Opinion
J-S68024-17 No. 1975 MDA 2016
01-22-2018
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 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.
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. --------