J-S05032-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
                                           :
                     v.                    :
                                           :
RALPH GENE MYERS,                          :
                                           :
                  Appellant                :     No. 1057 WDA 2017

            Appeal from the Judgment of Sentence May 2, 2017
            in the Court of Common Pleas of Armstrong County
            Criminal Division at No(s): CP-03-CR-0000425-2016

BEFORE:     OLSON, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED MARCH 20, 2018

      Ralph Gene Myers (Appellant) appeals from the judgment of sentence

of nine to 16 months of incarceration imposed after he pled guilty to one count

of theft by unlawful taking. We affirm.

      On March 2, 2017, Appellant, represented by Armstrong County Public

Defender James H. Wray, Esquire, entered a guilty plea to one count of theft

by unlawful taking. N.T., 3/2/2017, at 5. In exchange for the guilty plea, the

Commonwealth agreed to recommend a sentence of probation and to nolle

pros the remaining charges. Id. at 8. The trial court clarified this agreement

with Appellant.

      THE COURT: You understand that once the district attorney comes
      in and make[s] his recommendation, he’s upheld his end of the
      bargain?

      [APPELLANT]: Yes, Your Honor.



*Retired Senior Judge assigned to the Superior Court.
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        THE COURT: You understand that[ it is] a recommendation only?

        [APPELLANT]: Yes, Your Honor.

        THE COURT: It’s not binding upon the court and final sentencing
        authority lies with the judge imposing sentence.       Do you
        understand that?

        [APPELLANT]: Yes, Your Honor.

        THE COURT: Of course, failure to sentence you in accordance with
        the plea recommendation is not a basis to withdraw your plea. Do
        you understand that?

        [APPELLANT]: Yes, Your Honor.

        THE COURT: With these understandings in mind, do you reaffirm
        your desire to enter a plea in open court?

        [APPELLANT]: Yes, Your Honor.

Id. at 8-9.

        Appellant pled guilty and signed the written plea colloquy.1 The trial

court scheduled sentencing for May 2, 2017, and Appellant appeared on that

date.      The   trial   court   acknowledged   that   the   Commonwealth   was

recommending probation. N.T., 5/2/2017, at 7.           However, the trial court

decided to sentence Appellant to a standard-range sentence of nine to 16

months of incarceration. Id. Attorney Wray affirmed that Appellant completed



1 Here, Appellant entered into an open guilty plea with a sentencing
recommendation. This situation is distinct from a negotiated guilty plea,
where the Commonwealth and defendant agree upon the sentence. Under
those circumstances, a defendant may withdraw his guilty plea if the
sentencing court does not sentence the defendant to the agreed-upon
sentence. See Commonwealth v. Root, __ A.3d __, 2018 WL 718543 (Pa.
Super. 2018).

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a post-sentence colloquy form. Id. at 8; see Defendant’s Post-Sentence

Rights, 5/2/2017 (explaining accurately Appellant’s post-sentence rights).

        On May 10, 2017, Appellant pro se requested to withdraw his guilty plea

based on the Commonwealth’s purported failure to conform to the negotiated

plea agreement. That motion was forwarded to the trial court. On May 18,

2017, Appellant pro se requested a modification of his sentence, claiming that

he was not given sufficient credit for time served. He also requested the trial

court reduce his sentence based on his completing certain courses while in

jail. Again, this document was forwarded to the trial court. On May 18, 2017,

the trial court denied Appellant’s motion to withdraw his guilty plea. On May

23, 2017, the trial court scheduled a hearing on the motion to modify sentence

for June 26, 2017.       On June 20, 2017, Attorney Wray filed a motion to

withdraw his appearance. The trial court granted that motion on June 21,

2017.

        On June 26, 2017, the trial court held a hearing on Appellant’s motion

to modify sentence, where Appellant appeared pro se.2 On June 27, 2017,

the trial court concluded that Appellant’s motion to modify sentence was

untimely filed, and therefore it denied the motion.                   Attorney Wray

subsequently re-entered his appearance on Appellant’s behalf, and on July 18,

2017, filed a notice of appeal from the order denying Appellant’s motion to



2   There is no transcript of this hearing in the certified record.


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modify sentence. The trial court ordered Appellant to file a concise statement,

and Appellant complied by filing a statement challenging the discretionary

aspects of his sentence.       The trial court then filed an opinion pursuant to

Pa.R.A.P. 1925(a).

      On appeal, Appellant challenges the discretionary aspects of his

sentence. Before we reach the issue presented on appeal, we must address

concerns about the timeliness of this appeal. The trial court suggests this

appeal    is   untimely   filed.    Inexplicably,      neither    Appellant   nor   the

Commonwealth addresses this issue.

      “The     question   of    timeliness   of   an     appeal    is   jurisdictional.”

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). “Except

as otherwise prescribed by this rule, the notice of appeal … shall be filed within

30 days after the entry of the order from which the appeal is taken.” 3 Pa.R.A.P.

903(a).   With respect to an appeal from a judgment of sentence where a

timely post-sentence motion was filed, an appeal must be filed within 30 days

of the order denying that motion. See Pa.R.Crim.P. 720(A)(2)(a). In addition,

an order denying a post-sentence motion must inform a defendant of his right

to appeal, the time for filing that appeal, and the right to assistance of counsel.

See Pa.R.Crim.P. 720(B)(4).




3Appellant was sentenced on May 2, 2017. The thirtieth day after that is June
1, 2017. This notice of appeal was filed on July 18, 2017.

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      Instantly, counsel for Appellant did not file a post-sentence motion.

However, Appellant filed two pro se post-sentence motions while represented

by counsel, which we consider mindful of the following.

      In this Commonwealth, hybrid representation is not permitted.
      Accordingly, [the trial court] will not accept a pro se motion while
      an appellant is represented by counsel; indeed, pro se motions
      have no legal effect and, therefore, are legal nullities. When a
      counseled defendant files a pro se document, it is noted on the
      docket and forwarded to counsel pursuant to Pa.R.Crim.P.
      576(A)(4),[4] but no further action is to be taken. Moreover, a pro
      se filing has no tolling effect.

Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (internal

citations omitted) (holding that there is an exception where a trial court is

required to docket a pro se notice of appeal as it protects a constitutional

right).

      With respect to      post-sentence motions, in Commonwealth v.

Nischan, 928 A.2d 349 (Pa. Super. 2007), this Court held that where a pro

se post-sentence motion was filed by a represented defendant, that motion



4

      In any case in which a defendant is represented by an attorney, if
      the defendant submits for filing a written motion, notice, or
      document that has not been signed by the defendant’s attorney,
      the clerk of courts shall accept it for filing, time stamp it with the
      date of receipt and make a docket entry reflecting the date of
      receipt, and place the document in the criminal case file. A copy
      of the time stamped document shall be forwarded to the
      defendant’s attorney and the attorney for the Commonwealth
      within 10 days of receipt.

Pa.R.Crim.P. 576(A)(4).


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“was a nullity, having no legal effect.” Id. at 355. However, an untimely-filed

post-sentence motion may toll the time period under certain circumstances.

             Under Commonwealth v. Dreves, 839 A.2d 1122, 1128
      (Pa. Super. 2003) (en banc), a post-sentence motion nunc pro
      tunc may toll the appeal period, but only if two conditions are met.
      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 post-sentence motion.”
      Id. at 1128–29. Second, the trial court must expressly permit the
      filing of a post-sentence motion nunc pro tunc, also within 30 days
      of imposition of sentence. Id. at 1128 & n. 6. “If the trial court
      does not expressly grant nunc pro tunc relief, the time for filing
      an appeal is neither tolled nor extended.” Id. at 1128. 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.” Id. at 1129.

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

      With these principles in mind, we now consider the pro se motions filed

by Appellant. On May 10, 2017, eight days after sentencing, Appellant filed

pro se a motion to withdraw his guilty plea. Based upon Nischan, supra,

that motion was a nullity. However, that motion was not forwarded to counsel

as required by Pa.R.Crim.P. 576(A)(4). Further compounding that error, the

trial court’s May 18, 2017 denial of that motion did not inform Appellant of his

right to appeal, in violation of Pa.R.Crim.P. 720(A)(2)(a).

      Then, on May 18, 2017, 16 days after Appellant’s sentencing, Appellant

pro se filed a motion to modify sentence asserting two claims: 1) that he was

not given credit for time served, and 2) that his sentence should be reduced.

Again, that motion was not forwarded to counsel in compliance with


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Pa.R.Crim.P. 576(A)(4).         Moreover, the trial court permitted counsel to

withdraw and held a hearing on this motion where Appellant appeared pro se.

The trial court then denied the motion as untimely filed and complied with the

mandates of Pa.R.Crim.P. 720(A)(2)(a).             Then, counsel re-entered his

appearance and filed a notice of appeal within 30 days of the entry of that

order.

      We have held that “in the case of fraud or breakdown in the processes

of   the   court,”   we   may    excuse    the   untimely   filing   of   an   appeal.

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

breakdown may occur “when the trial court or the clerk of courts departed

from the obligations specified in” the Rules of Criminal Procedure. Id. at 499.

Based on the foregoing, we conclude there were sufficient procedural missteps

by the trial court and clerk of courts, most importantly the failure of the clerk

of courts to comply with Pa.R.Crim.P. 576(A)(4), and the failure of the trial

court to comply with Pa.R.Crim.P. 720(A)(2)(a), in denying the first pro se

post-sentence motion.      Accordingly, we decline to quash this appeal as

untimely filed, and we will proceed to address Appellant’s claim.

      As noted supra, Appellant is challenging the discretionary aspects of his

sentence. Specifically, he suggests the trial court erred in sentencing him in

the standard range when it could have sentenced him in the mitigated range.

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.



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         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage in
         a four[-]part analysis to determine: (1) whether the appeal
         is timely [filed]; (2) whether Appellant preserved his issue;
         (3) whether Appellant’s brief includes a concise statement
         of the reasons relied upon for allowance of appeal with
         respect to the discretionary aspects of sentence; and (4)
         whether the concise statement raises a substantial question
         that the sentence is appropriate under the sentencing
         code....    [I]f the appeal satisfies each of these four
         requirements, we will then proceed to decide the
         substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Instantly, we determined supra that the appeal was timely filed.

However, we must consider whether this issue was preserved in Appellant’s

post-sentence motion. Even if Appellant’s May 18, 2017 post-sentence motion

were timely filed,5 the only discretionary-aspects-of-sentencing claim in that

motion was a claim that the trial court should reduce Appellant’s sentence

because he completed several prison programs. That is not the same claim

that Appellant presents on appeal; therefore, we conclude that Appellant has

not preserved this issue.6



5 Appellant’s May 10, 2017 motion to withdraw his guilty plea did not contain
a sentencing claim.

6 In addition, we point out that Appellant has not included a Pa.R.A.P. 2119(f)
statement in his brief. Although the Commonwealth has not objected to this
failure, we may, in our discretion, decline to address the issue. See
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (“[W]hen
the appellant has not included a Rule 2119(f) statement and the
[Commonwealth] has not objected, this Court may ignore the omission and

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      In any event, Appellant’s claim that the trial court should have

sentenced him in the mitigated range instead of the standard range does not

raise a substantial question.   “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.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)

(internal quotation marks omitted). We conclude that Appellant’s argument

that the trial court should have sentenced him in the mitigated range instead

of the standard range does not present an argument that Appellant’s sentence

was either “inconsistent with a specific provision of the Sentencing Code,” or

“contrary to the fundamental norms which underlie the sentencing process.”7

Id.

      Based on the foregoing, we conclude Appellant has not presented to this

Court any basis to disturb his judgment of sentence.

      Judgment of sentence affirmed.




determine if there is a substantial question that the sentence imposed was not
appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e.,
deny allowance of appeal.”).
7 In fact, Attorney Wray conceded at sentencing that he was “not aware of

any” mitigating factors. See N.T., 5/2/2017, at 5.

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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 3/20/2018




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