J. S36034/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                 v.                    :
                                       :
KENNETH JOHN SHAFFER, SR.,             :         No. 3446 EDA 2016
                                       :
                      Appellant        :


           Appeal from the Judgment of Sentence, July 6, 2015,
              in the Court of Common Pleas of Wayne County
             Criminal Division at No. CP-64-CR-0000042-2006


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JULY 17, 2017

     Kenneth John Shaffer, Sr., appeals from the July 6, 2015 judgment of

sentence entered in the Court of Common Pleas of Wayne County following

his guilty plea to rape of a child, involuntary deviate sexual intercourse

(“IDSI”), statutory sexual assault, aggravated indecent assault, indecent

exposure, and corruption of minors.1 The trial court imposed an aggregate

term of imprisonment of 16 to 45 years. We quash.

           This Court previously set forth most of the relevant
           facts and procedural history of this case as follows:

                 On May 12, 2006, [Appellant] pled guilty
                 to two counts each of aggravated
                 indecent assault and corruption of a
                 minor, and one count each of rape of a
                 child, [IDSI], statutory sexual assault

1
  18 Pa.C.S.A. §§ 3121(c), 3123(a)(7), 3122.1, 3125(a)(7), 3125(a)(8),
3127(a), 6301(a)(1), respectively.
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               and     [indecent    exposure].       On
               September 11, 2006, the trial court
               sentenced [Appellant] to an aggregate
               sentence of 16 years and 6 months to
               45 years in prison. [Appellant] filed a
               Motion for reconsideration of sentence,
               which the trial court denied. Thereafter,
               the Commonwealth filed a Petition to
               Amend Sentence, averring that there
               was an error in the sentencing
               computation, but that the total sentence
               imposed      was    appropriate.      On
               December 14, 2012, the trial court
               entered an Order which clarified that
               [Appellant’s] total sentence is 15 years
               and 6 months to 45 years in prison.
               Subsequently, on February 28, 2013, the
               trial court entered another Order that
               amended the December 14, 2012
               sentencing     Order    to    read   that
               [Appellant’s] total sentence is 16 years
               and 6 months to 45 years in prison.

               On July [19], 2013, [Appellant], pro se,
               filed [a Post Conviction Relief Act
               (“PCRA”)][Footnote 2] Petition.       The
               PCRA court appointed Attorney [Lindsey]
               Collins as counsel. Attorney Collins filed
               an     amended     PCRA     Petition    on
               [Appellant’s] behalf alleging improper
               sentencing on the rape of a child count.
               The PCRA court and the Commonwealth
               agreed that a sentencing error was made
               in relation to the rape of a child count.
               Accordingly, the PCRA court vacated the
               sentence imposed on that count only.
               On [March 4], 2014, following a hearing,
               the PCRA court resentenced [Appellant]
               solely on the rape of a child count to
               66 months to 20 years in prison. Based
               on this resentencing, [Appellant’s] new
               total aggregate sentence was 16 to
               45 years in prison. [Appellant] filed a
               Motion for reconsideration of sentence,


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                which the PCRA         court   denied    on
                March [12], 2014.

                      [Footnote 2]  42 Pa.C.S.A.
                      §§ 9541-9546.

          Commonwealth v. Shaffer, No. 1085 EDA 2014,
          unpublished memorandum at 1-3 (Pa.Super. filed
          November 26, 2014) (footnotes omitted).

          On November 26, 2014, this Court vacated
          Appellant’s judgment of sentence in its entirety and
          remanded         for      resentencing        on     all
          counts.[Footnote 3]      The trial court resentenced
          Appellant on July [6], 2015, to consecutive terms of
          incarceration of five-and-one-half (5½) to twenty
          (20) years for rape of a child, five (5) to ten (10)
          years for IDSI, one (1) to five (5) years for statutory
          sexual assault, two-and-one-half (2½) to five (5)
          years for aggravated indecent assault (victim less
          than 13 years of age), and two (2) to five (5) years
          for aggravated indecent assault (victim less than
          16 years of age). The court also imposed concurrent
          terms of incarceration of three (3) months to two (2)
          years for indecent exposure, and six (6) months to
          two (2) years for each count of corruption of minors.
          Thus, Appellant’s aggregate sentence was sixteen
          (16) to forty-five (45) years’ incarceration.

                [Footnote 3]       This Court explained:
                “[W]e cannot determine from our review
                of the record whether the declared
                invalidity of the sentence on the rape of
                a child count would have affected the
                trial court’s sentencing on the remaining
                counts[.]” Id. at 3.

          Immediately following resentencing, Attorney Collins
          withdrew and the court appointed new counsel “for
          purposes of [Appellant’s] appeal only.” (See Order,
          filed July 7, 2015). On July 15, 2015, Appellant filed
          a pro se post-sentence motion, which the court
          denied on August 3, 2015, without notice to counsel
          of record.     Appellant filed a counseled notice of


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             appeal on September 1, 2015. The court ordered
             Appellant to file a concise statement of errors
             complained      of   on   appeal,    pursuant     to
             Pa.R.A.P. 1925(b), with notice to counsel of record.
             Appellant filed a pro se Rule 1925(b) statement on
             October 9, 2015. The court issued its Rule 1925(a)
             opinion on October 23, 2015, in response to
             Appellant’s pro se Rule 1925(b) statement. Counsel
             filed an amended Rule 1925(b) statement on
             November 30, 2015.

Commonwealth         v.   Shaffer,   No.   2682       EDA   2015,   unpublished

memorandum at 1-4 (Pa.Super. filed June 3, 2016) (most brackets in

original).

      The record further reflects that on direct appeal to this court at

No. 2682 EDA 2015, this court identified “procedural irregularities [that]

implicate[d] [a]ppellant’s fundamental right to counsel and constitute[d] a

breakdown in the court’s operation, which resulted in [a]ppellant’s waiver of

any discretionary aspects of sentencing claims he [raised in that] appeal.”

Id. at 7. As such, on June 3, 2016, this court remanded the case to the trial

court for further proceedings with directions that:

             [w]ithin ten (10) days of the filing date of this
             decision, counsel shall confer with Appellant and file
             a post-sentence motion nunc pro tunc raising any
             appropriate sentencing claims Appellant wishes to
             pursue, after which Appellant can file a nunc pro
             tunc appeal in due course.[Footnote 4]

                   [Footnote 4] The trial court imposed
                   Appellant’s current sentence following
                   remand from this Court, which directed
                   the trial court to resentence Appellant on
                   all counts.     Therefore, Appellant can
                   raise issues related to and within the


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                     scope of this Court’s previous remand
                     (sentencing only).

Id. at 7. The record reflects that this court’s decision was filed on June 3,

2016 and that appellant filed his post-sentence motion nunc pro tunc on

June 14, 2016.       The record further reflects that on November 4, 2016,

appellant filed a praecipe with the trial court that requested the prothonotary

to enter an order denying appellant’s post-sentence motion nunc pro tunc

by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(c).         On the same

day, appellant filed a notice of appeal to this court. On November 7, 2016,

the trial court ordered appellant to file a statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied. In response,

the trial court filed a “statement of reasons.”

      On December 27, 2016, this court entered an order directing appellant

to show cause within 10 days as to why this appeal should not be quashed

as untimely filed because nothing on the trial court docket indicates that

appellant filed his post-sentence motion nunc pro tunc by June 13, 2016.

(Order of court, 12/27/16.)        Appellant failed to respond to this court’s

show-cause order.

      This   court     lacks   jurisdiction   to   consider   untimely   appeals.

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

Where a defendant’s direct appeal rights have been reinstated nunc pro

tunc, the defendant has 30 days from the reinstatement order to file a

direct appeal. Commonwealth v. Wright, 846 A.2d 730, 735 (Pa.Super.


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2004).   A post-sentence motion that is not timely filed does not toll the

30-day direct appeal period. Commonwealth v. Wrecks, 934 A.2d 1287,

1289 (Pa.Super. 2007); see also Pa.R.Crim.P. 720(A)(3).

     Here, this court restored appellant’s direct appeal rights nunc pro

tunc and ordered appellant to file his post-sentence motion nunc pro tunc

within 10 days of June 3, 2016, after which appellant could file a nunc pro

tunc appeal to this court. Appellant failed to timely file his post-sentence

motion nunc pro tunc. Moreover, appellant filed his notice of appeal to this

court on November 4, 2016, which was well beyond the 30-day period

during which he was required to file an appeal.    Finally, on December 27,

2016, this court ordered appellant to show cause within 10 days as to why

this appeal should not be quashed as untimely. Appellant failed to respond.

We, therefore, quash this appeal.2

     Appeal quashed.




2
  We also note that in his brief to this court, appellant challenged certain
discretionary aspects of his sentence. Because appellant’s notice of appeal
was untimely and because appellant failed to properly preserve his claims in
a timely post-sentence motion nunc pro tunc, appellant would be unable to
satisfy the four-part test necessary to invoke this court’s jurisdiction to
review discretionary sentencing challenges.        See Commonwealth v.
Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (an appellant challenging the
discretionary aspects of his sentence must invoke this court’s jurisdiction by
satisfying a four-part test that requires appellant to have filed a timely
notice of appeal, to have properly preserved the issues at sentencing or in a
post-sentence motion, to have included a Pa.R.A.P. 2119(f) statement in his
brief, and to have raised a substantial question).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2017




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