Commonwealth v. DiClaudio

210 A.3d 1070
CourtSuperior Court of Pennsylvania
DecidedMay 21, 2019
DocketNo. 1323 WDA 2018
StatusPublished
Cited by101 cases

This text of 210 A.3d 1070 (Commonwealth v. DiClaudio) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. DiClaudio, 210 A.3d 1070 (Pa. Ct. App. 2019).

Opinion

OPINION BY STRASSBURGER, J.:

Douglas Matthew DiClaudio (Appellant) appeals from the judgment of sentence of 12 to 36 months of incarceration entered after Appellant pleaded guilty to retail theft. We affirm.

We provide the following background. Appellant was charged with retail theft, criminal trespass, and driving while operating privileges were suspended. On June 5, 2018, Appellant pleaded guilty to retail theft for stealing game controllers1 and videogames from WalMart, in exchange for the Commonwealth's nolle pros of the remaining charges and recommendation that the sentence imposed be set to run concurrently with any sentence Appellant was already serving. On July 23, 2018, the trial court accepted the Commonwealth's recommendation and sentenced Appellant to a term of 12 to 36 months of incarceration, concurrent with any sentence Appellant was then serving.

Appellant timely filed a counseled post-sentence motion, claiming that the sentence imposed was "manifestly excessive, because it [wa]s not specifically tailored to the nature of the offense[.]" Motion to Modify Sentence, 7/30/2018, at 1 (unnumbered). The trial court denied the motion that same day.2

On August 6, 2018, Appellant pro se filed a notice of appeal. The notice of appeal was docketed in the trial court and forwarded to counsel of record. Thereafter, the trial court, inter alia, appointed new counsel to represent Appellant on appeal.

*1074Order, 8/30/2018.3 Counsel subsequently filed a notice of appeal on September 10, 2018.

Preliminarily, we must determine whether Appellant's notice of appeal was timely filed. See Commonwealth v. Demora , 149 A.3d 330, 331 (Pa. Super. 2016) ("We may raise the issue of jurisdiction sua sponte."). Counsel's September 10, 2018 notice of appeal, which was the only notice of appeal forwarded to this Court, was untimely filed. See Pa.R.Crim.P. 720(2)(a) (requiring that a notice of appeal be filed within 30 days of the entry of the order deciding a timely-filed post-sentence motion). However, our inquiry does not end there.

As noted supra, prior to counsel's notice of appeal, Appellant pro se filed a notice of appeal. "[T]he prisoner mailbox rule provides that a pro se prisoner's document is deemed filed on the date he delivers it to prison authorities for mailing." Commonwealth v. Chambers , 35 A.3d 34, 38 (Pa. Super. 2011). The certified record does not indicate when Appellant delivered the document to prison authorities for mailing, but the envelope is postmarked August 6, 2018, and we therefore use that date as the filing date. See Commonwealth v. Jones , 549 Pa. 58, 700 A.2d 423, 426 n.3 (1997) (noting that because the Commonwealth does not challenge the timeliness of the appeal, and this Court could verify that the notice of appeal reached the United States Post Office by, at the latest, the date of the postmark, no remand is necessary for an evidentiary hearing on the timeliness issue). Thus, Appellant's pro se notice of appeal was timely filed, and should have been docketed and forwarded to this Court despite Appellant's being represented by counsel. See Commonwealth v. Williams , 151 A.3d 621, 624 (Pa. Super. 2016) ; Pa.R.A.P. 902. Because the timely-filed pro se notice of appeal was docketed in the trial court but not forwarded to this Court in violation of Pa.R.A.P. 902, "[w]e deem this a breakdown in the operation of the courts" and therefore accept counsel's untimely-filed notice of appeal as if timely-filed.4 Williams , 151 A.3d at 624.

On appeal, Appellant argues that the sentence imposed "was manifestly excessive in length, and was not specifically tailored to the nature of the offense, the ends of justice and society, and the rehabilitative needs of [ ] Appellant[.]" Appellant's Brief at 4 (unnecessary capitalization omitted).

Appellant challenges the discretionary aspects of his sentence.5 Thus, we consider his issue mindful of the following.

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on *1075appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
* * *
When imposing [a] sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant's prior criminal record, age, personal characteristics and potential for rehabilitation.

Commonwealth v. Antidormi , 84 A.3d 736, 760-61 (Pa. Super. 2014) (internal citations and quotation marks omitted).

An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction. We determine whether the appellant has invoked our jurisdiction by considering the following four factors:
(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903 ; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720 ; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f) ; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.[ ] § 9781(b).

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Bluebook (online)
210 A.3d 1070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-diclaudio-pasuperct-2019.