Com. v. Myers, R. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RALPH GENE MYERS, :
:
Appellant : No. 1057 WDA 2017
Appeal from the Judgment of Sentence May 2, 2017
in the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000425-2016
BEFORE: OLSON, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 20, 2018
Ralph Gene Myers (Appellant) appeals from the judgment of sentence
of nine to 16 months of incarceration imposed after he pled guilty to one count
of theft by unlawful taking. We affirm.
On March 2, 2017, Appellant, represented by Armstrong County Public
Defender James H. Wray, Esquire, entered a guilty plea to one count of theft
by unlawful taking. N.T., 3/2/2017, at 5. In exchange for the guilty plea, the
Commonwealth agreed to recommend a sentence of probation and to nolle
pros the remaining charges. Id. at 8. The trial court clarified this agreement
with Appellant.
THE COURT: You understand that once the district attorney comes
in and make[s] his recommendation, he’s upheld his end of the
bargain?
[APPELLANT]: Yes, Your Honor.
*Retired Senior Judge assigned to the Superior Court.
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THE COURT: You understand that[ it is] a recommendation only?
[APPELLANT]: Yes, Your Honor.
THE COURT: It’s not binding upon the court and final sentencing
authority lies with the judge imposing sentence. Do you
understand that?
[APPELLANT]: Yes, Your Honor.
THE COURT: Of course, failure to sentence you in accordance with
the plea recommendation is not a basis to withdraw your plea. Do
you understand that?
[APPELLANT]: Yes, Your Honor.
THE COURT: With these understandings in mind, do you reaffirm
your desire to enter a plea in open court?
[APPELLANT]: Yes, Your Honor.
Id. at 8-9.
Appellant pled guilty and signed the written plea colloquy.1 The trial
court scheduled sentencing for May 2, 2017, and Appellant appeared on that
date. The trial court acknowledged that the Commonwealth was
recommending probation. N.T., 5/2/2017, at 7. However, the trial court
decided to sentence Appellant to a standard-range sentence of nine to 16
months of incarceration. Id. Attorney Wray affirmed that Appellant completed
1 Here, Appellant entered into an open guilty plea with a sentencing
recommendation. This situation is distinct from a negotiated guilty plea,
where the Commonwealth and defendant agree upon the sentence. Under
those circumstances, a defendant may withdraw his guilty plea if the
sentencing court does not sentence the defendant to the agreed-upon
sentence. See Commonwealth v. Root, __ A.3d __, 2018 WL 718543 (Pa.
Super. 2018).
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a post-sentence colloquy form. Id. at 8; see Defendant’s Post-Sentence
Rights, 5/2/2017 (explaining accurately Appellant’s post-sentence rights).
On May 10, 2017, Appellant pro se requested to withdraw his guilty plea
based on the Commonwealth’s purported failure to conform to the negotiated
plea agreement. That motion was forwarded to the trial court. On May 18,
2017, Appellant pro se requested a modification of his sentence, claiming that
he was not given sufficient credit for time served. He also requested the trial
court reduce his sentence based on his completing certain courses while in
jail. Again, this document was forwarded to the trial court. On May 18, 2017,
the trial court denied Appellant’s motion to withdraw his guilty plea. On May
23, 2017, the trial court scheduled a hearing on the motion to modify sentence
for June 26, 2017. On June 20, 2017, Attorney Wray filed a motion to
withdraw his appearance. The trial court granted that motion on June 21,
2017.
On June 26, 2017, the trial court held a hearing on Appellant’s motion
to modify sentence, where Appellant appeared pro se.2 On June 27, 2017,
the trial court concluded that Appellant’s motion to modify sentence was
untimely filed, and therefore it denied the motion. Attorney Wray
subsequently re-entered his appearance on Appellant’s behalf, and on July 18,
2017, filed a notice of appeal from the order denying Appellant’s motion to
2 There is no transcript of this hearing in the certified record.
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modify sentence. The trial court ordered Appellant to file a concise statement,
and Appellant complied by filing a statement challenging the discretionary
aspects of his sentence. The trial court then filed an opinion pursuant to
Pa.R.A.P. 1925(a).
On appeal, Appellant challenges the discretionary aspects of his
sentence. Before we reach the issue presented on appeal, we must address
concerns about the timeliness of this appeal. The trial court suggests this
appeal is untimely filed. Inexplicably, neither Appellant nor the
Commonwealth addresses this issue.
“The question of timeliness of an appeal is jurisdictional.”
Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). “Except
as otherwise prescribed by this rule, the notice of appeal … shall be filed within
30 days after the entry of the order from which the appeal is taken.” 3 Pa.R.A.P.
903(a). With respect to an appeal from a judgment of sentence where a
timely post-sentence motion was filed, an appeal must be filed within 30 days
of the order denying that motion. See Pa.R.Crim.P. 720(A)(2)(a). In addition,
an order denying a post-sentence motion must inform a defendant of his right
to appeal, the time for filing that appeal, and the right to assistance of counsel.
See Pa.R.Crim.P. 720(B)(4).
3Appellant was sentenced on May 2, 2017. The thirtieth day after that is June
1, 2017. This notice of appeal was filed on July 18, 2017.
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Instantly, counsel for Appellant did not file a post-sentence motion.
However, Appellant filed two pro se post-sentence motions while represented
by counsel, which we consider mindful of the following.
In this Commonwealth, hybrid representation is not permitted.
Accordingly, [the trial court] will not accept a pro se motion while
an appellant is represented by counsel; indeed, pro se motions
have no legal effect and, therefore, are legal nullities. When a
counseled defendant files a pro se document, it is noted on the
docket and forwarded to counsel pursuant to Pa.R.Crim.P.
576(A)(4),[4] but no further action is to be taken. Moreover, a pro
se filing has no tolling effect.
Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (internal
citations omitted) (holding that there is an exception where a trial court is
required to docket a pro se notice of appeal as it protects a constitutional
right).
With respect to post-sentence motions, in Commonwealth v.
Nischan, 928 A.2d 349 (Pa. Super. 2007), this Court held that where a pro
se post-sentence motion was filed by a represented defendant, that motion
4
In any case in which a defendant is represented by an attorney, if
the defendant submits for filing a written motion, notice, or
document that has not been signed by the defendant’s attorney,
the clerk of courts shall accept it for filing, time stamp it with the
date of receipt and make a docket entry reflecting the date of
receipt, and place the document in the criminal case file. A copy
of the time stamped document shall be forwarded to the
defendant’s attorney and the attorney for the Commonwealth
within 10 days of receipt.
Pa.R.Crim.P. 576(A)(4).
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“was a nullity, having no legal effect.” Id. at 355. However, an untimely-filed
post-sentence motion may toll the time period under certain circumstances.
Under Commonwealth v. Dreves, 839 A.2d 1122, 1128
(Pa. Super. 2003) (en banc), a post-sentence motion nunc pro
tunc may toll the appeal period, but only if two conditions are met.
First, within 30 days of imposition of sentence, a defendant must
request the trial court to consider a post-sentence motion nunc
pro tunc. “The request for nunc pro tunc relief is separate and
distinct from the merits of the underlying post-sentence motion.”
Id. at 1128–29. Second, the trial court must expressly permit the
filing of a post-sentence motion nunc pro tunc, also within 30 days
of imposition of sentence. Id. at 1128 & n. 6. “If the trial court
does not expressly grant nunc pro tunc relief, the time for filing
an appeal is neither tolled nor extended.” Id. at 1128. Moreover,
“[t]he 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 1129.
Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015).
With these principles in mind, we now consider the pro se motions filed
by Appellant. On May 10, 2017, eight days after sentencing, Appellant filed
pro se a motion to withdraw his guilty plea. Based upon Nischan, supra,
that motion was a nullity. However, that motion was not forwarded to counsel
as required by Pa.R.Crim.P. 576(A)(4). Further compounding that error, the
trial court’s May 18, 2017 denial of that motion did not inform Appellant of his
right to appeal, in violation of Pa.R.Crim.P. 720(A)(2)(a).
Then, on May 18, 2017, 16 days after Appellant’s sentencing, Appellant
pro se filed a motion to modify sentence asserting two claims: 1) that he was
not given credit for time served, and 2) that his sentence should be reduced.
Again, that motion was not forwarded to counsel in compliance with
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Pa.R.Crim.P. 576(A)(4). Moreover, the trial court permitted counsel to
withdraw and held a hearing on this motion where Appellant appeared pro se.
The trial court then denied the motion as untimely filed and complied with the
mandates of Pa.R.Crim.P. 720(A)(2)(a). Then, counsel re-entered his
appearance and filed a notice of appeal within 30 days of the entry of that
order.
We have held that “in the case of fraud or breakdown in the processes
of the court,” we may excuse the untimely filing of an appeal.
Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007). A
breakdown may occur “when the trial court or the clerk of courts departed
from the obligations specified in” the Rules of Criminal Procedure. Id. at 499.
Based on the foregoing, we conclude there were sufficient procedural missteps
by the trial court and clerk of courts, most importantly the failure of the clerk
of courts to comply with Pa.R.Crim.P. 576(A)(4), and the failure of the trial
court to comply with Pa.R.Crim.P. 720(A)(2)(a), in denying the first pro se
post-sentence motion. Accordingly, we decline to quash this appeal as
untimely filed, and we will proceed to address Appellant’s claim.
As noted supra, Appellant is challenging the discretionary aspects of his
sentence. Specifically, he suggests the trial court erred in sentencing him in
the standard range when it could have sentenced him in the mitigated range.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
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Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage in
a four[-]part analysis to determine: (1) whether the appeal
is timely [filed]; (2) whether Appellant preserved his issue;
(3) whether Appellant’s brief includes a concise statement
of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and (4)
whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing
code.... [I]f the appeal satisfies each of these four
requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Instantly, we determined supra that the appeal was timely filed.
However, we must consider whether this issue was preserved in Appellant’s
post-sentence motion. Even if Appellant’s May 18, 2017 post-sentence motion
were timely filed,5 the only discretionary-aspects-of-sentencing claim in that
motion was a claim that the trial court should reduce Appellant’s sentence
because he completed several prison programs. That is not the same claim
that Appellant presents on appeal; therefore, we conclude that Appellant has
not preserved this issue.6
5 Appellant’s May 10, 2017 motion to withdraw his guilty plea did not contain
a sentencing claim.
6 In addition, we point out that Appellant has not included a Pa.R.A.P. 2119(f)
statement in his brief. Although the Commonwealth has not objected to this
failure, we may, in our discretion, decline to address the issue. See
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (“[W]hen
the appellant has not included a Rule 2119(f) statement and the
[Commonwealth] has not objected, this Court may ignore the omission and
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In any event, Appellant’s claim that the trial court should have
sentenced him in the mitigated range instead of the standard range does not
raise a substantial question. “A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing Code;
or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(internal quotation marks omitted). We conclude that Appellant’s argument
that the trial court should have sentenced him in the mitigated range instead
of the standard range does not present an argument that Appellant’s sentence
was either “inconsistent with a specific provision of the Sentencing Code,” or
“contrary to the fundamental norms which underlie the sentencing process.”7
Id.
Based on the foregoing, we conclude Appellant has not presented to this
Court any basis to disturb his judgment of sentence.
Judgment of sentence affirmed.
determine if there is a substantial question that the sentence imposed was not
appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e.,
deny allowance of appeal.”).
7 In fact, Attorney Wray conceded at sentencing that he was “not aware of
any” mitigating factors. See N.T., 5/2/2017, at 5.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2018
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