Com. v. Baldwin, T. ( 2018 )

J-S68024-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
THOMAS MARTIN BALDWIN :
:
Appellant : No. 1975 MDA 2016
Appeal from the Judgment of Sentence July 19, 2016
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000752-2015
BEFORE: LAZARUS, DUBOW and STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 01, 2018
I respectfully dissent. The record clearly shows that the trial court
granted newly appointed counsel’s request for an extension to file a post-
sentence motion following receipt of the requested trial transcripts. Order of
Court, 7/21/2016 (“Defense counsel shall have 30 days from the date of
receipt of the transcript within which to file any post-sentence motions.”). The
trial court had jurisdiction to grant that request as it was granted via an order
filed two days after Appellant was sentenced. See Commonwealth v.
Moore, 978 A.2d 988, 991 (Pa. Super. 2009) (holding that trial court had
authority to grant July 31, 2008 motion for extension of time to file post-
sentence motion following Moore’s judgment of sentence on July 23, 2008,
and that “the trial court erred when it averred that it lacked jurisdiction to
permit [Moore] to file his post-sentence motion nunc pro tunc.”).
*Retired Senior Judge assigned to the Superior Court.
J-S68024-17
The Majority’s analysis elevates form over substance. Although I agree
with the Majority that the trial court did not use the magic words “nunc pro
tunc” in that July 21, 2016 order, I find that nonetheless the trial court did
expressly grant Appellant the right to file a post-sentence motion nunc pro
tunc. See Commonwealth v. Batty, 169 A.3d 70, 72 n.4 (Pa. Super. 2017)
(holding that trial court properly permitted Batty to file a post-sentence
motion nunc pro tunc where “[o]n November 1, [] counsel filed on behalf of
[Batty] a motion to permit counsel to file a post-sentence motion nunc pro
tunc due to counsel’s recent appointment, and on November 3, [] the lower
court granted the petition, expressly giving [Batty] until November 23, [] to
file his post-sentence motion.”). Moreover, when ordering the post-sentence
motion hearing, the trial court here referred to the motion as a “nunc pro tunc
motion.” Order of Court, 9/26/2016.
The Majority attempts to alter the plain meaning of the July 21, 2016
order with a statement from the post-sentence motion hearing that the trial
court implicitly granted, at the time of sentencing, an extension of 30 days
from the date of sentencing to file a post-sentence motion. Majority’s
Memorandum at 2-3 (quoting N.T. 11/22/2016, at 2-12). However, this
statement contradicts the explicit language of the July 21, 2016 order,
wherein the trial court granted counsel’s request to file a post-sentence motion
within “30 days from the date of receipt of the transcript[.]” Order of
Court, 7/21/2016 (emphasis added).
-2-
J-S68024-17
Based on the foregoing, I find that the trial court granted Appellant’s
request to file a post-sentence motion nunc pro tunc, Appellant complied with
that order in filing his post-sentence motion,1 and his appeal from the denial
of that motion is timely. Accordingly, I would not quash.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/18
1 It is unclear when counsel received the requested transcript. However, even
if counsel received it on July 21, 2016, the date that counsel was appointed
to represent Appellant, the post-sentence motion filed on August 19, 2016
was filed within 30 days from that date.
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