Com. v. Timms, M.

• Court: Superior Court of Pennsylvania
• Decided: December 20, 2019
• Docket: 747 EDA 2019
• Status: Unpublished

Opinion

J-S63013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MICHAEL TIMMS : : Appellant : No. 747 EDA 2019

Appeal from the Judgment of Sentence Entered December 5, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012279-2015

BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.: FILED DECEMBER 20, 2019

Appellant, Michael Timms, appeals nunc pro tunc from the judgment of

sentence entered December 5, 2016, following his jury trial convictions for

robbery and theft.1 For the following reasons, we remand with instructions.

The relevant facts and procedural history of this case are as follows. On

September 29, 2015, Appellant robbed Victim at gunpoint. Following trial, a

jury convicted Appellant of one count each of robbery and theft on August 18,

2016. The court sentenced Appellant on December 5, 2016, to ten (10) to

twenty (20) years’ incarceration on the robbery charge, plus costs, and

imposed no sentence for the theft charge. The sentence on the robbery

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* Retired Senior Judge assigned to the Superior Court.

1 18 §§ 3701(a)(1)(ii) and 3921(a), respectively. J-S63013-19

charge included a “second strike” mandatory minimum term of ten (10) years’

imprisonment, pursuant to 42 Pa.C.S.A. § 9714(a)(1).2 Appellant filed no

post-sentence motions but timely appealed from the judgment of sentence.

On January 22, 2018, this Court dismissed the appeal for failure to file a brief.

On November 27, 2018, Appellant timely filed pro se his first petition

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546,

seeking reinstatement of his right to file post-sentence motions and direct

appeal nunc pro tunc. In the petition, Appellant asserted appellate counsel

rendered ineffective assistance for failing to file a brief on direct appeal and

trial counsel was ineffective for failing to file post-sentence motions to

challenge the weight of the evidence. On December 7, 2018, the PCRA court

appointed PCRA counsel, who filed an amended PCRA petition on December

11, 2018, for reinstatement of Appellant’s post-sentence motion and direct

appeal rights nunc pro tunc. On February 27, 2019, the PCRA court reinstated

Appellant’s direct appeal rights nunc pro tunc only but denied his request to

reinstate post-sentence motion rights nunc pro tunc. On March 7, 2019,

Appellant filed a timely notice of appeal nunc pro tunc from the December 5,

2016 judgment of sentence. The court ordered Appellant on March 11, 2019,

to file a concise statement of errors complained of on appeal per Pa.R.A.P.

2 See Commonwealth v. Golson, 189 A.3d 994, 1002 (Pa.Super. 2018) (stating: “No Pennsylvania case has applied Alleyne[v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)] to sentences enhanced solely by prior convictions”).

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1925(b); Appellant timely complied on March 22, 2019.

Preliminarily, where the PCRA court reinstates direct appeal rights nunc

pro tunc, the defendant is not automatically entitled to reinstatement of his

post-sentence rights nunc pro tunc as well. Commonwealth v. Liston, 602

Pa. 10, 977 A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a

defendant’s post-sentence rights nunc pro tunc if the defendant pleads and

proves he was deprived of the right to file and litigate post-sentence motions

as a result of ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at

1094 n.9 (noting counsel may be deemed ineffective for failing to file post-

sentence motions when claim requires preservation in trial court for purposes

of appellate review). See also Commonwealth v. Rivera, 154 A.3d 370

(Pa.Super. 2017) (en banc), appeal denied, 642 Pa. 121, 169 A.3d 1072

(2017) (stating PCRA court properly restored appellant’s post-sentencing

rights nunc pro tunc because one issue appellant wanted to raise required

preservation in trial court).

Instantly, Appellant expressly sought reinstatement of his post-

sentence motion rights to challenge the weight of the evidence, which required

preservation in the trial court. See Pa.R.Crim.P. 607 (stating claim that

verdict was against weight of evidence shall be raised with trial judge in

motion for new trial orally at any time before sentencing, by written motion

before sentencing, or in post-sentence motion). Consequently, restoration of

Appellant’s direct appeal rights nunc pro tunc without restoration of his post-

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sentence motion rights nunc pro tunc, was essentially an empty gesture. In

light of Appellant’s stated intent to challenge the weight of the evidence, the

PCRA court should have restored Appellant’s post-sentencing rights as well.

See Liston, supra; Rivera, supra.

Accordingly, we remand the matter to the trial court to reinstate

Appellant’s post-sentence and direct appeal rights nunc pro tunc, so Appellant

will have an opportunity to litigate in post-sentence motions those issues

requiring preservation in the trial court for purposes of appellate review.

Case remanded with instructions. Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/20/19

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