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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 January 7, 2015, in 

the Court of Common Pleas of Mercer County, which denied his nunc pro 

tunc motion seeking to appeal his judgment of sentence entered October 3, 

2014. After careful review, we quash this appeal as an untimely appeal of 

Hakim’s judgment of sentence. 

 Hakim pled guilty to possession with intent to deliver (PWID)1 and 

firearms not to be carried without a license2 on January 14, 2014. 

Thereafter, Hakim withdrew his guilty plea, before again entering into the 

original plea agreement on April 21, 2014. Hakim was sentenced on October 

____________________________________________ 

1

 35 P.S. § 780-113(a)(30). 

2

 18 Pa.C.S. § 6106(a)(1). 
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1, 2014, to three to six years’ incarceration for the 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 January 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 until 30 days 

after his arrest. 

3. [The m]andatory minimum [sentence Hakim received] was 

deemed unconstitutional precluding a minimum mandatory of 

5-10 years.3

4. [Hakim’s] sentence is excessive. 

5. [Hakim’s] 14th 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 this issue in his courtordered Pa.R.A.P. 1925(b) statement and stated that because this issue 

implicates the legality of sentence “this matter should be remanded for 

resentencing.” Trial Court Opinion, 3/10/15, at 1 (unnumbered). While 

legality of sentence claims are non-waivable and ordinarily 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 entertained 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 imposition 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 files a timely post-sentence 

motion, the appeal period does not begin to run until the motion is decided. 

Pa.R.Crim.P. 720(A)(2); Pa.R.A.P. 903(a). Ordinarily, a defendant must file 

a post-sentence motion within ten days of imposition 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 time 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 defendant 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 “separate 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 1128 
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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 extended.” Id. at 1128. 

Moreover, “[t]he trial court’s resolution of the merits of the late postsentence motion is no substitute for an order expressly 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 in open court. Thus, 

Hakim’s post-sentence motion was untimely and did not 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 expressly grant nunc pro tunc

relief. Id.

Moreover, no extraordinary circumstances, for example, 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 where it denied defendant’s 

untimely post-sentence motion within appeal period, but failed to apprise 

him he still had fifteen days to file appeal). Indeed, the record reveals that 

Hakim was properly advised at sentencing of the time for filing postsentence motions and an appeal. Therefore, we lack jurisdiction to consider 

this appeal on the merits. 

 Appeal quashed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 11/4/2015