Com. v. Baez-Ortega, M. ( 2021 )

J-S17038-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARIA ELIZABETH BAEZ-ORTEGA :
:
Appellant : No. 228 MDA 2021
Appeal from the Judgment of Sentence Entered September 1, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001065-2019
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 25, 2021
Maria Elizabeth Baez-Ortega (Baez-Ortega) appeals from the September
1, 2020 judgment of sentence1 entered by the Court of Common Pleas of Berks
County (trial court) following her guilty plea to aggravated assault and
possession of contraband.2 We quash the appeal.
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* Retired Senior Judge assigned to the Superior Court.
1 Baez-Ortega’s notice of appeal purports to appeal from the judgment of
sentence and from the January 13, 2021 order denying her post-sentence
motion to modify her sentence. “In a criminal action, appeal properly lies
from the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.
Super. 2001) (en banc) (citation omitted).
2 18 Pa.C.S. §§ 2702(a)(3) & 5123(a.2).
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Only a brief procedural history is necessary to our disposition. On
September 1, 2020, Baez-Ortega entered an open guilty plea to one count of
aggravated assault and one count of possession of contraband and proceeded
immediately to sentencing. The trial court sentenced her to 18 to 36 months’
incarceration for the count of aggravated assault and a consecutive period of
3 years’ probation for the count of possession of contraband.3
Even though Baez-Ortega was represented by counsel, she sent a pro
se letter to the trial court, docketed on September 8, 2020, requesting
reconsideration of her sentence. Subsequently, on September 16, 2020, her
counsel filed a motion to file post-sentence motion nunc pro tunc and post-
sentence motion explaining that he had received Baez-Ortega’s request to file
a post-sentence motion after the ten-day period for filing the motion had
passed.
On October 7, 2020, the trial court granted the motion to file the post-
sentence motion nunc pro tunc. A hearing on the merits of the post-sentence
motion was held on January 12, 2021 and the trial court entered an order
denying the motion the following day.4 On February 9, 2021, Baez-Ortega
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3 Baez-Ortega also pled guilty and was sentenced for one count of possession
of a controlled substance, 35 P.S. § 780-113(a)(16), at a separate docket
number. She did not appeal from the judgment of sentence in that case.
4 Baez-Ortega then sent a second pro se letter requesting reconsideration of
her sentence which was docketed on January 26, 2021.
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filed a notice of appeal. She and the trial court have complied with Pa. R.A.P.
1925. On appeal, Baez-Ortega challenges the discretionary aspects of her
sentence. Before we proceed to the merits of her claim, we must determine
whether we have jurisdiction to consider it. See Commonwealth v. Gaines,
127 A.3d 15, 17 (Pa. Super. 2015) (en banc).
A criminal defendant must file a notice of appeal from her judgment of
sentence within 30 days of the imposition of the sentence in open court.
Pa.R.Crim.P. 720(A)(3); Pa. R.A.P. 301(a)(2), 903(a). However, if the
defendant files a post-sentence motion within ten days following the
imposition of her sentence, the motion tolls the period of time for filing a notice
of appeal. Pa.R.Crim.P. 720(A)(1)-(2). Under these circumstances, the
defendant must file her notice of appeal within 30 days of the order disposing
of the motion. Id. An untimely post-sentence motion will only toll the appeal
period if the defendant requests nunc pro tunc relief and the trial court
“expressly permit[s] the filing of a post-sentence motion nunc pro tunc,
also within 30 days of imposition of sentence.” Commonwealth v. Capaldi,
112 A.3d 1242, 1244 (Pa. Super. 2015) (emphasis in original). This Court
lacks jurisdiction to consider an appeal that is not timely filed. Gaines, supra(“Because this filing period is jurisdictional in nature, it must be strictly
construed and may not be extended as a matter of indulgence or grace.”
(citation omitted)).
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Baez-Ortega was sentenced on September 1, 2020 and did not file her
post-sentence motion until September 16, 2020, 15 days after her sentence
was imposed.5 The trial court lacked jurisdiction to grant nunc pro tunc relief
after October 1, 2020, 30 days after the sentence was imposed. See 42
Pa.C.S. § 5505 (allowing for modification or rescission of an order within 30
days after entry if no appeal has been taken). The trial court did not grant
the motion to consider the post-sentence motion nunc pro tunc until October
7, 2020. This order was entered 36 days after the imposition of the sentence
and six days after the time period for filing an appeal had expired. See Pa.
R.A.P. 301(a)(2), 903(a). As a result, the time period for filing a notice of
appeal was not tolled and Baez-Ortega’s judgment of sentence became final
on October 1, 2020. Capaldi, supra. Because she did not file her notice of
appeal until February 9, 2021, her appeal is untimely and we are without
jurisdiction to consider it.
Appeal quashed.
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5 While Baez-Ortega sent a letter to the trial court requesting reconsideration
of her sentence on September 8, 2020, she was represented by counsel at
that time. It is well-established that there is no right to hybrid representation
in Pennsylvania and any pro se motions filed by represented defendants are
legal nullities. See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.
Super. 2016).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/25/2021
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