J-S41007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONALD LEE BARKER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 363 WDA 2023

Appeal from the Judgment of Sentence Entered January 25, 2023

In the Court of Common Pleas of Clarion County 

Criminal Division at No(s): CP-16-CR-0000435-2021

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: January 26, 2024

Ronald Lee Barker appeals from the judgment of sentence entered in 

the Clarion County Court of Common Pleas on January 25, 2023, following his 

guilty plea to possession of child pornography. Barker is attempting to reverse

his designation as a sexually violent predator (“SVP”). We affirm. 

On May 4, 2022, Barker entered a guilty plea to one count of possession 

of child pornography. Pursuant to a plea agreement, the plea was open subject 

to the condition that the minimum sentence could not exceed thirty-five 

months’ incarceration. Sentencing was deferred for an assessment by the 

Pennsylvania Sexual Offenders Assessment Board (“SOAB”) for a 

recommendation of whether Barker fits the criteria of an SVP.

____________________________________________

* Former Justice specially assigned to the Superior Court.
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On December 9, 2022, the trial court conducted an SVP hearing. The 

Commonwealth presented the report and detailed testimony of Brenda A. 

Manno, MSW, a licensed clinical social worker and member of the SOAB. Ms. 

Manno concluded that Barker meets the criteria to be classified as an SVP 

under Pennsylvania law. 

Barker presented a letter from Robert M. Wettstein, MD, a boardcertified psychiatrist, who stated it was his opinion that Barker cannot be 

determined to be an SVP under Pennsylvania law. Dr. Wettstein did not testify 

at the hearing. To conclude the hearing, Barker testified on his own behalf. 

After taking the matter under advisement, the court issued an order a month 

later, classifying Barker as an SVP. 

On January 25, 2023, the trial court sentenced Barker to sixty months’ 

probation with restrictive conditions, to include not less than thirty-five 

months on house arrest with GPS monitoring. Barker filed a post-sentence 

motion, which the trial court denied on February 22, 2023. On March 24, 2023, 

Barker filed the instant notice of appeal. 

This Court issued a rule to show cause why this appeal should not be 

quashed as untimely filed, noting that the docket indicated that Barker filed 

his post-sentence motion more than ten days after the entry of judgment of 

sentence, and untimely post-sentence motions do not toll the 30-day appeal 

period. See Order, 5/1/2023. In his response to our rule to show cause, 

Barker’s counsel indicated that he electronically filed the post-sentence motion 
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on Monday, February 6, 2023, at 5:13 p.m., and that the filing was accepted 

by the clerk of courts on February 7, 2023, at 8:37 a.m. Counsel insisted that 

even though the motion was not accepted by the clerk of courts until the next 

day, the motion was nevertheless filed within the 10-day window, and 

therefore Barker’s appeal was timely. See Letter in Response to Rule to Show 

Cause, filed May 5, 2023. After consideration of counsel’s response, our Court 

discharged the show-cause order, and advised counsel that the merits panel 

may revisit the issue. 

Accordingly, as a prefatory matter, we must address our jurisdiction to 

entertain this appeal because an untimely appeal divests this Court of 

jurisdiction. See Commonwealth v. Edrington, 780 A.2d 721, 725 (Pa. 

Super. 2001). We may address questions of our jurisdiction sua sponte. See 

id.

“Absent extraordinary circumstances, an appellate court lacks the power 

to enlarge or extend the time provided by statute for taking an appeal.” 

Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014). “Thus, an 

appellant’s failure to appeal timely an order generally divests the appellate 

court of its jurisdiction to hear the appeal.” Id. (citation omitted).

Generally, a post-sentence motion must be filed within ten days after 

the imposition of sentence, and to be timely, an appeal must be filed within 

thirty days of the entry of the order deciding the motion. See Pa.R.Crim.P. 

720(A). An untimely post-sentence motion does not toll the time to file an 
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appeal. See Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004) 

(en banc).

Here, the court sentenced Barker on January 25, 2023. The last day to 

file a timely post-sentence motion was Monday, February 6, 2023, as the tenth

day after sentencing fell on a Saturday. See 1 Pa.C.S. § 1908 (for 

computations of time, if the last day of any such period shall fall on a Saturday, 

Sunday, or any legal holiday, such day shall be omitted from the 

computation); see also Pa.R.A.P. 107 (stating that 1 Pa.C.S. § 1908 shall be 

applicable to the Rules of Appellate Procedure); and see Commonwealth v. 

Fill, 202 A.3d 133, 138 (Pa. Super. 2019) (applying 1 Pa.C.S. § 1908). Barker 

filed a post-sentence motion that was received on February 6, 2023, but was 

not time-stamped and docketed until February 7, 2023. 

It is arguable whether Barker’s post-sentence motion was filed within 

the 10-day timeframe. In any event, we find any untimeliness of the instant 

appeal may be excused due to a breakdown in the processes of the court. A 

“breakdown” has been found where the trial court or the clerk of courts 

departed from the obligations specified in current Rules 704 and 720 of the

Pennsylvania Rules of Criminal Procedure, which can be summarized as 

follows:

Rule 704(C)(3)(a) states that, at the time of sentencing, “[t]he 

judge shall determine on the record that the defendant has been 

advised ... of the right to file a post-sentence motion and to 

appeal, ... [and] of the time within which the defendant must 

exercise those rights.” The Comment to this Rule provides that 

“[t]his rule is intended to promote ... fair sentencing procedures 
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... by requiring that the defendant be fully informed of his or her 

post-sentence rights and the procedural requirements which must 

be met to preserve those rights.” Furthermore, Rule

720(B)(4)(a) states that “[a]n order denying a post-sentence 

motion, whether issued by the judge ... or entered by the clerk of 

courts ..., shall include notice to the defendant of [...] the right to 

appeal and the time limits in which the appeal must be filed.” [The 

Comment to this Rule provides that] “[t]his requirement ensures 

adequate notice to the ... [appellant], which is important given 

the potential time lapse between the notice provided at sentencing 

and the resolution of the post-sentence motion.”

Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa. Super. 2007) 

(citations and some internal quotation marks omitted). Each rule serves a 

distinct purpose, and the language used evinces the mandatory nature of the 

separate notifications. See id. at 499. 

Here, the trial court complied with Rule 704 at sentencing by notifying 

Barker of the time in which to file his post-sentence motion and appeal. 

However, the trial court completely failed to comply with the dictates of Rule

720. In the order denying Barker’s post-sentence motion, the trial court did 

not notify Barker that, due to the late filing of his post-sentence motion, he 

had to file an appeal within thirty days of the imposition of sentence.1 Had the 

trial court done so, Barker could have filed a timely appeal within the few days

remaining in the original appeal period.

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1

In fact, the order simply denies the post-sentence motion, without giving 

any reason for doing so, and without giving any notification of any appellate 

rights.
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The trial court's failure to comply with Rule 720 constitutes a breakdown 

that excuses any potential untimeliness of Barker’s notice of appeal. While 

Barker did receive proper notification of his post-sentence and appellate rights 

at the time of sentencing, partial compliance with the rules is simply not 

sufficient. See Patterson, 940 A.2d at 499. Accordingly, we will proceed to 

review the merits of the instant appeal. 

On appeal, Barker argues the trial court erred in finding that he is an 

SVP. Specifically, Barker contends the Commonwealth presented insufficient 

evidence to establish by clear and convincing evidence that he was an SVP. 

Our standard and scope of review of a challenge to the sufficiency of the 

evidence relating to a trial court’s SVP designation is as follows:

In order to affirm an SVP designation, we, as a reviewing court, 

must be able to conclude that the fact-finder found clear and 

convincing evidence that the individual is an SVP. As with any 

sufficiency of the evidence claim, we view all evidence and 

reasonable inferences therefrom in the light most favorable to the 

Commonwealth. We will reverse a trial court’s determination of 

SVP status only if the Commonwealth has not presented clear and 

convincing evidence that each element of the statute has been 

satisfied.

Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015) 

(citation and brackets omitted). “The clear and convincing standard means 

the evidence was so clear, direct, weighty, and convincing that the trier of fact 

could come to a clear conviction, without hesitating, concerning the facts at 

issue.” Commonwealth v. Feucht, 955 A.2d 377, 380 (Pa. Super. 2008) 

(citation omitted). 
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An SVP is defined as “an individual who committed a sexually violent 

offense” and “who is determined to be a sexually violent predator ... due to a 

mental abnormality or personality disorder that makes the individual likely to 

engage in predatory sexually violent offenses.” 42 Pa.C.S.A. § 9799.12.

Section 9799.24(a) of SORNA provides that “a court shall order an 

individual convicted of a sexually violent offense to be assessed by the 

[SOAB].” 42 Pa.C.S.A. § 9799.24(a); see also id. § 9799.12 (defining 

sexually violent offense). Following the entry of such an order, the SOAB is 

responsible for conducting an assessment to determine whether the individual 

should be classified as an SVP. Id. § 9799.24(b). The assessment must 

consider the following factors:

whether the instant offense involved multiple victims; whether the 

defendant exceeded the means necessary to achieve the offense; 

the nature of the sexual contact with the victim(s); the 

defendant’s relationship with the victim(s); the victim(s)’ age(s); 

whether the instant offense included a display of unusual cruelty 

by the defendant during the commission of the offense; the 

victim(s)’ mental capacity(ies); the defendant’s prior criminal 

record; whether the defendant completed any prior sentence(s); 

whether the defendant participated in available programs for 

sexual offenders; the defendant’s age; the defendant’s use of 

illegal drugs; whether the defendant suffers from a mental illness, 

mental disability, or mental abnormality; behavioral 

characteristics that contribute to the defendant’s conduct; and any 

other factor reasonably related to the defendant’s risk of 

reoffending.

Hollingshead, 111 A.3d at 190 (citation omitted); see also 42 Pa.C.S.A. § 

9799.24(b)(1)-(4). After the SOAB completes its assessment, the trial court 

holds a hearing to “determine whether the Commonwealth has proved by clear 
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and convincing evidence that the individual is [an SVP].” Id. at § 

9799.24(e)(3).

Here, the trial court determined the Commonwealth proved by clear and 

convincing evidence that Barker met the statutory criteria to be classified as 

an SVP pursuant to Pennsylvania law. See Trial Court Opinion, 5/22/23, at 3. 

Our review of the record agrees with this observation.

At the hearing, Ms. Manno testified that Barker met the criteria of an 

SVP and offered details of her report. See N.T., 12/9/22, at 5-33. The 

Commonwealth offered into evidence the SVP Assessment completed by Ms. 

Manno in its entirety. Pursuant to Section § 9799.58(b), Ms. Manno considered 

all fourteen factors in her assessment and concluded Barker met the criteria 

for an SVP under Pennsylvania law.

On the other hand, Barker offered a one-page letter from Dr. Wettstein

that briefly stated his psychiatric opinion that Barker cannot be determined to 

be an SVP. Dr. Wettstein stated he reviewed some unspecified legal 

documents in connection with Barker’s case. However, unlike Ms. Manno’s 

assessment, Dr. Wettstein did not explain whether he evaluated the 

unspecified information in connection with the applicable legal standard. 

Upon review, we conclude the evidence presented at the SVP hearing, 

viewed in the light most favorable to the Commonwealth, supports the trial 

court’s finding that Barker should be classified as an SVP. See Hollingshead, 

111 A.3d at 189. As the trial court observed, Ms. Manno satisfactorily 
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explained why Barker met the criteria for an SVP. The court found Ms. Manno’s 

assessment, and corresponding testimony, to be reliable and compelling. See 

Trial Court Opinion, 5/22/23, at 3. On the other hand, the court did not find 

Dr. Wettstein’s letter compelling, as it lacked any specificity. See id. Our 

review confirms that Ms. Manno’s testimony, which was credited by the trial 

court, was sufficient to support her conclusion. Accordingly, we cannot grant 

Barker relief on his sole issue and affirm the judgment of sentence. 

Judgment of sentence affirmed. Jurisdiction relinquished. 

 1/26/2024