Com. v. Campbell, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CORRY CAMPBELL,
Appellant No. 1987 EDA 2015
Appeal from the Judgment of Sentence of April 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006357-2014
BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 09, 2016
Appellant, Corry Campbell, appeals from the judgment of sentence
entered April 9, 2015 following his guilty pleas to aggravated assault,
criminal conspiracy, and false imprisonment.1 Upon review, we affirm.
Appellant pled guilty to the above-mentioned offenses on December
22, 2014. The charges arose from a two-day incident during which
Appellant, in combination with other individuals, restrained, beat, and
forcibly tattooed the victim with racially, religiously, and sexually offensive
words and images. The incident, which the perpetrators recorded by cellular
telephone video, caused the victim to be hospitalized for four days with
broken ribs, fractured facial bones, and other injuries. At the conclusion of a
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1
18 Pa.C.S.A. §§ 2702(a)(1), 903(c), and 2903(a), respectively.
*Former Justice specially assigned to the Superior Court.
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sentencing hearing on April 9, 2015, the court sentenced Appellant to an
aggregate term of eight to 20 years’ incarceration, followed by five years of
probation.2
Following imposition of sentence, Appellant’s trial counsel advised
Appellant that he had a right to file a post-sentence motion within ten days.
See N.T. Sentencing, 4/9/15, at 38. Trial counsel next advised Appellant
that he a right to file an appeal challenging his conviction. Id. Neither
counsel nor the trial court advised Appellant of the 30-day time-period
within which he needed to file a notice of appeal.
On April 22, 2015 — three days after the deadline to file a
post-sentence motion elapsed — Appellant filed a “Motion for Leave to File
Motion to Modify Sentence, Nunc Pro Tunc.” The motion asked the trial
court to reconsider Appellant’s sentence in view of, inter alia, the nature of
the injuries inflicted upon the victim, Appellant’s history of mental health
problems, and Appellant’s limited prior criminal history. Motion for Leave to
File Motion to Modify Sentence, Nunc Pro Tunc, 4/22/15. The motion
included no explanation for the untimely filing. On May 4, 2015, the trial
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2
Appellant received a four to ten-year sentence for aggravated assault. In
addition, the court imposed a consecutive four to ten-year sentence for
criminal conspiracy. Lastly, the court imposed a consecutive five-year
probationary sentence for false imprisonment. N.T. Sentencing, 4/9/15, at
35. The sentences for aggravated assault and false imprisonment fall within
the aggravated range of the sentencing guidelines. See id. at 29.
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court denied the motion without a hearing.3 Appellant filed his notice of
appeal on May 22, 2015. Thereafter, Appellant filed a timely, court-ordered
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The discretionary sentencing challenge Appellant now raises on
appeal was included in his concise statement.
Appellant raises the following question for our review:
Did the [trial] court abuse its discretion by failing to adequately
consider [Appellant’s background and history, resulting in a
unreasonable sentence]?
Appellant’s Brief at 4.
Before we address Appellant’s discretionary sentencing challenge, we
must consider whether this appeal is timely, as this Court lacks jurisdiction
over untimely appeals.4 We may raise such jurisdictional issues sua sponte.
Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014).
In cases where no post-sentence motion is filed, a defendant must file
an appeal within 30 days of imposition of sentence in open court.
Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3). If a defendant files a timely
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3
The order denying Appellant’s motion to reconsider was comprised simply
of a handwritten notation on a form scheduling a hearing on the
reconsideration motion. It did not advise Appellant that he had 30 days
from the imposition of sentence in which to file an appeal.
4
This Court issued a rule to show cause on August 4, 2015 and Appellant
filed a timely response on August 17, 2015. The issue was then referred to
this panel for disposition.
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post-sentence motion, the appeal period does not begin to run until the
motion is decided. Pa.R.Crim.P. 720(A)(2); Pa.R.A.P. 903(a). In general, a
defendant must file a post-sentence motion within ten days of imposition of
sentence. Pa.R.Crim.P. 720(A)(1). An untimely post-sentence motion does
not toll the appeal period. Commonwealth v. Green, 862 A.2d 613, 618
(Pa. Super. 2004) (en banc) (“[T]he time for filing an appeal can be
extended beyond 30 days after the imposition of sentence only if the
defendant files a timely post-sentence motion.”).
In this case, Appellant filed his post-sentence motion on April 22,
2015, or 13 days after imposition of sentence. Therefore, Appellant’s
untimely post-sentence motion would toll the appeal period only if the trial
court accepted it under its limited authority to allow the filing of a
post-sentence motion nunc pro tunc.
Under Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super.
2003) (en banc), a post-sentence motion filed nunc pro tunc will toll the
appeal period where 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. “Th[is] request [for] relief is
separate and distinct from the merits of the underlying post-sentence
motion.” Id. at 1128–1129. Second, the trial court must expressly permit
the filing of a post-sentence motion nunc pro tunc within 30 days of
imposition of sentence. Id. at 1128 and n.6. “If the trial court does not
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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.
Applying these principles, we conclude that Appellant's post-sentence
motion nunc pro tunc did not toll the appeal period. Rule 720(A)(2) does
not apply because Appellant failed to file a timely post-sentence motion.
Green, 862 A.2d at 618. Additionally, Dreves does not aid Appellant
because he fails to satisfy either prerequisite for nunc pro tunc relief.
Regarding Dreves' first prerequisite, Appellant's post-sentence motion
included no explanation for the untimely filing. Appellant did not request the
trial court to consider the motion nunc pro tunc, but merely included the
words “nunc pro tunc” in the heading of the motion. “Merely designating a
motion as ‘post-sentence motion nunc pro tunc’ is not enough.” Dreves,
839 A.2d at 1128. Rather, the moving defendant must ask for nunc pro tunc
relief and provide reasons to support it. Appellant did neither of these
things.
Turning to the second prerequisite, the trial court did not “expressly
grant” nunc pro tunc relief. No order granting nunc pro tunc relief exists,
and Dreves requires an express grant. In addition, we may not infer that
the court granted nunc pro tunc relief simply because the court issued an
order addressing the merits of the motion or because the court addressed
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Appellant’s claims in its Pa.R.A.P. 1925(a) opinion filed November 6, 2015.
See Commonwealth v. Wright, 846 A.2d 730, 734 (Pa. Super. 2004)
(holding trial court erred in addressing defendant's post-sentence motion
nunc pro tunc where defendant did not request reinstatement of, and trial
court did not expressly grant, defendant's right to file post-sentence motion
nunc pro tunc).
Because Appellant's post-sentence motion nunc pro tunc did not toll
the appeal period, he needed to file his appeal within 30 days of imposition
of sentence. Pa.R.Crim.P. 720(A)(2); Pa.R.A.P. 903(c)(3). Appellant was
sentenced on April 9, 2015. He filed this appeal on May 22, 2015, 43 days
later. The appeal is therefore untimely.
Although in general an appellate court cannot extend the time for filing
an appeal, this general rule does not affect the authority to grant relief in
the case of fraud or breakdown in the administration of the court.
Commonwealth v. Braykovich, 664 A.2d 133, 136 (Pa. Super. 1995),
citing Pa.R.A.P. 105(b). Thus, before we quash the instant appeal, we must
determine whether an administrative breakdown in the court system
excused Appellant’s untimely filing.
We have held that a breakdown occurs where the trial court, at
sentencing, either failed to advise the defendant of his post-sentence and
appellate rights or misadvised him. See Commonwealth v. Coolbaugh,
770 A.2d 788, 791 (Pa. Super. 2001); Commonwealth v. Bogden, 528
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A.2d 168, 170 (Pa. Super. 1987). We have also found a breakdown where
the trial court, in denying the defendant's untimely post-sentence motion for
reconsideration, failed to advise the defendant that he had to file an appeal
within 30 days of imposition of sentence. Commonwealth v. Patterson,
940 A.2d 493, 498-500 (Pa. Super. 2007). Both of these scenarios occurred
here. At sentencing, trial counsel advised Appellant on the record that he
had the right to file a post-sentence motion within ten days and that he had
the right to appeal his conviction. Appellant was not advised, however, that
an appeal needed to be filed within 30 days. See N.T. Sentencing, 4/9/15,
at 38-39. Moreover, the order denying Appellant’s untimely post-sentence
motion did not advise Appellant that he needed to file his appeal within 30
days of the imposition of sentence on April 9, 2015 because of the untimely
nature of his post-sentence motion. If the trial court took this action,
Appellant may have filed a timely appeal as he had a few days remaining in
the appeal period. See id., citing Pa.R.Crim.P. 720(B)(4)(a) (“[a]n order
denying a post-sentence motion, whether issued by the judge ... or entered
by the clerk of courts ..., shall include notice to the defendant of”, inter alia,
“the right to appeal and the time limits in which the appeal must be filed”).
Accordingly, we decline to quash the instant appeal.5
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5
We admonish counsel that, were it not for the breakdown in the judicial
system that we have identified, we would be disinclined to entertain relief.
In his response to our show cause order, counsel explained that he was
(Footnote Continued Next Page)
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Since we conclude that we may exercise jurisdiction over this appeal,
we turn now to the sole question raised by Appellant. Appellant contends
that his aggravated range sentences were manifestly excessive and clearly
unreasonable. Appellant asserts the trial court abused its discretion by
failing to consider his rehabilitative needs, his history of mental illness and
substance abuse, and mitigating factors such as his remorse for his actions
and his assistance to law enforcement in other cases. Appellant’s Brief at 9.
Appellant's claim raises a challenge to the discretionary aspects of his
sentence, which must be considered a petition for permission to appeal.
Commonwealth v. Roberts, 133 A.3d 759, 774 (Pa. Super. 2016) (citation
omitted). To reach the merits of a discretionary sentencing issue, we must
conduct a four-part analysis to determine:
(1) whether appellant has filed a timely notice of appeal,
Pa.R.A.P. 902, 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, Pa.R.Crim.P. 720; (3) whether appellant's brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
_______________________
(Footnote Continued)
stricken with appendicitis following the imposition of Appellant’s sentence on
April 9, 2015. Counsel also stated that, because of his medical condition, he
obtained leave of court by telephone to file the reconsideration outside the
ten-day period. This explanation was not included in the motion, however,
and there is no confirmation of this exchange in the certified record.
Moreover, counsel did not include documentation of his medical condition in
his response to the show cause order. We cannot rely on unsupported
justifications as grounds for the failure to abide by well-established
procedural rules. Thus, in the absence of the breakdown we have identified,
this appeal would be subject to quashal.
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Id.
Here, we have addressed Appellant’s post-sentence motion and notice
of appeal and concluded that the untimely nature of these filings will not
foreclose review. Appellant has also included a Rule 2119(f) statement in
his brief. However, we conclude that Appellant fails to raise a substantial
question. See Commonwealth v. Cannon, 954 A.2d 1222, 1228–1229
(Pa. Super. 2008) (claim that the trial court failed to consider the
defendant's rehabilitative needs, age, and educational background did not
present a substantial question); Coolbaugh, 770 A.2d at 793 (claim that a
sentence failed to take into consideration the defendant's rehabilitative
needs and was manifestly excessive did not raise a substantial question
where the sentence was within statutory guidelines and within sentencing
guidelines), citing Commonwealth v. Mobley, 581 A.2d 949, 952 (Pa.
Super. 1990); Commonwealth v. Coss, 695 A.2d 831, 833 (Pa. Super.
1997) (when the sentence imposed falls within the statutory limits, an
appellant's claim that a sentence is manifestly excessive fails to raise a
substantial question); Commonwealth v. Bershad, 693 A.2d 1303, 1309
(Pa. Super. 1997) (claim that trial court failed to appropriately consider
appellant's rehabilitative needs does not present substantial question);
Commonwealth v. Lawson, 650 A.2d 876, 881 (Pa. Super. 1994) (claim
of error for failing to consider rehabilitative needs does not present
substantial question).
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Even if we were to determine that Appellant raised a substantial
question, we find no merit to the underlying allegations. Our standard of
review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013).
In reviewing a sentence on appeal, an appellate court shall vacate the
sentence and remand the case to the sentencing court with instructions if it
finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where
the application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases[,] the appellate court shall affirm
the sentence imposed by the sentencing court.
42 Pa.C.S.A. § 9781.
When imposing a sentence,
a court is required to consider the particular circumstances of
the offense and the character of the defendant. In particular,
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the court should refer to the defendant's prior criminal record,
his age, personal characteristics and his potential for
rehabilitation. Where the sentencing court had the benefit of a
[pre-sentence investigation report], we can assume the
sentencing court was aware of relevant information regarding
the defendant's character and weighed those considerations
along with mitigating statutory factors.
Griffin, 65 A.3d at 937-938 (quotations and most internal citations
omitted).
At sentencing, the trial court stated that it considered Appellant’s prior
assistance to law enforcement, the pre-sentence report, Appellant’s mental
health history, Appellant’s criminal history, the sentencing guidelines, the
victim’s testimony, arguments presented by the Commonwealth, Appellant’s
statements, Appellant’s mother’s statements, and arguments advanced by
defense counsel. See N.T. Sentencing, 4/9/15, at 37. It is obvious from our
review of the record that the trial court imposed an individualized sentence
based upon careful consideration of the impact of the offense upon the
victim, the need to protect the community, and all mitigating factors,
including Appellant’s rehabilitative needs and his history of mental illness
and substance abuse. We further note that, since the trial court had the
benefit of a pre-sentence report, we may presume that the trial court was
aware of Appellant’s character when fashioning Appellant’s sentence.
Moreover, at sentencing, Appellant, his counsel, and his mother had ample
opportunity to address mitigating factors before the court. We do not
hesitate in this case to conclude that the trial court gave proper weight and
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consideration to Appellant’s character, history, and rehabilitative needs
before sentencing Appellant to aggravated range sentences on his
aggravated assault and false imprisonment convictions.
Finally, the trial court stated at length its reasons for the sentence
upon imposing it. The trial court expressly noted, among other things, the
brutal and prolonged nature of the assault, the permanent disfigurement of
the victim, the severity of the victim’s injuries, and Appellant’s willingness to
“toy” with the victim which was apparent on the video recording. In sum,
the trial court carefully considered all relevant information before imposing
Appellant’s sentence. We discern no abuse of discretion and do not consider
Appellant’s sentences to be excessive or unreasonable. Accordingly,
Appellant’s sole issue fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
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