Commonwealth v. Hodge

Full title: COMMONWEALTH OF PENNSYLVANIA v. KHYLIL HODGE Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Jan 5, 2021

J-S46004-20 (Pa. Super. Ct. Jan. 5, 2021)

Opinion

J-S46004-20 No. 2156 EDA 2019

01-05-2021

COMMONWEALTH OF PENNSYLVANIA v. KHYLIL HODGE Appellant

MEMORANDUM BY BENDER, P.J.E.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered June 24, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1101541-2004 BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY BENDER, P.J.E.:

Appellant, Khylil Hodge, appeals from the judgment of sentence of 2½ to 5 years' incarceration, imposed after the court revoked a term of probation that Appellant was serving for his conviction of possession with intent to deliver (PWID). Appellant solely challenges the discretionary aspects of his revocation sentence. After careful review, we are constrained to quash this appeal.

The facts of Appellant's underlying PWID conviction are not necessary to our disposition of his appeal. Briefly, Appellant pled guilty to PWID in 2005 and, over the following 12 years, he repeatedly violated his probation and was resentenced for that offense. On December 11, 2017, he committed a fourth violation, which once again resulted in the revocation of his probation. On June 24, 2019, the trial court resentenced Appellant to 2½ to 5 years' incarceration.

Appellant filed a timely, post-sentence motion on June 28, 2019. However, before the court ruled on that motion, Appellant filed a notice of appeal on July 24, 2019. The court thereafter ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and he timely complied. The court then issued a Rule 1925(a) opinion on February 28, 2020.

Herein, Appellant states one issue for our review:

Did not the [trial] court violate the tenets of the Sentencing Code, which mandate individualized sentencing, where the court did not state adequate grounds for imposing its sentence, failed to consider [A]ppellant's background, character or rehabilitative needs, and imposed an excessive sentence of 2½ to 5 years of incarceration, which was in excess of what was necessary to address the gravity of the offense, the protection of the community[,] and [A]ppellant's rehabilitative needs?

Appellant's Brief at 3.

Before we can review Appellant's sentencing challenge, we must address the fact that his timely-filed, post-sentence motion was apparently never ruled on by the trial court. Pennsylvania Rule of Criminal Procedure 720 states:

(A) Timing.


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(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:

(a) within 30 days of the entry of the order deciding the motion;

(b) within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion; or

(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.

Pa.R.Crim.P. 720(A)(2). Our Supreme Court has held that when a premature appeal is filed during the pendency of post-sentence motions, the trial court retains jurisdiction to decide the motions, and the appeal is perfected upon the filing of an order denying post-sentence motions. Commonwealth v. Cooper , 27 A.3d 994, 1008 (Pa. 2011). However, "no direct appeal may proceed while a timely post-sentence motion or motion to modify sentence is pending, and any such appeal is rendered premature." Id. at 1005.

Here, Appellant's timely-filed, post-sentence motion was not ruled on by the trial court, denied by operation of law, or withdrawn by Appellant.¹ The disposition of that outstanding motion is necessary both to perfect his appeal, and to preserve the discretionary-aspects-of-sentencing claim he is raising herein. Consequently, we must quash this appeal, without prejudice to Appellant's right to file another appeal after the entry of a final order disposing of his post-sentence motion.

1 The Commonwealth asserts that the motion was denied, but the record does not support that claim. See Commonwealth's Brief at 8. For its part, the trial court makes no mention of Appellant's post-sentence motion in its Rule 1925(a) opinion. See Trial Court Opinion, 2/28/20, at 5. --------

Appeal quashed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/05/2021

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