Com. v. Fuller, M. ( 2024 )


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  • J-S30015-24
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    MATTHEW RAY FULLER                           :
    :
    Appellant               :   No. 1697 MDA 2023
    Appeal from the PCRA Order Entered November 24, 2023
    In the Court of Common Pleas of Lebanon County
    Criminal Division at No(s): CP-38-CR-0001769-2017
    BEFORE:      PANELLA, P.J.E., SULLIVAN, J., and STEVENS, P.J.E.*
    MEMORANDUM BY PANELLA, P.J.E.:                     FILED: NOVEMBER 19, 2024
    Matthew Ray Fuller appeals from the order entered on November 24,
    2023, denying his motion to modify sentence as untimely. Because we are
    without jurisdiction to hear this untimely appeal, we quash.
    Before we address the merits of this appeal, we note with extreme
    displeasure the Commonwealth’s failure to file an appellee’s brief. “An
    appellee is required to file a brief that at minimum must contain a summary
    of argument and the complete argument for appellee.” Commonwealth v.
    Pappas, 
    845 A.2d 829
    , 835 (Pa. Super. 2004) (internal quotation marks and
    citation omitted). In Pappas, the panel referred to the Commonwealth’s
    failure to file a proper appellee’s brief as “unacceptable.” 
    Id.
     We echo that
    ____________________________________________
    * Former Justice specially assigned to the Superior Court.
    J-S30015-24
    opinion and remind the Commonwealth of its obligation to file an advocate’s
    brief in future appeals.
    Fuller pled nolo contendere to unlawful contact with minor and
    corruption of minors on March 6, 2018, pursuant to a negotiated plea deal.1
    The court imposed the negotiated sentence of 40 months to 8 years’
    incarceration on June 6, 2018. However, after sentencing, it was discovered
    Fuller’s prior record score (“PRS”) was calculated incorrectly. Fuller filed a
    petition to file a post-sentence motion nunc pro tunc, and the court scheduled
    a hearing on the request. On September 10, 2018, upon agreement of the
    parties, the court granted Fuller’s petition and post-sentence motion and
    imposed a new negotiated sentence of 30 months to 8 years’ incarceration.
    Fuller did not file a direct appeal.
    The instant motion to modify sentence was filed on November 19, 2023.
    The court denied the motion as an untimely post-sentence motion. Fuller filed
    a notice of appeal and complied with the court’s order to file a Rule 1925(b)
    statement. See Pa.R.A.P. 1925(b).
    We first consider whether the trial court properly found Fuller’s motion
    was an untimely post-sentence motion, as this implicates our jurisdiction. See
    Commonwealth v. Ivy, 
    146 A.3d 241
    , 255 (Pa. Super. 2016) (noting this
    Court may consider the issue of jurisdiction sua sponte).
    ____________________________________________
    1 18 Pa.C.S.A. §§ 6318(a)(5) and 6301(a)(1)(ii), respectively.
    -2-
    J-S30015-24
    Fuller’s motion to modify sentence claimed the court utilized the
    incorrect sentencing guideline ranges in imposing his sentence because it used
    the wrong offense gravity score (“OGS”). This allegation raises a discretionary
    aspect of sentencing claim. See Commonwealth v. Troell, 
    290 A.3d 296
    ,
    299 (Pa. Super. 2023) (noting a claim that the trial court miscalculated the
    OGS is a challenge to the discretionary aspects of sentencing). Therefore, the
    trial court properly treated Fuller’s written request for relief as a post-sentence
    motion. See Commonwealth v. Wrecks, 
    934 A.2d 1287
    , 1289 (Pa. Super.
    2007) (requests for relief on the basis of the discretionary aspects of sentence
    must be treated as a post-sentence motion); see also Motion to Modify and
    Reduce Sentence, 11/20/23, at 1 (asserting motion was filed “pursuant to
    Rule 720”); Pa.R.Crim.P. 720.
    Rule 720 states “a written post-sentence motion shall be filed no later
    than 10 days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). Fuller’s
    instant motion was filed over 5 years after imposition of sentence. Therefore,
    the court properly denied the motion as untimely.2
    ____________________________________________
    2 As the trial court aptly noted, “[e]ven if [Fuller’s] latest claim could be
    considered to be a [r]equest for [r]elief under the Post-Conviction Relief Act
    [(“PCRA”)], it would still be considered untimely because it was filed more
    than one (1) year after the date on which his conviction became final.” Order,
    11/24/23, at 4. However, this claim is not cognizable under the PCRA as it
    challenges the discretionary aspects of his sentence. See Commonwealth v.
    Torres, 
    223 A.3d 715
    , 716 (Pa. Super. 2019) (“claims regarding the
    discretionary aspects of sentence are not cognizable under the PCRA.”)
    (citation omitted).
    -3-
    J-S30015-24
    Because the motion was untimely, it did not toll Fuller’s direct appeal
    rights, and we are without jurisdiction to hear this untimely appeal. See
    Wrecks, 
    934 A.2d at 1289
    ; see also Commonwealth v. Saunders, 1268
    WDA 2022, at * 2 (Pa. Super. filed May 26, 2023) (unpublished memorandum)
    (holding an untimely post-sentence motion challenging the discretionary
    aspects of sentencing does “not toll the requirement that Saunders raise his
    claim in a timely direct appeal.”).3 Therefore, we quash Fuller’s appeal.
    Appeal quashed.
    Judgment Entered.
    Benjamin D. Kohler, Esq.
    Prothonotary
    Date: 11/19/2024
    ____________________________________________
    3 Unpublished decisions filed after May 1, 2019, may be cited for their
    persuasive value. See Pa.R.A.P. 126(b).
    -4-
    

Document Info

Docket Number: 1697 MDA 2023

Judges: Panella

Filed Date: 11/19/2024

Precedential Status: Non-Precedential

Modified Date: 11/19/2024