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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WENDELL LAVENTURE :
:
Appellant : No. 1758 EDA 2017
Appeal from the Judgment of Sentence May 1, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000378-2009
BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 17, 2019
Appellant, Wendell Laventure, challenges the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following the
revocation of his probation. Appellant argues the resentencing court abused
its discretion by imposing a manifestly excessive sentence, given that this was
his first probation violation, and failed to consider his rehabilitative needs.
After careful consideration, we remand with instructions.
The relevant facts and procedural history of this case are as follows. In
2008, Appellant was arrested after he and another man used a BB gun to rob
a 16-year-old boy. Appellant later entered a negotiated guilty plea to robbery,
criminal conspiracy, and possession of an instrument of crime.1 The court
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1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a)(1), and 907(a), respectively.
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sentenced Appellant to an aggregate term of 2½–5 years’ incarceration, to be
followed by 3 years of probation.
While on probation, Appellant twice acquired new criminal charges. The
Commonwealth ultimately declined to prosecute the first set of charges, which
included charges of receiving stolen property, theft, and fleeing police. At the
violation hearing after these charges, the court continued Appellant’s
probation. Shortly thereafter, police again arrested Appellant; he was
convicted of unauthorized use of an automobile and fleeing a police officer,
and sentenced to three years’ probation for those crimes.
As the new convictions represented a probation violation, Appellant
appeared before the court for a hearing. In addition to the direct violation,
Appellant’s probation officer informed the court that Appellant had two
technical violations from the previous year after he tested positive for
marijuana use. Ultimately, the court acceded to requests from the
Commonwealth and the probation officer to revoke Appellant’s probation and
sentence him to incarceration. The court resentenced Appellant to 1½–3
years’ incarceration each on the robbery charge and the criminal conspiracy
charge, to run consecutively for an aggregate sentence of 3–6 years’
imprisonment.
Appellant filed a post-sentence motion eleven days after sentencing,
requesting consideration nunc pro tunc. Appellant thereafter filed a timely
notice of appeal and complied with Pa.R.A.P. 1925(b). This appeal is now
before us.
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Appellant challenges the discretionary aspects of his new sentence. He
alleges the court imposed a manifestly excessive sentence, in light of his first
probation violation, and failed to consider Appellant’s rehabilitative needs. He
concludes this Court should vacate the sentence, and remand for a new
sentencing hearing. The Commonwealth concedes the court failed to consider
Appellant’s rehabilitative needs, and agrees this Court should vacate and
remand for resentencing.
The right to challenge the discretionary aspects of sentencing on appeal
is not absolute. See Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super.
2018). An appellant “must petition this Court for permission to appeal the
discretionary aspects of his sentence.” Id. (citation omitted).
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
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).
Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super. 2017) (en banc)
(citations omitted).
“[A] written post-sentence motion shall be filed no later than 10 days
after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). “An untimely post-
sentence motion does not preserve issues for appeal.” Commonwealth v.
Wrecks, 931 A.2d 717, 719 (Pa. Super. 2007) (citation omitted). A defendant
who wishes to file a post-sentence motion nunc pro tunc must demonstrate,
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within 30 days after his sentence is imposed, sufficient cause to excuse the
late filing. See Commonwealth v. Wright, 846 A.2d 730, 734 (Pa. Super.
2004). Merely labeling the motion as nunc pro tunc is insufficient. See
Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en
banc). Even if the court “chooses to permit a defendant to file a post-sentence
motion nunc pro tunc, the court must do so expressly.” Id.
Here, Appellant’s post-sentence motion was filed eleven days after
resentencing, on May 12, 2017. The motion is styled “Petition to Vacate and
Reconsider Nunc Pro Tunc,” and avers the late filing occurred because counsel
did not receive Appellant’s request to file a motion for reconsideration until
May 10, 2017. See Motion for Reconsideration, filed 5/12/17, at 3
(unpaginated). The certified record does not reflect any decision on this
motion by the court. The next entry on the docket after the motion is
Appellant’s notice of appeal, which was timely filed 30 days after his
resentencing.
However, the court’s opinion pursuant to Pa.R.A.P. 1925(a) and the
Commonwealth’s appellate brief both state that the court denied the motion.
See Sentencing Court Opinion, filed 9/19/18, at 3 (unpaginated); Appellee’s
Brief, at 4. Neither avers whether the court expressly permitted Appellant to
file with nunc pro tunc status, though both writings assume the timeliness of
Appellant’s post-sentence motion by addressing the merits of the issue as
though it was preserved. And Appellant’s own brief makes no mention of the
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court’s alleged decision on the motion, though it also proceeds as though the
post-sentence motion was timely filed. See Appellant’s Brief, at 4.
The trial court opinion and the parties’ briefs indicate the possibility the
post-sentence motion was decided, though not recorded. Based on this
apparent conflict, and the resulting ambiguity regarding whether Appellant
was expressly permitted to file his motion nunc pro tunc, we are unable to
determine from the record whether Appellant’s discretionary aspects issue
was properly preserved. As this determination is essential for our review, we
remand for explanation and a supplemental record if necessary. Specifically,
the court is instructed to clarify whether nunc pro tunc filing status was
expressly granted to Appellant.
Case remanded with instructions. Trial court to inform this Court, in
writing, within thirty days of the date this memorandum is filed whether it
granted Appellant the right to file his post-sentence motion nunc pro tunc. If
it did, the court should also supplement the record with the order granting
such relief. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/19
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