J-S05032-18

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

RALPH GENE MYERS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1057 WDA 2017

Appeal from the Judgment of Sentence May 2, 2017

in the Court of Common Pleas of Armstrong County

Criminal Division at No(s): CP-03-CR-0000425-2016

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

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 20, 2018

Ralph Gene Myers (Appellant) appeals from the judgment of sentence 

of nine to 16 months of incarceration imposed after he pled guilty to one count 

of theft by unlawful taking. We affirm.

On March 2, 2017, Appellant, represented by Armstrong County Public 

Defender James H. Wray, Esquire, entered a guilty plea to one count of theft 

by unlawful taking. N.T., 3/2/2017, at 5. In exchange for the guilty plea, the 

Commonwealth agreed to recommend a sentence of probation and to nolle 

pros the remaining charges. Id. at 8. The trial court clarified this agreement 

with Appellant.

THE COURT: You understand that once the district attorney comes 

in and make[s] his recommendation, he’s upheld his end of the 

bargain?

[APPELLANT]: Yes, Your Honor.
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THE COURT: You understand that[ it is] a recommendation only?

[APPELLANT]: Yes, Your Honor.

THE COURT: It’s not binding upon the court and final sentencing 

authority lies with the judge imposing sentence. Do you 

understand that?

[APPELLANT]: Yes, Your Honor.

THE COURT: Of course, failure to sentence you in accordance with 

the plea recommendation is not a basis to withdraw your plea. Do 

you understand that?

[APPELLANT]: Yes, Your Honor.

THE COURT: With these understandings in mind, do you reaffirm 

your desire to enter a plea in open court?

[APPELLANT]: Yes, Your Honor.

Id. at 8-9.

Appellant pled guilty and signed the written plea colloquy.1 The trial 

court scheduled sentencing for May 2, 2017, and Appellant appeared on that 

date. The trial court acknowledged that the Commonwealth was 

recommending probation. N.T., 5/2/2017, at 7. However, the trial court 

decided to sentence Appellant to a standard-range sentence of nine to 16 

months of incarceration. Id. Attorney Wray affirmed that Appellant completed 

 

1 Here, Appellant entered into an open guilty plea with a sentencing 

recommendation. This situation is distinct from a negotiated guilty plea, 

where the Commonwealth and defendant agree upon the sentence. Under 

those circumstances, a defendant may withdraw his guilty plea if the 

sentencing court does not sentence the defendant to the agreed-upon 

sentence. See Commonwealth v. Root, __ A.3d __, 2018 WL 718543 (Pa. 

Super. 2018).
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a post-sentence colloquy form. Id. at 8; see Defendant’s Post-Sentence 

Rights, 5/2/2017 (explaining accurately Appellant’s post-sentence rights).

On May 10, 2017, Appellant pro se requested to withdraw his guilty plea

based on the Commonwealth’s purported failure to conform to the negotiated 

plea agreement. That motion was forwarded to the trial court. On May 18, 

2017, Appellant pro se requested a modification of his sentence, claiming that 

he was not given sufficient credit for time served. He also requested the trial 

court reduce his sentence based on his completing certain courses while in 

jail. Again, this document was forwarded to the trial court. On May 18, 2017, 

the trial court denied Appellant’s motion to withdraw his guilty plea. On May 

23, 2017, the trial court scheduled a hearing on the motion to modify sentence

for June 26, 2017. On June 20, 2017, Attorney Wray filed a motion to 

withdraw his appearance. The trial court granted that motion on June 21, 

2017. 

On June 26, 2017, the trial court held a hearing on Appellant’s motion 

to modify sentence, where Appellant appeared pro se.

2

 On June 27, 2017, 

the trial court concluded that Appellant’s motion to modify sentence was 

untimely filed, and therefore it denied the motion. Attorney Wray 

subsequently re-entered his appearance on Appellant’s behalf, and on July 18, 

2017, filed a notice of appeal from the order denying Appellant’s motion to 

 

2 There is no transcript of this hearing in the certified record.
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modify sentence. The trial court ordered Appellant to file a concise statement, 

and Appellant complied by filing a statement challenging the discretionary 

aspects of his sentence. The trial court then filed an opinion pursuant to 

Pa.R.A.P. 1925(a).

On appeal, Appellant challenges the discretionary aspects of his 

sentence. Before we reach the issue presented on appeal, we must address 

concerns about the timeliness of this appeal. The trial court suggests this 

appeal is untimely filed. Inexplicably, neither Appellant nor the 

Commonwealth addresses this issue.

“The question of timeliness of an appeal is jurisdictional.” 

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). “Except 

as otherwise prescribed by this rule, the notice of appeal ... shall be filed within 

30 days after the entry of the order from which the appeal is taken.”3 Pa.R.A.P. 

903(a). With respect to an appeal from a judgment of sentence where a 

timely post-sentence motion was filed, an appeal must be filed within 30 days 

of the order denying that motion. See Pa.R.Crim.P. 720(A)(2)(a). In addition,

an order denying a post-sentence motion must inform a defendant of his right 

to appeal, the time for filing that appeal, and the right to assistance of counsel. 

See Pa.R.Crim.P. 720(B)(4). 

 

3 Appellant was sentenced on May 2, 2017. The thirtieth day after that is June 

1, 2017. This notice of appeal was filed on July 18, 2017.
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Instantly, counsel for Appellant did not file a post-sentence motion. 

However, Appellant filed two pro se post-sentence motions while represented 

by counsel, which we consider mindful of the following.

In this Commonwealth, hybrid representation is not permitted. 

Accordingly, [the trial court] will not accept a pro se motion while 

an appellant is represented by counsel; indeed, pro se motions 

have no legal effect and, therefore, are legal nullities. When a 

counseled defendant files a pro se document, it is noted on the 

docket and forwarded to counsel pursuant to Pa.R.Crim.P. 

576(A)(4),[4] but no further action is to be taken. Moreover, a pro 

se filing has no tolling effect. 

Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (internal 

citations omitted) (holding that there is an exception where a trial court is 

required to docket a pro se notice of appeal as it protects a constitutional 

right).

With respect to post-sentence motions, in Commonwealth v. 

Nischan, 928 A.2d 349 (Pa. Super. 2007), this Court held that where a pro 

se post-sentence motion was filed by a represented defendant, that motion 

 

4

In any case in which a defendant is represented by an attorney, if 

the defendant submits for filing a written motion, notice, or

document that has not been signed by the defendant’s attorney, 

the clerk of courts shall accept it for filing, time stamp it with the 

date of receipt and make a docket entry reflecting the date of 

receipt, and place the document in the criminal case file. A copy 

of the time stamped document shall be forwarded to the 

defendant’s attorney and the attorney for the Commonwealth 

within 10 days of receipt.

Pa.R.Crim.P. 576(A)(4).
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“was a nullity, having no legal effect.” Id. at 355. However, an untimely-filed 

post-sentence motion may toll the time period under certain circumstances.

Under Commonwealth v. Dreves, 839 A.2d 1122, 1128 

(Pa. Super. 2003) (en banc), a post-sentence motion nunc pro 

tunc may toll the appeal period, but only if two conditions are met. 

First, within 30 days of imposition of sentence, a defendant must 

request the trial court to consider a 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.” 

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 & 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.

Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015).

With these principles in mind, we now consider the pro se motions filed 

by Appellant. On May 10, 2017, eight days after sentencing, Appellant filed 

pro se a motion to withdraw his guilty plea. Based upon Nischan, supra, 

that motion was a nullity. However, that motion was not forwarded to counsel 

as required by Pa.R.Crim.P. 576(A)(4). Further compounding that error, the 

trial court’s May 18, 2017 denial of that motion did not inform Appellant of his 

right to appeal, in violation of Pa.R.Crim.P. 720(A)(2)(a).

Then, on May 18, 2017, 16 days after Appellant’s sentencing, Appellant 

pro se filed a motion to modify sentence asserting two claims: 1) that he was 

not given credit for time served, and 2) that his sentence should be reduced. 

Again, that motion was not forwarded to counsel in compliance with
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Pa.R.Crim.P. 576(A)(4). Moreover, the trial court permitted counsel to 

withdraw and held a hearing on this motion where Appellant appeared pro se. 

The trial court then denied the motion as untimely filed and complied with the 

mandates of Pa.R.Crim.P. 720(A)(2)(a). Then, counsel re-entered his 

appearance and filed a notice of appeal within 30 days of the entry of that 

order.

We have held that “in the case of fraud or breakdown in the processes 

of the court,” we may excuse the untimely filing of an appeal. 

Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007). A 

breakdown may occur “when the trial court or the clerk of courts departed 

from the obligations specified in” the Rules of Criminal Procedure. Id. at 499. 

Based on the foregoing, we conclude there were sufficient procedural missteps 

by the trial court and clerk of courts, most importantly the failure of the clerk 

of courts to comply with Pa.R.Crim.P. 576(A)(4), and the failure of the trial 

court to comply with Pa.R.Crim.P. 720(A)(2)(a), in denying the first pro se

post-sentence motion. Accordingly, we decline to quash this appeal as 

untimely filed, and we will proceed to address Appellant’s claim.

As noted supra, Appellant is challenging the discretionary aspects of his 

sentence. Specifically, he suggests the trial court erred in sentencing him in 

the standard range when it could have sentenced him in the mitigated range.

It is well settled that, with regard to the discretionary aspects of 

sentencing, there is no automatic right to appeal.
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Before [this Court may] reach the merits of [a challenge to 

the discretionary aspects of a sentence], we must engage in 

a four[-]part analysis to determine: (1) whether the appeal 

is timely [filed]; (2) whether Appellant preserved his issue; 

(3) whether Appellant’s brief includes a concise statement 

of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence; and (4) 

whether the concise statement raises a substantial question 

that the sentence is appropriate under the sentencing 

code.... [I]f the appeal satisfies each of these four 

requirements, we will then proceed to decide the 

substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations 

omitted).

Instantly, we determined supra that the appeal was timely filed. 

However, we must consider whether this issue was preserved in Appellant’s 

post-sentence motion. Even if Appellant’s May 18, 2017 post-sentence motion 

were timely filed,5the only discretionary-aspects-of-sentencing claim in that 

motion was a claim that the trial court should reduce Appellant’s sentence 

because he completed several prison programs. That is not the same claim 

that Appellant presents on appeal; therefore, we conclude that Appellant has 

not preserved this issue.

6

 

 

5 Appellant’s May 10, 2017 motion to withdraw his guilty plea did not contain 

a sentencing claim. 

6

In addition, we point out that Appellant has not included a Pa.R.A.P. 2119(f) 

statement in his brief. Although the Commonwealth has not objected to this 

failure, we may, in our discretion, decline to address the issue. See

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (“[W]hen 

the appellant has not included a Rule 2119(f) statement and the 

[Commonwealth] has not objected, this Court may ignore the omission and 
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In any event, Appellant’s claim that the trial court should have 

sentenced him in the mitigated range instead of the standard range does not 

raise a substantial question. “A substantial question exists only when the 

appellant advances a colorable argument that the sentencing judge’s actions 

were either: (1) inconsistent with a specific provision of the Sentencing Code; 

or (2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) 

(internal quotation marks omitted). We conclude that Appellant’s argument 

that the trial court should have sentenced him in the mitigated range instead 

of the standard range does not present an argument that Appellant’s sentence 

was either “inconsistent with a specific provision of the Sentencing Code,” or 

“contrary to the fundamental norms which underlie the sentencing process.”

7

Id.

Based on the foregoing, we conclude Appellant has not presented to this 

Court any basis to disturb his judgment of sentence.

Judgment of sentence affirmed.

 

determine if there is a substantial question that the sentence imposed was not 

appropriate, or enforce the requirements of Pa.R.A.P. 2119(f) sua sponte, i.e., 

deny allowance of appeal.”).

7

In fact, Attorney Wray conceded at sentencing that he was “not aware of 

any” mitigating factors. See N.T., 5/2/2017, at 5.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/20/2018