J-S44034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. OMAR J. HAKIM Appellant No. 240 WDA 2015

Appeal from the Order January 7, 2015 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0001772-2012

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J. MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 4, 2015 Omar J. Hakim appeals from the order entered on Ja nuary 7, 2015, in the Court of Common Pleas of Mercer County, which d enied his nunc pro tunc motion seeking to appeal his judgment of sentence entered October 3, 2014. After careful review, we quash this appeal a s an untimely appeal of Hakim’s judgment of sentence. Hakim pled guilty to possession with intent to del iver (PWID) 1 and firearms not to be carried without a license 2 on January 14, 2014. Thereafter, Hakim withdrew his guilty plea, before again entering into the original plea agreement on April 21, 2014. Hakim w as sentenced on October

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1 35 P.S. § 780-113(a)(30).

2 18 Pa.C.S. § 6106(a)(1).J-S44034-15

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1, 2014, to three to six years’ incarceration for t he PWID charge and two to four years’ incarceration for the firearm charge. The sentencing order was docketed on October 3, 2014. Hakim filed a “Motion to Modify Sentence
Nunc Pro Tunc ” on January 6, 2015, which the trial court denied on January 7, 2015. Hakim filed a notice of appeal of the Jan uary 7, 2015 order on January 26, 2015. On appeal, Hakim raises the following issues:

1. [Hakim’s] DNA was not on the gun. 2. [Hakim] was not charged with a firearms charge unti l 30 days after his arrest. 3. [The m]andatory minimum [sentence Hakim received] w as deemed unconstitutional precluding a minimum mandat ory of 5-10 years. 3 4. [Hakim’s] sentence is excessive. 5. [Hakim’s] 14 th Amendment rights pursuant to the U.S. Constitution were violated. Appellant’s Brief, at 4 (unnumbered).

____________________________________________ 3 The trial court noted that Hakim did not include t his issue in his courtordered Pa.R.A.P. 1925(b) statement and stated that because this issue implicates the legality of sentence “this matter sh ould be remanded for resentencing.” Trial Court Opinion, 3/10/15, at 1 (unnumbered). While legality of sentence claims are non-waivable and or dinarily we may address such claims sua sponte , we must first have jurisdiction. See Commonwealth v. Munday , 78 A.3d 661, 664 (Pa. Super. 2013) (challenge to legality of sentence “may be entertai ned so long as the reviewing court has jurisdiction”). Thus, despite the legality of sentence issue, we lack jurisdiction to address the instant appeal on the merits since it was untimely, as will be discussed further infra

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Before we address Hakim’s claims, we must consider whether this appeal is timely. We lack jurisdiction to consider untimely appeals, an issue we may raise sua sponte

. Commonwealth v. Burks , 102 A.3d 497, 500 (Pa. Super. 2014). A defendant must file an appeal within 30 days of i mposition of sentence in open court if no post-sentence motions are filed. Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3). If a defendant fil es a timely post-sentence motion, the appeal period does not begin to run unt il the motion is decided. Pa.R.Crim.P. 720(A)(2); Pa.R.A.P. 903(a). Ordinari ly, a defendant must file a post-sentence motion within ten days of impositio n of sentence. Pa.R.Crim.P. 720(A)(1). Significantly, an untimely post-sentence motion does not toll the appeal period. Commonwealth v. Green , 862 A.2d 613, 618 (Pa. Super. 2004) (en banc) (noting that “the t ime for filing an appeal can be extended beyond 30 days after the imposition of sentence only if the defendant files a timely post-sentence motion”). A post-sentence motion nunc pro tunc may toll the appeal period, but only if two conditions are met. Commonwealth v. Dreves , 839 A.2d 1122, 1128 (Pa. Super. 2003) (en banc). First, a defenda nt must request that the trial court consider a post-sentence motion nunc pro tunc within 30 days of the imposition of sentence; such a request is “sepa rate and distinct from the merits of the underlying post-sentence motion.” Id. at 1128-29. 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. Id. at 1128J-S44034-15

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n.6. “If the trial court does not expressly grant nunc pro tunc relief, the time for filing an appeal is neither tolled nor ext ended.” Id. at 1128. Moreover, “[t]he trial court’s resolution of the me rits of the late postsentence motion is no substitute for an order expre ssly granting nunc pro tunc relief.” Id. at 1129. Here, Hakim filed his motion seeking post-sentence relief on January 6, 2015, more than 90 days after he was sentenced i n open court. Thus, Hakim’s post-sentence motion was untimely and did n ot extend the appeal period. Green , supra . Additionally, Hakim is not entitled to nunc pro tunc relief pursuant to Dreves , since he did not seek such relief within 30 days of the imposition of sentence. Dreves , supra at 1128. Even if Hakim had made a timely request, the trial court did not expr essly grant nunc pro tunc relief. Id. Moreover, no extraordinary circumstances, for examp le, a breakdown in the court’s operations, exist that might excuse Hakim’s late filing. See , e.g. , Commonwealth v. Patterson , 940 A.2d 493, 499-500 (Pa. Super. 2007) (breakdown in court’s operation occurred wher e it denied defendant’s untimely post-sentence motion within appeal period, but failed to apprise him he still had fifteen days to file appeal). Ind eed, the record reveals that Hakim was properly advised at sentencing of the tim e for filing postsentence motions and an appeal. Therefore, we lack jurisdiction to consider this appeal on the merits. Appeal quashed.J-S44034-15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/4/2015