Com. v. Norman, J. (memorandum)

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J-S14024-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JERMAINE NORMAN Appellant No. 2198 EDA 2013 Appeal from the Judgment of Sentence May 28, 2013 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0001169-2013 CP-39-CR-0001172-2013 BEFORE: SHOGAN, J., OTT, J., and PLATT, J.* MEMORANDUM BY OTT, J.: FILED JUNE 17, 2014 Jermaine Norman appeals from the judgment of sentence1 of an Lehigh County Court of Common Pleas. The sentence was imposed after ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 We note that Norman purported to appeal from the July 2, 2013, order of the trial court denying his post sentence motion nunc pro tunc. However, made final by the denial of postCommonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc), appeal denied, 800 A.2d 932 (Pa. 2002). Therefore, we have corrected the caption accordingly. J-S14024-14 Norman entered guilty pleas on April 24, 2013, to two counts of forgery 2 in two separate complaints. Becau filed, we quash this appeal. The relevant facts and procedural history underlying this appeal were summarized by the trial court as follows: [Norman] entered pleas of guilty on April 24, 2013, to one (1) count of Forgery (18 Pa.C.S.A. § 4101(a)(2)) in each of the above-captioned cases. In exchange for the plea, the Commonwealth agreed to bind the Court to a minimum sentence that would not exceed the midpoint of the standard range of the sentencing guidelines and concurrency between the cases. Also, the Commonwealth agreed not to pursue the other counts of the Informations. Thereafter, on May 28, 2013, [Norman] was sentenced to a term of imprisonment in a state correctional institution of not less than fifteen (15) months nor more than sixty (60) months on each Forgery offense. The sentences imposed were ordered to run concurrently to each other. On the same date, this Court sentenced [Norman] on a violation of probation and parole on a Driving Under the Influence charge in Case No. 5415/2011. [Norman] was resentenced to serve the balance of his sentence of not less than one (1) month nor more than twenty-three (23) months, with parole eligibility after serving one-third (1/3) of his sentence, consecutive to the above sentences. Additionally, [Norman] was sentenced to serve not less than six (6) months nor more than eighteen (18) months on the probation sentence, consecutive to the parole violation. On or about July 1, 2013, [Norman] filed Post Sentence Motions Nunc Pro Tunc. Subsequently, by Order and Opinion dated July Trial Court Opinion, 9/12/2013, at 1-2. This appeal followed.3 ____________________________________________ 2 18 Pa.C.S. § 4101(a)(2). 3 On August 19, 2013, the trial court ordered Norman to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). (Footnote Continued Next Page) -2- J-S14024-14 On appeal, Norman challenges the discretionary aspects of his s emphasizes that his crime was a non-violent offe Id. at 13. Preliminarily, however, we must determine if this appeal was timely filed, since our jurisdiction is dependent upon the filing of a timely notice of appeal. Commonwealth v. Nahavandian, 954 A.2d 625, 629 (Pa. Super. 2008). Pursuant to Pennsylvania Rule of Criminal Procedure 720(A)(2), a timely-filed post-sentence motion tolls the 30-day period for filing a direct appeal. However, for Rule 720(A)(2) to apply, the post-sentence motion must be timely filed -sentence motion does not toll the 30-day appeal period, and a defendant who files an untimely motion must still file a notice of appeal within 30 days of the imposition of sentence to preserve his direct appeal rights. Commonwealth v. Green, 862 A.2d 613, 618-619 (Pa. Super. 2004) (en (Footnote Continued) _______________________ September 11, 2013. -3- J-S14024-14 banc), appeal denied, 882 A.2d 477 (Pa. 2005). See also Pa.R.Crim.P. 720(A)(3). any order within 30 days of its entry,4 a trial court has the discretion to grant a request to file a post-sentence motion nunc pro tunc if: (1) the request is made within 30 days after the imposition of sentence, (2) the i.e. reasons that excuse the late within 30 days after imposition of sentence. Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en banc). Otherwise, once the 30day appeal period has run, the trial court is jurisdictionally precluded from considering a request for nunc pro tunc relief. Here, Norman was sentenced on May 28, 2013. Therefore, his 30-day appeal period expired on June 27, 2013. Norman filed a post-sentence motion nunc pro tunc on July 1, 2013, and the trial court denied the motion the next day, both of which occurred after the 30-day appeal period had already expired.5 2013, was manifestly untimely, and we are constrained to quash this appeal. ____________________________________________ 4 See 42 Pa.C.S. § 5505. 5 We note that on the same day he was sentenced, Norman signed a pertinent post-sentence and appeal rights. See -Sentence (Footnote Continued Next Page) -4- J-S14024-14 Nevertheless, even if we were to address the challenge to his sentence, we would conclude that he is entitled to no relief.6 This Court will consider the merits of a challenge to the discretionary aspects of a sentence only if Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009) (citation omitted). A substantial sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms underlying the Id. (Footnote Continued) _______________________ court inquired whether Norman had completed that form. N.T., 5/28/2013, at 13. Therefore, Norman was aware of the time constraints for filing a timely post-sentence motion. 6 The standard of review for a claim challenging the discretionary aspects of sentencing is well-established: Sentencing is a matter vested in the sound discretion of the judge, and will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that then sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation omitted), appeal denied, 980 A.2d 607 (Pa. 2009). -5- J-S14024-14 v the standard range of the guidelines, pursuant to a negotiated plea agreement. Moreover, the trial court ordered and reviewed a presentence investigation (PSI) report before imposing his sentence. This Court has previously held that when the sentencing court had the benefit of a PSI the Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006). See also Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010). Thus, no relief would be warranted on his first argument. Second, Norman contends his maximum sentence was excessive in light of the fact that the court imposed a consecutive term for his probation/parole violations. However, a claim that the trial court imposed consecutive, rather than concurrent, sentences raises a substantial question sentence is unduly harsh, considering the nature of the crimes and the Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (quotation omitted), appeal denied, 77 A.3d 1258 (Pa. -6- J-S14024-14 Indeed, pursuant to the negotiated plea agreement, the trial court imposed concurrent sentences in the forgery cases. However, the court directed that the probation and parole violation sentences run consecutively to the sentences imposed for the new crimes. As the trial court stated in its -sentence motion nunc pro tunc reason why [a defe quoting Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). We find this especially true where, as here, the consecutive sentences were for separate incidents, in particular, probation/parole violations and new crimes. Accordingly, no relief would be warranted on this claim. Appeal quashed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/17/2014 -7- J-S14024-14 -8-

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