J-A05031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JASON LEE WILSON

                            Appellant                  No. 970 WDA 2016


                   Appeal from the Order Entered May 24, 2016
                 In the Court of Common Pleas of Warren County
               Criminal Division at No(s): CP-62-CR-0000359-2008
                                           CP-62-CR-0000414-2008


BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.

MEMORANDUM BY MOULTON, J.:                              FILED JUNE 29, 2017

       Jason Lee Wilson appeals from the May 24, 20161 order entered in the

Warren County Court of Common Pleas. Because Wilson filed an untimely

notice of appeal, we quash.

       This matter arises from Wilson’s challenge to the legality of his

aggregate sentence of 147 to 294 months’ incarceration, imposed on

November 21, 2008, following his guilty plea to aggravated assault, criminal

trespass, and escape.2       On October 16, 2009, this Court affirmed Wilson’s

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       1
       Wilson purports to appeal from the court’s order entered June 2,
2016 denying his motion for reconsideration of the court’s May 24, 2016
order. However, as discussed infra, the appeal properly lies from the May
24, 2016 order.
       2
           18 Pa.C.S. §§ 2702(a)(1), 3503(a)(1)(ii), and 5121(a), respectively.
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judgment of sentence.        See Commonwealth v. Wilson, 987 A.2d 828

(Pa.Super. 2009) (unpublished mem.). Wilson subsequently filed a petition

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546, which the PCRA court denied on October 21, 2010. On September 8,

2011, this Court reversed the PCRA court’s order.      On remand, the PCRA

court reinstated Wilson’s right to appeal nunc pro tunc.         Wilson then

appealed his judgment of sentence, which this Court affirmed on October 31,

2012.

        On January 9, 2013, Wilson filed another PCRA petition, which the

PCRA court denied. On appeal, this Court concluded the PCRA petition was

his first because of the restoration of his appellate rights nunc pro tunc. On

October 25, 2013, this Court vacated the PCRA court’s order and remanded

for a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.

1998).    After the appointment of counsel, Wilson filed an amended PCRA

petition, which the PCRA court denied after an evidentiary hearing.        On

January 9, 2015, this Court affirmed the PCRA court’s order and granted

Wilson’s counsel’s petition to withdraw.

        In a pro se letter addressed to the trial court, dated February 22,

2016, Wilson asked the court to correct his sentence due to alleged errors in

his presentence investigation report that resulted in an incorrect calculation

of his prior record score.   On March 17, 2016, Wilson filed a pro se petition

alleging the same.    Specifically, Wilson claimed that he should have been

sentenced pursuant to a prior record score of 3, rather than as a repeat

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felon.       Wilson asked the trial court to vacate his previous sentence and

resentence him accordingly.3

         On March 23, 2016, the trial court entered an order granting Wilson’s

petition for resentencing, finding that his prior sentence had been based on

an incorrect prior record score and scheduling a sentencing hearing for May

6, 2016. The order did not state that Wilson’s November 21, 2008 sentence

was vacated.        On April 7, 2016, the court rescheduled the sentencing

hearing for May 19, 2016 and appointed counsel.

         On May 3, 2016, the Commonwealth filed a motion to rescind the

March 23rd order, contending that Wilson was not entitled to resentencing

because his sentence was based upon the correct prior record score. The

court scheduled argument on the Commonwealth’s motion for May 18, 2016.




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         3
        The trial court should have treated Wilson’s March 17, 2016 petition
for resentencing as a PCRA petition. “In Commonwealth v. Fowler, 930
A.2d 586 (Pa.Super. 2007), [this Court] reiterated that all motions filed after
a judgment of sentence is final are to be construed as PCRA petitions.”
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013).                   In
Commonwealth v. Evans,               866 A.2d 442 (Pa.Super. 2005) and
Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super. 2000), this Court
treated the appellants’ post-sentence motions as PCRA petitions, where, as
here, appellants’ claims were challenges to the discretionary aspects of
sentence couched as illegal sentencing issues. See Taylor, 65 A.3d at 467.
Had the trial court properly treated Wilson’s petition as a PCRA petition, it
would have needed to confront the issue of the petition’s timeliness. See
42 Pa.C.S. §§ 9545(b)(1), (i)-(iii).




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       At the May 18, 2016 hearing, the Commonwealth presented evidence

regarding the prior record score calculation. Further, counsel and the trial

court discussed whether the March 23, 2016 order vacated the prior

sentence, with the trial court noting its belief that a prior sentence is not

vacated until the moment of resentencing. N.T., 5/18/16, at 33.

       On May 19, 2016, the trial court held the resentencing hearing, where

it stated it was “not going to vacate the sentence.” N.T., 5/19/16, at 22.

Following the hearing, on May 24, 2016,4 the court entered an order, finding

           that the defect in the original presentence investigative
           report classified one of [Wilson]’s prior convictions as a
           Felony I, rather than a Felony II, but also the Court finds
           that said error had no effect on the prior record score. The
           designation of Felony I did not enter into the Court’s
           consideration of the sentence. Instead the Court based
           the sentence on the prior record score; the types of crimes
           committed, but not the classification; and on the very
           severe nature of the current crimes which were before the
           Court for sentencing. And therefore, the prior sentence is
           not vacated and this Court’s order of September 21, 2008
           as amended on November 21, 2008 remains in effect as
           first imposed.

Order, 5/24/16. On May 31, 2016, Wilson filed a motion for reconsideration

of the order, requesting that the court vacate the sentence imposed on

November 21, 2008 and May 24, 2016.                 Wilson also requested a

resentencing hearing, so that he could address the court and provide

additional information regarding events that had occurred since 2008.     On
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       4
       While the order was dated May 19, 2016, it was not entered until
May 24, 2016.



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June 2, 2016, the court denied the motion. On June 28, 2016, Wilson filed a

notice of appeal.

      Wilson raises the following issues on appeal:

         1. Did the Trial Court err by failing to vacate the sentence
         of November 21, 2008, as amended, when it was indicated
         in the Order dated March 18, 2016, scheduling the
         resentencing, that the sentence of November 21, 2008, as
         amended, was based on an incorrect prior record score?

         2. Did the Trial Court err by failing to vacate the sentence
         of November 21, 2008, as amended, when it was
         determined that the Presentence Investigation Report that
         the Court reviewed and referred to for sentencing was
         inaccurate?

         3. Did the Trial Court err by failing to provide Defendant an
         opportunity to make comments regarding the sentence
         prior to imposition of sentence on May 19, 2016, thus
         denying his right of allocution?

         4. Did the Trial Court err by failing to allow Defendant an
         opportunity to provide the Court with additional
         information of events that have occurred since the
         previous sentencing hearing on November 21, 2008?

Wilson’s Br. at 7 (suggested answers omitted).

      Before we reach the merits of Wilson’s appeal, we must determine

whether Wilson’s appeal was timely.

      Under Pennsylvania Rule of Appellate Procedure 903(a), a timely

notice of appeal must be filed within 30 days after entry of the order from

which the appeal is taken. Wilson purports to appeal from the court’s June

2, 2016 order denying his motion for reconsideration of its May 24, 2016

order. Wilson filed his notice of appeal on June 28, 2016.




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      Wilson argues that the court’s March 23, 2016 order, which initially

granted resentencing and scheduled a hearing, also vacated his prior

judgment of sentence.     If the March 23rd order indeed vacated Wilson’s

original sentence, then Wilson’s appeal would be timely because the court’s

May 24th order would be a judgment of sentence and Wilson’s motion for

reconsideration would be a post-sentence motion.     Wilson would have had

30 days from the court’s denial of his post-sentence motion to file his notice

of appeal. See Pa.R.Cr.P. 720(A)(2)(a). If, however, the March 23rd order

did not vacate Wilson’s original sentence, then Wilson’s motion for

reconsideration did not toll the 30-day period for filing a timely notice of

appeal, which would have begun to run on May 24.            See Gardner v.

Consol. Rail Corp., 100 A.3d 280, 283 (Pa.Super. 2014) (“[I]t is well-

settled that a motion for reconsideration, unless expressly granted within the

thirty-day appeal period, does not toll the time period for taking an appeal

from a final, appealable order.”).

      The March 23 order did not state that Wilson’s sentence was vacated,

and the record reveals that the trial court did not intend to vacate Wilson’s

sentence.   Further, on appeal, Wilson does not cite to authority obligating

the trial court to vacate his sentence prior to resentencing. Accordingly, we




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conclude that the May 24th order was not a judgment of sentence. 5 Rather,

it was a final, appealable order addressing Wilson’s petition for resentencing,

from which he had 30 days to appeal.             Therefore, because Wilson had 30

days to appeal from the May 24, 2016 order, and he failed to do so, we are

constrained to quash the instant appeal.

       Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2017




____________________________________________


       5
        The trial court concluded, and both parties agree, that although the
presentence investigation report incorrectly classified one of Wilson’s prior
convictions, this did not affect Wilson’s prior record score for sentencing
purposes.    As noted above, the trial court further explained that the
designation of the prior conviction as “Felony I [as opposed to Felony II] did
not enter into the Court’s consideration of sentence.” Order, 5/24/16.
Nothing in the record causes us to doubt this assertion.



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