J-A17033-16

_____________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANGELA MCCLAIN

Appellant No. 3164 EDA 2015

Appeal from the Judgment of Sentence September 8, 2015

In the Court of Common Pleas of Carbon County

Criminal Division at No(s): CP-13-CR-0000331-2014

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 27, 2016

Appellant, Angela McClain, appeals from the judgment of sentence 

entered in Carbon County Court of Common Pleas, following her guilty plea 

to multiple counts of acquisition or obtaining of possession of a controlled 

substance by misrepresentation, fraud, forgery, deception or subterfuge; 

knowingly or intentionally possessing a controlled or counterfeit substance; 

corrupt organizations; criminal conspiracy; and theft by unlawful taking or 

disposition.1 We affirm. 

The relevant facts and procedural history of this appeal are 

summarized briefly as follows. On April 27, 2015, Appellant pled guilty to 25 

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1 35 P.S. §§ 780-113(a)(12), (a)(16); 18 Pa.C.S.A. §§ 911, 903, and 

3921(a), respectively.
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counts of acquisition or obtaining of possession of a controlled substance by 

misrepresentation, fraud, forgery, deception or subterfuge; knowingly or 

intentionally possessing a controlled or counterfeit substance; corrupt 

organizations; criminal conspiracy; and 27 counts of theft by unlawful taking 

or disposition. Following the guilty plea and the preparation of a presentence investigation (“PSI”) report, the trial court sentenced Appellant on 

September 8, 2015, to an aggregate term of imprisonment of thirty-six (36) 

to seventy-two (72) months with a concurrent twelve (12)-month term of 

probation. The trial court also deemed Appellant eligible for the Recidivism 

Risk Reduction Incentive Program, making her minimum sentence of 

incarceration twenty-seven (27) months. The trial court advised Appellant 

of her appellate rights at the sentencing hearing, including her right to file 

post-sentence motions and her right to appeal to the Superior Court as well 

as the associated time limits. Appellant did not file any post-sentence 

motions. 

On September 28, 2015, twenty days after imposition of sentence and 

ten days after the deadline for filing a post-sentence motion, Appellant 

suffered a stroke. Appellant suffered a second stroke shortly after being 

transported to the hospital. The second stroke caused Appellant partial 

paralysis on her left side. On October 8, 2015, thirty days after sentencing, 

Appellant filed a petition for leave to file a post-sentence motion nunc pro 

tunc. Appellant cited her recent stroke as justification for post-sentence 
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relief. The trial court denied this motion the same day, and Appellant 

immediately filed a notice of appeal. By order dated October 9, 2015, the 

trial court directed Appellant to file a concise statement of errors complained 

of on appeal within twenty-one days of the date of entry on the order. 

Appellant timely complied on October 20, 2015. 

Appellant raises the following issue on appeal:

WHETHER THE TRIAL COURT SHOULD HAVE ALLOWED 

[APPELLANT] TO SEEK RECONSIDERATION OF HER 

SENTENCE NUNC PRO TUNC WHEN THE RELEVANT FACT 

OF HER PHYSICAL CONDITION DID NOT MANIFEST ITSELF 

UNTIL AFTER THE EXPIRATION OF DEADLINE TO SEEK 

RECONSIDERATION OF SENTENCE? 

(Appellant’s Brief at 3). 

Appellant argues her looming stroke was a non-negligent condition 

that warrants post-sentence relief nunc pro tunc. Appellant maintains her 

strokes and their effects were the extraordinary circumstances. Appellant 

avers she had no way of knowing her future status as partially-paralyzed, 

and this health status constitutes a non-negligent condition sufficient to 

trigger the expansive authority of the court to allow post-sentence motions 

nunc pro tunc. Appellant submits that if she had suffered her stroke within 

the ten-day post-sentence period, she would have raised this issue in a 

timely post-sentence motion for modification of sentence. Appellant 

concludes that the court should have considered her post-sentence medical 

condition as the kind of non-negligent circumstance extraordinary enough to 

warrant relief. We disagree. 
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“Trial courts have the power to alter or modify a criminal sentence 

within thirty days after entry, if no appeal is taken.” Commonwealth v. 

Walters, 814 A.2d 253, 255 (Pa.Super. 2002), appeal denied, 574 Pa. 760, 

831 A.2d 599 (2003). “To be entitled to file a post-sentence motion nunc 

pro tunc, a defendant must...demonstrate sufficient cause, i.e., reasons that 

excuse the late filing.” Commonwealth v. Dreves, 839 A.2d 1122, 1128 

(Pa.Super. 2003) (en banc) (footnote omitted). 

[W]e recently observed that the decision to allow the filing 

of a post-trial motion nunc pro tunc is vested in the 

discretion of the trial court and that we will not reverse 

unless the trial court abused its discretion. 

... Merely designating a motion as “post-sentence motion 

nunc pro tunc” is not enough. When the defendant has 

met this burden and has shown sufficient cause, the trial 

court must then exercise its discretion in deciding whether 

to permit the defendant to file the post-sentence motion 

nunc pro tunc. 

* * *

The request for nunc pro tunc relief is separate and distinct 

from the merits of the underlying post-sentence motion. 

The 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 1128-29 (emphasis added). Our Supreme Court has validated nunc 

pro tunc relief when there is “fraud or a breakdown in the court’s 

operations,” a defendant has been hospitalized during the 10-day postsentence period, non-negligent attorney conduct results in a late filing, or a 

late filing as the result of a third party. Commonwealth v. Stock, 545 Pa. 
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13, 18-19, 679 A.2d 760, 763 (1996) (citations omitted). 

Instantly, the court addressed Appellant’s claim as follows: 

[Appellant] asserts that had she known she would suffer 

these strokes, or alternatively if the strokes occurred prior 

to the expiration of the time to file post-sentence motions, 

she would have filed a post-sentence motion requesting a 

modification of her sentence on the grounds that her 

medical condition was a mitigating factor supporting the 

imposition of a lesser sentence. [Appellant] argues that 

the timing of her strokes after the ten day period to file 

post-sentence motions had passed is an extraordinary 

circumstance entitling her to pursue her motion nunc pro 

tunc. [Appellant] cites no case law to support this 

position. 

No authority has been found to support the proposition 

that an appellant’s hospitalization for a serious medical 

event after the deadline to file either post-sentence 

motions or a direct appeal has passed is an extraordinary 

circumstance that would excuse a late filing. To the 

contrary, logic dictates otherwise: if the only reason given 

for an untimely filing is an event that occurred after the 

period for timely filing has passed, then sufficient cause to 

excuse the late filing has not been demonstrated. Given 

the absence of any extraordinary circumstance justifying 

the late filing of post-sentence motions, our denial of 

Appellant’s Motion to File Post-Sentence Motions nunc pro 

tunc was not an abuse of discretion. 

(Trial Court Opinion, filed November 3, 2015, at 6-7). The record supports 

the court’s decision to deny Appellant’s motion for post-sentence relief nunc 

pro tunc in which she sought a reduction or elimination of her sentence 

based on her medical condition. Moreover, we recognize Appellant has the 

option to seek alternative relief under 42 Pa.C.S.A. § 9777 (providing for 

transfer of inmates in need of medical treatment). Accordingly, we affirm. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/27/2016