Com. v. Baez-Ortega, M.

• Court: Superior Court of Pennsylvania
• Decided: June 25, 2021
• Docket: 228 MDA 2021
• Status: Unpublished

Opinion

J-S17038-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARIA ELIZABETH BAEZ-ORTEGA : : Appellant : No. 228 MDA 2021

Appeal from the Judgment of Sentence Entered September 1, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001065-2019

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 25, 2021

Maria Elizabeth Baez-Ortega (Baez-Ortega) appeals from the September

1, 2020 judgment of sentence1 entered by the Court of Common Pleas of Berks

County (trial court) following her guilty plea to aggravated assault and

possession of contraband.2 We quash the appeal.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Baez-Ortega’s notice of appeal purports to appeal from the judgment of sentence and from the January 13, 2021 order denying her post-sentence motion to modify her sentence. “In a criminal action, appeal properly lies from the judgment of sentence made final by the denial of post-sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citation omitted).

2 18 Pa.C.S. §§ 2702(a)(3) & 5123(a.2). J-S17038-21

Only a brief procedural history is necessary to our disposition. On

September 1, 2020, Baez-Ortega entered an open guilty plea to one count of

aggravated assault and one count of possession of contraband and proceeded

immediately to sentencing. The trial court sentenced her to 18 to 36 months’

incarceration for the count of aggravated assault and a consecutive period of

3 years’ probation for the count of possession of contraband.3

Even though Baez-Ortega was represented by counsel, she sent a pro

se letter to the trial court, docketed on September 8, 2020, requesting

reconsideration of her sentence. Subsequently, on September 16, 2020, her

counsel filed a motion to file post-sentence motion nunc pro tunc and post-

sentence motion explaining that he had received Baez-Ortega’s request to file

a post-sentence motion after the ten-day period for filing the motion had

passed.

On October 7, 2020, the trial court granted the motion to file the post-

sentence motion nunc pro tunc. A hearing on the merits of the post-sentence

motion was held on January 12, 2021 and the trial court entered an order

denying the motion the following day.4 On February 9, 2021, Baez-Ortega

3 Baez-Ortega also pled guilty and was sentenced for one count of possession

of a controlled substance, 35 P.S. § 780-113(a)(16), at a separate docket number. She did not appeal from the judgment of sentence in that case.

4 Baez-Ortega then sent a second pro se letter requesting reconsideration of

her sentence which was docketed on January 26, 2021.

-2- J-S17038-21

filed a notice of appeal. She and the trial court have complied with Pa. R.A.P.

1925. On appeal, Baez-Ortega challenges the discretionary aspects of her

sentence. Before we proceed to the merits of her claim, we must determine

whether we have jurisdiction to consider it. See Commonwealth v. Gaines,

127 A.3d 15, 17 (Pa. Super. 2015) (en banc).

A criminal defendant must file a notice of appeal from her judgment of

sentence within 30 days of the imposition of the sentence in open court.

Pa.R.Crim.P. 720(A)(3); Pa. R.A.P. 301(a)(2), 903(a). However, if the

defendant files a post-sentence motion within ten days following the

imposition of her sentence, the motion tolls the period of time for filing a notice

of appeal. Pa.R.Crim.P. 720(A)(1)-(2). Under these circumstances, the

defendant must file her notice of appeal within 30 days of the order disposing

of the motion. Id. An untimely post-sentence motion will only toll the appeal

period if the defendant requests nunc pro tunc relief and the trial court

“expressly permit[s] the filing of a post-sentence motion nunc pro tunc,

also within 30 days of imposition of sentence.” Commonwealth v. Capaldi,

112 A.3d 1242, 1244 (Pa. Super. 2015) (emphasis in original). This Court

lacks jurisdiction to consider an appeal that is not timely filed. Gaines, supra

(“Because this filing period is jurisdictional in nature, it must be strictly

construed and may not be extended as a matter of indulgence or grace.”

(citation omitted)).

-3- J-S17038-21

Baez-Ortega was sentenced on September 1, 2020 and did not file her

post-sentence motion until September 16, 2020, 15 days after her sentence

was imposed.5 The trial court lacked jurisdiction to grant nunc pro tunc relief

after October 1, 2020, 30 days after the sentence was imposed. See 42

Pa.C.S. § 5505 (allowing for modification or rescission of an order within 30

days after entry if no appeal has been taken). The trial court did not grant

the motion to consider the post-sentence motion nunc pro tunc until October

7, 2020. This order was entered 36 days after the imposition of the sentence

and six days after the time period for filing an appeal had expired. See Pa.

R.A.P. 301(a)(2), 903(a). As a result, the time period for filing a notice of

appeal was not tolled and Baez-Ortega’s judgment of sentence became final

on October 1, 2020. Capaldi, supra. Because she did not file her notice of

appeal until February 9, 2021, her appeal is untimely and we are without

jurisdiction to consider it.

Appeal quashed.

5 While Baez-Ortega sent a letter to the trial court requesting reconsideration

of her sentence on September 8, 2020, she was represented by counsel at that time. It is well-established that there is no right to hybrid representation in Pennsylvania and any pro se motions filed by represented defendants are legal nullities. See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016).

-4- J-S17038-21

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/25/2021

-5-