Com. v. Shaffer, K.

J. S36034/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KENNETH JOHN SHAFFER, SR., : No. 3446 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, July 6, 2015,
in the Court of Common Pleas of Wayne County
Criminal Division at No. CP-64-CR-0000042-2006
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2017
Kenneth John Shaffer, Sr., appeals from the July 6, 2015 judgment of
sentence entered in the Court of Common Pleas of Wayne County following
his guilty plea to rape of a child, involuntary deviate sexual intercourse
(“IDSI”), statutory sexual assault, aggravated indecent assault, indecent
exposure, and corruption of minors.1 The trial court imposed an aggregate
term of imprisonment of 16 to 45 years. We quash.
This Court previously set forth most of the relevant
facts and procedural history of this case as follows:
On May 12, 2006, [Appellant] pled guilty
to two counts each of aggravated
indecent assault and corruption of a
minor, and one count each of rape of a
child, [IDSI], statutory sexual assault
1
18 Pa.C.S.A. §§ 3121(c), 3123(a)(7), 3122.1, 3125(a)(7), 3125(a)(8),
3127(a), 6301(a)(1), respectively.
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and [indecent exposure]. On
September 11, 2006, the trial court
sentenced [Appellant] to an aggregate
sentence of 16 years and 6 months to
45 years in prison. [Appellant] filed a
Motion for reconsideration of sentence,
which the trial court denied. Thereafter,
the Commonwealth filed a Petition to
Amend Sentence, averring that there
was an error in the sentencing
computation, but that the total sentence
imposed was appropriate. On
December 14, 2012, the trial court
entered an Order which clarified that
[Appellant’s] total sentence is 15 years
and 6 months to 45 years in prison.
Subsequently, on February 28, 2013, the
trial court entered another Order that
amended the December 14, 2012
sentencing Order to read that
[Appellant’s] total sentence is 16 years
and 6 months to 45 years in prison.
On July [19], 2013, [Appellant], pro se,
filed [a Post Conviction Relief Act
(“PCRA”)][Footnote 2] Petition. The
PCRA court appointed Attorney [Lindsey]
Collins as counsel. Attorney Collins filed
an amended PCRA Petition on
[Appellant’s] behalf alleging improper
sentencing on the rape of a child count.
The PCRA court and the Commonwealth
agreed that a sentencing error was made
in relation to the rape of a child count.
Accordingly, the PCRA court vacated the
sentence imposed on that count only.
On [March 4], 2014, following a hearing,
the PCRA court resentenced [Appellant]
solely on the rape of a child count to
66 months to 20 years in prison. Based
on this resentencing, [Appellant’s] new
total aggregate sentence was 16 to
45 years in prison. [Appellant] filed a
Motion for reconsideration of sentence,
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which the PCRA court denied on
March [12], 2014.
[Footnote 2] 42 Pa.C.S.A.
§§ 9541-9546.
Commonwealth v. Shaffer, No. 1085 EDA 2014,
unpublished memorandum at 1-3 (Pa.Super. filed
November 26, 2014) (footnotes omitted).
On November 26, 2014, this Court vacated
Appellant’s judgment of sentence in its entirety and
remanded for resentencing on all
counts.[Footnote 3] The trial court resentenced
Appellant on July [6], 2015, to consecutive terms of
incarceration of five-and-one-half (5½) to twenty
(20) years for rape of a child, five (5) to ten (10)
years for IDSI, one (1) to five (5) years for statutory
sexual assault, two-and-one-half (2½) to five (5)
years for aggravated indecent assault (victim less
than 13 years of age), and two (2) to five (5) years
for aggravated indecent assault (victim less than
16 years of age). The court also imposed concurrent
terms of incarceration of three (3) months to two (2)
years for indecent exposure, and six (6) months to
two (2) years for each count of corruption of minors.
Thus, Appellant’s aggregate sentence was sixteen
(16) to forty-five (45) years’ incarceration.
[Footnote 3] This Court explained:
“[W]e cannot determine from our review
of the record whether the declared
invalidity of the sentence on the rape of
a child count would have affected the
trial court’s sentencing on the remaining
counts[.]” Id. at 3.
Immediately following resentencing, Attorney Collins
withdrew and the court appointed new counsel “for
purposes of [Appellant’s] appeal only.” (See Order,
filed July 7, 2015). On July 15, 2015, Appellant filed
a pro se post-sentence motion, which the court
denied on August 3, 2015, without notice to counsel
of record. Appellant filed a counseled notice of
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appeal on September 1, 2015. The court ordered
Appellant to file a concise statement of errors
complained of on appeal, pursuant to
Pa.R.A.P. 1925(b), with notice to counsel of record.
Appellant filed a pro se Rule 1925(b) statement on
October 9, 2015. The court issued its Rule 1925(a)
opinion on October 23, 2015, in response to
Appellant’s pro se Rule 1925(b) statement. Counsel
filed an amended Rule 1925(b) statement on
November 30, 2015.
Commonwealth v. Shaffer, No. 2682 EDA 2015, unpublished
memorandum at 1-4 (Pa.Super. filed June 3, 2016) (most brackets in
original).
The record further reflects that on direct appeal to this court at
No. 2682 EDA 2015, this court identified “procedural irregularities [that]
implicate[d] [a]ppellant’s fundamental right to counsel and constitute[d] a
breakdown in the court’s operation, which resulted in [a]ppellant’s waiver of
any discretionary aspects of sentencing claims he [raised in that] appeal.”
Id. at 7. As such, on June 3, 2016, this court remanded the case to the trial
court for further proceedings with directions that:
[w]ithin ten (10) days of the filing date of this
decision, counsel shall confer with Appellant and file
a post-sentence motion nunc pro tunc raising any
appropriate sentencing claims Appellant wishes to
pursue, after which Appellant can file a nunc pro
tunc appeal in due course.[Footnote 4]
[Footnote 4] The trial court imposed
Appellant’s current sentence following
remand from this Court, which directed
the trial court to resentence Appellant on
all counts. Therefore, Appellant can
raise issues related to and within the
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scope of this Court’s previous remand
(sentencing only).
Id. at 7. The record reflects that this court’s decision was filed on June 3,
2016 and that appellant filed his post-sentence motion nunc pro tunc on
June 14, 2016. The record further reflects that on November 4, 2016,
appellant filed a praecipe with the trial court that requested the prothonotary
to enter an order denying appellant’s post-sentence motion nunc pro tunc
by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(c). On the same
day, appellant filed a notice of appeal to this court. On November 7, 2016,
the trial court ordered appellant to file a statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied. In response,
the trial court filed a “statement of reasons.”
On December 27, 2016, this court entered an order directing appellant
to show cause within 10 days as to why this appeal should not be quashed
as untimely filed because nothing on the trial court docket indicates that
appellant filed his post-sentence motion nunc pro tunc by June 13, 2016.
(Order of court, 12/27/16.) Appellant failed to respond to this court’s
show-cause order.
This court lacks jurisdiction to consider untimely appeals.
Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa.Super. 2015).
Where a defendant’s direct appeal rights have been reinstated nunc pro
tunc, the defendant has 30 days from the reinstatement order to file a
direct appeal. Commonwealth v. Wright, 846 A.2d 730, 735 (Pa.Super.
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2004). A post-sentence motion that is not timely filed does not toll the
30-day direct appeal period. Commonwealth v. Wrecks, 934 A.2d 1287,
1289 (Pa.Super. 2007); see also Pa.R.Crim.P. 720(A)(3).
Here, this court restored appellant’s direct appeal rights nunc pro
tunc and ordered appellant to file his post-sentence motion nunc pro tunc
within 10 days of June 3, 2016, after which appellant could file a nunc pro
tunc appeal to this court. Appellant failed to timely file his post-sentence
motion nunc pro tunc. Moreover, appellant filed his notice of appeal to this
court on November 4, 2016, which was well beyond the 30-day period
during which he was required to file an appeal. Finally, on December 27,
2016, this court ordered appellant to show cause within 10 days as to why
this appeal should not be quashed as untimely. Appellant failed to respond.
We, therefore, quash this appeal.2
Appeal quashed.
2
We also note that in his brief to this court, appellant challenged certain
discretionary aspects of his sentence. Because appellant’s notice of appeal
was untimely and because appellant failed to properly preserve his claims in
a timely post-sentence motion nunc pro tunc, appellant would be unable to
satisfy the four-part test necessary to invoke this court’s jurisdiction to
review discretionary sentencing challenges. See Commonwealth v.
Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (an appellant challenging the
discretionary aspects of his sentence must invoke this court’s jurisdiction by
satisfying a four-part test that requires appellant to have filed a timely
notice of appeal, to have properly preserved the issues at sentencing or in a
post-sentence motion, to have included a Pa.R.A.P. 2119(f) statement in his
brief, and to have raised a substantial question).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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