Commonwealth v. Hartnett, 112520 PASUP, 180 MDA 2020

Docket Nº:180 MDA 2020
Opinion Judge:McLAUGHLIN, J.
Party Name:COMMONWEALTH OF PENNSYLVANIA v. ROBERT WILLIAM HARTNETT, JR. Appellant
Judge Panel:BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.
Case Date:November 25, 2020
Court:Superior Court of Pennsylvania

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT WILLIAM HARTNETT, JR. Appellant

No. 180 MDA 2020

Superior Court of Pennsylvania

November 25, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered September 27, 2019 In the Court of Common Pleas of Perry County Criminal Division at No(s): CP-50-CR-0000571-2018

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E. [*]

MEMORANDUM

McLAUGHLIN, J.

Robert William Hartnett, Jr. appeals from the judgment of sentence entered after a jury found him guilty of multiple sexual offenses against his minor step-granddaughter. Hartnett argues the evidence was insufficient and the trial court erred in excluding a photograph of the victim. We affirm Hartnett's convictions, but vacate sentence and remand for re-sentencing.

Prior to Hartnett's jury trial, the Commonwealth filed a Motion in Limine asking the court to preclude Hartnett from introducing a certain photograph of the victim.[1] The photograph depicted the victim sticking her tongue out next to the drawing of a penis. The victim had sent it to her grandmother, Hartnett's wife, in 2018. The Commonwealth argued the photograph was not relevant or probative, as it was taken after the alleged incidents giving rise to the charges and did not involve Hartnett or communications with Hartnett. The Commonwealth also argued it was impermissible evidence of the victim's character. Hartnett argued the victim's grandmother was living with Hartnett when the victim sent it to her, and that it was probative as to whether the victim felt comfortable discussing sex with her grandmother, as she had not disclosed the alleged abuse to her earlier. The court granted the motion and precluded the photograph from evidence.

At trial, the 17-year-old victim testified that Hartnett first sexually assaulted her around 2010, when she was approximately eight or nine years old, at Hartnett's residence. She testified about numerous instances of sexual abuse, including groping, forced masturbation, cunnilingus, and penetrative sexual intercourse. The victim said that she did not disclose the abuse until 2018 because she did not want to get into trouble, "split up the family," or be "looked at as a disappointment" or like "a freak." N.T., Trial, 7/1/19, at 56. The victim testified that she told two friends in sixth grade about the abuse, but did not disclose the abuse to an adult until 2018. The victim's mother testified that she had observed redness in the victim's genital area as a child, and asked her if anyone had been "messing with" her, but the victim shook her head, "No." Id. at 130-31. The victim's father, brother, and a childhood friend testified about Hartnett's inappropriate physical contact with and sexual remarks to the victim.

The jury convicted Hartnett on 53 counts, including four counts of Rape of a Child. See 18 Pa.C.S.A. § 3121(c).2 The court held a sentencing hearing on September 27, 2019, and imposed an aggregate sentence of 32-64 years' incarceration.

Five days later, the court issued an order3 stating, "[O]n the [c]ourt's own Motion, a hearing/argument is hereby scheduled to address any issue of the Merger." Order dated October 2, 2019, 10/3/19, at 1. The order set a hearing for the next day.

The next day, the court issued an order4 acknowledging that defense counsel and the prosecution "agreed that there may be issues regarding Merger of Offenses for sentencing purposes, and all parties [have] requested additional time to research said issues[.]" Order dated October 3, 2019, 10/10/19, at 1. The court treated the parties' agreement that certain convictions might merge as a joint post-trial motion. See id. The court scheduled a hearing for November, which it later continued to December 5, 2019.

At the hearing on December 5, 2019, the court amended the sentence. The court found that all convictions other than two counts of Aggravated Indecent Assault and one count of Indecent Assault - Forcible Compulsion merged with the four counts of Rape of a Child.5 The court again imposed an aggregate sentence of 32 to 64 years' incarceration.[6] The same day, the court issued an order7 memorializing the amended sentence, and stating that the court had amended the sentence "after Hearing on the Post-Sentence Motion regarding the issue of Merger." Order dated Dec. 5, 2019, 12/9/19, at 1.

Hartnett appealed on December 11, 2019. However, this Court deemed the appeal to be an untimely appeal from the September 27, 2019 sentence, and quashed. See Commonwealth v. Hartnett, No. 1982 MDA 2019 (Pa.Super., 1/13/20) (per curiam order at 1). Hartnett thereafter filed a "Motion to Reinstate Direct Appeal Nunc Pro Tunc/PCRA," on January 16, 2020, asking the trial court to reinstate his direct appeal rights, specifying that the Commonwealth did not oppose the request. The trial court granted relief, and, the next day, Hartnett instituted this appeal.

Before we address the issues on appeal, we address the Commonwealth's suggestion that we should quash this appeal as untimely. It contends that because Hartnett did not file a written post-sentence motion within ten days of the original imposition of sentence on September 27, 2019, the trial court did not have jurisdiction to amend Hartnett's sentence on December 5, 2019, more than 30 days later. See Commonwealth's Br. at 5.

We will not quash. Hartnett sought reinstatement of his direct appeal rights approximately three and a half months after his initial sentencing. Even assuming that the time limitations of the Post Conviction Relief Act ("PCRA")8applied to that petition, the petition was timely and the trial court had power to grant it. See Commonwealth v. Brown, 943 A.2d 264, 268 (Pa. 2008) (holding that where defendant did not file a timely appeal, PCRA time limits run from the expiration of time for seeking such review). As Hartnett filed this appeal one day after the lower court granted him a nunc pro tunc appeal, his appeal was timely.

However, we agree that that the court lacked jurisdiction to amend the sentence on December 5, 2019. A trial court loses jurisdiction to modify a criminal sentence once a party initiates an appeal, or once 30 days have elapsed after sentencing. 42 Pa.C.S.A. § 5505; Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007). The court can preserve its jurisdiction to modify the sentence beyond the 30-day deadline by vacating the original sentence within 30 days of the original sentencing. Also, the time in which the court may modify a sentencing order increases if a party files a timely post-sentence motion. A post-sentence motion is timely if the movant files a written motion within ten days of the pronouncement of sentence. In such a case, the trial court retains jurisdiction until disposition of the motion. See Pa.R.Crim.P. 720(A)(1), (B)(3), Comment; Pa.R.Crim.P. 721(A)(1), (B)(1), (C). Where the trial court attempts to modify a sentence pursuant to an untimely post-sentence motion more than 30 days after sentencing, its action is a nullity. Commonwealth v. Santone, 757 A.2d 963, 965-66 (Pa.Super. 2000).9

Here, neither party filed a written post-sentence motion following the imposition of sentence on September 27, 2019. Although the court raised the question of merger and, after an initial hearing, treated the parties' agreement that merger was in issue as an oral post-sentence motion, it neither vacated nor amended the September 27, 2019 sentence within 30 days of imposing it. Although a court has the inherent jurisdiction to correct a patent error in an order at any time, the failure to merge convictions for purposes of sentencing "is not a patent or obvious...

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