J-S67024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LAVINCE J. PATE

                            Appellant                 No. 776 MDA 2015


           Appeal from the Judgment of Sentence December 14, 2009
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002303-2008
                                         CP-22-CR-0003548-2008


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 09, 2016

        Appellant, Lavince J. Pate, appeals nunc pro tunc from the judgment of

sentence entered on December 14, 2009, in the Court of Common Pleas of

Dauphin County. We affirm the convictions, but vacate the judgment of

sentence and remand for re-sentencing as we have upset the sentencing

scheme.

        This case has an unusual procedural history of which we assume the

parties’ familiarity. We set forth only so much of the procedural history as is

necessary to resolve this appeal.




____________________________________________



    Retired Senior Judge assigned to the Superior Court.
J-S67024-15


      On December 4, 2009, Pate pled guilty to numerous counts stemming

from his trafficking narcotics. The trial court immediately proceeded with

sentencing and imposed a sentence of imprisonment of 5 to 10 years at

count 4 at docket number 2303 CR 2008, which imposed a mandatory

minimum sentence pursuant to 42 Pa.C.S.A. § 9712.1. The trial court further

ordered sentences at the other counts under that docket number and a

count at docket number 3548 CR 2008 to run concurrently to the sentence

at count 4.

      Pate did not file a direct appeal. He eventually filed a timely pro se

PCRA petition and the court appointed counsel. Appointed counsel then filed

a “Motion to Reinstate Appellate Rights Under the Post Conviction Relief Act.”

The motion only sought to reinstate Pate’s direct appeal rights nunc pro

tunc; it did not seek reinstatement of his right to file a post-sentence motion

nunc pro tunc. The PCRA court reinstated Pate’s direct appeal rights nunc

pro tunc on March 16, 2011. The order did not inform Pate that he had thirty

days in which to file an appeal.

      Pate did not file an appeal. Instead, nine days after entry of the order

granting the reinstatement of his appellate rights nunc pro tunc, Pate filed a

motion requesting an extension of time in which to file a post-sentence

motion. The trial court granted the extension. Pate sought and the trial court

granted another such extension. On May 19, 2011, Pate filed a post-

sentence motion in which he sought to withdraw his guilty plea.


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      On July 8, 2011, the trial court held a hearing on the post-sentence

motion. After a brief hearing, the trial court explained that it found that Pate

entered a knowing and voluntary guilty plea. The court informed Pate that

he had “30 days to file your direct appeal. That’s what you got nunc pro

tunc.” N.T., Evidentiary Hearing, 7/8/11, at 11. The trial court did not

promptly enter an order on the docket denying the post-sentence motion.

Nor did the clerk of courts enter an order denying it by operation of law.

Pate did not file an appeal.

      While still represented by counsel, William M. Shreve, Esquire, Pate

filed a pro se PCRA petition, on August 13, 2014, and a supplemental

petition on December 26, 2013. The PCRA court appointed counsel,

Christopher Dreisbach, Esquire. Attorney Dreisbach later petitioned to

withdraw as counsel. “[T]he court recognized the procedural irregularity of

the appointment of PCRA counsel and that the Post-Sentence Motion

remained undecided.” Trial Court Opinion, 10/16/15, at 3. To correct these

procedural anomalies, the court ordered that Attorney Shreve remain as

counsel and entered an order denying the post-sentence motion—on April 9,

2015. The court also denied the PCRA petition as premature.

      After the entry of the April 9 order, Pate filed this appeal. On appeal,

he claims that his sentence is illegal.

      A challenge to an illegal sentence can never be waived, see, e.g.,

Commonwealth v. Mathias, 121 A.3d 558, 562 n.3 (Pa. Super. 2015), but


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to review such a claim “we must first have jurisdiction[,]” Commonwealth

v. Capaldi, 112 A.3d 1242, 1245 n.4 (Pa. Super. 2015) (citation omitted).

We must determine whether we have jurisdiction. To do that we must

untangle the knot that is the procedural history of this case.

      The trial court maintains that Pate’s appeal is untimely, as he should

have appealed within thirty days of the order restoring his appellate rights

nunc pro tunc. The trial court further contends that Pate never had authority

to file a post-sentence motion, as “the reinstatement of direct appeal rights

did not include the right to file a post-sentence motion.” Trial Court Opinion,

10/16/15, at 4. This is an interesting position to take now given that it

permitted not one, but two extensions to file a post-sentence motion.

Indeed, the trial court

      recognize[s] that the Defendant’s motions and the [c]ourt’s
      Orders as to extensions of time within to file a post-sentence
      motion suggested that the nunc pro tunc relief included that
      right. Such orders, while procedurally incorrect, were not
      tantamount to the requisite express grant of a right to file a
      post-sentence motion

Id., at 5.

      We agree with the trial court that Pate should have appealed within

thirty days of the entry of the order granting him restoration of his appellate

rights nunc pro tunc and that he did not have the authority to file a post-

sentence motion. But as we explain below, we cannot find this appeal

untimely as the order granting the restoration of his appellate rights was

defective.

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      The reinstatement of Pate’s direct appeal rights did not automatically

reinstate his right to file a post-sentence motion nunc pro tunc. See

Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009). Rather, in

accordance with Liston, “a PCRA petitioner who is granted reinstatement of

his direct-appeal rights nunc pro tunc is not entitled to a subsequent order

reinstating his right to file post-sentence motions nunc pro tunc if he has not

requested such relief with the PCRA court, and if the court did not hold an

evidentiary hearing on that issue.” Commonwealth v. Fransen, 986 A.2d

154, 155 (Pa. Super. 2009).

      Pate only requested reinstatement of his direct appeal rights; he did

not request reinstatement of his right to file a post-sentence motion. The

trial court should never have entertained motions for extensions of time to

file a post-sentence motion. Pate had no authority to file a post-sentence

motion, as he never requested reinstatement of his right to file that motion.

The hearing on that motion was a legal nullity, rendering the trial court’s

explanation of his appellate rights at that time meaningless. In addition, the

trial court did not enter an order on the docket until years later.

      Interestingly, the Commonwealth argues that the appeal is untimely

as the post-sentence motion was denied by operation of law “on or around

September 16, 2011.” Commonwealth’s Brief, at 6. This position is simply

untenable. As mentioned, the trial court entered an order on the docket

years after the hearing; it was never denied by operation of law. See


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Pa.R.Crim.P. 720(3)(c) (“When a post-sentence motion is denied by

operation of law, the clerk of courts shall forthwith enter an order on behalf

of the court, and, as provided in Rule 114, forthwith shall serve a copy of the

order on the attorney for the Commonwealth, the defendant's attorney, or

the defendant if unrepresented, that the post-sentence motion is deemed

denied. …”). The clerk of courts never entered an order on the docket in this

case.

        The restoration of Pate’s direct appeal rights provided him with the

exact appellate rights he originally had. See Commonwealth v. Wright,

846 A.2d 730, 735 (Pa. Super. 2004). Pate was thus required to file an

appeal within thirty days of entry of the order reinstating his direct appeal

rights. See id. He did not. He filed the instant appeal years later. This

appeal is patently untimely and we appear to be without jurisdiction. But

there is yet another wrinkle:     The order reinstating Pate’s direct appeal

rights nunc pro tunc failed to inform him that he had thirty days to file an

appeal. The order simply provides that “[T]he Defendant’s appellate rights

are hereby reinstated.” Order, filed 3/16/11. In Wright, decided years

before entry of the order in this case, this Court wrote to make it “clear” that

“if a PCRA court restores a defendant’s direct appeal rights nunc pro tunc,

the court must inform the defendant that the appeal must be filed within 30

days of the entry of the order.” 846 A.2d at 735 (emphasis added).




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       Accordingly, we will not quash this appeal as untimely filed and will

address it on the merits given the complete absence of notice of the thirty-

day appeal period. See id. See also In re J.M.P., 863 A.2d 17, 20 (Pa.

Super. 2004) (refusing to quash appeal as untimely where order granting

leave to reinstate the appeal nunc pro tunc did not provide notice of thirty-

day appeal period); Commonwealth v. Bogden, 528 A.2d 168, 170 (Pa.

Super. 1987) (holding that an appeal would not be quashed as untimely

when trial court misinformed the defendant by not advising him that an

appeal had to be taken within thirty days of the imposition of sentence).

       We proceed to the merits. Despite all of the procedural problems in

this   case,   the   actual   resolution   of   this   appeal   on   the   merits   is

straightforward.

       Pate argues that he was sentenced to a mandatory minimum prison

term based on statutes that are facially invalid pursuant to Alleyne v.

United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). There, the United

States Supreme Court held that, under the Sixth Amendment to the United

States Constitution, a jury must find beyond a reasonable doubt any facts

that increase a mandatory minimum sentence. We agree with Pate and

vacate the judgment of sentence in its entirety and remand for re-

sentencing.




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       This issue presents a question of law. Our scope of review is plenary

and our standard of review is de novo. See Commonwealth v. Wilson, 67

A.3d 736, 741 (Pa. 2013).

       The statutes Pate cites are 18 Pa.C.S.A. § 7508, Drug trafficking

sentencing and penalties, and 42 Pa.C.S.A. § 9712.1, Sentences for certain

drug offenses committed with firearms. Both of these statutes are facially

invalid. See Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014)

(finding § 7508 facially invalid); Commonwealth v. Newman, 99 A.3d 86,

98 (Pa. Super. 2014) (en banc) (“Plainly, Section 9712.1 can no longer pass

constitutional muster.”).

       Here, the trial court imposed a mandatory minimum sentence under §

9712.1 at count 4 at docket number 2303 CR 2008. See N.T., Sentencing,

12/14/09, at 16. As § 9712.1 is facially invalid, a mandatory minimum

sentence imposed under this statute is illegal.

       With respect to § 7508, Pate claims he was sentenced to a “three year

mandatory.” Appellant’s Brief, at 9. A review of the record, however,

discloses that Pate did not receive a three-year mandatory minimum

sentence at any count. See at 2303 CR 2008 count 2, 2-4 years, count 3, 2-

4 years, count 6, $25 fine, and count 7, 12 months’ probation; at 3548 CR

2008, 1-2 years.1 The sentencing proceeding was not a model of clarity. If

____________________________________________


1
    At 2303 CR 2008, the Commonwealth withdrew counts 1 and 5.



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the sentence somehow implicated § 7508, that can easily be corrected on

remand given that statute’s facial invalidity.

       We find that our resolution of Pate’s appeal has upset the trial court’s

sentencing scheme. We vacate the judgment of sentence in its entirety and

remand for re-sentencing in accordance with this memorandum. See

Commonwealth v. Phillips, 946 A.2d 103, 115 (Pa. Super. 2008) (“Where

we determine that a sentence must be corrected, this Court has the option

of amending the sentence directly or remanding it to the trial court for re-

sentencing. If a correction by this Court may upset the sentencing scheme

envisioned by the trial court, the better practice is to remand.”).

       Convictions affirmed. Judgment of sentence vacated. Case remanded

for   re-sentencing   in   accordance   with   this   memorandum.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




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