J-S72010-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                      1     IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                           Appellee

                      v.

VERNADINE JONES

                           Appellant                         No. 112 MDA 2016


          Appeal from the Judgment of Sentence November 24, 2015
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP- 22 -CR- 0000464 -2015


BEFORE:     GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED OCTOBER 24, 2016

        Appellant, Vernadine Jones, appeals from the judgment of sentence

entered in the Dauphin County Court of Common pleas, following her guilty

plea to false reports to law enforcement authorities ( "false reports ").1         We

affirm.

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

In August 2014, Appellant was          a   witness at   a   preliminary hearing for    a


criminal charge filed against her now -husband, Charles Link.                Appellant

falsely testified that Mr. Link had threatened her with           a   firearm during   a


verbal altercation.   Mr. Link spent one month in county prison following his



1   18 Pa.C.S.A. § 4906(a).




*Retired Senior Judge assigned to the Superior Court.
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arrest.     On November 24, 2015, Appellant entered an open                    guilty plea to

false reports.     On   that same date, the trial court sentenced Appellant to

twelve (12) months' intermediate punishment, including three (3) months'

house arrest and electronic monitoring.                While still represented by counsel,

Appellant faxed     a   pro se letter to the trial court on December 2, 2015,

seeking      modification   of her sentence.                Specifically,   Appellant sought

elimination of the house arrest and electronic monitoring requirements. The

trial court forwarded       a       copy of Appellant's correspondence to defense

counsel. Appellant filed        a   counseled post- sentence motion nunc pro tunc on

December 14, 2015, requesting the same relief sought in Appellant's pro se

filing.    On December 21, 2015, the court denied Appellant's post- sentence

motion on the merits.           Appellant filed        a   notice of appeal on January 19,

2016.      The court ordered Appellant to file               a   concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b); Appellant timely

complied.

          As a preliminary matter, the Commonwealth raises the issue of the

timeliness of this appeal. The time limitations for taking appeals are strictly

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

v.   Valentine, 928 A.2d 346, 349 (Pa.Super. 2007).                   As a general rule, this

Court has no jurisdiction to entertain an untimely appeal.                  Commonwealth
v.   Patterson, 940 A.2d 493, 497 (Pa.Super. 2007), appeal denied, 599                    Pa.

691, 960 A.2d 838 (2008).             "Nonetheless, this general rule does not affect


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the power of the courts to grant relief in the case of fraud or breakdown in

the processes of the court."       Id. at 498.             See also Commonwealth v.

Parlante,       823   A.2d   927    (Pa.Super.            2003)     (holding   trial     court's

misstatement of appeal period in order denying post- sentence motion

operated as breakdown in court's operation, which justified review of facially

untimely appeal).

     "[T]he notice of appeal...shall        be filed within 30 days after the           entry of

the order from which the appeal             is   taken."      Pa.R.A.P. 903(a).        "A direct

appeal in   a    criminal proceeding lies from the judgment of sentence."

Patterson, supra at 497.           If   a    defendant files       a   timely post- sentence

motion, the notice of appeal shall be filed within 30 days of the entry of the

order deciding the motion. Pa.R.Crim.P. 720(A)(2)(a). To be timely,                      a   post -

sentence motion must be filed no later than 10 days after imposition of

sentence.   Pa.R.Crim.P. 720(A)(1).              Absent   a   timely post- sentence motion,

the notice of appeal shall be filed within 30 days of imposition of sentence.

Pa.R.Crim.P. 720(A)(3); Commonwealth v. Dreves, 839 A.2d 1122, 1127

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

     "[A] post- sentence motion nunc pro tunc may toll the appeal period,

but only if two conditions are met." Commonwealth v. Capa /di, 112 A.3d

1242, 1244 (Pa.Super. 2015) (citing Dreves, supra at 1128).

         First, within 30 days of imposition of sentence, a defendant
         must request the trial court to consider a post- sentence
         motion nunc pro tunc. The request for nunc pro tunc relief
         is separate and distinct from the merits of the underlying


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           post- sentence motion.        Second,   the trial court must
           expressly permit the filing of           post- sentence motion
                                                    a
           nunc pro tunc, also within 30 days of imposition of
           sentence. If the trial court does not expressly grant nunc
           pro tunc relief, the time for filing an appeal is neither tolled
           nor extended. Moreover, [t]he 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.

Capaldi, supra at 1244 (internal citations and quotation marks omitted)

(emphasis in original).

        Additionally,   a   defendant may not engage in hybrid representation by

submitting pro se filings while represented by counsel. Commonwealth v.

Willis, 29 A.3d 393 (Pa.Super. 2011).          Pro se filings submitted by counseled

defendants are legal nullities. Commonwealth v. Nischan, 928 A.2d 349

(Pa.Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

        Instantly, the court imposed           sentence on        November 24,           2015.

Appellant waived the court's reading of her post- sentence rights. Therefore,

Appellant had until December 4, 2015, to file           a   timely post- sentence motion.

See Pa.R.Crim.P. 720(A)(1). Appellant faxed             a   pro se letter to the court on

December 2, 2015, seeking             modification of her sentence.              Appellant,

however, was still represented by counsel at that time.                 Thus, Appellant's

pro se filing constituted hybrid representation and was             a   legal nullity.    See

Nischan, supra. The court forwarded            a   copy of Appellant's filing to defense

counsel, who filed      a   post- sentence motion nunc pro tunc on December 14,

2015.     The record, however, gives no indication that the court granted


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Appellant permission to file   a   post- sentence motion nunc pro tunc outside of

the ten -day window. The court denied the motion on the merits, but that

ruling was no substitute for an order explicitly granting permission to file   a


post- sentence motion nunc pro tunc.          See Capaldi, supra.     Therefore,

Appellant's counseled post- sentence motion was untimely and did not toll

the appeal period.       See Dreves, supra.       Consequently, the last day for

Appellant to file    a   timely notice of appeal was December 24, 2015.

Appellant's notice of appeal, filed on January 19, 2016, was facially

untimely.2

      Nevertheless, in its order denying Appellant's post- sentence motion,

the court stated: "[Appellant] is hereby notified of the right to appeal this

order within 30 days of the date of this order." (See Post Sentence Motion

Order, filed 12/21/15).     The order incorrectly informed Appellant she had

thirty days to appeal following the court's denial of the post- sentence
motion, even though that motion was untimely and did not toll the appeal

period. Appellant filed her notice of appeal within the period specified by the



2 In response to this Court's order directing Appellant to show cause why
this appeal should not be dismissed as untimely, defense counsel claimed
she immediately contacted the deputy district attorney upon receiving a
copy of Appellant's pro se filing from the trial court. Counsel stated she
sought the deputy district attorney's "concurrence" with Appellant's motion
but received no response. Counsel averred she then filed the post- sentence
motion nunc pro tunc as directed by the trial court. Nevertheless, the
certified record contains no evidence that the court directed counsel to file
the motion nunc pro tunc.


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court's order. The misstatement in the order constituted      a   breakdown in the

court's operation.     Therefore, we decline to dismiss this appeal outright.

See Patterson, supra; Parlante, supra.

        Appellant raises one issue on appeal:

           WHETHER THE IMPOSITION OF AN AGGREGATE SENTENCE
           OF   TWELVE   (12)   MONTHS    OF   INTERMEDIATE
           PUNISHMENT WITH THE FIRST THREE (3) MONTHS TO BE
           SERVED   ON   HOUSE   ARREST   WITH   ELECTRONIC
           MONITORING     WAS     EXCESSIVE    GIVEN    THE
           CIRCUMSTANCES OF APPELLANT[ ?]

(Appellant's Brief at 4).

        Appellant argues the trial court failed to give appropriate weight to her

character and background when imposing sentence. Appellant contends she

was remorseful, and she informed the court she could not move forward

with an adoption due to her house arrest. Appellant claims she has no prior

record and is not      a   flight risk.   Appellant asserts the court gave little

consideration to her potential for rehabilitation or the minimum sentence

necessary for the protection of the public.       Appellant submits her sentence

was based solely on the negative aspects of the offense.                  Appellant

concludes she is entitled to resentencing because the court's imposition of

house arrest and electronic monitoring resulted in an excessive sentence.

Appellant challenges the discretionary aspects of her             sentence.3   See



3   "[W]hile a...plea which includes sentence negotiation ordinarily precludes
a    defendant from contesting the validity of...her sentence other than to
(Footnote Continued Next Page)


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Commonwealth v. Lee, 876 A.2d 408 (Pa.Super. 2005) (stating claim that
sentence     is   manifestly excessive    challenges   discretionary aspects    of

sentencing); Commonwealth v. Cruz -Centeno, 668 A.2d 536 (Pa.Super.

1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim

that sentencing court failed to consider or did not adequately consider

certain factors implicates discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.       Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000).        Prior to reaching the merits of     a   discretionary

sentencing issue:

           [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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). "To
(Footnote Continued)

argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant
will not be precluded from appealing the discretionary aspects of the
sentence." Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super.
2005) (emphasis in original). "An 'open' plea agreement is one in which
there is no negotiated sentence." Id. at 363 n.1. Here, Appellant's plea
was "open" as to sentencing, so a challenge to the discretionary aspects of
her sentence is available.


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preserve issues concerning the discretionary aspects of sentencing,                                   a


defendant must raise them during sentencing or in                      a    timely post- sentence

motion." Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa.Super. 2008),

appeal denied, 600       Pa.   728, 963 A.2d 467 (2008).                     "An untimely post -

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

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

        When appealing the discretionary aspects of                a   sentence,         a   defendant

must also invoke the appellate court's jurisdiction by including in her brief                         a


separate concise statement demonstrating that there                             is   a       substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571                   Pa.   419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f).       The determination of what constitutes                       a       substantial

question must be evaluated on        a   case -by -case basis.              Commonwealth v.
Anderson, 830 A.2d 1013 (Pa.Super. 2003).                    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."         Sierra,       supra           at     912 -13          (quoting

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),
appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).                              Generally, "[a]n

allegation that   a   sentencing court failed to consider or did not adequately

consider certain factors does not raise            a    substantial question that the


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sentence was inappropriate." Cruz -Centeno, supra at 545.

      Instantly, Appellant failed to raise her sentencing claims at the

sentencing        hearing or in     a    timely post- sentence motion.        Appellant's

untimely post- sentence motion did not preserve those claims.                  Therefore,

Appellant's       issue   is   waived.     See Feucht, supra;          Wrecks, supra.

Moreover, even if Appellant had properly preserved the issue, her challenge

to the manner in which the court weighed various sentencing factors would

not raise     a   substantial question warranting review.          See Cruz-Centeno,

supra. Based on the foregoing, Appellant           is   not entitled to sentencing relief.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




J:seph    Seletyn,
         D.
Prothonotary


Date: 10/24/2016




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