Commonwealth v. Dreves

KLEIN, J.,

Dissenting.

¶ 1 While I would not give Dreves relief, I do not believe that we should quash his appeal but instead believe we should deny it on the merits.

¶ 2 In this case, the trial judge accepted a nunc pro tunc post-sentence motion which was filed ten days late and immediately acted on it. He scheduled the first hearing on that motion within thirty days *1130of the date of sentencing, while he still had jurisdiction over the case.

¶ 3 On appeal, in a supplemental brief, the Commonwealth asks this Court to quash the appeal, claiming that the trial judge was without power to accept the post-sentence motion nunc pro tunc. It claims the motion was untimely and a nullity and Dreves let run the 30-day period to appeal to our Court. The majority would quash. I respectfully disagree.

1. It was proper for the trial judge to entertain the post-sentence motion nunc pro tunc.

¶ 4 Once 30 days run from the date of sentencing, a trial judge loses jurisdiction; however, within that 30-day period the trial judge still has jurisdiction. This jurisdiction is provided by 42 Pa.C.S.A. § 5505, which reads:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

¶ 5 Whether a post-sentence motion under Pa.R.Crim.P. 720 is deemed timely or not is a procedural rule. Nothing within the rule takes away the court’s inherent power to accept a filing nunc pro tunc within thirty days of sentence. Therefore, when the trial judge accepted the motion to modify sentence or withdraw his guilty plea nunc pro tunc, the judge considered it filed timely. Since this action occurred within 30 days of sentence, the trial court did have jurisdiction.

¶ 6 The sentencing was on May 10, 2001, and the docket reflects the motion to modify sentence or withdraw his guilty plea nunc pro tunc was filed on May 30, 2001. The docket reflects that the trial judge accepted the filing on the day it was filed and immediately scheduled a hearing for June 7, 2001, also within 30 days of sentencing.8 The motion to modify sentence or withdraw guilty plea nunc pro tunc was ultimately denied on its merits.

¶ 7 The motion was denied by the trial court within 120 days of sentencing, as allowed by Pa.R.Crim.P. 720(B)(3)(a). As the trial judge accepted the motion nunc pro tunc and set a hearing date, he considered it timely filed. Therefore, once he considered it timely, under Pa.R.Crim.P. 720(B)(3) and 720(B)(3)(a), the trial judge is directed not to vacate sentence but to decide the motion within 120 days. The judge complied with that directive and I see no error in his doing so.

¶ 8 The case of Commonwealth v. Fralic, 425 Pa.Super. 581, 625 A.2d 1249 (1993) has relevance. Although a motion for reconsideration of sentence under the old post-verdict motion procedure was not allowed in that case. Frolic is instructive because the key fact was the inaction of the trial judge within 30 days of sentence. In Frolic, a timely motion to modify sentence was filed, and, although the judge held a hearing on an accompanying bail petition, he did nothing about the motion to modify sentence until three and one-half months later. Since nothing was done within 30 days of sentence, the Court’s action was untimely. In this case, the trial judge accepted the nunc pro tunc motion and set a hearing date within 30 days of *1131sentencing. Therefore, he considered the motion timely. Because the new rule directs the judge not to vacate the sentencing order once he considers the motion timely filed,9 the trial judge acted properly by setting a hearing date rather than vacating sentence. Although circumstances prevented the hearing from taking place within thirty days of sentencing as originally scheduled, the only conclusion one can reach when the judge schedules a hearing is that he is willing to accept the late-filed post-sentence motion nunc pro tunc.

¶ 9 The recent en banc decision of this Court, Commonwealth v. Felmlee, 828 A.2d 1105 (Pa.Super.2003), similarly supports this view. In Felmlee, the majority held that when a faxed post-sentence motion bearing a timely date was in the record, and the trial judge considered it, the motion should be deemed timely. The Felmlee court said:

Although the motion was not docketed until two days later, it is apparent that the trial court accepted the facsimile, as it issued a Rule to Show Cause and reviewed the motion at a hearing where neither the court nor the parties commented about its receipt by fax or its timeliness.

Id. at 1107 In Felmlee, although there was a fax sent to the judge’s chambers that bore a date within the ten days, the record of the clerk of court showed a filing twelve days after the sentence. There was no evidence that counsel made any service on the clerk prior to the date on the docket. The key therefore is that neither the trial court nor the parties objected to the fact that the filing might have been a couple of days late.

¶ 10 Likewise, in the instant case, neither the trial court nor the Commonwealth commented on or objected to the acceptance of the motion nunc pro tunc. A review of the transcript of the hearing on the motion to modify sentence held on August 3, 2001 reveals that while the assistant district attorney objected to the proposed withdrawal of the guilty plea on substantive grounds, she said nothing about the fact that the judge accepted the nunc pro tunc filing twenty days after sentence. In fact, even in its initial brief to this Court, the Commonwealth failed to object to the trial judge’s acceptance of the motion nunc pro tunc. Within 30 days of sentencing, the trial judge retains discretion. While he could have vacated the sentence, he did not do so because he followed the alternative of accepting the filing nunc pro tunc, as if it were timely filed, and proceeded accordingly. See Pa. R.Crim.P. 720(B).

¶ 11 Therefore, I believe it is appropriate to consider the motion accepted as timely filed by the trial judge and therefore to review the merits. It is the function of this Court to consider the merits of appeals to insure that at the trial court level the parties received a fair trial and the judge followed the law. We should not be so quick to find technicalities to deprive parties of their right to appeal. See Pa. R.Crim.P. 101 (“Purpose and Construction (A) These rules are intended to provide for the just determination of every criminal proceeding. (B) These rules shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.”)(emphasis added).

2. The judge did not abuse his discretion in refusing to modify sentence or allow the withdrawal of the plea.

¶ 12 I note that if we did reach the merits, we would have no trouble affirming *1132the trial court. Dreves claims that the trial court abused its discretion by accepting his plea agreement, but then imposed a minimum sentence greater than the sentence agreed to by Dreves. According to Dreves, he tendered his guilty pleas in exchange for a sentence at the lower end of the standard range for his conviction of aggravated harassment by prisoner. He claims that he should have been permitted to withdraw his plea because the trial court sentenced him near the high end of the standard range for that charge. However, Dreves did not present this claim in his motion to modify his sentence or withdraw his guilty plea, or at the hearing on this motion.

¶ 13 In his motion, Dreves stated, in relevant part, as follows:

At sentencing, probation informed [Dreves] that he would probably wait sixty days before parole from the State Correctional Institution.
jfc % ‡ ifc ifc
[Dreves] believes and therefore avers that pursuant to state parole policies, because he has been convicted of Aggravated Harassment by a Prisoner, he would not [be] eligible for parole until [after] serving eighty-five percent (85%) of his maximum sentence.
‡ ‡ ifc ij* ‡
[Dreves] believes and therefore avers that serving eighty-five percent of five years state time would be contrary to the spirit of the sentence which imposed time served.

Motion to Modify, 5/30/01, at ¶¶ 5-7. Dreves did not claim that the trial court imposed a sentence greater than the sen-ience specified by the plea agreement. At the hearing on Dreves’s motion, his counsel presented the following explanation of Dreves’s claim:

We’re not arguing the legality of the sentence that was imposed. What we’re here to do basically, as I told my client, is throw ourselves at the mercy of the court.
After the sentence was imposed, my client spoke to people and it became his belief he would have to spend 85% of his maximum in state prison because of the current trend of violent offenders not being released upon their earliest parole time.
* * * * * *
The reason we filed the Motion is that it was our belief that the court intended to impose a time served sentence and then have Mr. Dreves under state supervision upon being paroled. As a technical matter, that’s exactly what has happened.
But as a practical matter, he will have to spend much more time in prison then he actually had time served at the time of his guilty plea. So we’re basically asking the Court to do whatever it can to do [to implement] what we thought was the Court’s intention at the beginning.

(N.T., 8/3/01, at 2-3.)

¶ 14 It is apparent that counsel for Dreves did not raise the issue that the trial court imposed a sentence greater than that specified in the plea agreement. Because the issue Dreves raises on appeal was not first presented to the trial court, the trial court was unable to address the issue in a 1925(a) opinion, so it is waived.10 See Pa. *1133R.A.P. 302(a) (claim cannot be raised for the first time on appeal); Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.Super.2000) (same).

¶ 15 Although I believe it improper to quash the appeal, I would affirm the judgment of sentence.

¶ 16 P.J.E. McEWEN and BENDER, J. join this Dissenting Opinion.

. According to the request for continuance filed of record by Dreves’ counsel, that hearing was continued because on June 6, 2001, Dreves was sent back to the state prison and was therefore unavailable. It took until August 3, 2001 until Dreves was returned to county custody and the hearing on the motion took place. It certainly was not Dreves’ fault that he did not get to court to have a hearing within 30 days of sentencing.

. Pa.R.Crim.P. 720(B)(3).

. Even if Dreves had properly preserved this claim, he would not be entitled to relief. The standard for the withdrawal of a guilty plea after sentencing requires a showing of prejudice on the order of manifest injustice. Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154, 164 (1999). "A plea rises to the level of manifest injustice when it was entered into involuntarily, unknowingly, or unintelligently.” Commonwealth v. Stork, 737 A.2d 789, *1133790 (Pa.Super.1999) (citation omitted). At the guilty plea hearing, the trial court summarized the sentencing terms of Dreves’s plea agreement as follows:

[0]n the Aggravated Harassment by a Prisoner, the maximum punishment is seven years in prison, fine of $15,000 or both. On the Terroristic Threats, it is five years in jail and up to a $10,000 fine or both. Under the law, the sentences could run consecutively, that means one after the other.
There is a plea agreement that the sentences would run concurrently, which means they run at the same time, and would be at the bottom of the standard range. At least that is on 99-905 [terroristic threats]. It is at the bottom of the standard range. On 1087 [aggravated harassment by prisoner] it says sentences to run concurrently.

(N.T., 2/22/01, at 5.) Dreves did not challenge the trial court’s interpretation of the plea agreement. Moreover, at sentencing, Dreves’s counsel reiterated the terms set forth above. (N.T., 5/10/01, at 2.) This evidence, the statements set forth in Dreves’s motion to modify his sentence or withdraw his guilty plea, and the argument presented at the hearing on the motion, negate Dreves’s claim of an unknowing plea and do not rise to the level of manifest injustice.