Com. v. Khalil

• Decision Date: 02 August 2002
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ramy M. KHALIL, Appellant.
• Court: Pennsylvania Superior Court

806 A.2d 415

COMMONWEALTH of Pennsylvania, Appellee, v. Ramy M. KHALIL, Appellant.

Superior Court of Pennsylvania.

Submitted June 3, 2002.

Filed August 2, 2002.

Reargument Denied October 4, 2002.

Robert B. Manchester, Bellefonte, for appellant.

Ray F. Gricar, Asst. Dist. Atty., Bellefonte, for Com., appellee.

BEFORE: MUSMANNO, POPOVICH and CAVANAUGH, JJ.

OPINION BY POPOVICH, J.:

¶ 1 Appellant Ramy Khalil appeals his judgment of sentence entered in the Court of Common Pleas of Centre County following his conviction on two separate criminal complaints. At CC XXXX-XXXX, Appellant was convicted of one count of failure of a disorderly person to disperse upon an official order, in violation of 18 Pa.C.S.A. § 5502. At CC XXXX-XXXX, Appellant was convicted of one count of resisting arrest, in violation of 18 Pa.C.S.A. § 5104. Appellant was sentenced to an aggregate term of 60 days to 13 months incarceration. Upon review, we affirm.

¶ 2 Appellant raises two questions for our review:

(1) Was trial counsel ineffective for not offering a defense even though he had exculpatory witnesses and pictures available at the time of trial?

(2) Were [Appellant's] sentences excessive with no evidence of record to justify aggravated circumstances?

Appellant's brief, at 11.

¶ 3 The relevant facts and procedural history are summarized as follows: Appellant was arrested in connection with his involvement in the "Arts Festival Riot" that took place in downtown State College, Pennsylvania on July 15, 2000. At CC XXXX-XXXX, Appellant was charged with failure of disorderly persons to disperse upon official order, in violation of 18 Pa. C.S.A. § 5502, and disorderly conduct, in violation of 18 Pa.C.S.A. § 5503(a)(4). At CC XXXX-XXXX, Appellant was charged with resisting arrest, in violation of 18 Pa.C.S.A. § 5104.

¶ 4 A jury trial was held on March 9, 2001, and Appellant was found guilty of failure to disperse and resisting arrest. The Commonwealth nol prossed the charge of disorderly conduct. On May 14, 2001, Appellant was sentenced to 30 days to 11 months of incarceration at CC XXXX-XXXX and a consecutive sentence of 30 days to 12 months at CC XXXX-XXXX.

¶ 5 Appellant, represented by new counsel, filed timely post-sentence motions on May 24, 2001. On September 5, 2001, the trial court issued an order issuing a rule to show cause against the Commonwealth to show why Appellant's post-sentence motions should not be granted. The rule was made returnable at a hearing to be held on October 15, 2001. The trial court mistakenly scheduled the hearing after the 120-day limit to rule on post-sentence motions as prescribed by Pa.R.Crim.P. 720(B)(3)(a). On September 26, 2001, 125 days after the initial post-sentence motion, Appellant filed a motion for a 30-day extension pursuant to Pa.R.Crim.P. 720(B)(3)(b). The trial court granted the motion on September 28, 2001, and noted that it was required by law to decide the motion by October 27, 2001. Later, on October 24, 2001, the trial court issued an order denying the post-sentence motions by operation of law. Afterwards, the trial court filed yet another order on October 31, 2001, amending its September 28, 2001, order to state that it was required to make a decision on the motions by October 22, 2001. On November 16, 2001, Appellant filed a notice of appeal to this Court. Thereafter, on December 11, 2001, the trial court ordered Appellant to file a 1925(b) concise statement of matters complained of on appeal. Appellant filed the 1925(b) statement on December 26, 2002, and the trial court authored an opinion, addressing the issues Appellant raised in the 1925(b) statement.

¶ 6 Before we consider the merits of Appellant's claims, we must determine whether the appeal is properly before us. Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581 (1999) (appellate courts may consider the issue of jurisdiction sua sponte). Pennsylvania Rule of Criminal Procedure 720 states, in pertinent part:

(A) Timing.

(1) Except as provided in paragraph (D), a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.

(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:

(a) within 30 days of the entry of the order deciding the motion;

(b) within 30 days of the entry of the order denying the motion by operation of law;

* * *

(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), the judge shall decide the post-sentence 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.

(b) Upon motion of the defendant within the 120-day disposition period, for good cause shown, the judge may grant one 30-day extension for decision on the motion. If the judge fails to decide the motion within the 30-day extension period, the motion shall be deemed denied by operation of law.

(c) When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and shall forthwith furnish a copy of the order by mail or personal delivery to the attorney for the Commonwealth, the defendant(s), and defense counsel that the post-sentence motion is deemed denied. This order is not subject to reconsideration.

(4) Contents of order.

An order denying a post-sentence motion, whether signed by the clerk of courts, or an order entered following a defendant's withdrawal of post-sentence motion, shall include notice to the defendant of the following:

(a) The right to appeal and the time limits within which the appeal must be filed;

(b) The right to assistance of counsel in the preparation of the appeal;

(c) The rights, if the defendant is indigent, to appeal in forma pauperis and to proceed with assigned counsel as provided in Rule 122; and

(d) The qualified right to bail under Rule 521(b).

¶ 7 As shown above, a petition for extension pursuant to Pa.R.Crim.P. 720(B)(3)(b) must take place during the 120-day disposition period. The record indicates that the judgment of sentence was imposed on May 14, 2001. Appellant filed his post-sentence motions in a timely fashion on May 24, 2001, within 10 days of the judgment of sentence. See Pa. R.Crim.P. 720(A)(1). Mechanically, the run-date for purposes of Pa.R.Crim.P. 720(B)(3)(a) was September 21, 2001, which was 120 days from the filing of the post-sentence motions on May 24, 2001. Appellant's petition for extension was not filed until September 26, 2001. Consequently, the trial court was without power to rule on the petition for extension because the original post-sentence motion had already been deemed denied by law pursuant to Pa.R.Crim.P. 720(B)(3)(a). See Commonwealth v. Santone, 757 A.2d 963 (Pa.Super.2000) (holding trial court's modification of sentence after 120-day period to decide post-sentence motions a nullity because post-sentence motions deemed denied by operation of law). The trial court entered an order granting the motion for extension, but did not act on the motion. The trial court then entered an order on October 24, 2001, stating that the motion was "deemed denied by operation of law." Since the post-sentence motions were deemed denied by operation of law on September 21, 2001, the trial court's orders granting an extension of time and denying the post-sentence motions by operation of law on October 24th were a legal nullity because the trial court's jurisdiction ended September 21st. Therefore, Appellant had 30 days from September 21st to appeal. Thus, the November 16th appeal was untimely. However, we have held that we will address an otherwise untimely appeal if fraud or breakdown in the trial court's processes resulted in an untimely appeal. Commonwealth v. Anwyll, 333 Pa.Super. 453, 482 A.2d 656 (1984).

¶ 8 At the outset, we note that it is well-settled law that the appellate courts cannot generally extend the time for filing an appeal. See Pa.R.A.P. 105(b). Nevertheless, in Commonwealth v. Braykovich, 444 Pa.Super. 397, 664 A.2d 133 (1995), we addressed an untimely appeal because it was shown that breakdown of the processes of the trial court caused the appeal to be untimely. Our decision in Braykovich is instructive in our analysis of whether a breakdown of the processes of the trial court occurred in this case. In Braykovich, Braykovich filed a timely post-sentence motion on April 19, 1994. Braykovich, 664 A.2d at 135. The trial court did not address the motion until it denied the motion on September 13, 1994, after the 120-day period to rule on post-sentence motions expired. Id. Thereafter, Braykovich brought appeal to this Court on October 11, 1994. Id. We were compelled to examine whether the appeal was timely and held that, although the appeal was filed on October 11, 1994, it was timely because the late appeal was due to a breakdown in the processes of the trial court. Id. at 138. We found a breakdown in the processes of the trial court because the clerk of courts failed to enter an order denying Braykovich's post-sentence motions by operation of law as required by Pa.R.Crim.P. 1410.¹ We found this error deprived Braykovich of notice of the expiration of the 120-day period allowed for the decision of the post-sentence motions, and the beginning of the 30-day period allowed for direct appeal. Thus, this breakdown caused Braykovich to file his notice of appeal out of time. Id. at 138. Accordingly, we addressed Braykovich's appeal.

¶ 9 Viewing this case in the light of Braykovich, we first note that the trial court erred on its September 5th order when it scheduled the rule returnable at a hearing to be...