Opinion
J-S68024-17 No. 1975 MDA 2016
03-01-2018
COMMONWEALTH OF PENNSYLVANIA v. THOMAS MARTIN BALDWIN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 19, 2016
In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000752-2015 BEFORE: LAZARUS, DUBOW and STRASSBURGER, JJ. DISSENTING MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
I respectfully dissent. The record clearly shows that the trial court granted newly appointed counsel's request for an extension to file a post-sentence motion following receipt of the requested trial transcripts. Order of Court, 7/21/2016 ("Defense counsel shall have 30 days from the date of receipt of the transcript within which to file any post-sentence motions."). The trial court had jurisdiction to grant that request as it was granted via an order filed two days after Appellant was sentenced. See Commonwealth v. Moore , 978 A.2d 988, 991 (Pa. Super. 2009) (holding that trial court had authority to grant July 31, 2008 motion for extension of time to file post-sentence motion following Moore's judgment of sentence on July 23, 2008, and that "the trial court erred when it averred that it lacked jurisdiction to permit [Moore] to file his post-sentence motion nunc pro tunc.").
The Majority's analysis elevates form over substance. Although I agree with the Majority that the trial court did not use the magic words "nunc pro tunc" in that July 21, 2016 order, I find that nonetheless the trial court did expressly grant Appellant the right to file a post-sentence motion nunc pro tunc. See Commonwealth v . Batty , 169 A.3d 70, 72 n.4 (Pa. Super. 2017) (holding that trial court properly permitted Batty to file a post-sentence motion nunc pro tunc where "[o]n November 1, [] counsel filed on behalf of [Batty] a motion to permit counsel to file a post-sentence motion nunc pro tunc due to counsel's recent appointment, and on November 3, [] the lower court granted the petition, expressly giving [Batty] until November 23, [] to file his post-sentence motion."). Moreover, when ordering the post-sentence motion hearing, the trial court here referred to the motion as a "nunc pro tunc motion." Order of Court, 9/26/2016.
The Majority attempts to alter the plain meaning of the July 21, 2016 order with a statement from the post-sentence motion hearing that the trial court implicitly granted, at the time of sentencing, an extension of 30 days from the date of sentencing to file a post-sentence motion. Majority's Memorandum at 2-3 (quoting N.T. 11/22/2016, at 2-12). However, this statement contradicts the explicit language of the July 21, 2016 order, wherein the trial court granted counsel's request to file a post-sentence motion within "30 days from the date of receipt of the transcript[.]" Order of Court, 7/21/2016 (emphasis added).
Based on the foregoing, I find that the trial court granted Appellant's request to file a post-sentence motion nunc pro tunc, Appellant complied with that order in filing his post-sentence motion, and his appeal from the denial of that motion is timely. Accordingly, I would not quash. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/1/18
It is unclear when counsel received the requested transcript. However, even if counsel received it on July 21, 2016, the date that counsel was appointed to represent Appellant, the post-sentence motion filed on August 19, 2016 was filed within 30 days from that date. --------