Commonwealth v. German, 2139 EDA 2021

CourtSuperior Court of Pennsylvania
Writing for the CourtSTABILE, J.
PartiesCOMMONWEALTH OF PENNSYLVANIA Appellee v. ERIC GERMAN Appellant
Docket Number2139 EDA 2021,J-S27011-22
Decision Date22 November 2022

COMMONWEALTH OF PENNSYLVANIA Appellee
v.

ERIC GERMAN Appellant

No. 2139 EDA 2021

No. J-S27011-22

Superior Court of Pennsylvania

November 22, 2022


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered September 30, 2021 In the Court of Common Pleas of Lehigh County Criminal Division at No.: CP-39-CR-0004517-2008

Joseph D. Seletyn, Esq.

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM

STABILE, J.

Appellant appeals from the September 30, 2021 order entered in the Court of Common Pleas of Lehigh County ("trial court"), following the denial of his self-styled "Motion to Modify Sentence Nunc Pro Tunc" (the "Motion"). Upon review, affirm.

The facts and procedural history of this case are undisputed. As recounted by a prior panel of this Court in connection with Appellant's appeal from the denial of his petition filed pursuant to the Post Conviction Relief Act ("PCRA"):

On January 13, 2009, Appellant entered a plea of guilty to Rape of a Child [(18 Pa.C.S.A. § 3121(c))]. Appellant was sentenced to a term of imprisonment of not less than ten (10) years nor more than forty (40) years in a state correctional institution [and deemed a sexually violent predator (SVP)]. On August 28, 2009, Appellant filed a direct appeal. On June 18, 2010, the Superior Court affirmed this court's judgment of sentence. Thereafter, a motion for writ of habeas corpus was filed on September 7, 2010
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and an amended [PCRA petition] was filed on October 29 2010. Then, on November 22, 2010, Appellant withdrew his [PCRA petition]. Thereafter, on February 4, 2011, Appellant filed a second motion for writ of habeas corpus, which the court denied on April 6, 2011. Also, on June 13, 2011 Appellant filed a pro se motion for writ of habeas corpus, and on June 15, 2011, Appellant filed a pro se supplemental motion for writ of habeas corpus. The court denied said motion on July 26, 2011. Then, Appellant filed another petition seeking post conviction collateral relief on July 12, 2012, that the court subsequently denied. Appellant filed another [PCRA petition] on December 10, 2014. After providing Appellant with notice of its intent to dismiss this subsequent motion for [collateral relief], the court denied Appellant's requested relief on January 13, 2015. Thereafter, on August 17, 2017, Appellant filed a sixth [PCRA] petition. The court again provided Appellant with notice of its intent to dismiss this petition on August 23, 2017. Thereafter, on September 13, 2017, the court denied said petition. The within appeal followed on or about September 20, 2017.

Commonwealth v. German, No. 3120 EDA 2017, unpublished memorandum, at *1-2 (Pa. Super. filed August 9, 2018) (unnecessary capitalizations, brackets and footnotes omitted). On August 9, 2018, we affirmed the denial of Appellant's sixth PCRA petition, concluding it was untimely.

On September 16, 2021, Appellant filed the Motion at issue, seeking the nunc pro tunc reinstatement of his right to file post-sentence motions. Upon reinstatement, Appellant intends to request the modification of his sentence for purposes of removing the no-contact provision with his victim, his biological daughter, whom he raped when she was 10 years old. On September 30, 2021, the trial court denied the motion. Appellant timely

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appealed. The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b)...

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