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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
ROYEZ LEETWAN LUDY, :
:
Appellant : No. 890 WDA 2016
Appeal from the Judgment of Sentence June 1, 2016
in the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000133-2015
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 10, 2017
Royez Leetwan Ludy (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to possession of a controlled
substance with intent to deliver (PWID) and conspiracy for that crime. Upon
review, we vacate and remand.
On December 15, 2015, Appellant appeared for sentencing after
pleading guilty to the aforementioned offenses. During that hearing, the
trial court asked the Commonwealth if Appellant was eligible for the
Recidivism Risk Reduction Incentive (RRRI) program.1 The Commonwealth
responded that Appellant had a prior conviction for endangering the welfare
of children (EWOC), but was acquitted for simple assault for that incident.
N.T., 12/15/2015, at 18. However, the Commonwealth conceded that it did
1
61 Pa.C.S. §§ 4502-4512.
* Retired Senior Judge assigned to the Superior Court.
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not “check … for whether or not [that EWOC conviction] is RRRI diseligible---
or uneligible [sic] or not.” Id. The trial court sentenced Appellant to an
aggregate term of 24 to 48 months of incarceration. The trial court also
determined that Appellant was RRRI eligible.
On December 23, 2015, the Commonwealth timely filed a motion to
modify Appellant’s sentence. In that motion, the Commonwealth averred
that it discovered that Appellant’s prior EWOC conviction did in fact
disqualify him for RRRI eligibility. Thus, it requested the trial court modify
Appellant’s sentence. The trial court held a hearing on the motion on March
30, 2016, and on June 1, 2016, the trial court granted Commonwealth’s
request and modified Appellant’s sentence to render him RRRI ineligible.
Appellant timely filed a notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant contends the trial court “erred as a matter of law
or abused its discretion in determining that [Appellant] was not RRRI
eligible.” Appellant’s Brief at 5.
Before we reach the issue presented on appeal by Appellant, we must
determine whether the trial court had jurisdiction to resentence Appellant on
June 1, 2016.2 The circumstances of this case are analogous to this Court’s
2
“Whether a court has subject matter jurisdiction over an action is a
fundamental issue of law which may be raised at any time in the course of
the proceedings, including by a reviewing court sua sponte.” Com., Office
of Atty. Gen. ex rel. Corbett v. Locust Twp., 968 A.2d 1263, 1269 (Pa.
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decision in Commonwealth v. Martinez, 141 A.3d 485 (Pa. Super. 2016).
In that case, Martinez entered into an open nolo contendere plea and was
sentenced on November 13, 2012. The Commonwealth timely filed a post-
sentence motion “requesting that the sentencing court apply the deadly
weapon enhancement to [Martinez’s] sentence.” Id. at 486. The trial court
held a hearing on December 27, 2012. On January 16, 2013, the trial court
granted the Commonwealth’s motion, and scheduled a resentencing hearing
for February 26, 2013. That hearing was continued, and it finally took place
on April 5, 2013. Martinez’s sentence was modified in accordance with the
deadly weapon enhancement on that date. The trial court also vacated
Martinez’s original sentence. After the reinstatement of his appellate rights
nunc pro tunc, Martinez filed a direct appeal.
On appeal, Martinez argued that the trial court lacked jurisdiction to
resentence him on April 5, 2013, because it was beyond the 120-day period
prescribed by Pa.R.Crim.P. 721. That rule provides the following, in relevant
part.
(B) Timing
2009). Moreover, if a sentence was imposed by a court that lacked
jurisdiction, that sentence is illegal. 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.”). In addition, it is well-
settled that “[l]egality of sentence questions … may be raised sua sponte by
this Court.” Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super.
2013).
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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.
***
(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 (emphasis added).
On appeal, the Martinez Court reviewed the record and concluded the
following.
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 [Martinez] 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 [c]omment 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
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the sentence within the 120–day time 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).
Martinez, 141 A.3d at 488–89 (emphasis in original).
The Martinez Court went on to point out that “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.”
Id. at 490. Moreover, we have ruled that “the trial court may not sua
sponte extend the 120-day limit.” Id. Thus, the Martinez Court concluded
that the trial court’s ability to act upon the Commonwealth’s timely-filed
post-sentence motion expired on March 19, 2013. However, the trial court
did not re-sentence Martinez until April 5, 2013. Thus, this Court held that
“the trial court lacked jurisdiction to vacate [Martinez’s] original sentence
and resentence [Martinez] on April 5, 2013. Where there is no jurisdiction,
there is no authority to pronounce judgment.” Id. at 490-91. Accordingly,
this Court vacated Martinez’s April 5, 2013 judgment of sentence and
“remanded for reinstatement of [the] original sentence.” Id. at 491.
In this case, the Commonwealth timely filed a post-sentence motion
on December 23, 2015. Thus, the trial court had 120 days, or until April 21,
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2016, to resolve this motion before it would be denied by operation of law.
A hearing occurred on March 30, 2016. Then, for reasons not apparent from
the record, the trial court did not sign an order in this matter until May 31,
2016, which was then entered on the docket on June 1, 2016. That was well
beyond the 120-day period. Applying the holding in Martinez, we conclude
that the trial court lacked jurisdiction to resentence Appellant on June 1,
2016. Based on the foregoing, we vacate Appellant’s judgment of sentence
entered on June 1, 2016, and remand to the trial court for reinstatement of
Appellant’s original sentence.
Judgment of sentence entered June 1, 2016 vacated. Case remanded
for reinstatement of original sentence. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2017
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