J-S15010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NELSON EARL HARTLEY

Appellant No. 1477 MDA 2014

Appeal from the Judgment of Sentence August 14, 2014

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0001391-2012

*****

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NELSON EARL HARTLEY

Appellant No. 1478 MDA 2014

Appeal from the Judgment of Sentence August 14, 2014

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0001571-2012

*****

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NELSON EARL HARTLEY

Appellant No. 1479 MDA 2014
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Appeal from the Judgment of Sentence August 14, 2014

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0000738-2013

*****

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NELSON EARL HARTLEY

Appellant No. 1480 MDA 2014

Appeal from the Judgment of Sentence August 14, 2014

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0000739-2013

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 06, 2015

Nelson Earl Hartley appeals from the judgment of sentence imposed by 

the Court of Common Pleas of Centre County following the revocation of his 

probation. Upon review, we vacate Hartley’s sentence and remand for 

resentencing.

On August 14, 2014, Hartley appeared for a violation of probation 

hearing. It was determined that Hartley violated the conditions of his 

probation prohibiting him from consuming alcohol and entering bars. 

Following the hearing, the court sentenced Hartley to a period of six to 
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twelve months’ incarceration on each of the four violations, to run 

consecutively to each other. Hartley did not file a post-sentence motion.

On August 29, 2014, Hartley filed a notice of appeal on each of the 

four enumerated sentences. He timely complied with the court’s order to 

provide a statement of errors complained of on appeal on September 18, 

2014. The four cases were consolidated for appeal on September 22, 2014. 

On appeal, Hartley presents the following issues for our review:

1. Did the lower court deny Hartley his right of allocution at his 

sentencing following the violation of his probation?

2. Was the issue regarding the deprivation of Hartley’s right to 

allocution preserved for appellate review despite the failure to 

present the issue to the court below in a post-sentence 

motion where the court did not advise defendant of his right 

to file a post-sentence motion?

Brief of Appellant, at 8. For ease of disposition, we will address Hartley’s 

second issue first.

In his second issue, Hartley asks this Court to excuse his failure to 

raise the issue of allocution in a post-sentence because the court did not 

apprise him of his right to file such a motion at the time of sentencing. The 

probation revocation court acknowledges that at the time of sentencing, it 

did not afford Hartley his right of allocution nor advise him of his postsentence rights as required by Pa.R.Crim.P. 708(D).

Pennsylvania Rule of Criminal Procedure 708(D) provides:

(D) Sentencing Procedures:

(1) At the time of sentencing, the judge shall afford the 

defendant the opportunity to make a statement in his or her 
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behalf and shall afford counsel for both parties the opportunity 

to present information and argument relative to sentencing.

(2) The judge shall state on the record the reasons for the 

sentence imposed.

(3) The judge shall advise the defendant on the record:

(a) of the right to file a motion to modify sentence and to 

appeal, of the time within which the defendant must 

exercise those rights, and of the right to assistance of 

counsel in the preparation of the motion and appeal.

Pa.R.Crim.P. 708(D). Regarding such omissions by the trial court, this Court 

has previously held, 

The proper recourse regarding the court’s failure to afford 

appellant the right to allocute on his own behalf is to vacate the 

sentence and remand for resentencing. The court’s failure to 

advise appellant of his reconsideration of sentence rights should 

result in an order from this court requiring the sentencing court 

to entertain appellant’s motion for reconsideration of sentence 

nunc pro tunc.

Commonwealth v. Curry, 465 A.2d 660, 664 (Pa. Super. 1983).1

In Curry, the sentencing court denied Curry his right to allocution and 

failed to advise Curry of his right to file a motion for reconsideration of 

sentence within ten (10) days of imposition of sentence. Despite counsel’s 

eloquent allocution on behalf of his client, this Court found the omissions to 

constitute reversible error. We vacated Curry’s sentence and remanded for 

____________________________________________

1 We recognize that although a majority of this Court would later distance 

itself from Curry in Commonwealth v. Brown, 492 A.2d 745 (Pa. Super. 

1985), Brown disapproved Curry only “to the extent [it] would allow 

counsel to be found ineffective for failing to preserve allocution rights where 

no factual basis for the allocution claim is offered.” Brown, 492 A.2d at 

758.
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resentencing, after which Curry would have the right to file a motion for 

modification and reconsideration pursuant to Pa.R.Crim.P. 1410.

We find Curry dispositive in the case sub judice. Here, the court 

denied Hartley his right to allocute on his own behalf and failed to apprise 

Hartley of his right to file a post-sentence motion. Although counsel’s 

allocution on Hartley’s behalf was persuasive, as demonstrated by the 

sentencing judge’s decision to impose a more lenient sentence, we cannot 

overlook these errors. Accordingly, we vacate Hartley’s sentence and 

remand for resentencing. Hartley shall be afforded the right to allocute on 

his own behalf and, following resentencing, he shall be apprised of his right 

to file a post-sentence motion pursuant to Pa.R.Crim.P. 1410.

Sentence vacated and the matter remanded for further proceedings 

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015