J-S15010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                v.

NELSON EARL HARTLEY

                      Appellant               No. 1477 MDA 2014


        Appeal from the Judgment of Sentence August 14, 2014
           In the Court of Common Pleas of Centre County
         Criminal Division at No(s): CP-14-CR-0001391-2012


                                  *****

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                v.

NELSON EARL HARTLEY

                      Appellant               No. 1478 MDA 2014


        Appeal from the Judgment of Sentence August 14, 2014
           In the Court of Common Pleas of Centre County
         Criminal Division at No(s): CP-14-CR-0001571-2012


                                  *****

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                v.

NELSON EARL HARTLEY

                      Appellant               No. 1479 MDA 2014
J-S15010-15




             Appeal from the Judgment of Sentence August 14, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000738-2013


                                      *****

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

NELSON EARL HARTLEY

                          Appellant                No. 1480 MDA 2014


             Appeal from the Judgment of Sentence August 14, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000739-2013


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                          FILED APRIL 06, 2015

     Nelson Earl Hartley appeals from the judgment of sentence imposed by

the Court of Common Pleas of Centre County following the revocation of his

probation.     Upon review, we vacate Hartley’s sentence and remand for

resentencing.

     On August 14, 2014, Hartley appeared for a violation of probation

hearing.     It was determined that Hartley violated the conditions of his

probation prohibiting him from consuming alcohol and entering bars.

Following the hearing, the court sentenced Hartley to a period of six to




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twelve months’ incarceration on each of the four violations, to run

consecutively to each other. Hartley did not file a post-sentence motion.

      On August 29, 2014, Hartley filed a notice of appeal on each of the

four enumerated sentences.      He timely complied with the court’s order to

provide a statement of errors complained of on appeal on September 18,

2014. The four cases were consolidated for appeal on September 22, 2014.

      On appeal, Hartley presents the following issues for our review:

      1. Did the lower court deny Hartley his right of allocution at his
         sentencing following the violation of his probation?

      2. Was the issue regarding the deprivation of Hartley’s right to
         allocution preserved for appellate review despite the failure to
         present the issue to the court below in a post-sentence
         motion where the court did not advise defendant of his right
         to file a post-sentence motion?

Brief of Appellant, at 8.   For ease of disposition, we will address Hartley’s

second issue first.

      In his second issue, Hartley asks this Court to excuse his failure to

raise the issue of allocution in a post-sentence because the court did not

apprise him of his right to file such a motion at the time of sentencing. The

probation revocation court acknowledges that at the time of sentencing, it

did not afford Hartley his right of allocution nor advise him of his post-

sentence rights as required by Pa.R.Crim.P. 708(D).

      Pennsylvania Rule of Criminal Procedure 708(D) provides:

      (D) Sentencing Procedures:

      (1) At the time of sentencing, the judge shall afford the
      defendant the opportunity to make a statement in his or her


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       behalf and shall afford counsel for both parties the opportunity
       to present information and argument relative to sentencing.

       (2) The judge shall state on the record the reasons for the
       sentence imposed.

       (3) The judge shall advise the defendant on the record:

          (a) of the right to file a motion to modify sentence and to
          appeal, of the time within which the defendant must
          exercise those rights, and of the right to assistance of
          counsel in the preparation of the motion and appeal.

Pa.R.Crim.P. 708(D). Regarding such omissions by the trial court, this Court

has previously held,

       The proper recourse regarding the court’s failure to afford
       appellant the right to allocute on his own behalf is to vacate the
       sentence and remand for resentencing. The court’s failure to
       advise appellant of his reconsideration of sentence rights should
       result in an order from this court requiring the sentencing court
       to entertain appellant’s motion for reconsideration of sentence
       nunc pro tunc.

Commonwealth v. Curry, 465 A.2d 660, 664 (Pa. Super. 1983).1

       In Curry, the sentencing court denied Curry his right to allocution and

failed to advise Curry of his right to file a motion for reconsideration of

sentence within ten (10) days of imposition of sentence. Despite counsel’s

eloquent allocution on behalf of his client, this Court found the omissions to

constitute reversible error. We vacated Curry’s sentence and remanded for

____________________________________________


1
   We recognize that although a majority of this Court would later distance
itself from Curry in Commonwealth v. Brown, 492 A.2d 745 (Pa. Super.
1985), Brown disapproved Curry only “to the extent [it] would allow
counsel to be found ineffective for failing to preserve allocution rights where
no factual basis for the allocution claim is offered.” Brown, 492 A.2d at
758.



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resentencing, after which Curry would have the right to file a motion for

modification and reconsideration pursuant to Pa.R.Crim.P. 1410.

     We find Curry dispositive in the case sub judice.        Here, the court

denied Hartley his right to allocute on his own behalf and failed to apprise

Hartley of his right to file a post-sentence motion.     Although counsel’s

allocution on Hartley’s behalf was persuasive, as demonstrated by the

sentencing judge’s decision to impose a more lenient sentence, we cannot

overlook these errors.    Accordingly, we vacate Hartley’s sentence and

remand for resentencing. Hartley shall be afforded the right to allocute on

his own behalf and, following resentencing, he shall be apprised of his right

to file a post-sentence motion pursuant to Pa.R.Crim.P. 1410.

     Sentence vacated and the matter remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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