J-S31014-16


                                  2016 PA Super 118

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RICHARD ELIAS MARTINEZ,

                            Appellant                 No. 1672 MDA 2015


              Appeal from the Judgment of Sentence April 5, 2013
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000819-2012


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

OPINION BY SHOGAN, J.:                                 FILED JUNE 10, 2016

       Appellant, Richard Elias Martinez, appeals from the judgment of

sentence entered April 5, 2013. After careful consideration, we vacate and

remand.

       On May 30, 2012, Appellant was charged with thirteen counts of

robbery, four counts of terroristic threats, three counts of theft by unlawful

taking, three counts of receiving stolen property, one count of aggravated

assault, and two counts of simple assault. Appellant entered an open nolo

contendere plea on September 21, 2012, on all counts and was sentenced

on November 13, 2012, to an aggregate term of eight to sixteen years in a

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S31014-16


state correctional institution.      On November 19, 2012, the Commonwealth

filed a post-sentence motion, requesting that the sentencing court apply the

deadly weapon enhancement to Appellant’s sentence.

       On December 11, 2012, the trial court entered an order scheduling a

hearing on the post-sentence motion for December 27, 2012.        The record

reflects that on December 19, 2012, an order was issued by the trial court

directing the Sheriff of Centre County to produce Appellant at the December

27, 2012 hearing.       On January 16, 2013, the trial court entered an order

granting the Commonwealth’s post-sentence motion, stating the following:

“the Commonwealth’s Post-Sentence Motion is hereby GRANTED and

[Appellant] shall be resentenced.” Order, 1/16/13. Additionally, the order

scheduled the resentencing hearing for February 26, 2013. Id.

       The record is devoid of any further information regarding the

scheduled February 26, 2013 resentencing hearing. Of particular note is the

fact that the record does not contain an order directing the Sheriff to

produce [Appellant] from the State Correctional Institution on that date.

Thus, although unclear from the record as to the reason, it is apparent that

the resentencing hearing did not take place on February 26, 2013.1


____________________________________________


1
  The Commonwealth and Appellant also indicate that the resentencing
hearing did not take place on February 26, 2013. Commonwealth’s Brief at
3, 8-9; Appellant’s Brief at 12.




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       The next docket entry is an order entered March 7, 2013, in which the

trial court directed that Appellant be transported from the State Correctional

Institution for his resentencing hearing scheduled for April 5, 2013. Order,

3/7/13.     Following the hearing, the trial court resentenced Appellant, in

accordance with the deadly weapon enhancement, to an aggregate sentence

of ten and one-half to twenty-one years of imprisonment. N.T., 4/5/13, at

12-17; sentencing orders, 4/5/13, amended sentencing order, 5/2/13. On

the same date, the trial court issued an order vacating Appellant’s original

sentence imposed on November 13, 2012. Order, 4/16/13.

       Appellant was represented by Attorney Tami Fees at the time.        Ms.

Fees filed a timely notice of appeal to this Court. The appeal was docketed

at 940 MDA 2013.            Because counsel failed to file a brief, however,

Appellant’s direct appeal was dismissed by this Court on November 8, 2013.

Order, 11/8/13.

       On December 2, 2014, Appellant filed a pro se Motion for Post-

Conviction Relief. Appellant was appointed new counsel. Appellant’s direct

appeal rights were reinstated nunc pro tunc on September 18, 2015 and

Appellant filed a notice of appeal on September 28, 2015.2      Appellant and

the trial court complied with the requirements of Pa.R.A.P. 1925.


____________________________________________


2
  Although Appellant purports to appeal from the September 18, 2015 order
reinstating his direct appeal rights, Appellant’s appeal properly lies from the
(Footnote Continued Next Page)


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      Appellant presents the following issue for our review:

            Does a sentencing court lack jurisdiction to vacate a
      sentence it had lawfully imposed and resentence a defendant
      pursuant to a Commonwealth post-sentence motion where more
      than 120 days had elapsed from the filing of that motion?

Appellant’s Brief at 8.

      Appellant argues that the trial court lacked jurisdiction to resentence

Appellant on April 5, 2013. Appellant’s Brief at 16. Appellant argues that

because Pa.R.Crim.P. 721 requires disposition of a post-sentence motion

within 120 days of the filing of the motion, a resentencing must occur within

that time limitation. Id. at 15. Appellant cites to Pa.R.Crim.P. 721(C)(2) in

support of his argument that a Commonwealth’s post-sentence motion must

be fully resolved within 120 days of its filing.     Id. at 14.    Here, the

Commonwealth’s post-sentence motion was filed November 19, 2012, and

the trial court did not vacate the original sentence or resentence Appellant

until April 5, 2013, which was 137 days after the motion was filed. Id. at

16. Thus, Appellant asserts that the court lacked jurisdiction to impose the

April 5, 2013 sentence, and therefore, the sentence was illegal and must be

vacated. Id. at 16.

      Because Appellant argues that the trial court lacked jurisdiction to

impose a new sentence at the resentencing hearing on April 5, 2013,

                       _______________________
(Footnote Continued)

judgment of sentence entered on April 5, 2013.         The caption properly
reflects that date.



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Appellant’s challenge is to the legality of the sentence imposed.         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.”).   When examining a challenge to the legality of a sentence,

our scope and standard of review are as follows:

            A claim that implicates the fundamental legal authority of
      the court to impose a particular sentence constitutes a challenge
      to the legality of the sentence. If no statutory authorization
      exists for a particular sentence, that sentence is illegal and
      subject to correction. An illegal sentence must be vacated.
      When the legality of a sentence is at issue on appeal, our
      standard of review is de novo and our scope of review is plenary.

Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010) (en banc)

(internal citations and quotation marks omitted).

      Rule 721 of the Pennsylvania Rules of Criminal Procedure sets forth

the procedure for Commonwealth challenges to an appellant’s sentence.

      Rule 721. Procedures for Commonwealth Challenges to
      Sentence; Sentencing Appeals

      (A) Commonwealth Challenges to Sentence

      (1) The Commonwealth may challenge a sentence by filing a
      motion to modify sentence, by filing an appeal on a preserved
      issue, or by filing a motion to modify sentence followed by an
      appeal.

      (2) Sentencing issues raised by the Commonwealth at the
      sentencing proceeding shall be deemed preserved for appeal
      whether or not the Commonwealth elects to file a motion to
      modify sentence on those issues.

      (B) Timing

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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.

     (1) If the defendant has filed a post-sentence motion, the judge
     shall not vacate sentence but shall decide the Commonwealth’s
     motion     and     the    defendant’s     post-sentence   motion
     simultaneously. The Rule 720(B)(3) time limits for deciding the
     defendant’s post-sentence motion, including the automatic denial
     provisions, shall apply to the disposition of the Commonwealth’s
     motion. The starting date for disposition of both motions shall
     be the date on which the defendant filed the post-sentence
     motion.

     (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.

     The Comment to Rule 721 provides, in relevant part, as follows:

                            Trial Court Action

           Paragraph (C) sets forth the procedures for trial court
     action on the Commonwealth’s motion for modification. Key to
     the timing of the judge’s decision on the Commonwealth’s
     motion is whether the defendant files a post-sentence motion.

                                  ***

                        Rule 720 Motion Not Filed


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           When the defendant has not filed a post-sentence motion,
     the disposition of the Commonwealth’s motion is governed by
     paragraph (C)(2). The judge may not vacate sentence, but has
     120 days to decide the Commonwealth’s motion or the motion is
     deemed denied by operation of law. If the judge decides the
     motion within the 120-day limit and then agrees to
     reconsider, the reconsideration must be resolved within
     the original 120-day time limit. The judge may not vacate
     sentence in order to reconsider the motion or otherwise use the
     reconsideration period to extend the 120-day time limit. It
     follows that even if the defendant has filed a notice of appeal,
     the procedural exceptions provided in Pa.R.A.P. 1701(b)(3) do
     not apply to challenges to sentences.

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

     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 Appellant

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 Comment 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 the sentence within the 120-day time


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J-S31014-16


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).

       Of further support for this conclusion is Pa.R.Crim.P. 720, addressing

post-sentence procedures, and its comment. Pa.R.Crim.P. 720 provides, in

relevant part, as follows:

       Rule 720. Post-Sentence Procedures; Appeal

                                            ***

       (B) Optional Post-Sentence Motion.

                                            ***

       (3) Time Limits for Decision on Motion. The judge shall not
       vacate sentence pending decision on the post-sentence motion,
       but shall decide the motion as provided in this paragraph.

                      (a) Except as provided in paragraph (B)(3)(b)
                [allowing for the judge to grant one 30-day
                extension upon motion of the defendant for good
                cause shown], the judge shall decide the post-
                sentence motion, including any supplemental
                motion, within 120 days of the filing of the motion.
                If the judge fails to decide the motion within 120
                days, or to grant an extension as provided in
                paragraph (B)(3)(b), the motion shall be deemed
                denied by operation of law.

Pa.R.Crim.P. 720(B)(3)(a) (emphasis added).




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      Additionally, the comment to this section provides, in relevant

part, as follows:

                                 Disposition

             Under paragraph (B)(3), once the defendant makes a
      timely written post-sentence motion, the judge retains
      jurisdiction for the duration of the disposition period. The judge
      may not vacate the order imposing sentence pending decision on
      the post-sentence motion.        This is so whether or not the
      Commonwealth filed a motion to modify sentence. See Rule
      721.

            Paragraph (B)(3)(b) permits one 30-day extension of the
      120-day time limit, for good cause shown, upon motion of the
      defendant. In most cases, an extension would be requested and
      granted when new counsel has entered the case. Only the
      defendant or counsel may request such an extension. The
      judge may not, sua sponte, extend the time for decision:
      a congested court calendar or other judicial delay does
      not constitute “good cause” under this rule.

             The possibility of an extension is not intended to suggest
      that 120 days are required for decision in most cases. The time
      limits for disposition of the post-sentence motion are the outer
      limits.   Easily resolvable issues, such as a modification of
      sentence or a guilty plea challenge, should ordinarily be decided
      in a much shorter period of time.

            If the trial judge decides the motion within the time limits
      of this rule, the judge may grant reconsideration of the post-
      sentence motion pursuant to 42 Pa.C.S. § 5505 or Pa.R.A.P.
      1701.1, but the judge may not vacate the sentence pending
      reconsideration. Rule 720(B)(3). The reconsideration period
      may not be used to extend the timing requirements set forth in
      paragraph (B)(3) for decision on the post-sentence motion; the
      time limits imposed by paragraphs (B)(3)(a) and (B)(3)(b)
      continue to run from the date the post-sentence motion was
      originally filed. The trial judge’s reconsideration must therefore
      be resolved within the 120-day decision period of paragraph
      (B)(3)(a) or the 30-day extension period of paragraph (B)(3)(b),
      whichever applies. If a decision on the reconsideration is
      not reached within the appropriate period, the post-

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      sentence motion, including any issues raised for
      reconsideration, will be denied pursuant to paragraph
      (B)(3)(c).

Pa.R.Crim.P. 720, cmt. (emphasis added).

      Thus, as this Court has explained: “a trial court’s authority to rule on

a post-sentence motion is finite in nature. To be more specific, a trial court

‘retains jurisdiction’ to rule on a post-sentence motion only ‘for the duration

of the disposition period’ as set forth in subsection 720(B)(3).”            See

Commonwealth v. Bentley, 831 A.2d 668, 670 (Pa. Super. 2003) (citing

Pa.R.Crim.P.   720,   cmt.,   “DISPOSITION”).       Indeed,   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.

See Bentley, 831 A.2d at 670 (trial court’s failure to render a ruling on

defendant’s post-sentence motion within the prescribed 120-day time period

divested the court of jurisdiction to render a decision at a later date);

Commonwealth v. Santone, 757 A.2d 963, 966 (Pa. Super. 2000) (trial

court’s modification order issued beyond the time period set forth in

Pa.R.Crim.P. 1410, renumbered Pa.R.Crim.P. 720 (amended March 1, 2000,

effective April 1, 2001), was a legal nullity because the court no longer had

jurisdiction to issue the modification order).

      Furthermore, in Santone, this Court reiterated that under Rule 720,

the trial court may not sua sponte extend the 120-day limit. Santone, 757


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A.2d at 965. Indeed, the court may extend the 120–day period only upon

motion by the defendant, for good cause shown. Pa.R.Crim.P. 720(B)(3)(b).

       In the case sub judice, the Commonwealth filed its post-sentence

motion on November 19, 2012. Accordingly, the 120-day time period during

which the trial court had authority to act upon the post-sentence motion

expired on March 19, 2013.          Thus, the trial court was required to entirely

resolve the Commonwealth’s post-sentence motion by March 19, 2013. As

stated, the trial court did not vacate Appellant’s original sentence or

resentence Appellant until April 5, 2013, which was 137 days after the

Commonwealth filed its post-sentence motion.            Because the trial court did

not resolve the Commonwealth’s post-sentence motion within the original

120-day time limit, the post-sentence motion was denied by operation of law

on March 19, 2013, pursuant to Pa.R.Crim.P. 721(C)(2). 3 Accordingly, the

trial court lacked jurisdiction to vacate Appellant’s original sentence and

resentence Appellant on April 5, 2013.4            “Where there is no jurisdiction,

there is no authority to pronounce judgment.” Santone, 757 A.2d at 966.

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3
  As noted, Pa.R.Crim.P. 720(B)(3)(c) allows for the trial court to grant one
thirty-day extension, upon motion of only the defendant within the 120-day
time period, for good cause shown. There is no indication in the record that
Appellant requested such an extension, nor do the parties represent that as
being the case.
4
  We also recognize that 42 Pa.C.S. § 5505 provides courts with statutory
authority to modify or rescind any order within thirty days if no appeal has
been taken. In Appellant’s case, the court imposed the original sentence on
(Footnote Continued Next Page)


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      Judgment of sentence entered April 5, 2013, vacated. Case remanded

for reinstatement of original sentence. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2016




                       _______________________
(Footnote Continued)

November 13, 2012, and entered the order modifying the sentence on April
5, 2013. As such, section 5505 does not apply here because the order
modifying Appellant’s sentence was entered after the statutory thirty–day
window.




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