J-A26001-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DUANE KEVIN GLASCO : : Appellant : No. 282 EDA 2023
Appeal from the Judgment of Sentence Entered August 25, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002861-2021
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 7, 2024
Appellant Duane Kevin Glasco appeals from the judgment of sentence
entered by the Chester County Court of Common Pleas on August 25, 2022,
following his guilty plea to crimes related to drug trafficking. Appellant
challenges the court’s January 3, 2023 order, which purported to “clarif[y]”
the costs of prosecution imposed in its August 25, 2022 judgment of
sentence.1 Upon review, we conclude that the trial court’s January 3, 2023
order is a legal nullity because the trial court was without jurisdiction to amend
its prior order. Accordingly, we are constrained to vacate the January 3, 2023
order and remand for reinstatement of the original judgment of sentence
entered on August 25, 2022.
____________________________________________
1 Trial Ct. Order, 1/3/23, at 1. J-A26001-23
The following factual and procedural history is relevant to the issues now
before this Court. On September 30, 2021, the Commonwealth filed an
information charging Appellant with 60 counts related to drug trafficking.2 On
August 25, 2022, Appellant entered a negotiated guilty plea to six counts of
Possession with Intent to Deliver Controlled Substances (“PWID”), one count
of Dealing in Proceeds of Unlawful Activities, and one count of Persons not to
Possess Firearms,3 and the Commonwealth withdrew the remaining charges.
In conformance with the negotiated plea, the court sentenced Appellant to an
aggregate sentence of 6½ to 15 years of incarceration. The sentencing sheet
indicated the imposition of “costs” for each count to which Appellant pled guilty
along with a $10 fine, specified lab fees, and the forfeiture of a firearm.
Finally, the court checked the following pre-printed provision on the
sentencing sheet: “Other counts are W/D – Costs on Defendant.” Sentencing
Sheet, 8/25/22.
On the next day, the Commonwealth filed a Motion to Modify Sentence.
The Commonwealth candidly acknowledged that “[a]t the time of the plea, the
Commonwealth incorrectly stated to the Court that no restitution was due for
the money utilized in the controlled drug buys (the ‘buy money’).”
Commonwealth’s Motion to Modify Sentence, 8/26/22, at ¶ 4. The
2 The Commonwealth withdrew an additional 41 counts in exchange for Appellant waiving his right to a preliminary hearing.
3 35 P.S. § 780-113(a)(30); 18 Pa.C.S. §§ 5111(a)(1), and 6105(a)(1), respectively.
-2- J-A26001-23
Commonwealth requested that the court “modify [Appellant’s] sentence to
include $14,200 in restitution to the Chester County Municipal Drug Task
Force[,]” which it stated was provided to the Appellant “in exchange for
cocaine during nineteen (19) controlled buys that occurred between October
15, 2019 and February 8, 2021.” Id. at ¶¶ 5, 7. The Commonwealth
subsequently acknowledged that the buy money constituted costs of
prosecution rather than restitution under Pennsylvania law. Commonwealth’s
Brief in Support of Motion to Modify Sentence, 11/7/22, at ¶¶ 7-14.
Appellant disputed the imposition of costs. He argued that the $14,200
used for 19 controlled buys was not “necessary” for his prosecution, noting
that he pled guilty to only 6 counts of PWID. Appellant’s Letter Br., 11/17/22,
at 1-3 (unpaginated) (quoting 16 P.S. § 1403). He additionally argued that
the buy money had not been included in the plea negotiations between
Appellant and the Commonwealth and, accordingly, should “be denied under
the doctrine of benefit of the bargain.” Id. at 3-5 (citing Commonwealth v.
Cosby, 252 A.3d 1092 (Pa. 2021)).
The trial court held hearings on the motion on October 18, 2022, and
January 3, 2023. Following the second hearing, on January 3, 2023, the court
entered an order dismissing the Commonwealth’s Motion to Modify Sentence
but, nevertheless, imposing the $14,200 of buy money as costs of
prosecution. The court stated that it was “not modifying” the sentence but,
instead, “clarif[ying]” “the previously ordered costs of prosecution.” Order,
1/3/23, at ¶ 1.
-3- J-A26001-23
On January 20, 2023, Appellant filed pro se a timely notice of appeal.4
Subsequently, the trial court and Appellant complied with Pa.R.A.P. 1925.
Before addressing the merits of Appellant’s issues, we first consider
whether the trial court had jurisdiction to enter its January 3, 2023 order. For
the reasons set forth below, we conclude that the court did not have
jurisdiction because the Commonwealth’s motion had been denied by
operation of law on December 27, 2022, pursuant to Pa.R.Crim.P. 721.
Rule 721 mandates that a judge “shall decide the Commonwealth’s
[motion to modify the sentence] within 120 days of the filing of the motion[,]”
in cases where “the defendant has not filed a post-sentence motion[.]”
Pa.R.Crim.P. 721(C)(2). “If the judge fails to decide the Commonwealth’s
motion within 120 days, the motion shall be deemed denied by operation of
law.” Id.
In the instant case, the Commonwealth filed its motion to modify
sentence on August 26, 2022, and Appellant did not file a post-trial motion.
Accordingly, the trial court had 120 days from August 26, 2022, to decide the
motion, which expired on Saturday, December 24, 2022. As the expiration
date fell on a weekend, the next business day was Tuesday, December 27,
2022, following the Christmas holiday. Thus, pursuant to Rule 721(C)(2), the
4 On January 17, 2023, the trial court granted Appellant’s counsel’s motion to
withdraw. Following Appellant’s pro se appeal, this Court ordered the trial court to hold a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998); after which, the trial court appointed appellate counsel.
-4- J-A26001-23
Commonwealth’s motion to modify was deemed denied by operation of law on
December 27, 2022.5
This Court has repeatedly held that a trial court does not have
jurisdiction to modify a sentence following the expiration of the 120 days
provided in Rule 721(C)(2). Commonwealth v. Martinez, 141 A.3d 485,
490 (Pa. Super. 2016). Instead, an order entered after the expiration of the
120 days “is a legal nullity due to the court’s lack of jurisdiction.” Id.
Accordingly, we conclude that the trial court’s January 3, 2023 order
purporting to clarify the costs of prosecution to include the $14,200 of buy
money is a legal nullity because the court entered it after the expiration of the
120 days on December 27, 2022.
As Appellant’s questions on appeal relate solely to the January 3, 2023
order imposing $14,200 of buy money, we conclude that Appellant’s
challenges are moot as the January 3, 2023 order is a legal nullity.6
5 The record reflects that the clerk of courts did not “enter an order on behalf
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J-A26001-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DUANE KEVIN GLASCO : : Appellant : No. 282 EDA 2023
Appeal from the Judgment of Sentence Entered August 25, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002861-2021
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 7, 2024
Appellant Duane Kevin Glasco appeals from the judgment of sentence
entered by the Chester County Court of Common Pleas on August 25, 2022,
following his guilty plea to crimes related to drug trafficking. Appellant
challenges the court’s January 3, 2023 order, which purported to “clarif[y]”
the costs of prosecution imposed in its August 25, 2022 judgment of
sentence.1 Upon review, we conclude that the trial court’s January 3, 2023
order is a legal nullity because the trial court was without jurisdiction to amend
its prior order. Accordingly, we are constrained to vacate the January 3, 2023
order and remand for reinstatement of the original judgment of sentence
entered on August 25, 2022.
____________________________________________
1 Trial Ct. Order, 1/3/23, at 1. J-A26001-23
The following factual and procedural history is relevant to the issues now
before this Court. On September 30, 2021, the Commonwealth filed an
information charging Appellant with 60 counts related to drug trafficking.2 On
August 25, 2022, Appellant entered a negotiated guilty plea to six counts of
Possession with Intent to Deliver Controlled Substances (“PWID”), one count
of Dealing in Proceeds of Unlawful Activities, and one count of Persons not to
Possess Firearms,3 and the Commonwealth withdrew the remaining charges.
In conformance with the negotiated plea, the court sentenced Appellant to an
aggregate sentence of 6½ to 15 years of incarceration. The sentencing sheet
indicated the imposition of “costs” for each count to which Appellant pled guilty
along with a $10 fine, specified lab fees, and the forfeiture of a firearm.
Finally, the court checked the following pre-printed provision on the
sentencing sheet: “Other counts are W/D – Costs on Defendant.” Sentencing
Sheet, 8/25/22.
On the next day, the Commonwealth filed a Motion to Modify Sentence.
The Commonwealth candidly acknowledged that “[a]t the time of the plea, the
Commonwealth incorrectly stated to the Court that no restitution was due for
the money utilized in the controlled drug buys (the ‘buy money’).”
Commonwealth’s Motion to Modify Sentence, 8/26/22, at ¶ 4. The
2 The Commonwealth withdrew an additional 41 counts in exchange for Appellant waiving his right to a preliminary hearing.
3 35 P.S. § 780-113(a)(30); 18 Pa.C.S. §§ 5111(a)(1), and 6105(a)(1), respectively.
-2- J-A26001-23
Commonwealth requested that the court “modify [Appellant’s] sentence to
include $14,200 in restitution to the Chester County Municipal Drug Task
Force[,]” which it stated was provided to the Appellant “in exchange for
cocaine during nineteen (19) controlled buys that occurred between October
15, 2019 and February 8, 2021.” Id. at ¶¶ 5, 7. The Commonwealth
subsequently acknowledged that the buy money constituted costs of
prosecution rather than restitution under Pennsylvania law. Commonwealth’s
Brief in Support of Motion to Modify Sentence, 11/7/22, at ¶¶ 7-14.
Appellant disputed the imposition of costs. He argued that the $14,200
used for 19 controlled buys was not “necessary” for his prosecution, noting
that he pled guilty to only 6 counts of PWID. Appellant’s Letter Br., 11/17/22,
at 1-3 (unpaginated) (quoting 16 P.S. § 1403). He additionally argued that
the buy money had not been included in the plea negotiations between
Appellant and the Commonwealth and, accordingly, should “be denied under
the doctrine of benefit of the bargain.” Id. at 3-5 (citing Commonwealth v.
Cosby, 252 A.3d 1092 (Pa. 2021)).
The trial court held hearings on the motion on October 18, 2022, and
January 3, 2023. Following the second hearing, on January 3, 2023, the court
entered an order dismissing the Commonwealth’s Motion to Modify Sentence
but, nevertheless, imposing the $14,200 of buy money as costs of
prosecution. The court stated that it was “not modifying” the sentence but,
instead, “clarif[ying]” “the previously ordered costs of prosecution.” Order,
1/3/23, at ¶ 1.
-3- J-A26001-23
On January 20, 2023, Appellant filed pro se a timely notice of appeal.4
Subsequently, the trial court and Appellant complied with Pa.R.A.P. 1925.
Before addressing the merits of Appellant’s issues, we first consider
whether the trial court had jurisdiction to enter its January 3, 2023 order. For
the reasons set forth below, we conclude that the court did not have
jurisdiction because the Commonwealth’s motion had been denied by
operation of law on December 27, 2022, pursuant to Pa.R.Crim.P. 721.
Rule 721 mandates that a judge “shall decide the Commonwealth’s
[motion to modify the sentence] within 120 days of the filing of the motion[,]”
in cases where “the defendant has not filed a post-sentence motion[.]”
Pa.R.Crim.P. 721(C)(2). “If the judge fails to decide the Commonwealth’s
motion within 120 days, the motion shall be deemed denied by operation of
law.” Id.
In the instant case, the Commonwealth filed its motion to modify
sentence on August 26, 2022, and Appellant did not file a post-trial motion.
Accordingly, the trial court had 120 days from August 26, 2022, to decide the
motion, which expired on Saturday, December 24, 2022. As the expiration
date fell on a weekend, the next business day was Tuesday, December 27,
2022, following the Christmas holiday. Thus, pursuant to Rule 721(C)(2), the
4 On January 17, 2023, the trial court granted Appellant’s counsel’s motion to
withdraw. Following Appellant’s pro se appeal, this Court ordered the trial court to hold a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998); after which, the trial court appointed appellate counsel.
-4- J-A26001-23
Commonwealth’s motion to modify was deemed denied by operation of law on
December 27, 2022.5
This Court has repeatedly held that a trial court does not have
jurisdiction to modify a sentence following the expiration of the 120 days
provided in Rule 721(C)(2). Commonwealth v. Martinez, 141 A.3d 485,
490 (Pa. Super. 2016). Instead, an order entered after the expiration of the
120 days “is a legal nullity due to the court’s lack of jurisdiction.” Id.
Accordingly, we conclude that the trial court’s January 3, 2023 order
purporting to clarify the costs of prosecution to include the $14,200 of buy
money is a legal nullity because the court entered it after the expiration of the
120 days on December 27, 2022.
As Appellant’s questions on appeal relate solely to the January 3, 2023
order imposing $14,200 of buy money, we conclude that Appellant’s
challenges are moot as the January 3, 2023 order is a legal nullity.6
5 The record reflects that the clerk of courts did not “enter an order on behalf
of the court denying the Commonwealth’s motion for modification of sentence by operation of law” as required by Pa.R.Crim.P. 721(D)(1)(a).
Nevertheless, we find that Appellant timely filed his notice of appeal “within 30 days of the entry of the order disposing of the Commonwealth’s motion,” as required by Pa.R.Crim.P. 720(A)(4). Specifically, he filed his notice of appeal on January 20, 2023, less than thirty days after the deemed denial on December 27, 2022.
6 Appellant raises the following questions on appeal:
(Footnote Continued Next Page)
-5- J-A26001-23
Accordingly, having concluded that the January 3, 2023 order is a legal nullity,
we vacate the January 3, 3023 order and remand for reinstatement of the
August 25, 2023 judgment of sentence.
Order entered January 3, 2023, vacated. Case remanded for
reinstatement of original Judgment of Sentence. Jurisdiction relinquished.
Date: 5/7/2024
1. Did the trial court err in finding that the Commonwealth met its burden of showing that the costs requested were “necessary” pursuant to 16 P.S. § 1403?
2. Did the trial court err in imposing costs solely attributable to counts withdrawn with prejudice in exchange for Appellant waiving his right to a preliminary hearing?
Appellant’s Br. at 2.
-6-