Commonwealth v. Bentley

*671CONCURRING OPINION BY

GRACI, J.:

¶ 1 I join the thoughtful and thorough opinion of the majority as I understand the effect of its order is to put this case back in the posture as though the clerk of quarter sessions had carried out its responsibility (which will be discussed below) and issued an order denying Bentley’s post-sentence motion by operation of law. Upon remand, Bentley will be entitled to file a notice of appeal to this Court. He will not be able to file another post-sentence motion. That he has already done and it was denied by operation of law. At that point, the case will be governed by the procedures we recently outlined in Commonwealth v. Kohan, 825 A.2d 702 (Pa.Super.2003). There we explained:

Once an appeal has been taken, except in limited circumstances not present here, a trial court may no longer take any substantive action in a case. Pa. R.A.P. 1701(a); Commonwealth v. Pearson, 454 Pa.Super. 313, 685 A.2d 551, 557 (1996) (en banc). At that point, however, the trial court is required to write an opinion setting forth the reasons for its order or other matters appealed from if the reasons do not already appear in the record. Pa.R.A.P. 1925(a); K-B Building Co. v. Hermara Associates, Inc., 709 A.2d 918, 919 (Pa.Super.1998). The trial court may not enter any kind of an order on the claims but may indicate how it would have acted if permitted to do so. Id. (though trial court had failed to timely act on post-trial motions before judgment was entered as permitted by the rules, court was still required to issue non-dispositive opinion under Rule 1925).

Commonwealth v. Kohan, 825 A.2d at 706 (footnote omitted). Under this rational, the learned trial court will be able to explain why it would have granted Bentley a new trial if it had the authority to do so, but it will be without jurisdiction to grant that relief.

¶2 I note that we have recently held that this Court will entertain claims of ineffective assistance of counsel on direct appeal if such claims are raised in a timely post-sentence motion and ruled upon by the trial court.6 Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa.Super.2003) (“[Commonwealth v.] Grant [, 572 Pa. 48, 813 A.2d 726 (Pa.2002)] simply has no application where the issue was properly raised and decided by the trial court before the direct appeal process started”). See also Commonwealth v. Bomar, 826 A.2d 831 (Pa.2003) (referring to this circumstance as an exception to the general rule of deferral in Grant). Here, there seems to be no issue concerning the timeliness of the ineffective assistance claims raised in the trial court. What was untimely, as the majority properly determines, was the disposition of the claim. No court has yet determined the question presented here, namely: where a timely post sentence motion challenges the effectiveness of trial counsel but the motion is deemed denied by operation of law, may the ineffectiveness issue be raised and addressed on direct appeal. This question is compounded by the fact that the evidentia-*672ry hearings that were conducted in this case (and which Grant recognized are frequently needed when dealing with claims of ineffective assistance of trial counsel) were conducted after the trial court lost jurisdiction over this case by operation of law as the majority appropriately points out. Opinion, at 670 n. 4. Resolution of this question is beyond the reach of this opinion and will have to await another day.7

¶ 3 I also note that while I agree that the trial court’s order was a nullity because it was entered beyond the time limit of Rule 720, there was no appealable order entered in this case until the trial court’s order was entered. Commonwealth v. Santone, 757 A.2d 963, 966 (Pa.Super.2000); Commonwealth v. Braykovich, 444 Pa.Super. 397, 664 A.2d 133, 135 (1995); Commonwealth v. Khalil, 806 A.2d 415, 418 (Pa.Super.2002).

¶ 4 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 fifing 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.

¶ 5 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).8 It is from that order that any appeal would be perfected by the aggrieved defendant.

¶ 6 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.9 In my short time on the bench (and during my years as an appellate practitioner before then) it has frequently oc*673curred to me that this rule is honored much more in its breach than in its observance.

¶ 7 With these thoughts, I join the Opinion of the majority.

. The Pennsylvania Rules of Criminal Procedure provide for the amendment or supplementation of timely filed post-sentence motions in the trial judge’s discretion "as long as the decision on the supplemental motion can be made in compliance with the time limits of paragraph (B)(3).” Pa.R.Crim.P. 720(B)(1)(b). Here, it appears that the trial court allowed the supplemental motion but, as the majority concludes, did not decide it within the appropriate time limit.

.I note that Bentley recognizes the potential implications of Grant from our disposition along with the possibility that his claims would have to await review under the Post Conviction Review Act ("PCRA”), 42 Pa. C.S.A. §§ 9541 et seq. Brief/Reply Brief for Appellee/Cross-Appellant, at 11-12. Without deciding that issue, it appears to me that there is nothing in or resolution of this case which allows Bentley to file an appeal "if he desires” that would preclude Bentley from filing a PCRA petition raising his ineffective assistance claims upon this Court’s remand if that is the litigation strategy he chooses.

. See also, Pa.R.Crim.P. 721(D).

. Here, the Reproduced Record accompanying the Commonwealth's Brief contains notes to the trial court indicating an awareness of this obligation which state that the post-sentence motions will be denied by operation of law on March 13, 2002. Even if the trial court’s improper order extending the date for the disposition of the motions is considered, the order denying the motions by operation of law was not entered upon the expiration of that time as Rule 720 clearly mandates.