J-S64034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JASON ALEXANDER LOHR

Appellant No. 690 WDA 2014

Appeal from the Judgment of Sentence November 7, 2013

In the Court of Common Pleas of Butler County

Criminal Division at No(s): CP-10-CR-0000889-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 16, 2014

Appellant, Jason Alexander Lohr, appeals from the judgment of 

sentence entered in the Butler County Court of Common Pleas, following his 

bench trial conviction for driving under the influence, controlled substances 

(“DUI”) and the summary offenses of driving an unregistered vehicle and 

careless driving.1 We affirm. 

The relevant facts and procedural history of this appeal are as follows. 

On January 8, 2012, at approximately 11:00 p.m., police officers 

Christopher McGee and Mike Murcko stopped Appellant, who was operating a 

black Dodge Durango, after the police observed the vehicle weave in and out 

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1 75 Pa.C.S.A. §§ 3802(d)(2); 1301(a); 3714(a) respectively.
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of its travel lane continually for approximately two miles. After Appellant 

pulled his vehicle over to the side of the road, Officer McGee confirmed that 

the vehicle registration had expired. Officer McGee then approached the 

vehicle to speak with Appellant and found him very “lethargic.” The officer 

also saw several prescription bottles in the vehicle. He conducted two field 

sobriety tests on Appellant and found “sufficient probable cause to effect an 

arrest for suspicion of driving under the influence.” After Officer McGee read 

Appellant his Miranda2 warnings, Appellant admitted he had taken a 

combination of prescription drugs. Police arrested Appellant and later 

transported him to the hospital for blood tests. Forensic toxicologist Dr. 

Wendy Adams later testified for the Commonwealth that Appellant’s blood 

test revealed the presence of diazepam, nordiazepam, clonazepam, and 

hydrocodone, medications which can cause impairment. 

On June 28, 2013, following a bench trial, the court convicted 

Appellant of DUI and the summary offenses of driving an unregistered 

vehicle and careless driving. On November 7, 2013, the court sentenced 

Appellant to $1,600.00 in fines, sixty hours of community service, fourteen 

days of electronic monitoring, and six months of intermediate punishment. 

Appellant timely filed a post-sentence motion on Monday, November 18, 

2013, alleging ineffective assistance of counsel. On December 6, 2013, the 

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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 
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court stayed the sentence and released Appellant on bail (R.O.R.) pending 

the outcome of the hearing scheduled for January 10, 2014. The court 

granted Appellant’s first request for a continuance of the hearing due to 

defense counsel’s illness. The hearing was rescheduled for February 7, 

2014. Upon defense request, the hearing was again continued to March 11, 

2014. On March 3, 2014, the Commonwealth requested another 

continuance because the district attorney would be on vacation. Defense 

counsel did not oppose the continuance, and the court rescheduled the 

hearing for March 31, 2014. By order dated March 31, 2014, and filed April 

1, 2014, the court denied the post-sentence motions by operation of law, 

without ruling on the merits. On April 30, 2014, Appellant timely filed a 

notice of appeal. By order dated May 7, 2014, and filed with notice sent on 

May 8, 2014, the court ordered Appellant to file a concise statement of 

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), which he 

timely filed on May 28, 2014.3 

Appellant raises the following issues for our review:

DID THE TRIAL COURT ERR BY CONCLUDING THAT 

APPELLANT’S CONTINUANCE REQUESTS WERE 

INSUFFICIENT UNDER PA.R.CRIM.P. 720(B)(3)(B)?

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3 The Rule 1925(b) statement is stamped as filed on May 30, 2014. 

Nevertheless, Rule 1925(b)(1) allows for the filing of a Rule 1925(b) 

statement by mail as provided in Pa.R.A.P. 121(a). Here, Appellant’s filing is 

deemed completed on May 28, 2014, the date of mailing, because Appellant 

included a verifiable postal form confirming the date of mailing, in 

compliance with the requirements of Pa.R.A.P. 1112(c). 
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DID THE TRIAL COURT ERR BY DECLINING TO ADDRESS 

APPELLANT’S CLAIM OF INEFFECTIVE ASSISTANCE OF 

COUNSEL SINCE HE WILL LIKELY COMPLETE HIS 

SENTENCE BEFORE POST-CONVICTION RELIEF CAN BE 

OFFERED?

(Appellant’s Brief at 9).

In his first issue, Appellant argues the court should have considered 

one of his continuance requests for the post-sentence motion hearing as a 

motion for a 30-day extension of time pursuant to Pa.Crim.P. 720. Appellant 

claims the request was implied in motion, and the court erred by not 

granting his “implicit” motion. Appellant contends the denial of his postsentence motion by operation of law was a consequence of this error. 

Appellant concludes the order denying his post-sentence motion by 

operation of law should be reversed. We disagree.

Pennsylvania Rules of Criminal Procedure, Rule 720 provides, in 

relevant part: 

Rule 720. Post-Sentence Procedures; Appeal

* * *

(B) Optional Post-Sentence Motion.

(1) Generally.

(a) The defendant in a court case shall have the right 

to make a post-sentence motion. All requests for relief 

from the trial court shall be stated with specificity and 

particularity, and shall be consolidated in the postsentence motion, which may include: 

(i) a motion challenging the validity of a plea of 
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guilty or nolo contendere, or the denial of a motion 

to withdraw a plea of guilty or nolo contendere; 

(ii) a motion for judgment of acquittal; 

(iii) a motion in arrest of judgment;

(iv) a motion for a new trial; and/or

(v) a motion to modify sentence. 

(b) The defendant may file a supplemental postsentence motion in the judge’s discretion as long as the 

decision on the supplemental motion can be made in 

compliance with the time limits of paragraph (B)(3). 

(c) Issues raised before or during trial shall be 

deemed preserved for appeal whether or not the 

defendant elects to file a post-sentence motion on those 

issues. 

(2) Trial Court Action. 

(a) Briefing Schedule. Within 10 days after a postsentence motion is filed, if the judge determines that 

briefs or memoranda of law are required for a resolution 

of the motion, the judge shall schedule a date certain 

for the submission of briefs or memoranda of law by the 

defendant and the Commonwealth. 

(b) Hearing; Argument. The judge shall also 

determine whether a hearing or argument on the 

motion is required, and if so, shall schedule a date or 

dates certain for one or both. 

(c) Transcript. If the grounds asserted in the postsentence motion do not require a transcript, neither the 

briefs nor hearing nor argument on the post-sentence 

motion shall be delayed for transcript preparation. 

(3) Time Limits for Decision on Motion. The judge shall 

not vacate sentence pending decision on the postsentence motion, but shall decide the motion as provided 

in this paragraph. 
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(a) Except as provided in paragraph (B)(3)(b), the 

judge shall decide the post-sentence motion, including 

any supplemental motion, within 120 days of the filing 

of the motion. If the judge fails to decide the motion 

within 120 days, or to grant an extension as provided in 

paragraph (B)(3)(b), the motion shall be deemed 

denied by operation of law. 

(b) Upon motion of the defendant within the 120-day 

disposition period, for good cause shown, the judge 

may grant one 30-day extension for decision on the 

motion. If the judge fails to decide the motion within 

the 30-day extension period, the motion shall be 

deemed denied by operation of law. 

Pa.R.Crim.P. 720(B)(1)-(3) (emphasis added). “The interpretation of the 

Rules of Criminal Procedure presents a question of law and therefore, ...our 

standard of review is de novo and our scope of review is plenary.” 

Commonwealth v. Dowling, 598 Pa. 611, 616, 959 A.2d 910, 913 (2008); 

Commonwealth v. Lennon, 64 A.3d 1092, 1097 (Pa.Super. 2013). 

Instantly, Appellant’s applications for continuance were made on 

preprinted forms, which were filled in by hand. Nothing on those 

applications requested or could be reasonably construed to request a 30-day 

extension of the disposition period for post-sentence motions, under Rule 

720(B)(3)(b). When the last application for a continuance was filed on 

March 3, 2014, and the hearing was rescheduled for March 31, 2014, it was 

incumbent upon defense counsel to file a timely express request for a 30-

day extension. Here, the 120-day disposition period under Rule 720 was 

due to expire on March 19, 2014. We cannot tell from the record whether 
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the court’s scheduling order caused the clerk of court’s failure to enter an 

order on the 120th day (March 19, 2014). Nevertheless, as soon as the 120 

days elapsed from the time of the filing of the post-sentence motions, and 

without a proper request from Appellant to extend the disposition for 

another 30 days, the motions had to be deemed denied by operation of law. 

See Pa.R.Crim.P. 720(B)(3)(b); Commonwealth v. Khalil, 806 A.2d 415 

(Pa.Super. 2002). The court’s action at that point was not adjudicatory. 

Thus, as presented, Appellant’s first issue lacks merit. 

In his second issue, Appellant argues he will be unable to raise his 

ineffective assistance of trial counsel claims for collateral review under the 

Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9542-9546, because 

his sentence is short; and he will have served it before collateral relief can 

be sought or obtained. Appellant submits this Court should create a system 

or rule directing trial courts to grant automatic stays of short sentences and 

review properly-preserved short-sentence defendants’ ineffective assistance 

of counsel claims for direct appeal. Alternatively, Appellant suggests the 

trial courts should stay his short sentence so he has a chance to pursue his 

ineffectiveness of counsel claims under the PCRA. Appellant concludes his 

case presents an extraordinary situation that allows him to raise his 

ineffective assistance of counsel claims on this direct appeal. We cannot 

agree with these contentions.

Primarily, “when ineffectiveness claims are raised in a post-sentence 
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motion, the trial court fails to hold an evidentiary hearing, and the motion is 

denied by operation of law, [Commonwealth v. Grant, 572 Pa. 48, 813 

A.2d 726 (2002)] requires that the ineffectiveness claims be deferred to a 

collateral proceeding.” Commonwealth v. Crosby, 844 A.2d 1271, 1272 

(Pa.Super. 2004). The Pennsylvania Supreme Court recognized two 

exceptions to the Grant rule, both of which fall within the discretion of the 

trial court: 

First, we appreciate that there may be extraordinary 

circumstances where a discrete claim (or claims) of trial 

counsel ineffectiveness is apparent from the record and 

meritorious to the extent that immediate consideration 

best serves the interests of justice; and we hold that trial 

courts retain their discretion to entertain such claims. 

Second, with respect to other cases and claims, ...we 

repose discretion in the trial courts to entertain such 

claims, but only if (1) there is good cause shown,1and (2) 

the unitary review so indulged is preceded by the 

defendant’s knowing and express waiver of his entitlement 

to seek PCRA review from his conviction and sentence, 

including an express recognition that the waiver subjects 

further collateral review to the time and serial petition 

restrictions of the PCRA.2 In other words, we adopt a 

paradigm whereby unitary review may be available in such 

cases only to the extent that it advances (and exhausts) 

PCRA review in time; unlike the [Commonwealth v. 

Bomar, 573 Pa. 426, 826 A.2d 831 (2003)] exception, 

unitary review would not be made available as an 

accelerated, extra round of collateral attack as of right. 

See Part III(C)(2). This exception follows from the 

suggestions of prior Court majorities respecting review of 

prolix claims, if accompanied by a waiver of PCRA review. 

See Commonwealth v. Wright, 599 Pa. 270, [320,] 961 

A.2d 119, 148 n. 22 (2008); Commonwealth v. Liston,

602 Pa. 10, [20-30,] 977 A.2d 1089, 1095–1101 (2009) 

(Castille, C.J., concurring, joined by Saylor and Eakin, JJ.).
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1 As will be explained in Part III(C)(2) infra, in short 

sentence cases the trial court’s assessment of good 

cause should pay particular attention to the length of 

the sentence imposed and the effect the length of 

the sentence will have on the defendant’s realistic 

prospect to be able to avail himself of collateral 

review under the PCRA.

2 Unitary review describes the defendant’s ability to 

pursue both preserved direct review claims and 

collateral claims of trial counsel ineffectiveness on 

post-sentence motions and direct appeal, and could 

aptly describe both exceptions we recognize today. 

However, for purposes of this appeal, we intend the 

term only to describe the second exception, i.e., that 

hybrid review which would encompass full-blown 

litigation of collateral claims (including non-recordbased claims). 

Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64 

(2013). 

Instantly, Appellant raised three ineffective assistance of counsel 

claims in his post-sentence motions, which he filed on November 18, 2013. 

By order filed April 1, 2014, the court denied the post-sentence motion by 

operation of law as exceeding the 120-day limit under Rule 720. 

Nevertheless, in its opinion, the court stated:

This [c]ourt has determined, in its discretion, that neither 

exception applies to the case at hand. Although 

[Appellant’s] Post-Sentence Motions pleading at paragraph 

numbered 13 (thirteen) states..., “[Appellant] waives later 

collateral review in order to have his ineffective assistance 

claim addressed on direct appeal,” [Appellant] has 

presented no evidence to support his claims of ineffective 

assistance of counsel. 

(Trial Court Opinion, filed June 23, 2014, at 2). The record demonstrates 
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that Appellant’s post-sentence motions, filed on his behalf by current 

counsel, included the following allegations regarding trial counsel’s 

assistance:

6. In this case, trial counsel did not consult an expert to 

determine whether Defendant’s use of the prescribed 

medications [was] likely to render him incapable of safe 

driving. 

* * *

(b) Witness Wendy Adams testified that the effect 

that the prescription medications would have on a 

subject depends on that individual’s level of 

tolerance. 

(c) There was no testimony about Defendant’s level 

of tolerance to the medications he consumed.

(d) Trial counsel rendered ineffectiveness by failing to 

consult an expert witness about Defendant’s 

ability to safely operate a motor vehicle after 

consuming prescription drugs.

(e) Trial counsel also rendered ineffective assistance 

by failing to call a witness to testify to 

Defendant’s level of tolerance to the prescription 

medications. 

7. Trial counsel also rendered ineffective assistance by 

failing to attempt an involuntary intoxication defense to 

the charge of DUI.[4]

* * *

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4 Under Pennsylvania law the issue of whether involuntary intoxication is 

available as a defense to DUI remains unclear. See Commonwealth v. 

Smith, 831 A.2d 636 (Pa.Super. 2003). 
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(b) Trial counsel did not explore the possibility of this 

defense with Defendant.

(c) Trial counsel did not present this defense at trial. 

(d) As the defense was a potential route to an 

acquittal, Defendant was prejudiced by Trial 

counsel’s inaction. 

8. Trial counsel rendered ineffective assistance by failing 

to object to a statement made in the Commonwealth’s 

closing argument that contradicted the testimony 

offered by the expert witness.

(a) In its closing argument, the Commonwealth 

stated, “I would point out to the court the 

hydrocodone free result where it says he had 25 

nanograms per milliliter in his blood, if you look at 

paragraph 6 on page 3 of 7-amino of the report, 

Your Honor, that level is above the peak serum 

level for that medication if it’s being taken 

properly. So we do have a result that is higher 

than the therapeutic level.” N.T., at 51. 

(b) Witness Wendy Adams specifically testified that 

the “hydrocodone is also consistent” with 

therapeutic use. N.T., at 30.

(c) There is no testimony, expert or otherwise, 

stating that any of the medications in defendant’s 

system were outside of the therapeutic range.

(d) Trial Counsel did not object to this statement.

(e) Defendant was prejudiced by this inaccurate 

representation of his use of hydrocodone. 

* * *

(Post-Sentence Motions, filed 11/18/13, at unnumbered 3-5). At ¶13, 

Appellant also attempted to exercise a preliminary waiver of his right to 

collateral review so he could have his ineffective assistance of counsel claims 
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reviewed immediately. (Id. at unnumbered 6). The court deemed these 

allegations of trial counsel’s ineffectiveness “mere assertions” without 

“proof” or “evidence to support his claims.” (See Trial Court Opinion at 2.) 

The court also said Appellant’s claims of trial counsel ineffectiveness met 

neither Holmes exception. See id. Finally, the court stated: “This [c]ourt 

has conducted a comprehensive inquiry in this matter and a review of the 

record and testimony will show no abuse of discretion or error of law.” (See 

id.) 

On this record, we are not in a position to review Appellant’s 

ineffective assistance of counsel claims. Here, the court denied Appellant’s 

post-sentence motions by operation of law, which the court had to do, 

absent a proper motion for a 30-day extension of time under Rule 

720(B)(3)(b). The last application for a continuance had pushed the hearing 

date for the disposition of the post-sentence motions beyond the 120-day 

deadline. Current defense counsel did not oppose that application. Counsel 

should have been alert to the 120-day deadline and either opposed 

rescheduling the hearing or asked for a 30-day extension under Rule 720. 

Absent these precautions, we have no record of any hearing conducted on 

Appellant’s issues or a waiver colloquy regarding his PCRA rights. The 

court’s opinion rejecting Appellant’s claims of ineffective assistance of 

counsel as mere assertions, without analysis, is likewise insufficient for 

immediate review. Under these circumstances, we conclude the best 
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resolution of this case is to dismiss Appellant’s ineffectiveness of counsel 

claims without prejudice, so Appellant can raise them in a timely filed PCRA 

petition.5 Accordingly, we affirm Appellant’s judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2014

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5 Appellant can choose to file a PCRA petition expeditiously, given his shortterm sentence, and raise his ineffective assistance of counsel claims in that 

petition. Appellant might want to include in his PCRA petition an ineffective 

assistance of post-sentence motion/current counsel for allowing the time to 

decide the post-sentence motion to slip away without filing a proper motion 

for an extension of time under Rule 720(b)(3)(b). Appellant can also ask 

the court to continue the stay of Appellant’s sentence pending PCRA review.