J-S15007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

TIMOTHY THOMAS,

                             Appellant                   No. 3219 EDA 2014


       Appeal from the Judgment of Sentence Entered November 4, 2011
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006244-2010


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED FEBRUARY 29, 2016

        Appellant, Timothy Thomas, appeals nunc pro tunc from the November

4, 2011 judgment of sentence of an aggregate term of 8½ to 17 years’

incarceration, imposed after he pled guilty to rape (by forcible compulsion)

and simple assault.         Appellant challenges the discretionary aspects of his

sentence. We affirm.

        The trial court set forth the facts of Appellant’s case, as follows:

              On November 23, 2009, [Appellant] snuck into the
        bedroom of his girlfriend’s sister. [Appellant] crept up to the six
        month[s] pregnant victim, who was sleeping in bed with her
        two-year-old son, and began to rape her. The victim’s son woke
        up, at which point [Appellant] forcibly inserted his penis into the
        victim’s mouth. Then [Appellant] bent the victim over the bed
        and continued raping her. After he was finished, [Appellant]
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*
    Retired Senior Judge assigned to the Superior Court.
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      ordered the victim not to tell anyone about what had happened
      and then he fled. [Appellant] later texted the victim, apologized
      for raping her, and offered to pay her $200 if she [did not] go to
      the police. The victim contacted police anyway. The police
      listened to a phone conversation between [Appellant] and the
      victim in which [Appellant] apologized again for raping her.

Trial Court Opinion (TCO), 6/30/15, at 2.

      On June 20, 2011, Appellant entered an open guilty plea to the above-

stated offenses, in exchange for the Commonwealth’s withdrawing other

charges. On November 4, 2011, the court sentenced Appellant to a term of

8½ to 17 years’ incarceration for the rape conviction, and a concurrent term

of 1 to 2 years’ incarceration for simple assault.    Appellant did not file a

post-sentence motion or a direct appeal.

      On April 14, 2012, Appellant filed a pro se petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.           Counsel was

appointed and filed an amended petition on Appellant’s behalf.              After

conducting a short hearing on October 31, 2014, the court issued an order

that same day stating, “[Appellant’s] appellate rights are reinstated nunc pro

tunc.” PCRA Court Order, 10/31/14 (unnecessary capitalization omitted).

      Appellant’s counsel then filed a timely notice of appeal on Appellant’s

behalf.   Appellant also timely complied with the court’s order to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Herein, he

raises the following two issues for our review, which we have reordered for

ease of disposition:

      I. Did the [PCRA] court err in denying [A]ppellant’s motion to file
      post[-]sentence motions nunc pro tunc; because of this
      [A]ppellant was unable to file a motion to correct what

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       [A]ppellant believed was an erroneous sentence that based on
       the record was more severe than the trial court intended to
       impose?

       II. Is [A]ppellant entitled to a new sentenc[ing] hearing when
       the trial court intend[ed] to impose a sentence in the mitigated
       range of the sentenc[ing] guidelines because it found that
       [A]ppellant was remorseful but mistakenly imposed a more
       severe sentence in the standard range of the sentenc[ing]
       guidelines?

Appellant’s Brief at 2.

       Initially, Appellant’s first claim does not implicate his judgment of

sentence but, rather, it challenges the PCRA court’s order issued on October

31, 2014.1     Specifically, Appellant contends that the PCRA court erred by

denying his request to file a nunc pro tunc post-sentence motion, which

precluded Appellant from preserving the sole issue he raises in this nunc pro

tunc direct appeal, i.e., a challenge to the discretionary aspects of his

sentence. Appellant notes that the court’s October 31, 2014 order ruling on

his petition stated only, “Defendant’s appellate rights are reinstated nunc pro

tunc.” PCRA Court Order, 10/31/14.

       However, the trial court (which also presided over Appellant’s PCRA

petition) states in its opinion that “[w]hen [it] reinstated [Appellant’s] direct

appeal rights, it was the [c]ourt’s intention to give [Appellant] his full
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1
  Appellant should have filed two separate notices of appeal, one nunc pro
tunc appeal from his judgment of sentence, and another notice of appeal
from the PCRA court’s order issued on October 31, 2014.               However,
Appellant did state, in the single notice of appeal that he filed, that he was
appealing from both his judgment of sentence, as well as the PCRA court’s
order.



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appellate rights, including the ability to file any necessary post-sentence

motions required to properly preserve any issues for direct appeal pursuant

to Pennsylvania Rule of Criminal Procedure 720(B).” TCO at 3. The court

then declares that, “in the interest of judicial economy[,] this [c]ourt will

treat [Appellant’s] … allegations of error as if they were properly preserved

for appeal and address them on their merits, despite the fact that these

issues were never raised in a post-sentence motion, nunc pro tunc or

otherwise.” Id. at 3-4.

      The odd procedural posture of this case, the reasonable confusion

regarding the scope of the PCRA court’s brief order, and the fact that the

PCRA court intended to reinstate Appellant’s right to file a post-sentence

motion nunc pro tunc, compel us to likewise overlook the waiver of

Appellant’s sentencing issue based on his failure to file a post-sentence

motion.

      However, we cannot overlook another basis on which Appellant has

waived the specific sentencing challenge he asserts herein. Appellant solely

contends on appeal that the trial court “intend[ed] to impose a sentence in

the mitigated range of the sentenc[ing] guidelines[,]” yet the court

“mistakenly imposed a higher sentence in the standard range of the

sentenc[ing] guidelines.” Appellant’s Brief at 7. According to Appellant, this

ostensible mistake by the court constitutes an abuse of discretion and

renders his sentence “unreasonable.” Id. at 8.




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       As the Commonwealth points out, in Appellant’s Rule 1925(b)

statement, he raised the following issues pertaining to his sentence:

       3. The trial court abused its discretion in the sentence it imposed
       on [Appellant]. The sentence was unreasonable.

       4. The sentence imposed was above the aggravated range of the
       sentencing guidelines.

Rule 1925(b) Statement, 12/2/14. Appellant did not specifically state that

the trial court erred by imposing a standard range sentence when it intended

to   impose     a   sentence     in   the      mitigated   range   of   the   guidelines.

Consequently, the trial court did not address this claim in its Rule 1925(a)

opinion. Therefore, we conclude that Appellant has waived this sentencing

issue for our review.2       See Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall

concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge.”);

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are

waived.”).

       Nevertheless, even if properly preserved, we would decline to review

Appellant’s sentencing claim.

       A challenge to the discretionary aspects of a sentence must be
       considered a petition for permission to appeal, as the right to
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2
  We note that the trial court’s order to file a Rule 1925(b) statement
specifically directed that “[a]ny issue not properly included in the Statement
timely filed and served pursuant to Rule 1925(b) shall be deemed waived.”
Trial Court Order, 11/17/14.



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       pursue such a claim is not absolute. When challenging the
       discretionary aspects of the sentence imposed, an appellant
       must present a substantial question as to the inappropriateness
       of the sentence. Two requirements must be met before we will
       review this challenge on its merits. First, an appellant must set
       forth in his brief a concise statement of the reasons relied upon
       for allowance of appeal with respect to the discretionary aspects
       of a sentence. Second, the appellant must show that there is a
       substantial question that the sentence imposed is not
       appropriate under the Sentencing Code. That is, [that] the
       sentence violates either a specific provision of the sentencing
       scheme set forth in the Sentencing Code or a particular
       fundamental norm underlying the sentencing process.           We
       examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
       determine whether a substantial question exists. Our inquiry
       must focus on the reasons for which the appeal is sought, in
       contrast to the facts underlying the appeal, which are necessary
       only to decide the appeal on the merits.

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(citations, quotation marks and footnote omitted; emphasis in original).

       Here, Appellant presents a Rule 2119(f) statement arguing that the

court’s sentence was “unreasonable, irrational, and an abuse of discretion

because the court … told [Appellant] three times that it intended to impose a

sentence in the mitigated range of the sentenc[ing] guidelines, but

erroneously imposed a more severe sentence in the standard range of the

sentenc[ing] guidelines.” Appellant’s Brief at 3. Appellant does not specify

what “specific provision of the sentencing scheme” or “fundamental norm” of

the sentencing process the court violated in this regard.3     Appellant also

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3
  We also note that at no point in his Rule 2119(f) statement, or the
argument portion of his brief, does Appellant cite to where in the record the
(Footnote Continued Next Page)


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claims that “[t]he imposition of consecutive sentences imposed by the trial

court was a manifest abuse of discretion….”        Id.   However, the record

confirms that Appellant’s sentences were imposed to run concurrently, not

consecutively. Accordingly, Appellant has failed to convince us that either of

his claims constitute a substantial question warranting our review.4

      Judgment of sentence affirmed.

                       _______________________
(Footnote Continued)

sentencing court purportedly indicated its intention to impose a mitigated
range sentence.
4
  In any event, we would ascertain no abuse of discretion in the court’s
decision to impose standard range, concurrent sentences for Appellant’s two
offenses. In its opinion, the court states:

      [I]n imposing [Appellant’s] sentence, this [c]ourt took into
      account all mitigating factors cited by defense counsel, as well as
      arguments of the Commonwealth.              This [c]ourt carefully
      considered the heinous acts committed by [Appellant] as well as
      the fact that [Appellant] entered into a guilty plea. The [c]ourt
      also took into account the seriousness of the violation,
      [Appellant’s] rehabilitative needs, and the need to protect the
      community in accordance with 42 Pa.C.S. § 9721(b).

TCO at 7 (footnote and citations to the record omitted). We have reviewed
the record of the lengthy sentencing hearing conducted by the court, which
supports the court’s claim that it carefully considered all of the requisite
sentencing factors, including Appellant’s remorse and other mitigating
circumstances.    While the court did incorrectly state that Appellant’s
sentence was in the mitigated range of the guidelines, see N.T. Sentencing,
11/4/11, at 43, it is clear that the court prudently fashioned, and fully
intended to impose, the aggregate term of 8½ to 17 years’ incarceration.
The record also demonstrates that the court provided ample reasons for
imposing Appellant’s standard range, concurrent sentences. Accordingly,
even if Appellant’s claim constituted a substantial question, we would
conclude that the court did not abuse its discretion in sentencing him.




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     Judge Platt joins this memorandum.

     Judge Olson concurs in the result of this memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




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