Com. v. Russell, M. ( 2022 )

J-S27015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MICHAEL E. RUSSELL
Appellant No. 2079 EDA 2021
Appeal from the Judgment of Sentence Entered June 28, 2021
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0002841-2020
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
JUDGMENT ORDER BY STABILE, J.: FILED NOVEMBER 22, 2022
Appellant, Michael E. Russell, appeals from the June 28, 2021 sentence
imposing an aggregate five to ten years of incarceration after he pled guilty
to 20 counts of violating a protective order (18 Pa.C.S.A. § 4955). We affirm.
The instant matter and its companion at Nos. 1839 EDA 2021 and 1862
EDA 2021 arise of Appellant’s domestic abuse of the victim, Traci White. In
this case, Appellant was charged with 54 counts of violations of the trial court’s
order that he not contact the victim. Appellant pled guilty to 20 counts in
exchange for the Commonwealth’s agreement to dismiss the remaining 34.
As per the parties’ negotiated sentence, Appellant received a consecutive
three to six months of incarceration for each of the 20 offenses.
Appellant did not challenge the validity of his plea during the sentencing
hearing or in a post-sentence motion. After the appeal period expired,
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Appellant sought nunc pro tunc reinstatement of his direct appeal rights, and
the trial court granted relief with the Commonwealth’s consent. He filed this
nunc pro tunc appeal on October 1, 2021. His brief to this Court presents four
questions, all of which challenge the validity of his plea. We will not address
these questions on the merits, as Appellant has failed to preserve them for
Appellate review.
“In order to preserve an issue related to a guilty plea, an appellant must
either “object[ ] at the sentence colloquy or otherwise raise[ ] the issue at the
sentencing hearing or through a post-sentence motion.” Commonwealth v.
Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa. Super. 2017) (quoting
Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002));
See also Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i); Pa.R.A.P. 302(a). Otherwise,
this issue is waived. “The purpose of this waiver rule is to allow the trial court
to correct its error at the first opportunity, and, in so doing, further judicial
efficiency.” Id.In the absence of a timely post-sentence motion, the defendant may
seek leave to file a post-sentence motion nunc pro tunc. “To be entitled to
file a post-sentence motion nunc pro tunc, a defendant must, within 30 days
after the imposition of sentence, demonstrate sufficient cause, i.e., reasons
that excuse the late filing.” Commonwealth v. Dreves, 839 A.2d 1122,
1128 (Pa. Super. 2003) (en banc). The trial court must expressly grant
permission for the untimely post-sentence motion for the thirty-day appeal
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period to be tolled. Id. Furthermore, a trial court’s nunc pro tunc
reinstatement of direct appeal rights does not automatically carry with it the
reinstatement of Appellant’s right to file a post-sentence motion.
Commonwealth v. Wright, 846 A.2d 730, 734 (Pa. Super. 2004). Rather,
the appellant must expressly seek, and the trial court must expressly grant,
that relief. Id.The record reveals that the trial court informed Appellant of his post-
sentence and appellate rights, including the filing deadlines. N.T. Hearing,
6/28/21, at 37. Appellant signed a written colloquy explaining the same. Id.
at 24-25. Nonetheless, Appellant did not file a timely post-sentence motion
or seek leave to file a nunc pro tunc post-sentence motion within 30 days of
the judgment of sentence. He concedes that the order permitting this nunc
pro tunc direct appeal did not expressly grant the right to file post-sentence
motions. Appellant’s Brief at 9-10. Based on all of the foregoing, Appellant
has failed to preserve the issues he seeks to raise.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2022
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