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HomeMy WebLinkAbout00-027 miscCOMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA VS. · NO. 00-27 MISC. · APRIL A. TRAN ' IN RE- PETITION TO APPEAL NUNC PRO TUNC BEFORE HESS, J. ORDER AND NOW, this to * day of April, 2000, the motion of the defendant for allowance to file an appeal nunc pro tunc is GRANTED. BY THE COURT, Hess, J. Office of District Attorney Robert J. Mulderig, Esquire For the Defendant 'rlm COMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA VS. · NO. 00-27 MISC. o APRIL A. TRAN ' IN RE: PETITION TO APPEAL NUNC PRO TUNC BEFORE HESS, J. OPINION AND ORDER On October 13, 1999, the defendant was a passenger in a car stopped by Officer Shope of the Shippensburg University Police Department. She was cited for underage drinking, a summary offense at 18 Pa.C.S.A. 6308. On November 9, 1999, the defendant appeared before the district justice and tendered a plea of guilty. Pursuant to a written order of court, the district justice directed that the defendant attend three sessions of an alcohol education class, the first session being on November 30 and the last on December 10, 1999. She was also directed to pay the fee for the class of $50.00. The order further provided that upon the successful completion of the alcohol education classes her fine would be reduced from $300.00 to $100.00. At no time in the course of her plea or sentence was the defendant advised of her right to appeal the order of the district justice. On January 12, 2000, the defendant filed, with this court, a petition to appeal nunc pro tunc. Therein she claims to have a legal defense to the charge based on the illegality of the automobile stop. As it tums out, she became aware of this situation through the litigation of a case involving a co-defendant. The defendant contends that because she 00-0027 MISC. was not informed of her right of appeal and because her petition nunc pro tunc has been promptly filed, her petition should be granted. For the reasons which follow, we are constrained to agree. In this case the defendant was candid with the police officer that she had been drinking. Moreover, there is nothing about the circumstances of her guilty plea which would lead us to believe that it was anything other than voluntarily and intelligently entered. To now allow her to appeal nunc pro tunc would appear improper. Nonetheless, we are satisfied that existing law requires the result that we reach today. In Commonwealth v. Jarema., 404 Pa. Super. 121,590 A.2d 310 (1991) the defendant was convicted before a district justice of driving a motor vehicle while his operator's license was under suspension. He did not take an appeal within the thirty days required by Pa.R.Crim. P. 86. A recitation of the facts continues as follows' In due time, Appellant received notice from the Pennsylvania Department of Transportation that his operating privileges would be further suspended due to these convictions. He then filed the aforementioned petition, the basis of which was an alleged breakdown in the court's operations. Specifically, Appellant asserted that the district justice failed to inform him of his right to appeal or the thirty day period within which to do so. A hearing was convened on Appellant's petition, at which time Appellant testified that he was unrepresented by counsel at his trial before the district justice. Appellant also testified that the district justice did not advise him of his right to appeal for trial de novo. Appellant testified that he first became aware that he might have such a right after receiving notices of suspension from the Department of Transportation which advised him of his right to appeal the 00-0027 MISC. Department's action. Thereafter, Appellant sought legal advice. Following Appellant's testimony and argument by counsel, the court denied the petition. Com. V. Jarema, 590 A.2d at 311. The Jarema court then went on to observe the mandate of Pa. R. Crim. P. 83(E) which reads as follows' (E) At the time of sentencing, the issuing authority shall: · o · (2) advise the defendant of the right to appeal within thirty days for a trial de novo in the court of common pleas... The court in Jarema concluded that it was error to dismiss the petition for appeal' nunc pro tunc without inquiring as to whether the district justice complied with the mandate of Pa.R. Crim. P. 83(E). The court remanded the matter to the trial court with instructions that if the court found that the appellant was not fully advised of his appellate rights, then it should go on to determine whether it was appropriate to grant an appeal nunc pro tunc. In a footnote, the Superior Court indicated that the other question to be addressed by the trial court was whether or not the defendant had acted promptly upon learning of the district justice's alleged error. In this case, as has been noted, it is undisputed that the defendant was not advised of her right of appeal. Also, we are satisfied that she acted promptly in the filing of her petition as same was filed in less than a month after the expiration of the terms of her sentencing order.1 The difference between this case and Jarema is that the sentence of the ~ A certification of successful completion of the alcohol education class and the payment of the reduced fine was due ten days after completion of the classes or December 17, 1999. The petition in this case was filed on January 14, 2000. 00-0027 MISC. district justice resulted from a guilty plea rather than a verdict following trial. That fact, however, does not alter the result. First, the text of Pa.R. Crim. P. 83 makes no distinction with respect to the defendant's post-sentence rights as between guilty and not guilty pleas. In addition, the case of Com. v. Bassion, 390 Pa. Super. 564, 568 A.2d 1316 (1990) is explicit in its statement that the right of appeal exists for one who pleads guilty to a summary offense. This is so because the right of appeal is as much from the sentence as it is from any adjudication of guilt. In the case sub judice, the discretionary aspects of the sentence imposed by the district justice are plain to see. Clearly, the entry of a guilty plea does not preclude later appellate review of the sentence. That the sentence, alone, is susceptible to appellate review is bom out by the provisions of Pa.R.Crim. P. 83(E)(3) which provides that a sentence of imprisonment in a summary case shall not take affect until after the expiration of the thirty-day appeal period. Finally, there is explicit authority in the roles for a requirement that the district justice's sentencing order contain a notice of the defendant's right to appeal. Pa.R. Crim. P. 83(E)(4) states that the sentencing order "shall include the information specified in paragraphs (E)(1) through (E)(3), and a copy of the order shall be given to the defendant.''2 ORDER AND NOW, this ! 0 '~ day of April, 2000, the motion of the defendant for 2 We underscore that this case involved a personal appearance before the district justice for the imposition of sentence by a written sentencing order. We express no opinion concerning the situation where the defendant pleads guilty and pays the required f'me set in a citation or summons. 00-0027 MISC. allowance to file an appeal nunc pro tunc is GRANTED. BY THE COURT, K ess, J. Office of District Attorney Robert J. Mulderig, Esquire For the Defendant :rim