J-S01023-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN ROBERT CURTIS : : Appellant : No. 1030 MDA 2023
Appeal from the Judgment of Sentence Entered November 4, 2011 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003035-2011
BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 3, 2024
John Curtis appeals from the judgment of sentence after he pled guilty
to retail theft and conspiracy.1 He claims, and the trial court concedes, that
it abused its discretion when it denied his motion to file a post-sentence
motion nunc pro tunc. Upon review, we reverse and remand.
In August 2011, Curtis, along with two co-defendants, was arrested for
stealing multiple video games from a Walmart in Berks County. On September
28, 2011, Curtis entered an open guilty plea to retail theft and conspiracy to
commit retail theft.
On November 4, 2011, the trial court held Curtis’ sentencing hearing.
The court determined that the total restitution amounted to $3,777.36. As a
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3929(a)(1) and 903(a)(1). J-S01023-24
result of this finding, the offense gravity score for both offenses was graded
as a 5. Based on this and Curtis’ prior record score of 3, the applicable
sentencing guidelines recommended a standard range sentence of 6 to 16
months incarceration for each offense. The trial court sentenced Curtis to an
aggregate sentence of 28 months to 14 years’ incarceration: 16 months to 7
years’ incarceration for retail theft; and a consecutive sentence of 12 months
to 7 years’ incarceration for conspiracy. Additionally, the court ordered that
Curtis was prohibited from being on any property owned or operated by
Walmart, and that he pay restitution in the amount of $3,777.36 and a fine of
$500.00.
Following imposition of sentence, Curtis was informed of his post-
sentence rights. Counsel discussed with Curtis at that time whether he wanted
to file a post-sentence motion, but he indicated that he did not, stating “no,
no, no, I just want it to be done. It's fine. I just want it to be done.”
Curtis changed his mind three days later, and, on November 7, 2011,
he filled out a “Request for Information/Assistance” form at the jail, indicating
his desire to appeal. On November 14, 2011, Curtis sent this form to the
public defender's office.2
On November 16, 2011—two days after the 10-day deadline for filing a
post-sentence motion, Curtis’ counsel filed a motion for leave to file a post- ____________________________________________
2 Curtis sent the form there even though his attorney was not employed by
that office and the court notified him of counsel’s contact information, which he received.
-2- J-S01023-24
sentence motion nunc pro tunc. Therein, counsel indicated that she did not
learn of Curtis’ letter to the public defender's office until November 15, 2011,
shortly after she returned from vacation. On November 18, 2011, the trial
court denied Curtis’ motion as untimely and therefore did not consider the
merits of it. Counsel took no further action because Curtis’ only issue related
to the discretionary aspects of sentencing, which had not been preserved.
On October 22, 2012, Curtis filed a timely pro se Post Conviction Relief
Act3 petition. Less than one week later, the court received a letter from the
Pennsylvania Board of Probation and Parole indicating that Curtis was being
considered for parole. Curtis was released on state parole, and the court
received no further communication from him. The court did not address
Curtis’ PCRA petition.
Eight years later, in October 2020, the court discovered that Curtis was
reincarcerated for allegedly violating the terms and conditions of his parole in
this case. The court appointed PCRA counsel who filed an amended PCRA
petition principally claiming that plea counsel was ineffective for failing to file
an appeal. After a hearing, the PCRA court denied Curtis’ petition on
December 14, 2021.
3 42 Pa.C.S.A. §§ 9541-9546.
-3- J-S01023-24
Curtis timely appealed the denial of his request for PCRA relief to this
Court. Counsel filed an Anders brief and application to withdraw as counsel.
The only issue PCRA counsel identified was whether plea counsel was
ineffective for failing to file a direct appeal.
Upon review, a panel of this Court observed that when plea counsel
learned Curtis wanted to appeal, she filed a nunc pro tunc post-sentence
motion instead of an appeal. When that motion was denied, counsel took no
further action. We noted however that Curtis’ attorney could have “challenged
the trial court’s denial of the nunc pro tunc post-sentence motion on direct
appeal, regardless of the merits of any potential discretionary aspects of
sentencing claims[]” or filed an Anders brief if she believed there were no
meritorious issues. Commonwealth v. Curtis, 287 A.3d 855, *5 fn. 8, 9
(Pa. Super. 2022). We therefore concluded that Curtis’ plea counsel was per
se ineffective, and that the PCRA court erred in denying Curtis relief. Id. at
*5.
We further disagreed with PCRA counsel’s determination that Curtis’
appeal was frivolous. Consequently, we vacated the PCRA court’s order,
denied counsel’s request to withdraw, and remanded to the PCRA court to
reinstate Curtis’ direct appellate rights nunc pro tunc. Id.
Following reinstatement of those rights, Curtis filed this timely direct
appeal. He and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
On appeal, Curtis raises the following two issues:
-4- J-S01023-24
A. Whether the trial court abused [its] discretion by not allowing the post-sentence motion to be heard on the merits, as it was only two days late and that lateness was not the fault of the defense?
B. Whether the sentencing court abused [its] discretion in sentencing [Curtis] using the wrong offense gravity score, in sentencing him consecutively, and by refusing to consider his rehabilitative needs?
Curtis’ Brief at 5.
In his first issue, Curtis claims that the trial court abused its discretion
when it originally denied his request to file a post-sentence motion nunc pro
tunc in 2011. Specifically, Curtis argues that the motion was only two days
late. He further maintains that the delay was due to the difficultly he had in
contacting his attorney who did not work for the public defender’s office, his
attorney’s vacation, and a court holiday. Curtis’ Brief at 20-21. According to
Curtis, given these circumstances, the court should have granted his motion.
Initially, we note that the requirements to request nunc pro tunc relief
are distinct from the underlying post-sentence motion. See Commonwealth
v. Dreves, 839 A.2d 1122, 1128–29 (Pa. Super. 2003) (en banc). A post-
sentence motion must be filed within ten days of sentencing. Pa.R.C.P.
720(A)(1). A party seeking to file a post-sentence motion nunc pro tunc must
adhere to the following:
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J-S01023-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN ROBERT CURTIS : : Appellant : No. 1030 MDA 2023
Appeal from the Judgment of Sentence Entered November 4, 2011 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003035-2011
BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 3, 2024
John Curtis appeals from the judgment of sentence after he pled guilty
to retail theft and conspiracy.1 He claims, and the trial court concedes, that
it abused its discretion when it denied his motion to file a post-sentence
motion nunc pro tunc. Upon review, we reverse and remand.
In August 2011, Curtis, along with two co-defendants, was arrested for
stealing multiple video games from a Walmart in Berks County. On September
28, 2011, Curtis entered an open guilty plea to retail theft and conspiracy to
commit retail theft.
On November 4, 2011, the trial court held Curtis’ sentencing hearing.
The court determined that the total restitution amounted to $3,777.36. As a
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3929(a)(1) and 903(a)(1). J-S01023-24
result of this finding, the offense gravity score for both offenses was graded
as a 5. Based on this and Curtis’ prior record score of 3, the applicable
sentencing guidelines recommended a standard range sentence of 6 to 16
months incarceration for each offense. The trial court sentenced Curtis to an
aggregate sentence of 28 months to 14 years’ incarceration: 16 months to 7
years’ incarceration for retail theft; and a consecutive sentence of 12 months
to 7 years’ incarceration for conspiracy. Additionally, the court ordered that
Curtis was prohibited from being on any property owned or operated by
Walmart, and that he pay restitution in the amount of $3,777.36 and a fine of
$500.00.
Following imposition of sentence, Curtis was informed of his post-
sentence rights. Counsel discussed with Curtis at that time whether he wanted
to file a post-sentence motion, but he indicated that he did not, stating “no,
no, no, I just want it to be done. It's fine. I just want it to be done.”
Curtis changed his mind three days later, and, on November 7, 2011,
he filled out a “Request for Information/Assistance” form at the jail, indicating
his desire to appeal. On November 14, 2011, Curtis sent this form to the
public defender's office.2
On November 16, 2011—two days after the 10-day deadline for filing a
post-sentence motion, Curtis’ counsel filed a motion for leave to file a post- ____________________________________________
2 Curtis sent the form there even though his attorney was not employed by
that office and the court notified him of counsel’s contact information, which he received.
-2- J-S01023-24
sentence motion nunc pro tunc. Therein, counsel indicated that she did not
learn of Curtis’ letter to the public defender's office until November 15, 2011,
shortly after she returned from vacation. On November 18, 2011, the trial
court denied Curtis’ motion as untimely and therefore did not consider the
merits of it. Counsel took no further action because Curtis’ only issue related
to the discretionary aspects of sentencing, which had not been preserved.
On October 22, 2012, Curtis filed a timely pro se Post Conviction Relief
Act3 petition. Less than one week later, the court received a letter from the
Pennsylvania Board of Probation and Parole indicating that Curtis was being
considered for parole. Curtis was released on state parole, and the court
received no further communication from him. The court did not address
Curtis’ PCRA petition.
Eight years later, in October 2020, the court discovered that Curtis was
reincarcerated for allegedly violating the terms and conditions of his parole in
this case. The court appointed PCRA counsel who filed an amended PCRA
petition principally claiming that plea counsel was ineffective for failing to file
an appeal. After a hearing, the PCRA court denied Curtis’ petition on
December 14, 2021.
3 42 Pa.C.S.A. §§ 9541-9546.
-3- J-S01023-24
Curtis timely appealed the denial of his request for PCRA relief to this
Court. Counsel filed an Anders brief and application to withdraw as counsel.
The only issue PCRA counsel identified was whether plea counsel was
ineffective for failing to file a direct appeal.
Upon review, a panel of this Court observed that when plea counsel
learned Curtis wanted to appeal, she filed a nunc pro tunc post-sentence
motion instead of an appeal. When that motion was denied, counsel took no
further action. We noted however that Curtis’ attorney could have “challenged
the trial court’s denial of the nunc pro tunc post-sentence motion on direct
appeal, regardless of the merits of any potential discretionary aspects of
sentencing claims[]” or filed an Anders brief if she believed there were no
meritorious issues. Commonwealth v. Curtis, 287 A.3d 855, *5 fn. 8, 9
(Pa. Super. 2022). We therefore concluded that Curtis’ plea counsel was per
se ineffective, and that the PCRA court erred in denying Curtis relief. Id. at
*5.
We further disagreed with PCRA counsel’s determination that Curtis’
appeal was frivolous. Consequently, we vacated the PCRA court’s order,
denied counsel’s request to withdraw, and remanded to the PCRA court to
reinstate Curtis’ direct appellate rights nunc pro tunc. Id.
Following reinstatement of those rights, Curtis filed this timely direct
appeal. He and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
On appeal, Curtis raises the following two issues:
-4- J-S01023-24
A. Whether the trial court abused [its] discretion by not allowing the post-sentence motion to be heard on the merits, as it was only two days late and that lateness was not the fault of the defense?
B. Whether the sentencing court abused [its] discretion in sentencing [Curtis] using the wrong offense gravity score, in sentencing him consecutively, and by refusing to consider his rehabilitative needs?
Curtis’ Brief at 5.
In his first issue, Curtis claims that the trial court abused its discretion
when it originally denied his request to file a post-sentence motion nunc pro
tunc in 2011. Specifically, Curtis argues that the motion was only two days
late. He further maintains that the delay was due to the difficultly he had in
contacting his attorney who did not work for the public defender’s office, his
attorney’s vacation, and a court holiday. Curtis’ Brief at 20-21. According to
Curtis, given these circumstances, the court should have granted his motion.
Initially, we note that the requirements to request nunc pro tunc relief
are distinct from the underlying post-sentence motion. See Commonwealth
v. Dreves, 839 A.2d 1122, 1128–29 (Pa. Super. 2003) (en banc). A post-
sentence motion must be filed within ten days of sentencing. Pa.R.C.P.
720(A)(1). A party seeking to file a post-sentence motion nunc pro tunc must
adhere to the following:
To be entitled to file a post-sentence motion nunc pro tunc, a defendant must, within 30 days after the imposition of sentence, demonstrate sufficient cause, i.e., reasons that excuse the late filing . . . When the defendant has met this burden and has shown sufficient cause, the trial court must then exercise its discretion in deciding whether to permit the defendant to file the post-sentence motion nunc pro tunc. If the trial court chooses to permit a defendant to file a post-sentence motion nunc pro tunc, the court
-5- J-S01023-24
must do so expressly. In employing the above line of reasoning, we find instructive cases dealing with the restoration of direct appeal rights nunc pro tunc. In Commonwealth v. Stock, 679 A.2d 760, 764 (Pa. 1996) for instance, our Supreme Court opined that in order for an appeal nunc pro tunc to be granted, the appellant would have to show an extraordinary circumstance wherein a direct appeal by right was lost. Accord, Commonwealth v. Peterkin, 722 A.2d 638, 643 n. 7 (Pa. 1998). Similarly, in order for a petition to file a post-sentence motion nunc pro tunc to be granted, a defendant must, within 30 days after the imposition of sentence, demonstrate an extraordinary circumstance which excuses the tardiness.
Dreves, 839 A.2d at 1128. “[T]he decision to allow the filing of a post-trial
motion nunc pro tunc is vested in the discretion of the trial court and that we
will not reverse unless the trial court abused its discretion.” Id.
Here, as noted above the trial court concedes that it should have
entertained Curtis’ post-sentence motion given the circumstances of this case.
It explained, “In making this determination we rely on the position that
consideration must be given to the overall circumstances surrounding the late
submission of the post-sentence motion, and whether efforts have been made
to correct the late filing [] soon after the deadline. . . .” Trial Court Opinion,
8/15/23, at 4. The court observed that Curtis made a timely request and plea
counsel — who had just returned from vacation -- immediately filed the nunc
pro tunc request, just two days after it was due. Consequently, the court
concluded that neither Curtis nor counsel was “negligent” in seeking to
preserve his sentencing claim and the delay in filing Curtis’ post-sentence
motion was excused. Id. at 5.
-6- J-S01023-24
We agree that the trial court’s initial denial of Curtis’ nunc pro tunc
request was manifestly unreasonable and therefore an abuse of discretion. As
such, we reverse the trial court's order denying Curtis’ motion for leave to file
a post-sentence motion nunc pro tunc. The trial court shall permit Curtis to
file his post-sentence motion, nunc pro tunc, and consider the merits of it.
Based on this disposition, we do not reach Curtis’ second appellate issue.
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 5/3/2024
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