J-S01012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
            v.                             :
                                           :
LAVONDA OAKS,                              :
                                           :
                  Appellant                :           No. 2198 EDA 2014

            Appeal from the Judgment of Sentence June 12, 2013
            in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No: CP-51-CR-0003408-2011

BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED MARCH 03, 2016

      Lavonda Oaks (“Oaks”) appeals from the judgment of sentence

imposed following her guilty plea to aggravated assault and possession of an

instrument of crime (“PIC”). See 18 Pa.C.S.A. §§ 2702(a); 907. We affirm.

      On February 12, 2011, Oaks, upon hearing that Jacquelyn Ceriale

(“Ceriale”) was seeing a man Oaks considered to be her boyfriend, drove to

the man’s house and confronted him and Ceriale. Oaks then stabbed Ceriale

three times with a butcher knife.    As a result of the stab wounds, Ceriale

required stitches in her left breast and had permanent damage to the tendon

and artery in her left hand.

      The trial court set forth the relevant procedural history as follows:

      On February 12, 2011, [Oaks] was arrested and charged with
      [various crimes, including attempted murder.] On September
      29, 2011, [Oaks] entered an open plea of guilty to the charges
      of [a]ggravated [a]ssault and PIC.      Pursuant to the plea
      agreement[,] the Commonwealth nolle prossed the charge of
      [a]ttempted [m]urder. Subsequently, on June 12, 2013, [Oaks]
      was sentenced to consecutive periods of confinement in a state
J-S01012-16


     correctional institution of eight to twenty years on the charge of
     [a]ggravated [a]ssault and two to five years on the charge of
     PIC[,] for a total period of confinement of ten to twenty-five
     years.

     On June 21, 2013, [Oaks] timely filed a [P]ost[-S]entence
     [M]otion pursuant to [Pa.R.Crim.P.] 720, seeking reconsideration
     of her sentence. Unable to secure her presence from custody,
     the [trial c]ourt[,] on September 13, 2013, issued an Order
     granting a thirty[-]day extension pursuant to [Pa.R.Crim.P.]
     720(B)(3)(b).      After numerous delays in securing [Oaks’s]
     presence, the [trial c]ourt held a hearing and denied her
     [M]otion on May 15, 2014. On May 21, 2014, [Oaks] filed a
     “Second Motion for Reconsideration of Sentence,” which the
     [trial c]ourt denied on June [17], 2014.

     On July 14, 2014, [Oaks] filed the instant pro se appeal to the
     Superior Court of Pennsylvania. On July 17, 2014, Richard T.
     Brown, Jr., Esq., entered his appearance as appellate counsel.
     On August 7, 2014, [the trial c]ourt filed and served on [Oaks]
     an Order pursuant to Rule 1925(b) of the Pennsylvania Rules of
     Appellate Procedure, directing [Oaks] to file and serve a
     Statement of Errors Complained of on Appeal within twenty-one
     days of [the trial c]ourt’s Order. On August 28, 2014, [Oaks] []
     timely filed a Statement of Errors Complained, pursuant to
     [Rule] 1925(b)….

Trial Court Opinion, 1/20/15, at 1-2 (footnote omitted).

     On appeal, Oaks raises the following questions for our review:

     1. Is the appeal timely where [Pennsylvania Rules of Criminal
        Procedure] 720 and 114 were violated?

     2. Does the jury-trial right of the [S]ixth [A]mendment forbid
        use of prior juvenile adjudications in adult sentencings?

     3. Did the [trial] court err by pre-judging all psychologists as
        hopelessly biased?

     4. Did the [trial] court abuse its discretion by imposing
        consecutive sentences reaching the statutory maxim[um]
        without calculating the guideline ranges, adequately



                                 -2-
J-S01012-16


          explaining upward departures, double counting, and ignoring
          [] mental illness and other issues?

Brief for Appellant at 2.

      Initially, we must determine whether Oaks filed a timely Notice of

Appeal.   See, e.g., id. at 4-5; Brief for the Commonwealth at 6-8.          The

Commonwealth argues that Oaks’s appeal arises from the denial of her

second Motion for Reconsideration on June 17, 2014.               Brief for the

Commonwealth at 6.          The Commonwealth claims that under Pa.R.A.P.

903(a), Oaks had until July 17, 2014, to file a timely appeal, but did not file

the appeal until August 6, 2014.1 Brief for the Commonwealth at 6. Oaks

argues that because the trial court failed to issue a written order when it

denied her Motion for Reconsideration on May 15, 2014, the appeal should

be deemed timely. Brief for Appellant at 4-5. Oaks also argues that the trial

court failed to fulfill the requirements of Pa.R.Crim.P. 720(B)(4), including

informing her of the right to appeal and the time limits within which to file

an appeal. Brief for Appellant at 5.

      It is well-settled that “[t]ime limitations for taking appeals are strictly

construed and cannot be extended as a matter of grace.” Commonwealth

v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014).           “Absent extraordinary

circumstances, this Court has no jurisdiction to entertain an untimely

appeal.” Id. However, courts have the power to extend the filing period in

1
   It is unclear why the Commonwealth states that Oaks filed the Notice of
Appeal on August 6, 2014. The docket clearly states that the trial court
ordered Oaks to file a Rule 1925(b) concise statement on August 6, 2014.


                                  -3-
J-S01012-16


cases    of    “fraud   or   breakdown    in   the   processes   of   the   court.”

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

              In    cases    where  no   post-sentence   motions     (or
        Commonwealth’s motions to modify sentence) are filed, a
        defendant must file an appeal within 30 days of imposition of
        sentence in open court.      Pa.R.Crim.P. 720(A)(3); Pa.R.A.P.
        903(c)(3). If a defendant files a timely post-sentence motion,
        the appeal period does not begin to run until the motion is
        decided. Pa.R.Crim.P. 720(A)(2); Pa.R.A.P. 903(a). Except in
        circumstances not applicable here, a defendant must file a post-
        sentence motion within ten days of imposition of sentence.
        Pa.R.Crim.P. 720(A)(1). An untimely post-sentence motion does
        not toll the appeal period.

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)

(paragraph break omitted).

        Here, the trial court sentenced Oaks on June 12, 2013. Oaks filed a

timely Post-Sentence Motion on June 21, 2013.            At the hearing on the

Motion,2 the trial court orally denied the Motion.       The court then directed

Oaks’s attorney to state her appellate rights:

        [Oaks’s Attorney]: [] Oaks, you have ten days from today to file
        a motion to the court to reconsider sentence, and 30 days to
        appeal to the Superior Court; do you understand that?

        Court: Yes.

N.T., 5/15/14, at 74.        Oaks did not state anything at this point of the

hearing.      Thereafter, the trial court entered a written Order denying the


2
  The trial court noted that Oaks’s Post-Sentence Motion was not denied by
operation of law under Pa.R.Crim.P. 720(B)(3) based on a breakdown in the
court system. See Trial Court Opinion, 1/20/15, at 2 n.1. The trial court
noted that there were multiple delays in securing Oaks’s appearance at the
hearing on the Post-Sentence Motion. See id.


                                    -4-
J-S01012-16


Motion. Order, 5/15/14. On May 21, 2014, Oaks filed a second Motion for

Reconsideration of Sentence.3 The trial court scheduled a hearing, at which

Oaks’s attorney stated that he had filed the second Motion to “preserve an

appeal.” N.T., 6/17/14, at 4. In response to a question from the trial court

as to why Oaks could not just file an appeal from the initial denial of the

Post-Sentence Motion on May 15, 2014, Oaks’s attorney stated that the

appeal would be waived without the denial of another motion to reconsider.

Id.    The trial court then denied the second Motion for Reconsideration on

June 17, 2014. Id. at 6; see also Order, 6/17/14. On July 14, 2014, Oaks

filed a Notice of Appeal.

        Instantly, Oaks had until June 16, 2014,4 thirty days after the denial of

her timely Post-Sentence Motion, to file a timely notice of appeal.         See

Pa.R.A.P. 903(a); Capaldi, 112 A.3d at 1244. Thus, although Oaks filed an

untimely Notice of Appeal, and counsel’s ineffectiveness in misinterpreting

the relevant rules does not permit courts to ignore jurisdictional limitations,

we conclude that the trial court’s acquiescence to the misinformation given

to Oaks regarding her appellate rights created a breakdown in the court

process.    See Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa.

3
  Oaks did not seek to file a post-sentence motion nunc pro tunc. However,
even if Oaks had filed such a motion, this would not have tolled the appeal
period as a defendant may only make such a request within 30 days of
imposition of sentence, and the trial court must expressly permit the filing of
a post-sentence motion nunc pro tunc within 30 days of imposition of
sentence. See Capaldi, 112 A.3d at 1244.
4
    Thirty days after May 15, 2014, was Saturday, June 14, 2014.


                                    -5-
J-S01012-16


Super. 2001) (declining to quash the appeal where “the problem arose as a

result of the trial court’s misstatement of the appeal period, which operated

as a breakdown in the court’s operation.”); see also Commonwealth v.

Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (declining “to quash this

appeal   because   [appellant’s]   error   resulted   from   the   trial     court’s

misstatement of the appeal period, which operated as a ‘breakdown in the

court’s operation.’”) (citation omitted); Commonwealth v. Bogden, 528

A.2d 168, 170 (Pa. Super. 1987) (holding that the appeal would not be

quashed as untimely when the trial court misinformed defendant by not

advising him that an appeal had to be taken within thirty days of the entry

of the judgment of sentence). Thus, we decline to quash Oaks’s appeal.5

      We will address Oaks’s remaining claims together. Oaks contends that

the trial court abused its discretion in imposing harsh and excessive

aggravated range sentences that were imposed consecutively.                Brief for


5
  We note that a decision to quash the appeal on these grounds would not
afford Oaks an opportunity to litigate a direct appeal, as she could not file a
timely Post Conviction Relief Act (“PCRA”) petition to reinstate her direct
appeal rights nunc pro tunc. Our Supreme Court has held that where “no
timely direct appeal is filed relative to a judgment of sentence, and direct
review is therefore unavailable, the one-year period allowed for the filing of
a post-conviction petition commences upon the actual expiration of the time
period allowed for seeking direct review, as specified in the PCRA.”
Commonwealth v. Brown, 943 A.2d 264, 268 (Pa. 2008). Here, even if
we start the direct appeal period on the date that the trial court denied the
Post-Sentence Motion, Oaks’s judgment of sentence would have been final
on July 17, 2014, and she would have had until July 17, 2015, to file a
timely PCRA petition. Thus, a quashal of Oaks’s appeal would prohibit a
merits review of her claims, as she could not file a timely PCRA Petition
seeking the reinstatement of her direct appeal rights.


                                   -6-
J-S01012-16


Appellant at 9-13, 14. Oaks argues that the trial court did not consider

certain mitigating factors in imposing the sentence, including her mental

illness and that she had given birth to a child just prior to sentencing. Id. at

10. Oaks asserts that the trial court failed to consider the psychological and

psychiatric testimony, which recommended mental health treatment and

therapy. Id. at 7-8, 13-14. Oaks also asserts that the trial court erred in

considering her prior juvenile adjudication during sentencing.     Id. at 5-7;

see also id. at 5 (wherein Oaks argues that the Sixth Amendment of the

United States Constitution prohibits the consideration of prior juvenile

adjudications). Oaks claims that the trial court double counted her juvenile

adjudication, both as part of the prior record score and as a reason to

impose the excessive sentence.     Id. at 14.   Oaks additionally argues that

the trial court did not consider the sentencing guidelines and failed to

provide reasons for its sentence. Id. at 10, 11-12, 13.




                                  -7-
J-S01012-16


     Oaks’s claims challenge the discretionary aspects of her sentence.6,   7



See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

     An appellant challenging the discretionary aspects of [her]
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:

          [W]e 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).

                                   ***

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis. A substantial
      question exists only when the appellant advances a colorable
      argument that the sentencing judge’s actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.


6
  Oaks entered an open guilty plea, so her plea did not preclude a challenge
to the discretionary aspects of her sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005).
7
   We note that Oaks argues that the consideration of her juvenile
adjudications implicates the legality of sentence. See Brief for Appellant at
5-7. However, issues regarding whether juvenile adjudications may be
included in computing prior record scores implicate a discretionary aspect of
sentencing claim, not a legality of sentence claim. See Commonwealth v.
Billett, 535 A.2d 1182, 1183 n.2 (Pa. Super. 1988) (stating that “[t]he
question whether juvenile adjudications may properly be included in
computing prior record scores implicates a discretionary aspect of sentencing
and not sentencing legality.”); see also Commonwealth v. Hale, 2015 WL
9284110, *2 (Pa. 2015).


                                 -8-
J-S01012-16


Moury, 992 A.2d at 170 (citations and quotation marks omitted).

        Here, Oaks filed a timely Notice of Appeal, raised her claims in a Post-

Sentence Motion, and included a Rule 2119(f) Statement in her brief. Oaks’s

claim    that   the   trial   court   improperly   considered   her   prior   juvenile

adjudication in calculating the prior record score raises a substantial

question.    See Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.

Super. 2003) (holding that a contention that the trial court miscalculated a

prior record score raises a substantial question).         Moreover, Oaks’s claim

that the trial court did not set forth its reasons for the sentence on the

record raises a substantial question.        See Commonwealth v. Malovich,

903 A.2d 1247, 1253 (Pa. Super. 2006) (stating that appellant’s claim that

the trial court did not its state reasons for sentence on the record for

imposing an excessive sentence raises a substantial question). Thus, we will

review Oaks’s sentence.

        Our standard of review for challenges to discretionary aspects of

sentencing is well settled:

        [S]entencing is vested in the discretion of the trial court, and will
        not be disturbed absent a manifest abuse of that discretion. An
        abuse of discretion involves a sentence which was manifestly
        unreasonable, or which resulted from partiality, prejudice, bias
        or ill will. It is more than just an error in judgment.

Id. at 1252-53 (citation omitted).

        Initially, we observe that under the Sentencing Guidelines, prior

juvenile adjudications are counted in the prior record score where “(1) [t]he



                                       -9-
J-S01012-16


juvenile offense occurred on or after the offender’s 14th birthday, and (2)

[t]here was an express finding by the juvenile court that the adjudication

was for a felony ….”           204 Pa. Code § 303.6(a).                However, juvenile

adjudications are not counted in a prior record score for crimes committed

when the offender is twenty-eight years of age or older at the time the

current offense at issue was committed. Id. § 303.6(c)(1).

        Here, in 2008, Oaks was adjudicated delinquent for aggravated

assault, a felony, after she had stabbed her aunt in an unprovoked attack.

N.T., 6/12/13, at 5, 14. Oaks was seventeen years old at the time of the

attack, and was nineteen years old at the time of the attack in the case at

bar. Thus, the trial court’s finding that the prior record score was a 2, based

upon Oaks’s prior juvenile adjudication of delinquency, was supported by the

record.

        With regard to Oaks’s sentence, the record reveals that the trial court

had the benefit of the pre-sentence investigation report (“PSI”). See Trial

Court     Opinion,    1/20/15,      at    10;     N.T.,   6/12/13,    at      7;   see    also

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)

(stating that where the sentencing court had the benefit of a PSI, it will be

presumed that it is aware of appropriate sentencing factors, all relevant

information    regarding     the    defendant’s       character,     and   weighed       those

considerations       along   with    mitigating      statutory     factors;    further,    the

requirement that reasons for imposing sentence be placed on the record by



                                         - 10 -
J-S01012-16


indicating that he or she has been informed by the report is satisfied).      In

imposing the aggravated-range sentences, the record reflects that the trial

court took into account the Sentencing Guidelines; the mental health

evaluations; Oaks’s psychiatric report; the severity of the offense; the

impact on the victim, Ceriale; Oaks’s criminal history; Oaks’s rehabilitative

needs; the protection of the community; and the fact that Oaks gave birth to

a child just before sentencing. See Trial Court Opinion, 1/20/15, at 10-14;

N.T., 6/12/13, at 8, 10-13, 15, 26, 34, 36, 48-57, 58-59, 61-63.

     The trial court further noted that while Oaks accepted responsibility for

the crimes, her criminal history included a similar incident wherein Oaks

used a knife to stab her aunt, she was a danger to the community, and a

lesser sentence would devalue the seriousness of the crime in this case.

See Trial Court Opinion, 1/20/15, at 12-13; N.T., 6/12/13, at 50, 58-59, 61-

63; see also 204 Pa. Code § 303.6(c)(2) (stating that nothing in the section

pertaining to prior juvenile adjudications in the Sentencing Guidelines “shall

prevent the court from considering lapsed prior adjudications at the time of

sentencing.”); Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa.

Super. 1998) (concluding that the sentencing court placed adequate reasons

on the record for a sentence that deviated from the Sentencing Guidelines

where it considered the fact that the defendant was a distinct threat to the

community,    had   not   been   deterred   by   his   prior   convictions   and

commitments, and had a long history of crimes of violence). It is clear from



                                 - 11 -
J-S01012-16


the record that the trial court did not single out Oaks’s prior criminal history

in imposing the sentence; instead, the trial court took a number of factors

into consideration in rendering the sentences.       See Trial Court Opinion,

1/20/15, at 13-14; N.T., 6/12/13, at 61-63; see also Andrews, 720 A.2d

at 768 (rejecting the defendant’s argument that the sentencing court

focused on his prior criminal history in rendering the sentence, as a review

of the record demonstrated that the court took a number of factors into

consideration). Thus, the trial court did not abuse its discretion in imposing

Oaks’s sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2016




                                 - 12 -
