Commonwealth v. Green

CONCURRING STATEMENT BY

KLEIN, J.:

¶ 1 I fully agree with the thorough discussion of the law by Judge Joyce and the conclusion of the majority that the time for filing a post-sentence motion begins when the judge pronounces the sentence in court. This is the date when the sentence is “imposed,” not the date when the clerk puts it on the docket.

¶ 2 I also recognize that this Court is bound to quash the appeal under two en banc opinions, Commonwealth v. Felmlee, 828 A.2d 1105 (Pa.Super.2003) and Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super.2003). I also realize that this Court has twice held that if a lawyer misses the ten-day deadline for filing a post-sentence motion, he or she has to appeal within 30 days. Otherwise, the only reme*622dy is a post-conviction petition alleging ineffectiveness of counsel for missing the deadline.

¶ 3 I recognize that Don Quixote probably had a better chance tilting at windmills than I have in trying to change this result. However, for the reasons stated in my concurring opinion in Felmlee and my dissenting opinion in Dreves, I still think the current state of the law imposing such an absolute deadline for the filing of post-sentence motions ignores the reality of criminal trial practice and results in frequent injustice. Because of the inevitable increase in PCRA petitions, it will result in slower dispositions of these claims rather than fulfilling its objective of quicker dispositions.

¶ 4 I wonder if there was any significant input from criminal trial lawyers when Pa. R.Crim.P. 720 was drafted. It appears the motivation of the rule was to speed up appeals. Occasionally, there were problems when for one reason or another a trial judge would delay ruling on post-verdict motions for a long period of time. In these cases, the appeal process was delayed and in some rare cases, a defendant with a meritorious claim remained in prison for a long time until tlie appeal was finally decided by this Court.

¶ 5 But sentencing often takes place relatively quickly after the trial, before the notes of testimony are transcribed. Most lawyers with a substantial private criminal practice have to be very busy to make a living. Frequently, they no sooner finish one trial than they are called to court before another judge in another trial. They must allow some time in the office to prepare briefs, meet with clients, return telephone calls and tend to other office business.

¶ 6 If a post-sentence motion is going to be meaningful, a thorough review of the case is necessary. A lawyer focusing on winning a case before a jury cannot always note every ruling that might give him or her grounds for appeal. While many judges may honor a request to supplement a post-sentence motion after the notes of testimony are transcribed, there is no requirement that this be done.

¶ 7 The situation gets even more difficult if a defendant, dissatisfied with trial counsel’s performance, retains a new lawyer after sentencing. How can a newly-retained lawyer, without notes of testimony, prepare a reasonable post-sentence motion within ten days? The lawyer might even have trouble speaking to the client, who in busy jurisdictions will be immediately shipped from the county to a state prison to alleviate overcrowding in county jails. This was the case in Felmlee.

¶ 8 The rule also creates a problem for trial judges. If a post-sentence motion is timely, the trial judge should consider it and not vacate the sentence. Pa. R.Crim.P. 720(B)(3). But if it is not timely, we now say that the trial judge should not consider it. In that circumstance, to grant relief, the trial judge must act within 30 days after sentencing while he or she still has jurisdiction, 42 Pa.C.S.A. § 5505. Therefore, to consider an untimely motion, he or she must vacate the sentence within 30 days to consider the application or the time for appeal runs. Our Court sometimes divides on whether or not a post-sentence motion is timely. If the judge assumes it is timely and sets a hearing, months later it may be determined that it is not timely and therefore what would have been an avenue for appeal for the defendant is lost.

¶ 9 Particularly when the trial judge schedules a hearing within thirty days of the imposition of sentence and the Commonwealth does not object, I do not believe it is proper or just for our Court, *623often on its own motion, to quash the appeal many months later. If this is what the rules require, than the rules should be changed.

¶ 10 It is my view that the ten-day period to file the motion did not come down from Mount Sinai, is not jurisdictional, can be waived by the Commonwealth, and should not override the trial judge’s general power to allow a nunc pro tunc filing.

If 11 As I noted in Dreves, Pa.R.Crim.P. 101 provides that the procedural rules “are intended to provide for the just determination of every criminal proceeding,” and “shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.” 839 A.2d at 1131. As currently interpreted, Pa.R.Crim.P. 720 falls woefully short of that goal.