Com. v. Blashock, J., IV ( 2019 )

J-S28001-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN R. BLASHOCK, IV :
:
Appellant : No. 2060 MDA 2018
Appeal from the PCRA Order Entered November 26, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0002477-2015
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER, J.*
CONCURRING MEMORANDUM BY McLAUGHLIN, J.:
FILED: SEPTEMBER 19, 2019
To the extent Appellant’s motion below can be construed as arguing that
his sentence became illegal once the Pennsylvania Board of Probation and
Parole refused to honor his concurrent sentence, I join the Majority. I write
separately to explain my reasons for rejecting Appellant’s additional argument
under Duncan v. Pennsylvania Department of Corrections, 137 A.3d
575, 576-77 (Pa. 2016) (per curiam).
That case involved an inmate in virtually the same circumstances as
Appellant. The Supreme Court affirmed the Department of Corrections’ refusal
to run the sentences concurrently, as doing so would violate the Parole Act.
See id. at 576 (citing 61 P.C.S. § 6138(a)(5)). The Court added that “it
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S28001-19
appears Appellant may be permitted to seek modification of his sentence nunc
pro tunc before the sentencing court, asserting he had not received the benefit
of the guilty plea bargain negotiated with the Commonwealth and approved
by the court.” Id. at 576-77 (citing Fajohn v. Com., Dep’t of Corrs., 692
A.2d 1067, 1068 n.1 (Pa. 1997); Commonwealth v. Zuber, 353 A.2d 441,
444 (Pa. 1976)).
Appellant followed that suggestion here when he filed his “Motion to
Modify Sentence Enforce [sic] Plea Agreement Nunc Pro Tunc.” See Motion,
filed 6/11/18, at 3 (citing Duncan). The trial court refused relief, however,
because Appellant waited approximately one year and three months after he
first learned that the Board would not honor his concurrent sentence to file his
nunc pro tunc motion. See Trial Court Opinion, filed 2/19/19, at 6. I do not
consider that to have been an abuse of discretion. I therefore concur in the
Majority’s affirmance.
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