J-S31014-16

2016 PA Super 118

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD ELIAS MARTINEZ,

Appellant No. 1672 MDA 2015

Appeal from the Judgment of Sentence April 5, 2013

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0000819-2012

BEFORE: SHOGAN, OTT, and STRASSBURGER,*JJ.

OPINION BY SHOGAN, J.: FILED JUNE 10, 2016

Appellant, Richard Elias Martinez, appeals from the judgment of 

sentence entered April 5, 2013. After careful consideration, we vacate and 

remand.

On May 30, 2012, Appellant was charged with thirteen counts of 

robbery, four counts of terroristic threats, three counts of theft by unlawful 

taking, three counts of receiving stolen property, one count of aggravated 

assault, and two counts of simple assault. Appellant entered an open nolo 

contendere plea on September 21, 2012, on all counts and was sentenced 

on November 13, 2012, to an aggregate term of eight to sixteen years in a 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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state correctional institution. On November 19, 2012, the Commonwealth 

filed a post-sentence motion, requesting that the sentencing court apply the 

deadly weapon enhancement to Appellant’s sentence. 

On December 11, 2012, the trial court entered an order scheduling a 

hearing on the post-sentence motion for December 27, 2012. The record 

reflects that on December 19, 2012, an order was issued by the trial court 

directing the Sheriff of Centre County to produce Appellant at the December 

27, 2012 hearing. On January 16, 2013, the trial court entered an order 

granting the Commonwealth’s post-sentence motion, stating the following: 

“the Commonwealth’s Post-Sentence Motion is hereby GRANTED and 

[Appellant] shall be resentenced.” Order, 1/16/13. Additionally, the order 

scheduled the resentencing hearing for February 26, 2013. Id. 

The record is devoid of any further information regarding the 

scheduled February 26, 2013 resentencing hearing. Of particular note is the 

fact that the record does not contain an order directing the Sheriff to 

produce [Appellant] from the State Correctional Institution on that date. 

Thus, although unclear from the record as to the reason, it is apparent that 

the resentencing hearing did not take place on February 26, 2013.1 

____________________________________________

1 The Commonwealth and Appellant also indicate that the resentencing 

hearing did not take place on February 26, 2013. Commonwealth’s Brief at 

3, 8-9; Appellant’s Brief at 12. 
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The next docket entry is an order entered March 7, 2013, in which the 

trial court directed that Appellant be transported from the State Correctional 

Institution for his resentencing hearing scheduled for April 5, 2013. Order, 

3/7/13. Following the hearing, the trial court resentenced Appellant, in 

accordance with the deadly weapon enhancement, to an aggregate sentence 

of ten and one-half to twenty-one years of imprisonment. N.T., 4/5/13, at 

12-17; sentencing orders, 4/5/13, amended sentencing order, 5/2/13. On 

the same date, the trial court issued an order vacating Appellant’s original 

sentence imposed on November 13, 2012. Order, 4/16/13. 

Appellant was represented by Attorney Tami Fees at the time. Ms. 

Fees filed a timely notice of appeal to this Court. The appeal was docketed 

at 940 MDA 2013. Because counsel failed to file a brief, however, 

Appellant’s direct appeal was dismissed by this Court on November 8, 2013. 

Order, 11/8/13. 

On December 2, 2014, Appellant filed a pro se Motion for PostConviction Relief. Appellant was appointed new counsel. Appellant’s direct 

appeal rights were reinstated nunc pro tunc on September 18, 2015 and 

Appellant filed a notice of appeal on September 28, 2015.2 Appellant and 

the trial court complied with the requirements of Pa.R.A.P. 1925.

____________________________________________

2 Although Appellant purports to appeal from the September 18, 2015 order 

reinstating his direct appeal rights, Appellant’s appeal properly lies from the 

(Footnote Continued Next Page)
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Appellant presents the following issue for our review:

Does a sentencing court lack jurisdiction to vacate a 

sentence it had lawfully imposed and resentence a defendant 

pursuant to a Commonwealth post-sentence motion where more 

than 120 days had elapsed from the filing of that motion?

Appellant’s Brief at 8. 

Appellant argues that the trial court lacked jurisdiction to resentence 

Appellant on April 5, 2013. Appellant’s Brief at 16. Appellant argues that 

because Pa.R.Crim.P. 721 requires disposition of a post-sentence motion 

within 120 days of the filing of the motion, a resentencing must occur within 

that time limitation. Id. at 15. Appellant cites to Pa.R.Crim.P. 721(C)(2) in 

support of his argument that a Commonwealth’s post-sentence motion must 

be fully resolved within 120 days of its filing. Id. at 14. Here, the 

Commonwealth’s post-sentence motion was filed November 19, 2012, and 

the trial court did not vacate the original sentence or resentence Appellant 

until April 5, 2013, which was 137 days after the motion was filed. Id. at 

16. Thus, Appellant asserts that the court lacked jurisdiction to impose the 

April 5, 2013 sentence, and therefore, the sentence was illegal and must be 

vacated. Id. at 16. 

Because Appellant argues that the trial court lacked jurisdiction to 

impose a new sentence at the resentencing hearing on April 5, 2013, 

(Footnote Continued) _______________________

judgment of sentence entered on April 5, 2013. The caption properly 

reflects that date.
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Appellant’s challenge is to the legality of the sentence imposed. See 

Commonwealth v. Tobin, 89 A.3d 663, 668 (Pa. Super. 2014) (“The two 

most basic and classic examples of an illegal sentence are sentences that 

exceed the statutory maximum and a sentence imposed by a court without 

jurisdiction.”). When examining a challenge to the legality of a sentence, 

our scope and standard of review are as follows:

A claim that implicates the fundamental legal authority of 

the court to impose a particular sentence constitutes a challenge 

to the legality of the sentence. If no statutory authorization 

exists for a particular sentence, that sentence is illegal and 

subject to correction. An illegal sentence must be vacated. 

When the legality of a sentence is at issue on appeal, our 

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

Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010) (en banc) 

(internal citations and quotation marks omitted). 

Rule 721 of the Pennsylvania Rules of Criminal Procedure sets forth 

the procedure for Commonwealth challenges to an appellant’s sentence.

Rule 721. Procedures for Commonwealth Challenges to 

Sentence; Sentencing Appeals

(A) Commonwealth Challenges to Sentence

(1) The Commonwealth may challenge a sentence by filing a 

motion to modify sentence, by filing an appeal on a preserved 

issue, or by filing a motion to modify sentence followed by an 

appeal.

(2) Sentencing issues raised by the Commonwealth at the 

sentencing proceeding shall be deemed preserved for appeal 

whether or not the Commonwealth elects to file a motion to 

modify sentence on those issues.

(B) Timing
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(1) Motion for Modification of Sentence. A Commonwealth 

motion for modification of sentence shall be filed no later than 

10 days after imposition of sentence.

* * *

C) Trial Court Action; Disposition. If the attorney for the 

Commonwealth files a timely motion for modification of sentence 

pursuant to paragraph (A)(1), the judge shall dispose of the 

motion as provided in this paragraph.

(1) If the defendant has filed a post-sentence motion, the judge 

shall not vacate sentence but shall decide the Commonwealth’s 

motion and the defendant’s post-sentence motion 

simultaneously. The Rule 720(B)(3) time limits for deciding the 

defendant’s post-sentence motion, including the automatic denial 

provisions, shall apply to the disposition of the Commonwealth’s 

motion. The starting date for disposition of both motions shall 

be the date on which the defendant filed the post-sentence 

motion.

(2) If the defendant has not filed a post-sentence motion, the 

judge shall not vacate sentence but shall decide the 

Commonwealth’s motion within 120 days of the filing of the 

motion. If the judge fails to decide the Commonwealth’s motion 

within 120 days, the motion shall be deemed denied by 

operation of law.

Pa.R.Crim.P. 721.

The Comment to Rule 721 provides, in relevant part, as follows:

Trial Court Action

Paragraph (C) sets forth the procedures for trial court 

action on the Commonwealth’s motion for modification. Key to 

the timing of the judge’s decision on the Commonwealth’s 

motion is whether the defendant files a post-sentence motion.

* * * 

Rule 720 Motion Not Filed
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When the defendant has not filed a post-sentence motion, 

the disposition of the Commonwealth’s motion is governed by 

paragraph (C)(2). The judge may not vacate sentence, but has 

120 days to decide the Commonwealth’s motion or the motion is 

deemed denied by operation of law. If the judge decides the 

motion within the 120-day limit and then agrees to 

reconsider, the reconsideration must be resolved within 

the original 120-day time limit. The judge may not vacate 

sentence in order to reconsider the motion or otherwise use the 

reconsideration period to extend the 120-day time limit. It 

follows that even if the defendant has filed a notice of appeal, 

the procedural exceptions provided in Pa.R.A.P. 1701(b)(3) do 

not apply to challenges to sentences.

Pa.R.Crim.P. 721, cmt. (emphasis added).

Here, the Commonwealth timely filed its post-sentence motion within 

ten days of sentencing. Additionally, the Commonwealth preserved its issue 

seeking application of the deadly weapon enhancement by raising it at the 

time of sentencing and in its post-sentence motion. Thus, the question 

becomes whether the trial court had jurisdiction to resentence Appellant 

beyond the 120-day limit set forth in Pa.R.Crim.P. 721. 

While Pa.R.Crim.P. 721(C)(2) provides that the trial court must 

“decide the Commonwealth’s motion within 120 days of the filing of the 

motion”, the Comment to Rule 721 makes clear that not only does the trial 

court need to decide the Commonwealth’s post-sentence motion within the 

120 day period, but the trial must resolve the motion for reconsideration 

within the original 120-day time limit. Pa.R.Crim.P. 721(C)(2); Pa.R.Crim.P. 

721, cmt. (emphasis added). Additionally, the comment provides that the 

trial court is not permitted to vacate the sentence within the 120-day time 
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limit for purposes of extending the original 120-day time limit to further 

decide the motion. Thus, it is not enough for a trial court in this situation to 

grant the Commonwealth’s post-sentence motion within the original 120-day 

time limit; the trial court is required to resolve the motion for 

reconsideration within 120 days. Otherwise, the post-sentence motion is 

deemed denied by operation of law pursuant to Pa.R.Crim.P. 721(C)(2). 

Of further support for this conclusion is Pa.R.Crim.P. 720, addressing 

post-sentence procedures, and its comment. Pa.R.Crim.P. 720 provides, in 

relevant part, as follows:

Rule 720. Post-Sentence Procedures; Appeal

* * * 

(B) Optional Post-Sentence Motion.

* * *

(3) Time Limits for Decision on Motion. The judge shall not 

vacate sentence pending decision on the post-sentence motion, 

but shall decide the motion as provided in this paragraph.

(a) Except as provided in paragraph (B)(3)(b) 

[allowing for the judge to grant one 30-day 

extension upon motion of the defendant for good 

cause shown], the judge shall decide the postsentence 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. 

Pa.R.Crim.P. 720(B)(3)(a) (emphasis added). 
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Additionally, the comment to this section provides, in relevant 

part, as follows:

Disposition

Under paragraph (B)(3), once the defendant makes a 

timely written post-sentence motion, the judge retains 

jurisdiction for the duration of the disposition period. The judge 

may not vacate the order imposing sentence pending decision on 

the post-sentence motion. This is so whether or not the 

Commonwealth filed a motion to modify sentence. See Rule 

721. 

Paragraph (B)(3)(b) permits one 30-day extension of the 

120-day time limit, for good cause shown, upon motion of the 

defendant. In most cases, an extension would be requested and 

granted when new counsel has entered the case. Only the 

defendant or counsel may request such an extension. The 

judge may not, sua sponte, extend the time for decision: 

a congested court calendar or other judicial delay does 

not constitute “good cause” under this rule.

The possibility of an extension is not intended to suggest 

that 120 days are required for decision in most cases. The time 

limits for disposition of the post-sentence motion are the outer 

limits. Easily resolvable issues, such as a modification of 

sentence or a guilty plea challenge, should ordinarily be decided 

in a much shorter period of time.

If the trial judge decides the motion within the time limits 

of this rule, the judge may grant reconsideration of the postsentence motion pursuant to 42 Pa.C.S. § 5505 or Pa.R.A.P. 

1701.1, but the judge may not vacate the sentence pending 

reconsideration. Rule 720(B)(3). The reconsideration period 

may not be used to extend the timing requirements set forth in 

paragraph (B)(3) for decision on the post-sentence motion; the 

time limits imposed by paragraphs (B)(3)(a) and (B)(3)(b) 

continue to run from the date the post-sentence motion was 

originally filed. The trial judge’s reconsideration must therefore 

be resolved within the 120-day decision period of paragraph 

(B)(3)(a) or the 30-day extension period of paragraph (B)(3)(b), 

whichever applies. If a decision on the reconsideration is 

not reached within the appropriate period, the post-
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sentence motion, including any issues raised for 

reconsideration, will be denied pursuant to paragraph 

(B)(3)(c). 

Pa.R.Crim.P. 720, cmt. (emphasis added). 

Thus, as this Court has explained: “a trial court’s authority to rule on 

a post-sentence motion is finite in nature. To be more specific, a trial court 

‘retains jurisdiction’ to rule on a post-sentence motion only ‘for the duration 

of the disposition period’ as set forth in subsection 720(B)(3).” See 

Commonwealth v. Bentley, 831 A.2d 668, 670 (Pa. Super. 2003) (citing 

Pa.R.Crim.P. 720, cmt., “DISPOSITION”). Indeed, this Court has 

consistently held that an order issued by the trial court after expiration of 

the 120-day time limit, resulting in the denial of the post-sentence motion 

by operation of law, is a legal nullity due to the court’s lack of jurisdiction. 

See Bentley, 831 A.2d at 670 (trial court’s failure to render a ruling on 

defendant’s post-sentence motion within the prescribed 120-day time period 

divested the court of jurisdiction to render a decision at a later date); 

Commonwealth v. Santone, 757 A.2d 963, 966 (Pa. Super. 2000) (trial 

court’s modification order issued beyond the time period set forth in 

Pa.R.Crim.P. 1410, renumbered Pa.R.Crim.P. 720 (amended March 1, 2000, 

effective April 1, 2001), was a legal nullity because the court no longer had 

jurisdiction to issue the modification order). 

Furthermore, in Santone, this Court reiterated that under Rule 720, 

the trial court may not sua sponte extend the 120-day limit. Santone, 757 
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A.2d at 965. Indeed, the court may extend the 120–day period only upon 

motion by the defendant, for good cause shown. Pa.R.Crim.P. 720(B)(3)(b).

In the case sub judice, the Commonwealth filed its post-sentence 

motion on November 19, 2012. Accordingly, the 120-day time period during 

which the trial court had authority to act upon the post-sentence motion 

expired on March 19, 2013. Thus, the trial court was required to entirely 

resolve the Commonwealth’s post-sentence motion by March 19, 2013. As 

stated, the trial court did not vacate Appellant’s original sentence or 

resentence Appellant until April 5, 2013, which was 137 days after the 

Commonwealth filed its post-sentence motion. Because the trial court did 

not resolve the Commonwealth’s post-sentence motion within the original 

120-day time limit, the post-sentence motion was denied by operation of law 

on March 19, 2013, pursuant to Pa.R.Crim.P. 721(C)(2).3 Accordingly, the 

trial court lacked jurisdiction to vacate Appellant’s original sentence and 

resentence Appellant on April 5, 2013.4 “Where there is no jurisdiction, 

there is no authority to pronounce judgment.” Santone, 757 A.2d at 966. 

____________________________________________

3 As noted, Pa.R.Crim.P. 720(B)(3)(c) allows for the trial court to grant one 

thirty-day extension, upon motion of only the defendant within the 120-day 

time period, for good cause shown. There is no indication in the record that 

Appellant requested such an extension, nor do the parties represent that as 

being the case. 

4 We also recognize that 42 Pa.C.S. § 5505 provides courts with statutory 

authority to modify or rescind any order within thirty days if no appeal has 

been taken. In Appellant’s case, the court imposed the original sentence on 

(Footnote Continued Next Page)
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Judgment of sentence entered April 5, 2013, vacated. Case remanded 

for reinstatement of original sentence. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/10/2016

(Footnote Continued) _______________________

November 13, 2012, and entered the order modifying the sentence on April 

5, 2013. As such, section 5505 does not apply here because the order 

modifying Appellant’s sentence was entered after the statutory thirty–day 

window.