Com. v. Bonaparte, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PIERRE BONAPARTE :
:
Appellant : No. 1377 MDA 2021
Appeal from the Judgment of Sentence Entered May 6, 2021
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002324-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 07, 2022
Pierre Bonaparte (Appellant) appeals from the judgment of sentence
imposed in the Luzerne County Court of Common Pleas following his plea of
nolo contendere to one count of sexual assault.1 Appellant contends the trial
court abused its discretion when it denied his pre-sentence motion to withdraw
his plea. We are constrained to quash this appeal as untimely filed.
A detailed recitation of the facts underlying Appellant’s plea is not
required. On December 5, 2017, Appellant sexually assaulted J.H. (Victim) in
an apartment in Plymouth Borough. See Affidavit of Probable Cause, 8/7/18,
at 1. Victim was an acquaintance of Appellant’s paramour’s son. Id. Upon
her arrival at the hospital for a sexual assault examination, Victim saw
Appellant and identified him to police as her assailant. Id. After making eye
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1 18 Pa.C.S. § 3124.1.
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contact with Victim and a police officer, who knew him previously, Appellant
fled the hospital. Id. He was later apprehended and charged with rape,
aggravated indecent assault,2 and sexual assault.
On October 21, 2020, prior to the start of his scheduled jury trial,
Appellant pled nolo contendere to one count of sexual assault, in exchange for
which the Commonwealth withdrew the remaining charges and agreed not to
oppose Appellant’s application for intermediate punishment with house
arrest.3 See N.T. Plea H’rg at 11-12, 16-17. The trial court explained to
Appellant that he would have to apply for house arrest, and if he qualified for
it, the court would then consider it at sentencing, but it was not
“guarantee[d].” Id. at 9-10.
On April 6, 2021, the trial court conducted a hearing pursuant to the
Sexual Offenders Registration and Notification Act (SORNA),4 and determined
Appellant met the criteria for classification as a sexually violent predator
(SVP).5 See Order, 4/6/21. Appellant failed to appear for that hearing. He
did appear, however, for his sentencing hearing on May 6, 2021.
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2 18 Pa.C.S. §§ 3121(a)(1) and 3125(a)(2), respectively.
3The Commonwealth agreed to the proposed sentence because Appellant “has
a sickly mother who he helps care for.” N.T. Plea H’rg, 10/21/20, at 1.
4 See 42 Pa.C.S. §§ 9799.10-9799.75.
5 See 42 Pa.C.S. § 9799.24 (SVP assessments).
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At the outset, Appellant’s counsel noted that Appellant had not
completed the steps required to apply for intermediate punishment and house
arrest, and requested additional time in order for him to do so. See N.T.
Sentencing H’rg, 5/6/21, at 3. The trial court denied that request and stated
it intended to impose a standard range sentence. See id. at 3, 5. Counsel
then informed the court that Appellant wished to withdraw his plea. Id. at 6-
7. The court immediately denied the request, and proceeded to impose a
standard range sentence of 60 to 120 months’ imprisonment. Id. at 7, 11.
After the sentence was imposed, Appellant stated that he wanted to withdraw
his plea because he was innocent. Id. at 12.
On May 26, 2021, Appellant filed both a petition seeking permission to
file post-sentence motions nunc pro tunc, as well as a proposed post-sentence
motion. See Appellant’s Petition to File Post-Sentence Motion Nunc Pro Tunc
and Post-Sentence Motion, 5/26/21. The trial court took no action on the
petition or motion until June 9, 2021, when it entered an order directing
transcription of the guilty plea and sentencing hearings. Order, 6/9/21.
Thereafter, on September 22, 2012, the trial court entered two orders: (1)
granting Appellant’s petition to file post-sentence motions nunc pro tunc; and
(2) denying Appellant’s post-sentence motion. Appellant filed the present
notice of appeal on October 22, 2021.6
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6 Appellant complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
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As noted above, Appellant’s sole issue on appeal asserts the trial court
“abused its discretion when it denied [his] motion to withdraw his plea prior
to sentencing[.]” Appellant’s Brief at 7. However, before we may consider
Appellant’s claim, we must first determine if the appeal was timely filed. “We
lack jurisdiction to consider untimely appeals, and we may raise such
jurisdictional issues sua sponte.” Commonwealth v. Capaldi, 112 A.3d
1242, 1244 (Pa. Super. 2015).
It is well-established that, when no post-sentence motion is filed, a
notice of appeal must be filed within 30 days of the imposition of sentence.
See Pa.R.A.P. 903(c)(3); Pa.R.Crim.P. 720(A)(3). However, if a defendant
files a timely post-sentence motion – “no later than ten days after
imposition of sentence” — the appeal period does not begin to run until the
post-sentence motion is denied by the court or by operation of law.
Pa.R.Crim.P. 720(A)(1), (2)(a)-(b) (emphasis added). It is also well-settled
that “[a]n untimely post-sentence motion does not toll the appeal period.”
Capaldi, 112 A.3d at 1244.
Here, Appellant’s sentence was imposed on May 6, 2021. Therefore, he
had until May 17th to file a timely post-sentence motion.7 Because he failed
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7The tenth day, May 16, 2021, fell on a Sunday; thus, Appellant had until
Monday, May 17th to file a timely post-sentence motion. See 1 Pa.C.S. §
1908.
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to do so, he was required to file a notice of appeal no later than June 7, 2021.8
His notice of appeal filed on October 22, 2021, is facially untimely.
We recognize, however, that a trial court may grant a defendant
permission to file a post-sentence motion nunc pro tunc. In order to do so,
both the defendant and the court must follow the procedures outlined by this
Court in Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en
banc). First, within the 30-day appeal period, the defendant must petition the
trial court to file a post-sentence motion nunc pro tunc, and
“demonstrate sufficient cause, i.e., reasons that excuse the late filing.” Id.
at 1128 (footnote omitted). Next, the trial court must expressly grant nunc
pro tunc relief before the expiration of the 30-day appeal period. Id. Indeed,
“[t]he trial court’s decision on a request to file a post-sentence motion nunc
pro tunc must be rendered within 30 days of the imposition of sentence.” Id.
at n.6. If the defendant fails to request permission to file a nunc pro tunc
motion, or the court fails to expressly grant permission within the requisite
30-day period, “the time for filing an appeal is neither tolled nor extended.”
Id. at 1128. Furthermore, the Dreves Court emphasized: “The trial court’s
resolution of the merits of the late post sentence motion is no substitute for
an order expressly granting nunc pro tunc relief.” Id. at 1129.
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8The 30th day, June 5, 2021, fell on a Saturday; thus Appellant had until
Monday, June 7th to file a timely notice of appeal. See 1 Pa.C.S. § 1908.
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In the present case, Appellant sought nunc pro tunc relief within the 30-
day appeal period and provided a reason for the late filing. See Appellant’s
Petition to File Post-Sentence Motion Nunc Pro Tunc and Post-Sentence Motion
at 1 (unpaginated) (counsel averred they were “out of work and unable to
access” office space from May 14 to May 25, 2021, due to a 10-day COVID-
19 exposure quarantine). Nevertheless, the trial court did not expressly (or
impliedly) grant nunc pro tunc relief before the expiration of Appellant’s 30-
day appeal period on June 7, 2021. The trial court’s September 22nd order,
which purported to grant nunc pro tunc relief, was entered when the court no
longer had jurisdiction and is, accordingly, a nullity. Thus, Appellant’s notice
of appeal filed on October 22, 2021, was untimely filed, and we are
constrained to quash his appeal.9
Appeal quashed.
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9 We note that this is not a case in which there was a breakdown in the
operation of the courts which excused the untimely filing. See
Commonwealth v. Patterson, 940 A.2d 493, 498-500 (Pa. Super. 2007)
(trial court’s failure to inform defendant of his obligation to file notice of appeal
within 30 days of imposition of sentence in order denying untimely post-
sentence motion, which was filed before the expiration of appeal period,
constituted breakdown of court and excused untimely appeal);
Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (trial
court’s misstatement of appeal period constituted breakdown in court
operations and excused untimely appeal). Here, the trial court properly
informed Appellant of the relevant appeal periods at the conclusion of his
sentencing hearing. See N.T. Sentencing H’rg at 17-18.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/07/2022
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