Com. v. Martinez, R. , 2016 Pa. Super. 118 ( 2016 )

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2016 Pa. Super. 118
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD ELIAS MARTINEZ,
Appellant No. 1672 MDA 2015
Appeal from the Judgment of Sentence April 5, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000819-2012
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
OPINION BY SHOGAN, J.: FILED JUNE 10, 2016
Appellant, Richard Elias Martinez, appeals from the judgment of
sentence entered April 5, 2013. After careful consideration, we vacate and
remand.
On May 30, 2012, Appellant was charged with thirteen counts of
robbery, four counts of terroristic threats, three counts of theft by unlawful
taking, three counts of receiving stolen property, one count of aggravated
assault, and two counts of simple assault. Appellant entered an open nolo
contendere plea on September 21, 2012, on all counts and was sentenced
on November 13, 2012, to an aggregate term of eight to sixteen years in a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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state correctional institution. On November 19, 2012, the Commonwealth
filed a post-sentence motion, requesting that the sentencing court apply the
deadly weapon enhancement to Appellant’s sentence.
On December 11, 2012, the trial court entered an order scheduling a
hearing on the post-sentence motion for December 27, 2012. The record
reflects that on December 19, 2012, an order was issued by the trial court
directing the Sheriff of Centre County to produce Appellant at the December
27, 2012 hearing. On January 16, 2013, the trial court entered an order
granting the Commonwealth’s post-sentence motion, stating the following:
“the Commonwealth’s Post-Sentence Motion is hereby GRANTED and
[Appellant] shall be resentenced.” Order, 1/16/13. Additionally, the order
scheduled the resentencing hearing for February 26, 2013. Id.
The record is devoid of any further information regarding the
scheduled February 26, 2013 resentencing hearing. Of particular note is the
fact that the record does not contain an order directing the Sheriff to
produce [Appellant] from the State Correctional Institution on that date.
Thus, although unclear from the record as to the reason, it is apparent that
the resentencing hearing did not take place on February 26, 2013.1
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1
The Commonwealth and Appellant also indicate that the resentencing
hearing did not take place on February 26, 2013. Commonwealth’s Brief at
3, 8-9; Appellant’s Brief at 12.
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The next docket entry is an order entered March 7, 2013, in which the
trial court directed that Appellant be transported from the State Correctional
Institution for his resentencing hearing scheduled for April 5, 2013. Order,
3/7/13. Following the hearing, the trial court resentenced Appellant, in
accordance with the deadly weapon enhancement, to an aggregate sentence
of ten and one-half to twenty-one years of imprisonment. N.T., 4/5/13, at
12-17; sentencing orders, 4/5/13, amended sentencing order, 5/2/13. On
the same date, the trial court issued an order vacating Appellant’s original
sentence imposed on November 13, 2012. Order, 4/16/13.
Appellant was represented by Attorney Tami Fees at the time. Ms.
Fees filed a timely notice of appeal to this Court. The appeal was docketed
at 940 MDA 2013. Because counsel failed to file a brief, however,
Appellant’s direct appeal was dismissed by this Court on November 8, 2013.
Order, 11/8/13.
On December 2, 2014, Appellant filed a pro se Motion for Post-
Conviction Relief. Appellant was appointed new counsel. Appellant’s direct
appeal rights were reinstated nunc pro tunc on September 18, 2015 and
Appellant filed a notice of appeal on September 28, 2015.2 Appellant and
the trial court complied with the requirements of Pa.R.A.P. 1925.
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2
Although Appellant purports to appeal from the September 18, 2015 order
reinstating his direct appeal rights, Appellant’s appeal properly lies from the
(Footnote Continued Next Page)
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Appellant presents the following issue for our review:
Does a sentencing court lack jurisdiction to vacate a
sentence it had lawfully imposed and resentence a defendant
pursuant to a Commonwealth post-sentence motion where more
than 120 days had elapsed from the filing of that motion?
Appellant’s Brief at 8.
Appellant argues that the trial court lacked jurisdiction to resentence
Appellant on April 5, 2013. Appellant’s Brief at 16. Appellant argues that
because Pa.R.Crim.P. 721 requires disposition of a post-sentence motion
within 120 days of the filing of the motion, a resentencing must occur within
that time limitation. Id. at 15. Appellant cites to Pa.R.Crim.P. 721(C)(2) in
support of his argument that a Commonwealth’s post-sentence motion must
be fully resolved within 120 days of its filing. Id. at 14. Here, the
Commonwealth’s post-sentence motion was filed November 19, 2012, and
the trial court did not vacate the original sentence or resentence Appellant
until April 5, 2013, which was 137 days after the motion was filed. Id. at
16. Thus, Appellant asserts that the court lacked jurisdiction to impose the
April 5, 2013 sentence, and therefore, the sentence was illegal and must be
vacated. Id. at 16.
Because Appellant argues that the trial court lacked jurisdiction to
impose a new sentence at the resentencing hearing on April 5, 2013,
_______________________
(Footnote Continued)
judgment of sentence entered on April 5, 2013. The caption properly
reflects that date.
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Appellant’s challenge is to the legality of the sentence imposed. See
Commonwealth v. Tobin, 89 A.3d 663, 668 (Pa. Super. 2014) (“The two
most basic and classic examples of an illegal sentence are sentences that
exceed the statutory maximum and a sentence imposed by a court without
jurisdiction.”). When examining a challenge to the legality of a sentence,
our scope and standard of review are as follows:
A claim that implicates the fundamental legal authority of
the court to impose a particular sentence constitutes a challenge
to the legality of the sentence. If no statutory authorization
exists for a particular sentence, that sentence is illegal and
subject to correction. An illegal sentence must be vacated.
When the legality of a sentence is at issue on appeal, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010) (en banc)
(internal citations and quotation marks omitted).
Rule 721 of the Pennsylvania Rules of Criminal Procedure sets forth
the procedure for Commonwealth challenges to an appellant’s sentence.
Rule 721. Procedures for Commonwealth Challenges to
Sentence; Sentencing Appeals
(A) Commonwealth Challenges to Sentence
(1) The Commonwealth may challenge a sentence by filing a
motion to modify sentence, by filing an appeal on a preserved
issue, or by filing a motion to modify sentence followed by an
appeal.
(2) Sentencing issues raised by the Commonwealth at the
sentencing proceeding shall be deemed preserved for appeal
whether or not the Commonwealth elects to file a motion to
modify sentence on those issues.
(B) Timing
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(1) Motion for Modification of Sentence. A Commonwealth
motion for modification of sentence shall be filed no later than
10 days after imposition of sentence.
***
C) Trial Court Action; Disposition. If the attorney for the
Commonwealth files a timely motion for modification of sentence
pursuant to paragraph (A)(1), the judge shall dispose of the
motion as provided in this paragraph.
(1) If the defendant has filed a post-sentence motion, the judge
shall not vacate sentence but shall decide the Commonwealth’s
motion and the defendant’s post-sentence motion
simultaneously. The Rule 720(B)(3) time limits for deciding the
defendant’s post-sentence motion, including the automatic denial
provisions, shall apply to the disposition of the Commonwealth’s
motion. The starting date for disposition of both motions shall
be the date on which the defendant filed the post-sentence
motion.
(2) If the defendant has not filed a post-sentence motion, the
judge shall not vacate sentence but shall decide the
Commonwealth’s motion within 120 days of the filing of the
motion. If the judge fails to decide the Commonwealth’s motion
within 120 days, the motion shall be deemed denied by
operation of law.
Pa.R.Crim.P. 721.
The Comment to Rule 721 provides, in relevant part, as follows:
Trial Court Action
Paragraph (C) sets forth the procedures for trial court
action on the Commonwealth’s motion for modification. Key to
the timing of the judge’s decision on the Commonwealth’s
motion is whether the defendant files a post-sentence motion.
***
Rule 720 Motion Not Filed
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When the defendant has not filed a post-sentence motion,
the disposition of the Commonwealth’s motion is governed by
paragraph (C)(2). The judge may not vacate sentence, but has
120 days to decide the Commonwealth’s motion or the motion is
deemed denied by operation of law. If the judge decides the
motion within the 120-day limit and then agrees to
reconsider, the reconsideration must be resolved within
the original 120-day time limit. The judge may not vacate
sentence in order to reconsider the motion or otherwise use the
reconsideration period to extend the 120-day time limit. It
follows that even if the defendant has filed a notice of appeal,
the procedural exceptions provided in Pa.R.A.P. 1701(b)(3) do
not apply to challenges to sentences.
Pa.R.Crim.P. 721, cmt. (emphasis added).
Here, the Commonwealth timely filed its post-sentence motion within
ten days of sentencing. Additionally, the Commonwealth preserved its issue
seeking application of the deadly weapon enhancement by raising it at the
time of sentencing and in its post-sentence motion. Thus, the question
becomes whether the trial court had jurisdiction to resentence Appellant
beyond the 120-day limit set forth in Pa.R.Crim.P. 721.
While Pa.R.Crim.P. 721(C)(2) provides that the trial court must
“decide the Commonwealth’s motion within 120 days of the filing of the
motion”, the Comment to Rule 721 makes clear that not only does the trial
court need to decide the Commonwealth’s post-sentence motion within the
120 day period, but the trial must resolve the motion for reconsideration
within the original 120-day time limit. Pa.R.Crim.P. 721(C)(2); Pa.R.Crim.P.
721, cmt. (emphasis added). Additionally, the comment provides that the
trial court is not permitted to vacate the sentence within the 120-day time
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limit for purposes of extending the original 120-day time limit to further
decide the motion. Thus, it is not enough for a trial court in this situation to
grant the Commonwealth’s post-sentence motion within the original 120-day
time limit; the trial court is required to resolve the motion for
reconsideration within 120 days. Otherwise, the post-sentence motion is
deemed denied by operation of law pursuant to Pa.R.Crim.P. 721(C)(2).
Of further support for this conclusion is Pa.R.Crim.P. 720, addressing
post-sentence procedures, and its comment. Pa.R.Crim.P. 720 provides, in
relevant part, as follows:
Rule 720. Post-Sentence Procedures; Appeal
***
(B) Optional Post-Sentence Motion.
***
(3) Time Limits for Decision on Motion. The judge shall not
vacate sentence pending decision on the post-sentence motion,
but shall decide the motion as provided in this paragraph.
(a) Except as provided in paragraph (B)(3)(b)
[allowing for the judge to grant one 30-day
extension upon motion of the defendant for good
cause shown], the judge shall decide the post-
sentence motion, including any supplemental
motion, within 120 days of the filing of the motion.
If the judge fails to decide the motion within 120
days, or to grant an extension as provided in
paragraph (B)(3)(b), the motion shall be deemed
denied by operation of law.
Pa.R.Crim.P. 720(B)(3)(a) (emphasis added).
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Additionally, the comment to this section provides, in relevant
part, as follows:
Disposition
Under paragraph (B)(3), once the defendant makes a
timely written post-sentence motion, the judge retains
jurisdiction for the duration of the disposition period. The judge
may not vacate the order imposing sentence pending decision on
the post-sentence motion. This is so whether or not the
Commonwealth filed a motion to modify sentence. See Rule
721.
Paragraph (B)(3)(b) permits one 30-day extension of the
120-day time limit, for good cause shown, upon motion of the
defendant. In most cases, an extension would be requested and
granted when new counsel has entered the case. Only the
defendant or counsel may request such an extension. The
judge may not, sua sponte, extend the time for decision:
a congested court calendar or other judicial delay does
not constitute “good cause” under this rule.
The possibility of an extension is not intended to suggest
that 120 days are required for decision in most cases. The time
limits for disposition of the post-sentence motion are the outer
limits. Easily resolvable issues, such as a modification of
sentence or a guilty plea challenge, should ordinarily be decided
in a much shorter period of time.
If the trial judge decides the motion within the time limits
of this rule, the judge may grant reconsideration of the post-
sentence motion pursuant to 42 Pa.C.S. § 5505 or Pa.R.A.P.
1701.1, but the judge may not vacate the sentence pending
reconsideration. Rule 720(B)(3). The reconsideration period
may not be used to extend the timing requirements set forth in
paragraph (B)(3) for decision on the post-sentence motion; the
time limits imposed by paragraphs (B)(3)(a) and (B)(3)(b)
continue to run from the date the post-sentence motion was
originally filed. The trial judge’s reconsideration must therefore
be resolved within the 120-day decision period of paragraph
(B)(3)(a) or the 30-day extension period of paragraph (B)(3)(b),
whichever applies. If a decision on the reconsideration is
not reached within the appropriate period, the post-
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sentence motion, including any issues raised for
reconsideration, will be denied pursuant to paragraph
(B)(3)(c).
Pa.R.Crim.P. 720, cmt. (emphasis added).
Thus, as this Court has explained: “a trial court’s authority to rule on
a post-sentence motion is finite in nature. To be more specific, a trial court
‘retains jurisdiction’ to rule on a post-sentence motion only ‘for the duration
of the disposition period’ as set forth in subsection 720(B)(3).” See
Commonwealth v. Bentley, 831 A.2d 668, 670 (Pa. Super. 2003) (citing
Pa.R.Crim.P. 720, cmt., “DISPOSITION”). Indeed, this Court has
consistently held that an order issued by the trial court after expiration of
the 120-day time limit, resulting in the denial of the post-sentence motion
by operation of law, is a legal nullity due to the court’s lack of jurisdiction.
See Bentley, 831 A.2d at 670 (trial court’s failure to render a ruling on
defendant’s post-sentence motion within the prescribed 120-day time period
divested the court of jurisdiction to render a decision at a later date);
Commonwealth v. Santone, 757 A.2d 963, 966 (Pa. Super. 2000) (trial
court’s modification order issued beyond the time period set forth in
Pa.R.Crim.P. 1410, renumbered Pa.R.Crim.P. 720 (amended March 1, 2000,
effective April 1, 2001), was a legal nullity because the court no longer had
jurisdiction to issue the modification order).
Furthermore, in Santone, this Court reiterated that under Rule 720,
the trial court may not sua sponte extend the 120-day limit. Santone, 757
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A.2d at 965. Indeed, the court may extend the 120–day period only upon
motion by the defendant, for good cause shown. Pa.R.Crim.P. 720(B)(3)(b).
In the case sub judice, the Commonwealth filed its post-sentence
motion on November 19, 2012. Accordingly, the 120-day time period during
which the trial court had authority to act upon the post-sentence motion
expired on March 19, 2013. Thus, the trial court was required to entirely
resolve the Commonwealth’s post-sentence motion by March 19, 2013. As
stated, the trial court did not vacate Appellant’s original sentence or
resentence Appellant until April 5, 2013, which was 137 days after the
Commonwealth filed its post-sentence motion. Because the trial court did
not resolve the Commonwealth’s post-sentence motion within the original
120-day time limit, the post-sentence motion was denied by operation of law
on March 19, 2013, pursuant to Pa.R.Crim.P. 721(C)(2). 3 Accordingly, the
trial court lacked jurisdiction to vacate Appellant’s original sentence and
resentence Appellant on April 5, 2013.4 “Where there is no jurisdiction,
there is no authority to pronounce judgment.” Santone, 757 A.2d at 966.
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3
As noted, Pa.R.Crim.P. 720(B)(3)(c) allows for the trial court to grant one
thirty-day extension, upon motion of only the defendant within the 120-day
time period, for good cause shown. There is no indication in the record that
Appellant requested such an extension, nor do the parties represent that as
being the case.
4
We also recognize that 42 Pa.C.S. § 5505 provides courts with statutory
authority to modify or rescind any order within thirty days if no appeal has
been taken. In Appellant’s case, the court imposed the original sentence on
(Footnote Continued Next Page)
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Judgment of sentence entered April 5, 2013, vacated. Case remanded
for reinstatement of original sentence. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2016
_______________________
(Footnote Continued)
November 13, 2012, and entered the order modifying the sentence on April
5, 2013. As such, section 5505 does not apply here because the order
modifying Appellant’s sentence was entered after the statutory thirty–day
window.
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