (A)(1), the judge shall dispose of the
      motion as provided in this paragraph.

                                     ***

      (2) If the defendant has not filed a post-sentence motion, the
      judge shall not vacate sentence but shall decide the
      Commonwealth’s motion within 120 days of the filing of the
      motion. If the judge fails to decide the Commonwealth’s
      motion within 120 days, the motion shall be deemed
      denied by operation of law.

Pa.R.Crim.P. 721 (emphasis added).

      On appeal, the Martinez Court reviewed the record and concluded the

following.

      Here, the Commonwealth timely filed its post-sentence motion
      within ten days of sentencing. Additionally, the Commonwealth
      preserved its issue seeking application of the deadly weapon
      enhancement by raising it at the time of sentencing and in its
      post-sentence motion. Thus, the question becomes whether the
      trial court had jurisdiction to resentence [Martinez] beyond the
      120–day limit set forth in Pa.R.Crim.P. 721.

      While Pa.R.Crim.P. 721(C)(2) provides that the trial court must
      “decide the Commonwealth’s motion within 120 days of the
      filing of the motion,” the [c]omment to Rule 721 makes clear
      that not only does the trial court need to decide the
      Commonwealth’s post-sentence motion within the 120 day
      period, but the trial must resolve the motion for reconsideration
      within the original 120–day time limit. Pa.R.Crim.P. 721(C)(2);
      Pa.R.Crim.P. 721, cmt. (emphasis added). Additionally, the
      comment provides that the trial court is not permitted to vacate

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      the sentence within the 120–day time limit for purposes of
      extending the original 120–day time limit to further decide the
      motion. Thus, it is not enough for a trial court in this situation to
      grant the Commonwealth’s post-sentence motion within the
      original 120–day time limit; the trial court is required to resolve
      the motion for reconsideration within 120 days. Otherwise, the
      post-sentence motion is deemed denied by operation of law
      pursuant to Pa.R.Crim.P. 721(C)(2).

Martinez, 141 A.3d at 488–89 (emphasis in original).

      The Martinez Court went on to point out that “this Court has

consistently held that an order issued by the trial court after expiration of

the 120-day time limit, resulting in the denial of the post-sentence motion

by operation of law, is a legal nullity due to the court’s lack of jurisdiction.”

Id. at 490.    Moreover, we have ruled that “the trial court may not sua

sponte extend the 120-day limit.” Id. Thus, the Martinez Court concluded

that the trial court’s ability to act upon the Commonwealth’s timely-filed

post-sentence motion expired on March 19, 2013. However, the trial court

did not re-sentence Martinez until April 5, 2013. Thus, this Court held that

“the trial court lacked jurisdiction to vacate [Martinez’s] original sentence

and resentence [Martinez] on April 5, 2013. Where there is no jurisdiction,

there is no authority to pronounce judgment.” Id. at 490-91. Accordingly,

this Court vacated Martinez’s April 5, 2013 judgment of sentence and

“remanded for reinstatement of [the] original sentence.” Id. at 491.

      In this case, the Commonwealth timely filed a post-sentence motion

on December 23, 2015. Thus, the trial court had 120 days, or until April 21,



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2016, to resolve this motion before it would be denied by operation of law.

A hearing occurred on March 30, 2016. Then, for reasons not apparent from

the record, the trial court did not sign an order in this matter until May 31,

2016, which was then entered on the docket on June 1, 2016. That was well

beyond the 120-day period. Applying the holding in Martinez, we conclude

that the trial court lacked jurisdiction to resentence Appellant on June 1,

2016. Based on the foregoing, we vacate Appellant’s judgment of sentence

entered on June 1, 2016, and remand to the trial court for reinstatement of

Appellant’s original sentence.

      Judgment of sentence entered June 1, 2016 vacated. Case remanded

for reinstatement of original sentence. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2017




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