J-S33030-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS MCNALT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 59 EDA 2021

Appeal from the Judgment of Sentence Entered December 18, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0000534-2011

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS MCNALT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 63 EDA 2021

Appeal from the Judgment of Sentence Entered December 18, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0008516-2017

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.: FILED JANUARY 19, 2022

Appellant Thomas McNalt appeals from the judgments of sentence 

imposed after he pled guilty to possession with intent to deliver (PWID) and 

related offenses at Docket No. 8516-2017 and was found in violation of his 

probation sentence at Docket No. 534-2011. Appellant claims that the trial 

court erred in accepting his guilty plea at Docket No. 8516-2017 and
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challenges the discretionary aspects of the sentence imposed at both docket 

numbers. We affirm.

The trial court summarized the underlying facts and procedural history 

of these matters as follows:

With respect to [Docket No.] 534-2011, Appellant [] entered into 

a negotiated plea to [PWID] before this court on March 28, 2011, 

and was sentenced to six to twenty-three months of confinement, 

followed by two years of probation. On February 25, 2016, 

following a violation of probation (VOP) hearing, this court 

revoked Appellant’s probation and imposed a VOP sentence of five 

years of probation. 

With respect to [Docket No.] 8516-2017, Appellant was observed 

selling narcotics to a confidential informant [(CI)] for the 

Philadelphia Police on multiple occasions between June 2, 2017, 

and July 12, 2017. On July 12, 2017, Philadelphia Police officers 

executed a search warrant on Appellant’s home. Inside the home, 

which Appellant shared with his mother, officers recovered 

marijuana, a white substance alleged to be crack cocaine, plastic 

baggies and containers, and prerecorded buy money from the CI’s

purchases. Officers also found a safe containing a loaded .45 

Taurus revolver with an obliterated serial number and $4895 in 

[United States] currency. Appellant is ineligible to possess a 

firearm due to previous drug convictions. 

As a result of these events, Appellant was arrested and charged 

with [PWID], conspiracy, violations of the uniform firearms act 

(VUFA), and related offenses. On October 9, 2018, Appellant 

entered into a non-negotiated guilty plea before this court to 

PWID, conspiracy, and VUFA.[1] On December 18, 2018, this court 

sentenced Appellant to three to six years of imprisonment for 

PWID and conspiracy, to be served consecutively, and ten years 

of probation for VUFA. This court also found Appellant to be in 

direct violation of [the court’s] probation [at Docket No.] 534-

2011, and revoked probation and imposed a VOP sentence of four 

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1 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 903(c), and 6105(a)(1), 

respectively.
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to eight years of confinement, to be served concurrently to the 

sentence imposed on the open case.

Appellant filed a motion for reconsideration of sentence on 

December 26, 2018 [at each trial court docket]. . . . No direct 

appeal was filed. On March 22, 2019, Appellant filed a pro se

petition pursuant to the Post Conviction Relief Act (PCRA) [42 

Pa.C.S. §§ 9541-9546]. On April 25, 2019, Appellant’s motion for 

reconsideration was denied by operation of law. [The trial court 

subsequently appointed PCRA counsel, who filed amended 

petitions on Appellant’s behalf.] On October 19, 2020, this court 

granted Appellant’s PCRA request for reinstatement of appellate 

rights and denied his request for reinstatement of post-sentence 

motions. On November 17, 2020, this court amended the order 

to allow additional time for filing a direct appeal in light of 

difficulties communicating with inmates in state prison due to 

COVID-19.

Trial Ct. Op., 3/15/21, at 1-3.

Appellant filed a notice of appeal on December 15, 2020, at each trial 

court docket and subsequently filed a court-ordered Rule 1925(b) statement.

2

 

The trial court issued a Rule 1925(a) opinion in which it concluded that 

Appellant had waived his challenge to the guilty plea but addressed the merits 

of Appellant’s sentencing claim. See Trial Ct. Op. at 3-7.

On February 23, 2021, this Court issued a rule to show cause as to why 

the appeals should not be quashed as untimely. See Order, 2/23/21. 

Appellant filed a response stating that his appeal was timely in light of the trial 

court’s order November 17, 2020 order, which purported to extend the appeal 

deadline to December 17, 2020. This Court subsequently discharged the rule 

to show cause and referred the issue to this panel for disposition.

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2 On March 8, 2021, this Court sua sponte consolidated the instant appeals.
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On appeal, Appellant raises the following issues:

1. Did the [trial] court err in accepting [Appellant’s] guilty plea as 

knowing, intelligent and voluntary when there was no oral 

colloquy as to the charges, no review on the record of the 

written colloquy and maximum sentence possible for each 

charge, and no written or oral colloquy as to the drug type or 

maximum statutory sentence possible for each offense?

2. Was the trial court’s consecutive state sentence of six to twelve 

years on the open plea and the sentence of four to eight years 

on the violation of probation matter excessive under the 

circumstances in this case, without providing adequate 

reasons, and a manifest abuse of discretion in that 

[Appellant’s] presentence report indicated he never had 

received previous drug treatment, nor ever knew his father, 

and [Appellant] presented at sentencing his acceptance of 

responsibility, strong community supports, a lack of violence in 

his history, a strong work history, participation in and 

graduation from many prison programs while incarcerated pretrial, and the court went significantly above the request by the 

Commonwealth of four to eight years of incarceration?

Appellant’s Brief at 3.

Timeliness of Appeal

Initially, we must address whether Appellant’s appeals are timely. 

“When the trial court issues an order reinstating an appellant’s appeal rights, 

the appellant must file the appeal within 30 days of the order reinstating the 

appeal rights.” Commonwealth v. Wright, 846 A.2d 730, 734 (Pa. Super. 

2004); see also Pa.R.A.P. 903(a) (stating that a notice of appeal shall be filed 

within thirty days after entry of the order from which the appeal is taken). 

Because the appeal period is jurisdictional in nature, it must be strictly 

construed and “may not be extended as a matter of indulgence or grace.”

Commonwealth v. Pena, 31 A.3d 704, 706 (Pa. Super. 2011) (citation 
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omitted). Therefore, trial courts have no authority to extend the appeal 

deadline beyond thirty days. Id.

However, this Court has declined to quash otherwise untimely appeals

in circumstances where “the failure to file a timely appeal [resulted from] a 

breakdown in the court system.” Commonwealth v. Stansbury, 219 A.3d 

157, 160 (Pa. Super. 2019). Generally, a breakdown generally occurs if the

trial court misstates or misinforms an appellant regarding the rules governing 

post-sentence motions or the time for filing an appeal. See Commonwealth 

v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001) (declining to quash an 

untimely appeal where “the problem arose as a result of the trial court’s 

misstatement of the appeal period, which operated as a breakdown in the 

court’s operation”).

Here, the trial court reinstated Appellant’s appeal rights nunc pro tunc

on October 19, 2020. Accordingly, Appellant’s notices of appeal were due on 

or before November 18, 2020. However, one day before the appeal period 

expired, the trial court issued an additional order purporting to extend the 

appeal deadline to December 17, 2020. See Trial Ct. Order, 11/17/20, at 1. 

Because the trial court did not have the authority to extend the appeal period, 

Appellant’s December 15, 2020 notice of appeal was untimely filed. See 

Wright, 846 A.2d at 734; see also Pa.R.A.P. 903(a).

However, the trial court’s order misinformed Appellant about the 

impending appeal deadline, which ultimately resulted in his failure to file a 
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timely notice of appeal.3 Under these circumstances, we conclude that there 

was a breakdown in the operations of the court that prevented Appellant from 

filing a timely notice of appeal. See Coolbaugh, 770 A.2d at 791. Therefore, 

we will address the merits of Appellant’s claims.

Guilty Plea

In his first issue, Appellant challenges the validity of his guilty plea at 

Docket No. 8516-2017. Appellant’s Brief at 12-14. Specifically, Appellant 

argues that the trial court failed to conduct a plea colloquy to ensure that his 

plea was knowing, voluntary, and intelligent. Id. However, as noted 

previously, the trial court concluded that Appellant failed to preserve this 

claim. See Trial Ct. Op. at 3. Based on our review of the record, we agree.

It is well settled that “[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 ten days of 

sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either 

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3 We recognize that this Court has quashed an untimely appeal when a trial 

court accurately informed the appellant about his appeal rights at sentencing, 

but erroneously granted a motion to extend the appeal deadline. See 

Commonwealth v. Santiago, 1450 WDA 2018, 2020 WL 1527266, at *1 & 

n.5 (Pa. Super. filed Mar. 30, 2020) (unpublished mem.). However, in the 

instant case, neither the docket nor the certified record indicates that 

Appellant or Appellant’s counsel asked the trial court to extend the appeal 

deadline. Instead, it appears that the trial court issued the order sua sponte 

in light of ongoing communication difficulties caused by prison lockdowns 

during the COVID-19 pandemic. See Trial Ct. Order, 11/17/20, at 1.

Therefore, given that the trial court took action before the appeal deadline 

expired and without prompting from Appellant, we conclude that a breakdown 

occurred.
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measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606, 609-

10 (Pa. Super. 2013) (some citations omitted).

Here, the record confirms that Appellant did not object during the plea 

hearing, nor did he file a motion to withdraw his plea. Under these 

circumstances, we are constrained to find Appellant’s first issue waived. See 

id.

Discretionary Aspects of Sentence

In his second claim, Appellant contends that the trial court imposed 

excessive sentences at both docket numbers. Appellant’s Brief at 11. In 

support, Appellant argues that the trial court failed to provide reasons for the 

sentences and “completely ignored the mitigation evidence presented 

regarding [Appellant’s] history, character, and prospects for rehabilitation.” 

Id. at 19. Appellant further claims that the trial court “failed to give adequate 

weight” to his “lack of any previous drug treatment, that he never knew his 

father, that he accepted responsibility for his crime, his strong community 

supports, a lack of violence in his history, a strong work history and his 

participation in and graduation from many prison programs while 

incarcerated.” Id. at 11. Therefore, Appellant concludes that the trial court 

abused its discretion in imposing both sentences.

Appellant’s claims implicate the discretionary aspects of his sentences. 

It is well settled that “[c]hallenges to the discretionary aspects of sentencing 

do not entitle an appellant to review as of right.” Commonwealth v. Derry, 
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150 A.3d 987, 991 (Pa. Super. 2016) (citation omitted). Rather, before 

reaching the merits of such claims, we must determine:

(1) whether the appeal is timely; (2) whether [the 

a]ppellant preserved his issues; (3) whether [the 

a]ppellant’s brief includes a concise statement of the 

reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of sentence; and (4) whether the 

concise statement raises a substantial question that the 

sentence is inappropriate under the [S]entencing [C]ode. 

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation 

omitted). 

“To preserve an attack on the discretionary aspects of sentence, an 

appellant must raise his issues at sentencing or in a post-sentence motion. 

Issues not presented to the sentencing court are waived and cannot be raised

for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247, 

1251 (Pa. Super. 2006) (citations omitted). 

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d 

1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question 

exists only when the appellant advances a colorable argument that the 

sentencing judge’s actions were either: (1) inconsistent with a specific 

provision of the Sentencing Code; or (2) contrary to the fundamental norms 

which underlie the sentencing process.” Commonwealth v. Grays, 167 A.3d 

793, 816 (Pa. Super. 2017) (citation omitted). 
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Here, Appellant filed a timely notice of appeal, preserved a sentencing 

claim in a post-sentence motion, and included a concise statement of the 

reasons relied upon for allowance of appeal in his brief. See Corley, 31 A.3d 

at 296; Malovich, 903 A.2d at 1251. To the extent Appellant claims that the 

trial court failed to adequately weigh mitigating factors, that issue does not 

raise a substantial question. See Commonwealth v. Zirkle, 107 A.3d 127, 

133 (Pa. Super. 2014) (stating that “a claim that a court did not weigh the 

[sentencing] factors as an appellant wishes does not raise a substantial 

question” (citations omitted)). However, Appellant’s claim that the trial court 

imposed an excessive sentence and “ignored” mitigating factors raises a 

substantial question for our review. See Commonwealth v. Caldwell, 117 

A.3d 763, 770 (Pa. Super. 2015) (finding that an excessive sentence claim, 

together with an assertion that the court failed to consider mitigating factors, 

presents a substantial question). Therefore, we will address the merits of 

Appellant’s second claim.

Our well-settled standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

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.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation 

omitted); see also Commonwealth v. Shires, 240 A.3d 974, 977 (Pa.
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Super. 2020) (stating that “revocation of a probation sentence is a matter 

committed to the sound discretion of the trial court and that court’s decision 

will not be disturbed on appeal in the absence of an error of law or an abuse 

of discretion” (citation omitted and formatting altered)).

When fashioning a sentence, the court shall follow the general principle 

that the sentence imposed should call for confinement that is “consistent with 

. . . the protection of the public, the gravity of the offense as it relates to the 

impact on the life of the victim and on the community, and the rehabilitative 

needs of the defendant.” 42 Pa.C.S. § 9721(b); see also Commonwealth 

v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (stating that “the trial 

court is required to consider the particular circumstances of the offense and 

the character of the defendant,” including the defendant’s “prior criminal 

record, age, personal characteristics, and potential for rehabilitation” (citation 

omitted)).

When a court revokes a defendant’s probation and imposes a new 

sentence, “the sentencing alternatives available to the court shall be the same 

as were available at the time of initial sentencing, due consideration being 

given to the time spent serving the order of probation.” 42 Pa.C.S. § 9771(b); 

see also Derry, 150 A.3d at 991 (noting that although VOP courts must 

consider the general sentencing principles under Section 9721(b), the 

“sentencing guidelines are not required to be consulted in such instances” 
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(citation omitted)).4 However, VOP courts may not impose a sentence of total 

confinement unless (1) the defendant has been convicted of another crime; 

(2) the defendant’s conduct demonstrates a likelihood that he will commit 

another crime if not imprisoned; or (3) “such a sentence is essential to 

vindicate the authority of the court.” 42 Pa.C.S. § 9771(c).

“A sentencing court need not undertake a lengthy discourse for its 

reasons for imposing a sentence or specifically reference the statute in 

question, but the record as a whole must reflect the sentencing court’s 

consideration of the facts of the crime and character of the offender.”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010) (citation 

omitted). Further, where a presentence investigation (PSI) report exists, “we 

shall . . . presume that the sentencing judge was aware of relevant information 

regarding the defendant’s character and weighed those considerations along 

with mitigating statutory factors.” Commonwealth v. Conte, 198 A.3d 

1169, 1177 (Pa. Super. 2018) (citation omitted); see also Commonwealth 

v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (reiterating that sentencing 

courts “are under no compulsion to employ checklists or any extended or 

systematic definitions of their punishment procedure” and that, where a PSI 

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4 We note that the Resentencing Guidelines apply when probation is revoked 

based on an offense committed on or after January 1, 2020. See 204 Pa. 

Code § 307.2(b); see also 42 Pa.C.S. § 2154.4. Here, because Appellant

committed the underlying offense in 2017, the trial court was not required to 

consider the Resentencing Guidelines when imposing Appellant’s VOP 

sentence.
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exists, “the sentencing court’s discretion should not be disturbed” (citation 

omitted)).

However, “[w]e cannot re-weigh the sentencing factors and impose our 

judgment in the place of the sentencing court.” Commonwealth v. Macias, 

968 A.2d 773, 778 (Pa. Super. 2009) (citation omitted). Additionally, it is well 

settled that “Pennsylvania law affords the sentencing court discretion to 

impose its sentence concurrently or consecutively to other sentences being 

imposed at the same time or to sentences already imposed.”

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citation 

omitted).

Here, before imposing Appellant’s sentences, the trial court stated:

I have considered the sentencing guidelines, the previous presentence investigation reports, and I sentence you for punishment 

and prevention of further crimes, rehabilitation, vindication of the 

court’s authority, and the fact that you may be a threat to the 

public. I took into consideration your plea and your past records, 

and I will deviate from the guidelines[5] as the Commonwealth has 

requested, and I considered the arguments of counsel and the 

Commonwealth.

N.T. Sentencing Hr’g, 12/18/18, at 16.

In its Rule 1925(a) opinion, the trial court addressed Appellant’s 

sentence in the new criminal case at Docket No. 8516-2017 as follows:

Contrary to Appellant’s claims, this court properly considered all 

relevant discretionary factors when fashioning its sentence. This 

court considered the presentence report, statements from defense 

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5 We note that, based on the Commonwealth’s recommendation, the trial court 

imposed sentences within the mitigated guideline range.
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counsel, statements from Appellant’s cousin, and Appellant’s own 

statements at the time of sentencing. This court was aware that 

Appellant’s criminal history consists entirely of non-violent drug

offenses - and in fact asked several questions specifically clarifying 

the nature of Appellant’s prior record - and that the gun in 

question was not found on his person. It took into consideration 

that Appellant serves as the primary caretaker for his mother, and 

that he is involved in raising his daughter. This court took into 

consideration that, despite his history of drug offenses, Appellant 

appears to have been successful in maintaining some form of 

legitimate employment, and that Appellant was taking advantage 

of educational and job training programs while incarcerated. This 

court appreciates that Appellant appears remorseful for his 

actions, and that he hopes to lead a productive and law-abiding 

life going forward.

Unfortunately, this court cannot ignore the fact that Appellant has 

committed numerous drug offenses, and was on probation for 

multiple drug cases at the time of this offense. Appellant has had 

numerous chances to rehabilitate himself while not in custody, and 

has not been able to do so. This court was particularly concerned 

that a loaded firearm with an obliterated serial number was found 

in Appellant’s home, indicating that he poses more of a threat to 

public safety than his non-violent record might suggest. As such, 

this court fashioned a sentence intended to rehabilitate Appellant 

and protect the public.

Trial Ct. Op. at 4-5.

With respect to Appellant’s VOP sentence at Docket No. 534-2011, the 

trial court explained:

Here, Appellant satisfied all three of the conditions of [Section] 

9771(c). His plea to PWID, conspiracy, and VUFA placed him in 

direct violation of this court’s probation. Appellant’s multiple drug 

convictions and the fact that he was found in possession of an 

illegal firearm lead this court to believe that he will continue to 

commit crimes if not incarcerated. Moreover, as this court stated 

at the time of sentencing, the sentence was essential to vindicate 

the authority of the court. It is clear from Appellant’s record and 

the fact that he was this court’s probation as well as probation for 

another drug offense [supervised by a different judge] at the time 
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of his violation, that he does not respect the rules of probation or 

the authority of the court.

Id. at 6-7 (footnote omitted).

Based on our review of the record, we discern no abuse of discretion by 

the trial court. See Shires, 240 A.3d at 977; Raven, 97 A.3d at 1253. The 

record reflects that the trial court considered the appropriate sentencing 

factors and mitigating evidence as stated at the sentencing hearing and 

ultimately imposed sentences in the mitigated range. See Ventura, 975 A.2d 

at 1135; see also Crump, 995 A.2d at 1283.

Further, the trial court had the benefit of prior PSI reports, along with a 

new PSI report that the trial court ordered prior to Appellant’s sentencing on 

both matters in 2018. Although the trial court did not specifically discuss the 

details contained in Appellant’s new PSI report, we presume that the trial court 

“was aware of relevant information regarding [Appellant’s] character and 

weighed those considerations along with mitigating statutory factors.” Conte, 

198 A.3d at 1177; see also Watson, 228 A.3d at 936.

Under these circumstances, we have no basis to conclude that the trial 

court abused its discretion in imposing Appellant’s new sentence at Docket 

No. 8516-2017 or the VOP sentence at Docket No. 534-2011. See Shires, 

240 A.3d at 977; Raven, 97 A.3d at 1253. Therefore, Appellant is not entitled 

to relief. 

Judgments of sentence affirmed.

Judge Bowes joins the memorandum.
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Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2022