J-S31012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

UNRAY SOUTHERLAND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 470 EDA 2023

Appeal from the Judgment of Sentence Entered June 28, 2022

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0002201-2021

BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 15, 2023

Appellant, Unray Southerland, appeals from the judgment of sentence 

entered on June 28, 2022 in the Criminal Division of the Court of Common 

Pleas of Montogomery County, as made final by the denial of Appellant’s 

reinstated post-sentence motion on January 9, 2023. We affirm.

The factual and procedural history in this matter is undisputed. In its 

opinion pursuant to Pa.R.A.P. 1925(a), the trial court summarized the factual 

history in this case as follows.

Between June 30, 2020 and October 8, 2020, [Appellant] engaged 

in vaginal intercourse and oral sex with his biological daughter, 

D.B. in Norristown, Pennsylvania when D.B. was under the age of 

16 [years old] and entrusted to [Appellant’s] care. During this 

time, [Appellant] impregnated D.B.

Trial Court Opinion, 3/20/23, at 3.
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Based upon the forgoing events, the Commonwealth, on January 14, 

2022, filed a criminal information charging Appellant with the following 

offenses: Count One, statutory sexual assault (18 Pa.C.S.A. § 3122.1(b));

Count Two, involuntary deviate sexual intercourse (IDSI) (18 Pa.C.S.A. 

§ 3123(a)(7)); Count Three, incest of a minor (18 Pa.C.S.A. § 4302(b)(2)); 

Count Four, endangering the welfare of a Child (EWOC) (18 Pa.C.S.A. 

§ 4304(a)(1)); and, Count Five, corruption of minors (18 Pa.C.S.A. 

§ 6301(a)(1)(ii)). Thereafter, on March 14, 2022, Appellant entered an open 

guilty plea to Counts Two through Four,

1 and Appellant proceeded to 

sentencing on June 28, 2022. The following sentence was imposed: Count 

Two (IDSI) – seven to 14 years’ incarceration; Count Three (incest of a 

minor) – four to 8 years’ incarceration; and Count Four (EWOC) one to two 

years’ incarceration. The trial court ordered Appellant to serve each

punishment consecutively; hence, Appellant received an aggregate term of 

incarceration totaling 12 to 24 years.2 Pursuant to 42 Pa.C.S.A. § 9718.5(a), 

the court also imposed a mandatory, consecutive three-year probationary 

sentence at Count Two, Appellant’s IDSI conviction, which commences at the 

conclusion of Appellant’s term of incarceration.

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1 The Commonwealth agreed to nolle pros Counts One and Five.

2 At sentencing, the trial court determined, by clear and convincing evidence, 

that Appellant met the criteria for designation as a sexually violent predator 

under the Sex Offender Registration and Notification Act (SORNA). See 42 

Pa.C.S.A. §§ 9791-9799.9.
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On September 7, 2022, 71 days after the trial court imposed its 

sentence, Appellant filed a motion asking the court to reconsider his 

punishment nunc pro tunc. Within the motion to reconsider, Appellant’s 

counsel averred that he mistakenly filed a reconsideration motion at a trial 

court docket number corresponding to another case that involved charges filed 

against Appellant. On September 8, 2022, the court granted Appellant’s 

motion and allowed him 10 days in which to seek reconsideration of the June 

28, 2022 sentence. Appellant formally asked the trial court to impose a 

reduced sentence of 10 to 20 years’ incarceration in a motion filed on 

September 13, 2022. Appellant’s request for a reduced sentence mirrored the 

Commonwealth’s recommendation at Appellant’s original sentencing hearing. 

The trial court denied Appellant’s motion to reconsider on January 9, 2023. 

Appellant filed a notice of appeal on February 3, 2023.

3

Appellant’s brief raises the following question for our review.

Did the [trial] court err in accepting [Appellant’s] guilty plea since 

the plea was not knowing[ly] and voluntarily entered because 

[Appellant’s] oral guilty plea colloquy failed to explain that 

[Appellant] had a right to a jury trial, failed to explain that a jury’s 

verdict would need to be unanimous, and failed to explain

[Appellant’s] right to confront and cross-examine witnesses at 

trial?

Appellant’s Brief at 3.

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3 Since the original notice of appeal misspelled Appellant’s first name, an 

amended notice of appeal was filed on February 7, 2023. Both Appellant and 

the trial court have complied with Pa.R.A.P. 1925.
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Before we address the merits of Appellant’s claim, we consider whether 

we possess appellate jurisdiction in this case. We may raise jurisdictional 

matters sua sponte, as they implicate our authority to entertain an appeal. 

See Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007), 

appeal denied, 960 A.2d 838 (Pa. 2008). As a general rule, appellate 

jurisdiction attaches only when a timely appeal has been filed; this Court has 

no jurisdiction over untimely appeals. Id. “[T]he time limitations for taking 

appeals are strictly construed and cannot be extended as a matter of grace.” 

Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007). The 

failure to file a timely notice of appeal defeats jurisdiction and compels 

quashal. Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014).

A notice of appeal must be filed within 30 days of the entry of the order 

from which an appeal is taken. See Pa.R.A.P. 903(a). A direct appeal in a 

criminal proceeding lies from the judgment of sentence. Patterson, 940 A.2d 

at 497, quoting Commonwealth v. Preacher, 827 A.2d 1235, 1236 n.1 (Pa.

Super. 2003). If a defendant files a timely post-sentence motion, the notice 

of appeal shall be filed within 30 days of the entry of the order deciding the 

motion. Pa.R.Crim.P. 720(A)(2)(a). A timely post-sentence motion must be 

filed no later than 10 days after imposition of sentence. See Pa.R.Crim.P. 

720(A)(1). “If a defendant files a timely post-sentence motion, the appeal 

period does not begin to run until the motion is decided.” Commonwealth 

v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015). If, however, the 
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defendant does not file a timely post-sentence motion, the notice of appeal 

must be filed within 30 days of imposition of sentence. See Pa.R.Crim.P. 

720(A)(3); Commonwealth v. Dreves, 839 A.2d 1122, 1127 (Pa. Super.

2003) (en banc).

“[A] post-sentence motion nunc pro tunc may toll the appeal period, but 

only if two conditions are met.” Capaldi, 112 A.3d at 1244, citing Dreves,

839 A.2d at 1128.

First, within 30 days of imposition of sentence, a defendant must 

request the trial court to consider a post-sentence motion nunc 

pro tunc. The request for nunc pro tunc relief is separate and 

distinct from the merits of the underlying post-sentence motion. 

Second, the trial court must expressly permit the filing of a 

post-sentence motion nunc pro tunc, also within 30 days of 

imposition of sentence. If the trial court does not expressly grant 

nunc pro tunc relief, the time for filing an appeal is neither tolled 

nor extended. Moreover, [t]he trial court's resolution of the merits 

of the late post-sentence motion is no substitute for an order 

expressly granting nunc pro tunc relief.

Capaldi, 112 A.3d at 1244 (internal citations and quotation marks omitted).

Here, the trial court imposed its sentence on June 18, 2013.4 Therefore, 

Appellant's post-sentence motion was due on or before July 8, 2022. Since 

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4 At the conclusion of the proceedings, the court instructed Appellant regarding 

his rights and the time limitations for filing post-sentence motions and a direct 

appeal. Because the court advised Appellant of his post-sentence and direct 

appeal rights, the record does not offer grounds for finding that a breakdown 

in the judicial process excused the untimely filing of Appellant’s post-sentence 

motion. See Patterson, 940 A.2d at 498 (recognizing that administrative 

breakdowns occur where trial court, at time of sentencing, either fails to 

advise appellant of post-sentence and appellate rights or misadvises him and 

that such breakdowns excuse subsequent untimely filings).
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Appellant did not file his post-sentence motion on or before July 8, 2022, his 

notice of appeal was due within 30 days of sentencing, or on or before July 

18, 2022. See Dreves, supra. Appellant’s notice of appeal filed on February 

3, 2023 was manifestly out of time.

Moreover, Appellant’s motion to reinstate his post-sentence rights nunc 

pro tunc also fails to satisfy the prerequisites for relief. See Capaldi, supra.

The trial court did not expressly permit a nunc pro tunc filing within 30 days 

of the original imposition of sentence. Since the court never made such a 

declaration, the time for filing an appeal was neither tolled nor extended. In 

addition, the court's resolution of the merits of Appellant’s untimely

post-sentence motion is no substitute for an order expressly granting nunc 

pro tunc relief. See Capaldi, 112 A.3d at 1245 (stating: “With respect to the 

necessity of a timely order expressly granting reconsideration, the 

establishment of a briefing schedule, hearing date, or issuance of a rule to 

show cause does not suffice[.]”); Dreves, supra at 1128-1129 (if trial court 

does not expressly grant nunc pro tunc relief, time for filing appeal is neither 

tolled nor extended; court's resolution of merits of untimely post-sentence 

motion is no substitute for order expressly granting nunc pro tunc relief). 

Under the circumstances, Appellant's untimely filings did not toll the appeal 

period; hence, we cannot conclude that Appellant's request for nunc pro tunc 

relief validly invoked our jurisdiction over the instant appeal.
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The forgoing assessment does not end our inquiry, however, as we must 

consider whether to construe Appellant’s September 7, 2022 filing as a 

petition for collateral relief pursuant to the Post-Conviction Relief Act (PCRA), 

42 Pa.C.S.A. §§ 9541-9546. Our prior decisions confirm that “the PCRA is 

intended to be the sole means of achieving post-conviction [collateral] relief.” 

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). 

“[R]egardless of how a petition is titled, courts [must] treat a petition filed 

after a judgment of sentence becomes final as a PCRA petition if it requests 

relief contemplated by the PCRA.” Commonwealth v. Wrecks, 934 A.2d 

1287, 1289 (Pa. Super. 2007); see also Commonwealth v. Torres, 223 

A.3d 715, 716 (Pa. Super. 2019) (stating, “so long as a pleading falls within 

the ambit of the PCRA, the court should treat any pleading filed after the 

judgment of sentence is final as a PCRA petition”) (citation omitted); 

Commonwealth v. Hromek, 232 A.3d 881, 884 (Pa. Super. 2020) (same). 

The trial court imposed its sentence on June 28, 2022. Since Appellant 

filed neither a timely post-sentence motion nor a notice of appeal, his 

judgment of sentence became final on July 28, 2022, after 30 days. See 42 

Pa.C.S.A. § 9545(b)(3) (“For purposes of this subchapter, a judgment 

becomes final at the conclusion of direct review, including discretionary review 

in the Supreme Court of the United States and the Supreme Court of 

Pennsylvania, or at the expiration of time for seeking the review.”); Pa.R.A.P. 
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903(a) (notice of appeal must be filed within 30 days or entry of order from 

which appeal is taken).

As we stated above, Appellant asked the court to reconsider his 

punishment nunc pro tunc on September 7, 2022, 71 days after his sentence 

was imposed. The motion explained that trial counsel mistakenly filed a 

reconsideration motion at a trial court docket number corresponding to 

another case that involved charges filed against Appellant. The court granted 

Appellant’s motion on September 8, 2022, and allowed him 10 days in which 

to seek reconsideration of the June 28, 2022 sentence. Appellant then 

requested a reduced sentence of 10 to 20 years’ incarceration in a motion filed 

on September 13, 2022. The trial court denied Appellant’s reconsideration 

motion on January 9, 2023 and Appellant appealed on February 3, 2023.

We conclude that Appellant’s September 7, 2022 submission met all the 

requirements of a timely petition for collateral relief under the PCRA. First, 

Appellant’s judgment of sentence was final when the September 2022 filing 

was made. Second, the September 2022 filing asked for reinstatement of 

Appellant’s post-sentence rights due to an error by counsel, a claim 

contemplated by the PCRA. See 42 42 Pa.C.S.A. § 9543(a)(2)(ii) (recognizing 

that a petitioner, who pleads and proves the ineffectiveness of counsel, may 

be eligible for relief). Lastly, the September 2022 filing was lodged within one 

year of the date that Appellant’s judgment became final. See 42 Pa.C.S.A. 

§ 9545(b)(1) (PCRA petition must be filed within one year of date judgment 
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becomes final unless exceptions are proven). We may therefore treat 

Appellant’s September 2022 submission as a petition for collateral relief. 

Moreover, when the court reinstated Appellant’s right to seek reconsideration, 

it reinstituted Appellant’s criminal proceedings in the context of post-sentence 

motions practice. See Commonwealth v. Koehler, 229 A.3d 915, 931 (Pa. 

2020) (if a petition for collateral relief vests the PCRA court with jurisdiction, 

the court may reinstate the petitioner's direct appeal rights). Thus, 

Appellant’s subsequent timely appeal from the denial of relief properly vested

appellate jurisdiction in this Court.

Appellant argues that his guilty plea was invalid, and the trial court erred 

in accepting it, because his oral colloquy “failed to explain that [Appellant] had 

a right to a jury trial, failed to explain that a jury’s verdict needed to be 

unanimous, and failed to explain the right to confront and cross-examine 

witnesses at trial.” See Appellant’s Brief at 8 and 14. This claim is both 

waived and meritless.

Pennsylvania law makes clear that a defendant who enters a guilty plea 

waives his right to challenge all non-jurisdictional defects (except the legality 

of the sentence and the validity of the plea) on direct appeal. 

Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). To 

preserve a challenge to a guilty plea, an appellant must either “object[ ] at 

the sentence colloquy or otherwise raise[ ] the issue at the sentencing hearing 

or through a post-sentence motion.” Commonwealth v. D'Collanfield, 805 
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A.2d 1244, 1246 (Pa. Super. 2002); see Pa.R.Crim.P. 720 misc. cmt. 

(“Properly preserved issues related to guilty pleas need not be raised again

in the post-sentence motion, but the defendant may choose to do so. A key 

consideration for the defendant is whether the record will be adequate for 

appellate review. If counsel is uncertain about the record, it is recommended 

that the guilty plea be challenged in the post-sentence motion.”) (emphasis 

added); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal.”); see also 

Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013) (“A 

defendant wishing to challenge the voluntariness of a guilty plea on direct 

appeal must either object during the plea colloquy or file a motion to withdraw 

the plea within [10] days of sentencing. Failure to employ either measure 

results in waiver.”) (citations omitted). Moreover, “[a] party cannot rectify 

the failure to preserve an issue by proffering it in response to a Rule 1925(b) 

order.” Commonwealth v. Kohan, 825 A.2d 702, 706 (Pa. Super. 2003) 

(emphasis added) (citations omitted). The promotion of judicial efficiency and 

the preference for allowing the trial court to correct errors at the first 

opportunity underlie this waiver rule. See Commonwealth v. Roberts, 352 

A.2d 140, 141 (Pa. Super. 1975) (guilty plea challenge on direct appeal 

without prior petition to withdraw constitutes waiver).

Here, Appellant never raised a contemporaneous objection during his 

plea colloquy, never challenged the validity of his plea at sentencing, and 
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never filed a post-sentence motion alleging that his plea was invalid. Instead, 

Appellant filed his notice of appeal and only first raised his present claim in 

his Rule 1925(b) statement, at which point the trial court lacked jurisdiction 

to grant relief. See Pa.R.A.P. 1701 (“Except as otherwise prescribed by these 

rules, after an appeal is taken or review of a quasijudicial order is sought, the 

trial court or other government unit may no longer proceed further in the 

matter.”). Because Appellant never challenged his guilty plea in the trial court 

before raising it in his Rule 1925(b) statement, his current claim is waived.

Even if Appellant preserved his present claim, it lacks merit because 

Appellant did not show how his plea was involuntary and unknowing. 

Appellant did not seek to withdraw his guilty plea prior to the imposition of 

sentence. Hence, we apply the standard of review governing post-sentence 

motions to withdraw a plea. In Commonwealth v. Broaden, 980 A.3d 124 

(Pa. Super. 2009), we summarized those principles as follows:

[P]ost-sentence motions for withdrawal are subject to higher 

scrutiny since courts strive to discourage entry of guilty pleas as 

sentence-testing devices. A defendant must demonstrate that 

manifest injustice would result if the court were to deny his 

post-sentence motion to withdraw a guilty plea. Manifest injustice 

may be established if the plea was not tendered knowingly, 

intelligently, and voluntarily. In determining whether a plea is 

valid, the court must examine the totality of circumstances 

surrounding the plea. A deficient plea does not per se establish 

prejudice on the order of manifest injustice.

Id. at 129 (citations omitted).

Whether to permit a defendant to withdraw a guilty plea is a decision 

committed to the sound discretion of the trial court. See Commonwealth v. 
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Hart, 174 A.3d 660, 664 (Pa. Super. 2017) (applying abuse of discretion 

standard to withdrawal of plea after a sentence has been imposed). Judicial 

discretion:

imports the exercise of judgment, wisdom and skill so as to reach 

a dispassionate conclusion, and discretionary power can only exist 

within the framework of the law, and is not exercised for the 

purpose of giving effect to the will of the judges. Discretion must 

be exercised on the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary action. Discretion is 

abused when the course pursued represents not merely an error 

of judgment, but where the judgment is manifestly unreasonable 

or where the law is not applied or where the record shows that 

the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Shaffer, 712 A.2d 749, 751 (Pa. 1998) (citation 

omitted).

Our prior cases guide our use of the criminal rules of procedure in 

assessing the validity of a plea colloquy.

A valid guilty plea must be knowingly, voluntarily and intelligently 

entered. Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.

Super.2003). The Pennsylvania Rules of Criminal Procedure 

mandate that pleas be taken in open court, and require the court 

to conduct an on-the-record colloquy to ascertain whether a 

defendant is aware of his rights and the consequences of his plea. 

Commonwealth v. Hodges, 789 A.2d 764 (Pa. Super. 2002), 

citing Pa.R.Crim.P. 590. Specifically, the court must affirmatively 

demonstrate the defendant understands: (1) the nature of the 

charges to which he is pleading guilty; (2) the factual basis for the 

plea; (3) his right to trial by jury; (4) the presumption of 

innocence; (5) the permissible ranges of sentences and fines 

possible; and (6) that the court is not bound by the terms of the 

agreement unless the court accepts the agreement. 

Commonwealth v. G. Watson, 835 A.2d 786 (Pa. Super. 2003). 

This Court will evaluate the adequacy of the plea colloquy and the 

voluntariness of the resulting plea by examining the totality of the 

circumstances surrounding the entry of that plea. 
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Commonwealth v. Muhammad, 794 A.2d 378, 383-384 (Pa.

Super. 2002).

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citation 

omitted).

Here, the trial court determined that the on-the-record colloquy 

complied with the requirements of Rule 590 and that the totality of the 

circumstances (including a supplemental written colloquy read and signed by 

Appellant) reflected that Appellant’s plea was knowing, intelligent, and 

voluntary. See Trial Court Opinion, 3/20/23, at 5-6. We agree with these

determinations. Focusing upon the specific claims raised by Appellant, our 

review of the record confirms that the written and oral colloquies placed on 

the record at Appellant’s plea hearing advised Appellant of his right to a jury 

trial, as well as his right to a unanimous verdict by the deliberating jurors. 

Although Appellant complains that he was never informed of his right to 

confront the witnesses against him, he offers no citation to case law or 

reference within Rule 590 that imposes such a requirement.5 In light of the 

totality of the circumstances, we conclude that the trial court did not abuse its 

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5 Appellant also claims that we may not rely upon a supplemental written

colloquy in assessing the validity of a guilty plea if the oral colloquy is deficient. 

Appellant cites Commonwealth v. Clyburn, 42 A.3d 296 (Pa. 2012) to 

support this contention. This argument is unavailing. Clyburn dealt with the 

validity of a waiver of the right to counsel, not the validity of a guilty plea. 

For this reason, this Court has rejected the application of Clyburn in the 

present circumstances. See Commonwealth v. Mastin, 2023 WL 2506714, 

at *3 (Pa. Super. March 15, 2023). 
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discretion in concluding that Appellant’s guilty plea was valid and in denying 

Appellant's reinstated post-sentence motion to withdraw his guilty plea. 

Accordingly, we affirm Appellant's judgment of sentence.

Judgment of sentence affirmed.

Date: 12/15/2023