J-S77023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ERIC COXRY

                            Appellant               No. 491 EDA 2014


             Appeal from the Judgment of Sentence July 22, 2013
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0001939-2009

BEFORE: GANTMAN, J., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                     FILED DECEMBER 22, 2014

       Eric Coxry appeals from the judgment of sentence1 imposed following

his conviction for first degree murder2, conspiracy3 and burglary4. We quash

this appeal as untimely for the reasons provided below.

       Eric Coxry was charged with first degree murder for the shooting death

of Jonas Suber. On July 19, 2013, a jury found Coxry guilty of first degree
____________________________________________


*
  Retired Senior Judge assigned to the Superior Court.
1
  Although Coxry’s brief states that he is appealing from the order denying
his post-sentence motions, his appeal actually is from his judgment of
sentence. Commonwealth v. Chamberlain, 658 A.2d 395, 397
(Pa.Super.1995) (“[an] order denying post-sentence motions acts to finalize
the judgment of sentence for purposes of appeal. Thus, the appeal is taken
from the judgment of sentence, not the order denying post-sentence
motions”). We have amended the appeal paragraph of the above caption to
reflect this fact.
2
  18 Pa.C.S. § 2502.
3
  18 Pa.C.S. § 903.
4
  18 Pa.C.S. § 3502.
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murder.   The Commonwealth offered to waive its right to seek the death

penalty if Coxry agreed to waive all rights of appeal and thus spend the rest

of his life in prison. Coxry accepted the Commonwealth’s offer. Coxry, the

Commonwealth and the trial court all signed the following waiver form:

           In    consideration   of  the   Commonwealth      of
           Pennsylvania foregoing pursuing the death penalty
           following my being found guilty by a jury on July 19
           2013 of 1st Degree Murder in the murder on October
           21, 2006 of Mr. Jonas ‘Sonny’ Suber in the City of
           Coatesville, Chester County, Pennsylvania, a crime I
           do acknowledge having committed, I hereby agree
           as follows:

           1. I agree to the imposition of the sentence on the
           charge of 1st Degree Murder to life imprisonment
           without the possibility of parole. I agree to the
           imposition of the sentence of 20 to 40 years on the
           charge of Criminal Conspiracy to commit 1st Degree
           Murder, concurrent with the life sentence, and the
           imposition of the sentence of 10 to 20 years on the
           charge of Burglary, concurrent with the conspiracy
           sentence.

           2. I agree that I will not seek pardon or commutation
           at any time in the future and, in that respect, agree
           that I will spend the rest of my life in prison for
           having murdered Mr. Suber.

           3. I agree to waive, and I do, knowingly, voluntarily
           and intelligently, waive any rights, presently known
           and presently unknown, that I now have, could have,
           or might in the future have, from now until the end
           of time, to appeal directly or collaterally, to seek
           post-sentence relief, to seek post-conviction relief, to
           seek Federal or other habeas corpus relief, and/ or to
           claim that my attorneys were ineffective in any
           respect for reasons presently known and presently
           unknown with regard to their representation of me,
           whether in regard to any pre-trial matter, anything


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            that they did or did not do for me during trial, and/or
            their   handling     of   my     defense    at    trial.1
               1
                 The sole exception to my waiver of rights is that I
               may file a motion challenging the Department of
               Corrections' authority to deduct, pursuant to 42
               Pa.C.S. §9728(b)(5) or any other act authorizing the
               Department of Corrections to deduct funds from
               inmate accounts, funds from my inmate account. I
               understand this is the sole exception to my waiver of
               rights.

            4. I acknowledge that in deciding whether or not to
            accept and sign this waiver of rights I have consulted
            fully with my death penalty attorney, David P. Clark,
            Esquire, and am satisfied with his representation and
            advice. I further acknowledge that I have carefully
            considered my options, in consultation with my
            counsel, Mr. Clark, and sign this waiver of rights as
            an act of my own free will intending to be legally
            bound.

The trial court questioned Coxry on the record and determined that he

entered into this agreement knowingly, voluntarily and intelligently.   N.T.,

7/22/13, pp. 5-9. The court sentenced Coxry to life imprisonment without

the possibility of parole for first degree murder and concurrent terms of 20-

40 years’ imprisonment for conspiracy and 10-20 years’ imprisonment for

burglary. N.T., 7/22/13, p. 24.

      On August 15, 2013, more than 10 days after sentencing, Coxry filed a

motion entitled as a “post-sentence motion” to withdraw his waiver of his

rights.   On August 22, 2013, the court scheduled a hearing on Coxry’s

motion. On January 21, 2014, after two days of hearings, the court denied

Coxry’s motion. On February 7, 2014, Coxry filed a notice of appeal. Both

Coxry and the trial court complied with Pa.R.A.P. 1925.


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        In his lone issue on appeal, Coxry claims that his waiver of his

appellate rights was not knowing, voluntary or intelligent5. He argues that

he waived his appellate rights due to fear that the jury would vote for the

death penalty, but that neither the trial court nor his attorney fully explained

his appellate rights or appellate procedure to him prior to his waiver.

        Coxry failed to file timely post-sentence motions to withdraw his

waiver of his appellate rights.            As a result, his appeal is untimely,

necessitating quashal of his appeal.



____________________________________________


5
    Coxry states the issue as follows:

              The lower court erred in denying the Defendant's
              Post-Sentence Motion. The Defendant's agreement
              on July 22, 2013 to waive his appellate rights in
              exchange for a life sentence was not a knowing,
              voluntary, intelligent waiver in that:

              a. the decision to waive his appellate rights was
              influenced by the threat of the death penalty;
              b. the document signed by the Defendant did not
              fully explain his appellate rights and the appellate
              procedure;
              c. the colloquy conducted by the lower court did not
              fully explain the Defendant's appellate rights and the
              appellate procedure;
              d. defense counsel did not fully explain the
              Defendant's appellate rights and the appellate
              procedure; and
              e. defense counsel did not advise the Defendant of
              the merit of any appellate issues.

Pa.R.A.P. 1925(b) statement, ¶ 1.



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         To elaborate, Coxry’s waiver of his appellate rights is equivalent to a

guilty     plea.     In    Commonwealth          v.   Barnes,   687   A.2d   1163

(Pa.Super.1996), the jury found the defendant guilty of first degree murder.

Before the death penalty phase,

              fearful that the Commonwealth would be successful
              in obtaining the death penalty, [the defendant]
              elected to forego his rights to file any motions for
              post-trial relief, including his right to file post-
              sentencing motions, appeal to any higher courts, and
              to seek federal habeas corpus relief. In return, the
              Commonwealth agreed not to seek the death
              penalty.

Id., 687 A.2d at 1164.             The court sentenced the defendant to life

imprisonment, but he moved to withdraw his waiver of rights.             The trial

court denied the defendant’s motion, and this Court affirmed. We observed

that the defendant “entered the functional equivalent of a plea of guilt. A

plea of guilt that is motivated by a fear that the prosecution may obtain the

death penalty is valid as long as the guilty plea is entered knowingly and

voluntarily.”6     Id. at 1167 (emphasis added) (citing Commonwealth v.

Bhillips, 380 A.2d 1210 (1977)).

         Accordingly, we analyze whether Coxry’s motion to withdraw his

waiver of appellate rights is timely under the rules governing post-sentence
____________________________________________


6
  Barnes went on to hold that the record demonstrated that the defendant
relinquished his post-trial rights knowingly, voluntarily, and intelligently,
notwithstanding his argument that he was suffering from a migraine
headache and diabetes at the time he waived these rights. Barnes, 687
A.2d at 1167.



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motions to withdraw guilty pleas. The Rules of Criminal Procedure require

the defendant to file post-sentence motions challenging the validity of a

guilty plea no later than 10 days after imposition of sentence. Pa.R.Crim.P.

720(A)(1) & (B)(1)(a)(i).   Although timely post-sentence motions toll the

30-day appeal period, post-sentence motions filed after the 10-day deadline

do not toll the 30-day appeal period, even if the trial court holds a hearing

and decides the motions on their merits. Commonwealth v. Dreves, 839

A.2d 1122 (Pa.Super.2003) (en banc). In Dreves, the court sentenced the

defendant on May 10, 2001, and the defendant filed an untimely post-

sentence motion to withdraw his guilty plea on May 30, 2001. On August 6,

2001, following a hearing, the court denied the defendant’s motion.       On

September 4, 2001, the defendant filed an appeal to this Court.          We

quashed the appeal, reasoning: “[S]ince [the defendant] did not file a timely

post-sentence motion, his appeal period began to run from the date

sentence was imposed, i.e., May 10, 2001.       Accordingly, [his] notice of

appeal, which was filed on [September] 4, 2001, almost four months after

the imposition of sentence, was clearly untimely.”    Dreves, 839 A.2d at

1127.

        The outcome of this appeal is the same as Dreves.         The court

sentenced Coxry on July 22, 2013.       Coxry filed an untimely motion to

withdraw his waiver of appellate rights more than 10 days later, on August

15, 2013. The court scheduled hearings on Coxry’s motion and denied it on


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January 21, 2014.         Coxry appealed to this Court on February 7, 2014.

Because Coxry failed to file a timely motion to withdraw his waiver of

appellate rights, his appeal period began running on the date of sentencing,

July 22, 2013.        Thus, his appeal on February 7, 2014 was untimely,

requiring quashal of his appeal7.

____________________________________________


7
 Coxry’s appeal is untimely even if we regard his motion to withdraw his
waiver of appellate rights as a motion for reconsideration under 42 Pa.C.S. §
5505 instead of as a post-sentence motion.

Section 5505 provides: “Except as otherwise provided or prescribed by law,
a court upon notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any term of
court, if no appeal from such order has been taken or allowed.” Under
section 5505, if no appeal had been taken, within 30 days after the
imposition of sentence, the trial court has the discretion to grant a request
to file a post-sentence motion nunc pro tunc. Dreves, supra, 829 A.2d at
1128. If the trial court expressly grants such a request within 30 days after
imposition of sentence, the time for filing an appeal is tolled until after
resolution of the post-sentence motion. Id. In addition, “the request for
nunc pro tunc relief is separate and distinct from the merits of the
underlying post-sentence motion. The 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 1128-29. “Also, when the trial court
grants a request to file a post-sentence motion nunc pro tunc, the post-
sentence motion filed as a result must be treated as though it were filed
within the 10-day period following the imposition of sentence.” Id.

Here, on August 22, 2013, 31 days after imposition of sentence, the court
scheduled a hearing on Coxry’s motion. In the first place, the order was a
nullity under section 5505, because the court issued the order more than 30
days after sentencing. Commonwealth v. Liebensperger, 904 A.2d 40,
44 (Pa.Super.2006) (section 5505 only permits court to modify or rescind
order within 30 days after final order). Moreover, scheduling a hearing was
not equivalent to granting leave nunc pro tunc to file a post-sentence
motion. Commonwealth v. Butler, 566 A.2d 1209, 1211 (Pa.Super.1989)
(section 5505 does not authorize court to schedule hearing during 30 day
(Footnote Continued Next Page)


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      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




                       _______________________
(Footnote Continued)

period but grant relief after 30 day period; order granting relief must be
entered during 30 day period). Thus, Coxry’s appeal is untimely when
viewed through the prism of section 5505.



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