Commonwealth v. Robinson

GRACI, J.,

Concurring.

¶ 1 I join the thorough and scholarly opinion of the majority. I write separately only to note a recurring problem that I have regularly observed in my short time on the bench. The trial court failed to decide appellant’s timely-filed post-sentence motion with in the time prescribed by Rule 720 of the Pennsylvania Rules of Criminal Procedure. Pa.R.Crim.P. 720. The order deciding them was, accordingly, a nullity. Commonwealth v. Bentley, 831 A.2d 668, 670-72 (Pa.Super.2003) (citing Commonwealth v. Santone, 757 A.2d 963, 966 (Pa.Super.2000)). The clerks of courts *1168likewise violated Rule 720 by failing to issue an order “forthwith” advising the parties that the motion was deemed denied by operation of law. Pa.R.Crim.P. 720(B)(3)(e). As I observed in Bentley:

Rule 720 is very clear. The trial judge must decide a timely filed post-sentence motion or grant a motion to extend that 120-day limit for 30 days within 120 days of the filing of the post-sentence motion. Pa.R.Crim.P. 720(B)(3)(a). If an extension is properly sought and granted (the rule does not allow sua sponte extensions), the post-sentence motion must be decided before the end of the extended period but in no event more than 150 days from the date the motion was filed. Id. If the judge fails to decide the motion within the applicable time, the Rule provides, in mandatory terms, “the motion shall be deemed denied by operation of law.” Pa.R.Crim.P. 720(B)(3)(a)(b). Any action the judge takes thereafter is a nullity. Santone, 757 A.2d at 966. However, the parties are hamstrung until an order is entered as no appeal may be initiated until a final order is entered.
The Rule is clear in this regard, as well. Once a post-sentence motion is deemed denied by operation of law under Rule 720(B)(3)(a) or Rule 720(B)(3)(b), the Rule requires, again in mandatory terms, that “the clerk of courts shall forthwith enter an order on behalf of the court, and shall forthwith a copy of the order by mail or personal delivery to the attorney for the Commonwealth, the defendant(s), and defense counsel that the post-sentence motion is deemed denied.” Pa.R.Crim.P. 720(B)(3)(c). It is from that order that any appeal would be perfected by the aggrieved defendant.
It seems clear that by twice using the word “forthwith,” the Supreme Court, in promulgating Rule 720, expected the clerks of court to be vigilant in carrying out their mandatory obligations under this Rule. In my short time on the bench (and during my years as an appellate practitioner before then) it has frequently occurred to me that this rule is honored much more in its breach than in its observance.

Id. at 672 (Graci, J., concurring) (footnotes omitted).

¶2 Since the clerk of courts did not issue an order denying the motion by operation of law 120 days from the January 14, 2002, filing of Appellant’s post-sentence motion, Appellant had no order to appeal until the trial court issued its order denying the motion on September 18, 2002. Santone, at 966; Commonwealth v. Braykovich, 444 Pa.Super. 397, 664 A.2d 133, 135 (1995); Commonwealth v. Khalil, 806 A.2d 415, 418 (Pa.Super.2002). Therefore, the appeal is properly before us as are Appellant’s several claims since they were raised either before or during trial or in a timely filed post-sentence motion.4

¶3 Since all of Appellant’s issues are properly before us despite the failings of the trial court and the dork of courts, I readily join their resolution by the majority-

. While two of the claims were included in an amended motion for post-sentence relief filed on May 3, 2002, that motion was filed with leave of court and within the 120-day period allowed for deciding post-sentence motions. The trial court has the discretion to allow the filing of supplemental post-sentence motions. Pa.R.Crim.P. 720(B)(1)(c). If such a supplemental is not decided within the appropriate time limit, it, too, is denied by operation of law.