J-A20015-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLEO MCKINNEY, JR. :
:
Appellant : No. 1131 WDA 2019
Appeal from the Judgment of Sentence Entered September 28, 2018
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000015-2018
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED: April 5, 2021
Cleo McKinney, Jr, appeals from the judgment of sentence of eighteen
to thirty-six months of imprisonment after he pled guilty to possession of a
controlled substance contraband to a prison inmate. We affirm.
On December 14, 2017, while incarcerated at the Venango County
Prison, Appellant was discovered in possession of liquefied Suboxone, a
schedule three controlled substance. On June 25, 2018, Appellant entered an
open guilty plea to the aforementioned offense in exchange for the
Commonwealth’s agreement to enter nolle prosequi with regard to two related
counts of criminal conspiracy and possession and recommend the imposition
of a standard-range sentence to run concurrently with the term of
imprisonment that he was currently serving. After conducting a guilty plea
colloquy, the trial court advised Appellant that it would not endorse the open
plea agreement until it reviews an updated presentence investigation (“PSI”)
J-A20015-20
report. Significantly, the trial court informed Appellant, “If the court [does]
not concur, your lawyer will be told and you will be given the opportunity to
petition to withdraw your guilty plea[.]” N.T., 6/25/18, at 32. At the end of
the plea colloquy, the trial court found that Appellant intelligently, voluntarily,
and understandingly entered the plea. It accepted the plea, ordered the PSI
report, and scheduled a sentencing hearing on September 28, 2018.
At the ensuing sentencing hearing, the Commonwealth informed the
trial court that it could not make the agreed-upon recommendations because
of Appellant’s misconduct while incarcerated in the Venango County Prison for
the seven days preceding sentencing. Specifically, the Venango County
Prison's disciplinary board adjudicated Appellant guilty of threatening another
person, disrupting normal institutional process, disobeying orders, possessing
contraband, failing to report contraband, making sexual threats, and
destroying property. N.T. Sentencing Hearing, 9/28/18, 16-17, 19. Appellant
challenged the disciplinary board’s verdict and informed the sentencing court
of his intention to appeal that decision.
The sentencing court reminded the parties that it expressly declined to
approve the sentencing recommendation when it accepted the plea agreement
and permitted Appellant to either withdraw the plea prior to sentencing or
proceed to sentencing without the benefit of the promised recommendation.
Id. at 19. After expressing some confusion and conferring with counsel,
Appellant elected to proceed with sentencing. Id. at 22. The sentencing court
-2-
J-A20015-20
confirmed Appellant’s decision prior to eliciting the Commonwealth’s revised
sentencing recommendation. Id.
As it previously indicated, the Commonwealth declined to endorse the
sentence outlined in the plea agreement. Instead, it recommended that the
trial court impose three to five years of imprisonment consecutive to the term
Appellant is currently serving. Id. at 23. After reviewing the PSI report,
considering defense counsel’s arguments for leniency and Appellant’s
allocution, the sentencing court imposed the above-referenced term of
eighteen to thirty-six months of imprisonment consecutive to all sentences
previously imposed.1 Significantly, the trial court explained that it “considered
the recommendation of the Commonwealth with regard to the plea
agreement,” i.e., the agreed-upon recommendation of a concurrent standard
range sentence. Id. at 30. Consistent with the remaining aspects of the plea
agreement, the trial court entered nolle prosequi to the remaining counts.
On October 12, 2018, Appellant filed an untimely post-sentence motion
asserting: (1) the Commonwealth violated the plea agreement by failing to
proffer the negotiated sentencing recommendation; and (2) the imposition of
consecutive sentence was excessive. Contemporaneously, Appellant filed a
motion to reinstate his post-sentence motion nunc pro tunc, which the trial
court granted on October 16, 2018, deeming that the post-sentence motion
____________________________________________
1 The eighteen-month minimum sentence fell squarely within the standard
range of fifteen to twenty-one months pursuant to the sentencing guidelines.
N.T. Sentencing Hearing, 9/28/18, at 15, 30-31.
-3-
J-A20015-20
would be treated as if it had been filed timely. On February 12, 2019, the trial
court granted a thirty-day extension of time for it to dispose of the post-
sentence motion on the merits before it is denied by operation of law, i.e.,
until March 11, 2019.2
On March 18, 2019, the trial court entered an order dated March 14,
2019, wherein it granted the post-sentence motion insofar as finding that
Appellant was entitled to have the Commonwealth provide the agreed-upon
sentencing recommendation. Hence, the court scheduled a re-sentencing
hearing before a different judge.3
In preparation of resentencing, the newly-assigned judge discovered
that the trial court granted relief beyond the extended 150-day limitation
imposed by Rule 720(B)(3)(a) and (b), which expired on March 11, 2019. The
resentencing court reasoned “from the day [Appellant] filed the post-sentence
motion, October 12, 2018, to the date the motion was granted, March 18,
2019, spans 157 days[, and e]ven if the court were to consider March 14,
2019, as the effective date, the decision still came 153 days from the day the
motion was filed.” Trial Court Opinion, 6/28/19, at unnumbered 5 (footnotes
____________________________________________
2 As the Venango County Clerk misfiled the October 15, 2018 order granting
nun pro tunc relief, on February 8, 2019, the trial court denied the post-
sentence motion as untimely filed. The court’s February 12, 2019 order
vacated that determination and found good cause to invoke Pa.R.A.P.
720(B)(3)(b) and extend by thirty days the period to address the merits of
the motion.
3 Notwithstanding the resentencing order, the trial court also addressed
Appellant’s remaining challenge to the discretionary aspects of sentence and,
in what effectively was an advisory opinion, concluded that the consecutive
imposition of the standard-range sentence was reasonable.
-4-
J-A20015-20
omitted). As the post-sentence motion was denied as a matter of law on
March 12, 2019, in accordance with Pa.R.A.P. 720(B)(3), the resentencing
court concluded that the March 18, 2019 was a nullity and the September 28,
2018, judgment of sentence remained in “full force and effect.” Id. Citing
Commonwealth v. Khalil, 806 A.2d 415 (Pa.Super. 2002) for the proposition
that the circumstances were tantamount to a breakdown in the trial court
processes, the resentencing court concluded that Appellant had thirty days
from the date of its order to file a notice of appeal from the judgment of
sentence because the clerk of court did not provide notice to Appellant that
his post-sentence motion was deemed denied by operation of law. See Trial
Court Opinion, 6/28/19, at unnumbered 5.
This timely appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925, and Appellant presents three questions for our review:
1. Whether [Appellant] is entitled to the benefit of his bargain when
his plea was induced by the prosecution with a promise to
recommend concurrency in sentencing, where the prosecution
reneged on the agreement at sentencing and recommended a
consecutive sentence.
2. Whether the [re-sentencing court] committed an error of law and
abused his discretion by refusing to resentence [Appellant] after the
[sentencing court] granted his post-sentence motion, ruling that the
[Appellant] was entitled to be resentenced in a proceeding wherein
the Commonwealth makes the sentencing recommendation set forth
in the plea agreement.
3. Whether the [sentencing court] abused his discretion at
sentencing by handing down an aggregate sentence that was
unreasonable, and manifestly excessive.
Appellant’s brief at 5.
-5-
J-A20015-20
At the outset, we address Appellant’s assertion that the resentencing
court erred in overturning the sentencing court’s grant of post-sentence relief.
Preliminarily, we observe that the resentencing court did not overturn the
sentencing court’s decision on the merits. In actuality, the court simply
examined the tortuous post-sentence procedural history of this case and
concluded that Appellant’s motion for post-sentence relief had been denied by
operation of law pursuant to Pa.R.Crim.P. 720 before the trial court granted
limited relief. As the trial court lacked jurisdiction to grant relief beyond the
150-day period outlined in Rule 720(B), the resentencing court reinstated the
judgment of sentence and Appellant’s appellate rights.
As it relates to the denial of a post-sentence motion by operation of law,
Rule 720(B)(3) provides as follows:
(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 one
thirty-day extension 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.
(b) . . . . If the judge fails to decide the motion within
the 30-day extension period, the motion shall be denied
by operation of law.
-6-
J-A20015-20
(c) When a post-sentence motion is denied by operation of
law, the clerk of courts shall forthwith enter an order on behalf
of the court, and as provided in Rule 114, forthwith shall serve
a copy of the order on the [parties] that the post-sentence
motion is deemed denied. This order is not subject to
reconsideration.
Pa.R.A.P. 720(B)(3)(a)-(c) (emphases added).
Furthermore, the trial court’s jurisdiction ends with the deemed denial.
As we explained in Commonwealth v. Bentley, 831 A.2d 668, 670
(Pa.Super. 2003), “[a] trial court’s authority to rule on a post-sentence motion
is finite in nature [and] 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 Pa.R.Crim.P, 720 cmt. (“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. . . . [On] the
date when the motion is denied by operation of law, the judgment
becomes final for the purpose of appeal.” (emphasis added)). A post-
sentence order issued by the trial court after the expiration of the Rule
720(B)(3) time limit is a legal nullity due to the court’s lack of jurisdiction.
Commonwealth v. Martinez, 141 A.3d 485, 490 (Pa.Super. 2016). Phrased
differently, “[w]here there is no jurisdiction, there is no authority to pronounce
judgment.” Id. at 490-91.
Appellant filed an untimely post-sentence motion on October 12, 2018,
which the court deemed timely filed nunc pro tunc as of that date. Pursuant
to Pa.R.Crim.P. 720(B)(3)(b), the trial court granted a thirty-day extension to
the initial 120–day period that it possessed authority to act upon the post-
-7-
J-A20015-20
sentence motion. Hence, the trial court was required to resolve the post-
sentence motion no later than Monday, March 11, 2019.4
As noted supra, the trial court did not dispose of the post-sentence
motion until March 14, 2019. Since the trial court neglected to resolve the
post-sentence motion within the 150–day time limit, the post-sentence motion
was denied by operation of law after March 11, 2019, pursuant to Rule
720(B)(3)(a) and (b), and the court lacked jurisdiction to grant post-sentence
relief three days after that date. See Martinez, supra at 490-91 (“Where
there is no jurisdiction, there is no authority to pronounce judgment.”); see
also Commonwealth v. Bentley, 831 A.2d 668, 670 (Pa.Super. 2003)
(failure to rule on post-sentence motion within prescribed period divested
court of jurisdiction to render a decision at a later date); Commonwealth v.
Santone, 757 A.2d 963 (Pa.Super. 2000) (order issued beyond the time
period set forth in what is now Pa.R.Crim.P. 720 was a legal nullity because
the court no longer had jurisdiction to issue the order).
As outlined in the foregoing recitation of the procedural history, the
certified record confirms the resentencing court’s calculation of time.
Accordingly, in light of the applicable legal principles we discussed in
Martinez, Bentley, and Santone, we discern neither legal error nor an abuse
____________________________________________
4 By our calculation, the 120-day period under Rule 720(b)(3)(a) expired on
February 11, 2019, as the 120th day was a Saturday. Hence, the court’s grant
of the 30-day extension of time on February 12, 2019 appears to be one day
late. Nevertheless, since the duration between October 12, 2018 and March
11, 2019 is unquestionably 150 days, we accept that date as the last day to
rule on the post sentence motion.
-8-
J-A20015-20
of discretion in the resentencing court’s reinstatement of the judgment of
sentence and Appellant’s appellate rights.
Next, we address Appellant’s substantive assertion that he was entitled
to the benefit of his plea agreement, i.e., remand for a sentencing proceeding
in which the Commonwealth recommends the concurrent imposition of a
standard-range sentence as set out in the plea agreement. See Appellant’s
brief at 10-12. Highlighting that the sentence recommendation of concurrency
was an essential negotiated component of the agreement, Appellant argues
that the Commonwealth violated the terms of the plea agreement by
recommending that the standard-range sentence run consecutively to the
previously imposed sentences. Id. at 10. Thus, invoking our holding in
Commonwealth v. Williams, 481 A.2d 1230 (Pa.Super. 1984), a case where
this Court vacated the judgment of sentence and permitted the defendant to
withdraw his guilty plea because the Commonwealth reneged on the promise
to forego making a sentence recommendation, Appellant contends that he is
entitled to a new sentencing hearing before a different judge. However,
Appellant still does not seek to withdraw his guilty plea.
While refusing to acknowledge its breach of the plea agreement,
ostensibly because the trial court stated its intention to ignore the
Commonwealth’s recommendation in favor of the recommendation outlined in
the plea agreement, the Commonwealth counters that Appellant declined to
withdraw his guilty plea and elected to proceed with sentencing
notwithstanding the Commonwealth’s volte-face. For the reasons that follow,
-9-
J-A20015-20
we agree that Appellant rejected the only available remedy for the
Commonwealth’s revocation of its plea recommendation. Accordingly, no
relief is due.
Pennsylvania Rule of Criminal Procedure 590(B) governs plea
agreements as follows:
(B) Plea agreements.
(1) At any time prior to the verdict, when counsel for both
sides have arrived at a plea agreement, they shall state on the
record in open court, in the presence of the defendant, the terms
of the agreement, unless the judge orders, for good cause shown
and with the consent of the defendant, counsel for the defendant,
and the attorney for the Commonwealth, that specific conditions
in the agreement be placed on the record in camera and the
record sealed.
(2) The judge shall conduct a separate inquiry of the
defendant on the record to determine whether the defendant
understands and voluntarily accepts the terms of the plea
agreement on which the guilty plea or plea of nolo contendere is
based.
Pa.R.Crim.P. 590(B).
We have previously explained, “[w]here a plea agreement has been
entered of record and accepted by the trial court, the state is required to abide
by the terms of the plea agreement.” Commonwealth v. Postie, 110 A.3d
1034, 1042 (Pa.Super. 2015)(citation omitted). Furthermore, “[i]n
determining whether a particular plea agreement has been breached, we look
to what the parties to this plea agreement reasonably understood to be the
- 10 -
J-A20015-20
terms of the agreement.” Commonwealth v. Anderson, 995 A.2d 1184,
1191 (Pa.Super. 2010) (citations omitted).
Notwithstanding the Commonwealth’s protestations to the contrary, it
is clear from the certified record that the Commonwealth breached a material
term of the plea agreement. Appellant and the Commonwealth agreed that
Appellant would plead guilty to possession of a controlled substance—prison
contraband, and the Commonwealth would seek to enter nolle prosequi on the
remaining charges, and recommend a standard-range sentence running
concurrently with the sentence that Appellant was currently serving.
Appellant pled guilty and the Commonwealth nolle prosed the remaining
charges but refused the promised recommendation of concurrency. Hence,
there is no legitimate question as to whether the Commonwealth reneged on
its promise. Rather, the salient issue in this case relates to the appropriate
remedy for the breach.
Our High Court has explained, “in Pennsylvania, it is well settled that
where a plea bargain has been entered into and is violated by the
Commonwealth, the defendant is entitled, at the least, to the benefit of the
bargain.” Commonwealth v. Zuber, 353 A.2d 441, 444 (Pa. 1976) (cleaned
up). Trial courts possess several remedies to rectify the Commonwealth’s
failure to fulfill its promise including, when warranted, the modification of the
judgment of sentence to reflect the terms of the agreement. Id. at 444 n.5.
- 11 -
J-A20015-20
Here, the plea agreement related to an open plea and the breach was
apparent before the imposition of the judgment of sentence. Accordingly,
the appropriate remedy was to permit Appellant to withdraw the guilty plea in
order to either negotiate a new accord or proceed to trial. This is precisely
the remedy that the trial court offered Appellant prior to imposing sentence.
However, Appellant rejected it.
During the sentencing hearing, the trial court informed Appellant that it
was going to disregard the proffered recommendation from the
Commonwealth and it provided Appellant the opportunity to withdraw his
guilty plea. See N.T. Sentence Hearing 9/28/18, at 19. Following a discussion
with counsel, Appellant elected to proceed to sentencing. Id. 22. Phrased
differently, after a consultation with counsel, Appellant knowingly elected to
proceed with sentencing with the understanding that he would not be
sentenced pursuant to the terms of the original plea agreement. Thus, the
trial court did, in fact, offer Appellant an appropriate remedy for the
Commonwealth’s decision to renege on the plea agreement. Appellant simply
declined to utilize it. As Appellant previously assented to sentencing
notwithstanding the Commonwealth’s breach, his current argument in favor
of vacating the judgment of sentence and remanding for another sentencing
proceeding is unavailing.
Appellant’s final issue presents a challenge to the discretionary aspects
of his sentence. As we observed in Commonwealth v. McLaine, 150 A.3d
- 12 -
J-A20015-20
70, 76 (Pa.Super. 2016) (citation omitted), “[a]n appellant is not entitled to
the review of challenges to the discretionary aspects of a sentence as of right.”
In order to invoke our jurisdiction involving a challenge to the discretionary
aspects of a sentence, we look to whether an appellant has satisfied the
following four-part test:
(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).
Id.
Instantly, Appellant filed a timely appeal, and preserved his contentions
in a post-sentence motion. While Appellant failed to include a Pa.R.A.P.
2119(f) statement in his brief, we decline to find waiver because the
Commonwealth did not object to that defect. See Commonwealth v.
Stewart, 867 A.2d 589, 592 (Pa. Super. 2005) (declining to find waiver of
sentencing claim due to lack of Pa.R.A.P. 2119(f) statement where
Commonwealth did not object). Finally, Appellant maintains that the
imposition of a consecutive sentence was too harsh under the circumstances
of this case. Namely, he cites the Commonwealth’s violation of the plea
agreement and the trial court’s failure to adequately consider mitigating facts
when it imposed the current sentence. See Appellant’s brief at 14-15. Those
facts include that while he received a greeting card that had been soaked in
- 13 -
J-A20015-20
liquefied Suboxone, he did not attempt to distribute the contraband to other
inmates. Characterizing his behavior as illustrative of an addiction, which he
was currently receiving treatment for in prison, he asserts that the imposition
of a consecutive sentence imposed a greater punishment than the offense
demanded.
As we held in McLaine, supra, the question whether Appellant has
presented a substantial question is evaluated on a case-by-case basis.
Furthermore,
A substantial question exists “only when the appellant advances a
colorable argument that the sentencing judge's actions were
either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Commonwealth v. Sierra, 2000 PA
Super 151, 752 A.2d 910 (Pa.Super. 2000). A claim that a
sentence is manifestly excessive might raise a substantial
question if the appellant's Rule 2119(f) statement sufficiently
articulates the manner in which the sentence imposed violates a
specific provision of the Sentencing Code or the norms underlying
the sentencing process. Commonwealth v. Mouzon, 571 Pa.
419, 812 A.2d 617 (2002).
McLaine, supra at 76.
A bare challenge to the trial court’s imposition of a consecutive sentence
typically does not raise a substantial question regarding the discretionary
aspect of sentence. See Commonwealth v. Johnson, 691 A.2d 877, 880
(Pa.Super. 2008). However, an excessive sentence claim that incorporates
an assertion that the court failed to consider mitigating factors does raise a
substantial question. Commonwealth v. Caldwell, 117 A.3d 763, 760
(Pa.Super. 2015) (claim that imposition of consecutive sentences was unduly
- 14 -
J-A20015-20
excessive, together with claim that court failed to consider rehabilitative
needs, presented a substantial question). Instantly, Appellant argues that the
trial court discounted both the Commonwealth’s behavior and his addiction in
imposing a consecutive sentence. Hence, we find that Appellant presents a
substantial question. Accordingly, we turn to the merits of Appellant’s
sentencing challenge.
In crafting a judgment of sentence, the trial court must ensure that the
punishment is “consistent with the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.
§ 9721(b). When reviewing the discretionary aspects of a sentence that falls
within the sentencing guidelines, we will vacate the sentence if “the case
involves circumstances where the application of the guidelines would be
clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).
Instantly, after noting the guideline ranges, Appellant’s prior record
score, and its review of the updated PSI report, the trial court sentenced
Appellant squarely within the standard range of the sentencing guidelines. In
this setting, we consider Appellant’s claim that the consecutive nature of his
sentence resulted in an aggregate sentence that was too harsh, as it was not
commensurate with his conduct, and that the trial court did not adequately
consider the mitigating fact of his addiction.
- 15 -
J-A20015-20
Although Appellant invokes what he believes are mitigating
circumstances, the trial court had the discretion to weigh those considerations
against other factors in determining whether to impose the sentence
consecutively. In essence, Appellant’s complaint is not that the trial court
disregarded certain factors, but that it did not accord those considerations the
proper weight. However, we cannot re-weigh these factors and substitute our
judgment for that of that trial court. See Commonwealth v. Macias, 968
A.2d 773 (Pa.Super. 2009).
We find no abuse of discretion. The trial court was not only familiar with
Appellant, the Commonwealth’s breach of the plea agreement, and the
underlying offense, it also ordered and reviewed an updated PSI report before
imposing the complained-of consecutive sentence. Accordingly, we presume
that it was aware of and weighed all relevant mitigating factors that Appellant
highlights, including the Commonwealth’s alleged dubious dealings and
Appellant’s rehabilitative needs. As we stated in Commonwealth v. Hill, 210
A.3d 1104, 1117 (Pa.Super. 2019):
Where the sentencing court had the benefit of a [PSI 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.
Further, where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.
Hence, the trial court weighed these facts, together with the circumstances
offered by Appellant in imposing a consecutive term of imprisonment. As we
- 16 -
J-A20015-20
conclude that the trial court’s imposition of a standard-range sentence
consecutive to the terms of imprisonment that Appellant was serving was
appropriate, we do not discern an abuse of discretion on the record before us.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2021
- 17 -