Com. v. Mason, W.

J-S49021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
WILLIAM MASON
Appellant No. 34 EDA 2019
Appeal from the Judgment of Sentence imposed March 4, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0000810-2014
BEFORE: BENDER, P.J.E., STABILE, J. and STEVENS, P.J.E.*
JUDGMENT ORDER BY STABILE, J.: FILED NOVEMBER 14, 2019
Appellant, William Mason, appeals nunc pro tunc from the judgment of
sentence the Court of Common Pleas of Philadelphia County imposed on March
4, 2015. For the reasons stated below, we affirm.
On October 10, 2014, Appellant entered an open guilty plea to two
counts of robbery, one count of burglary, and one count of possession of an
instrument of crime. On March 4, 2015, the trial court sentenced Appellant
to concurrent terms of 5 to 10 years’ imprisonment for burglary and 4 to 10
years’ imprisonment for each count of robbery, followed by 5 years’ probation
for possession of an instrument of crime. Appellant did not file a motion for
reconsideration or a direct appeal.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S49021-19
On December 11, 2015, Appellant filed a counseled PCRA petition,
claiming, inter alia, ineffective assistance of trial counsel. Following an
evidentiary hearing on Appellant’s PCRA petition, the PCRA court reinstated
his appellate rights nunc pro tunc, but denied his request for resentencing and
all other claims raised in the petition.
Appellant timely filed the instant direct appeal, challenging the
discretionary aspects of his sentence. For the reasons explained below, we
conclude Appellant is entitled to no relief.
It is well established that challenges to the discretionary aspects must
be raised at the time of sentencing or in a post-sentence motion. See, e.g.,
Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004). Failure
to do so, results in a waiver of the claim. Id.Because the discretionary aspects of the sentence were not timely
challenged below, and because Appellant failed to challenge the order of the
PCRA court to the extent it denied reinstatement of Appellant’s post-sentence
rights,1 we are constrained to conclude that Appellant waived his challenge to
the discretionary aspects of the sentence. See McAfee, supra.____________________________________________
1 A defendant is not automatically entitled to reinstatement of his/her post-
sentence rights nunc pro tunc when the court reinstates his/her direct appeal
rights nunc pro tunc. A PCRA court can reinstate a defendant’s post-sentence
rights nunc pro tunc if the defendant successfully pleads and proves he was
deprived of the right to file and litigate. See Commonwealth v. Liston, 977
A.2d 109 (Pa. 2009); Commonwealth v. Fransen, 968 A.2d 154 (Pa. Super.
2009). Instantly, Appellant pled ineffective assistance of counsel as the
reason for not challenging the discretionary aspects of the sentence at earlier
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J-S49021-19
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/19
____________________________________________
stages. After holding a hearing on the matter, the PCRA court denied the
reinstatement of Appellant’s post-sentence rights. Appellant, however, did
not challenge that ruling.
In a footnote, Appellant acknowledges that, absent a proper and timely
challenge to the discretionary aspects of the sentence, the claim cannot be
reviewed on appeal. Appellant’s Brief at 13, n.2. Nonetheless, Appellant
suggests that we can entertain the instant challenge, despite the
acknowledged deficiencies, due to the “unique procedural history.” Id. In
support, Appellant cites, without any explanation, Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). Reliance on Tirado is
misplaced. First, in Tirado there is no indication of any procedural
abnormality, let alone one giving rise to some sort of exception to the general
rule as acknowledged by Appellant. Second, in Tirado, we found that
Appellant properly challenged the discretionary aspects of the sentence by
filing a timely motion for reconsideration of sentence. Accordingly, reliance
on Tirado is misplaced.
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