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COMMONWEALTH OF PENNSYLVANIA

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234 Pa. Code Rule 721. Procedures for Commonwealth Challenges to Sentence; Sentencing Appeals.

Rule 721. Procedures for Commonwealth Challenges to Sentence; Sentencing Appeals.

 (A)  Commonwealth Challenges to Sentence

   (1)  The Commonwealth may challenge a sentence by filing a motion to modify sentence, by filing an appeal on a preserved issue, or by filing a motion to modify sentence followed by an appeal.

   (2)  Sentencing issues raised by the Commonwealth at the sentencing proceeding shall be deemed preserved for appeal whether or not the Commonwealth elects to file a motion to modify sentence on those issues.

 (B)  Timing

   (1)  Motion for Modification of Sentence. A Commonwealth motion for modification of sentence shall be filed no later than 10 days after imposition of sentence.

   (2)  Appeal of Sentence.

     (a)   Appeal Directly from Order Imposing Sentence.

       (i)   If the defendant has filed a post-sentence motion, and the Commonwealth elects to challenge the sentence by filing an appeal directly from the order imposing sentence, notice of the Commonwealth’s appeal shall be filed within 30 days of the entry of the order disposing of the defendant’s post-sentence motion pursuant to Rule 720(B)(3).

       (ii)   If the defendant has not filed a post-sentence motion, the Commonwealth’s notice of appeal shall be filed within 30 days of the imposition of sentence.

     (b)   Appeal following Disposition of Commonwealth Motion to Modify Sentence.

       (i)   If the defendant has filed a post-sentence motion, the Commonwealth’s notice of appeal shall be filed within 30 days of the entry of the orders disposing of the Commonwealth’s and the defendant’s motions pursuant to paragraph (C)(1).

       (ii)   If the defendant has not filed a post-sentence motion, the Commonwealth’s notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth’s motion pursuant to paragraph (C)(2).

 (C)  Trial Court Action; Disposition

 If the attorney for the Commonwealth files a timely motion for modification of sentence pursuant to paragraph (A)(1), the judge shall dispose of the motion as provided in this paragraph.

   (1)  If the defendant has filed a post-sentence motion, the judge shall not vacate sentence but shall decide the Commonwealth’s motion and the defendant’s post-sentence motion simultaneously. The Rule 720(B)(3) time limits for deciding the defendant’s post-sentence motion, including the automatic denial provisions, shall apply to the disposition of the Commonwealth’s motion. The starting date for disposition of both motions shall be the date on which the defendant filed the post-sentence motion.

   (2)  If the defendant has not filed a post-sentence motion, the judge shall not vacate sentence but shall decide the Commonwealth’s motion within 120 days of the filing of the motion. If the judge fails to decide the Commonwealth’s motion within 120 days, the motion shall be deemed denied by operation of law.

 (D)  Entry of Order by Clerk of Courts

   (1)  When the Commonwealth’s motion for modification of sentence is denied by operation of law, the clerk of courts shall forthwith:

     (a)   enter an order on behalf of the court denying the Commonwealth’s motion for modification of sentence by operation of law; and

     (b)   furnish a copy of the order, by mail or personal delivery, to the attorney for the Commonwealth, the defendant, and defense counsel.

   (2)  An order entered by the clerk of courts pursuant to this section shall not be subject to reconsideration.

Comment

   Rule 721 clarifies the procedures for Commonwealth challenges to sentences in light of the post-sentence procedures adopted in 1993. See Rule 720. This rule does not address any other type of Commonwealth challenge or Commonwealth appeals generally.

   Historically, the Commonwealth has been required to raise a discretionary sentencing issue at the sentencing hearing or in a post-trial motion to modify sentence in order to preserve the issue for appellate review. See Commonwealth v. Eyster, 401 Pa. Super. 477, 585 A.2d 1027 (1991) (en banc), appeal denied 529 Pa. 646, 602 A.2d 857 (1992). Challenges to the legality of a sentence, however, are not waived if the Commonwealth fails to timely file a motion for modification. See Commonwealth v. Smith, 529 Pa. 380, 598 A.2d 268 (1991).

   Under Rule 721, the Commonwealth’s motion for modification of sentence is optional, as long as any discretionary sentencing issue is properly preserved at the time sentence was imposed. Before forgoing trial court review and proceeding with a direct appeal, the attorney for the Commonwealth must therefore be sure that the record created at the sentencing proceeding is adequate for appellate review of the issue, or the issue may be waived. See Commonwealth v. Jarvis, 444 Pa. Super. 295, 663 A.2d 790 (1995), at n. 1.

   As a general rule, a motion for modification of sentence gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court’s inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970) (inherent power of the court to correct obvious and patent mistakes).

   Once a sentence has been modified or reimposed pursuant to a motion to modify sentence under this rule or Rule 720(B)(1)(a)(v), a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an issue for appeal, as long as the issue was properly preserved at the time the sentence was modified or reimposed.

   Trial Court Action

   Paragraph (C) sets forth the procedures for trial court action on the Commonwealth’s motion for modification. Key to the timing of the judge’s decision on the Commonwealth’s motion is whether the defendant files a post-sentence motion.

   Rule 720 Motion Filed

   Under paragraph (C)(1), if the defendant has filed a post-sentence motion, the judge is not permitted to vacate sentence and must decide the defendant’s post-sentence motion and the Commonwealth’s motion simultaneously. The date on which the defendant’s post-sentence motion is filed, see Rule 720(A)(1), triggers the time limit within which the judge must also dispose of the Commonwealth’s motion, regardless of which motion is filed first. If the judge fails to decide the Commonwealth’s motion within this time limit, the motion is deemed denied by operation of law. See Rule 720(B)(3).

   Rule 720 Motion Not Filed

   When the defendant has not filed a post-sentence motion, the disposition of the Commonwealth’s motion is governed by paragraph (C)(2). The judge may not vacate sentence, but has 120 days to decide the Commonwealth’s motion or the motion is deemed denied by operation of law. If the judge decides the motion within the 120-day limit and then agrees to reconsider, the reconsideration must be resolved within the original 120-day time limit. The judge may not vacate sentence in order to reconsider the motion or otherwise use the reconsideration period to extend the 120-day time limit. It follows that even if the defendant has filed a notice of appeal, the procedural exceptions provided in Pa.R.A.P. 1701(b)(3) do not apply to challenges to sentences.

   See also the Rule 720 Comment under ‘‘Disposition.’’

   Entry of Order by Clerk of Courts

   Under paragraph (D)(1), when a Commonwealth motion to modify sentence has been denied by operation of law, the clerk of courts must enter an order on behalf of the court and furnish copies to the attorney for the Commonwealth, the defendant, and defense counsel. The clerk of courts’ order is ministerial and not subject to reconsideration. See paragraph (D)(2). The clerk of courts also must comply with the filing, service, and docket entry requirements of Rule 114.

   Appeal of Sentence

   Paragraph (B)(2) contains the timing requirements for Commonwealth notices of appeal.

   No Commonwealth Motion to Modify Sentence Filed

   Paragraph (B)(2)(a) covers the time for filing a notice of appeal when the Commonwealth has elected not to file a motion to modify sentence with the trial judge. The time for filing the Commonwealth’s notice of appeal under this paragraph depends on whether the defendant has filed a post-sentence motion. When the defendant files a post-sentence motion, paragraph (B)(2)(a)(i) provides that the entry of the order disposing of the defendant’s post-sentence motion triggers the 30-day period during which the Commonwealth’s notice of appeal must be filed. If no post-sentence motion is filed, it is the imposition of sentence that triggers the Commonwealth’s 30-day appeal period. See Rule 721(B)(2)(a)(ii).

   Given that a defendant has 10 days to file a post-sentence motion under Rule 720(A)(1), it is possible that the Commonwealth might file a notice of appeal under paragraph (B)(2)(a)(ii) followed by the defendant’s filing a timely post-sentence motion. When this occurs, the Commonwealth’s notice of appeal is rendered premature, because it is the entry of the order disposing of the defendant’s post-sentence motion that becomes the triggering device for the Commonwealth’s notice of appeal. In this situation, counsel for the Commonwealth should be aware that Pa.R.A.P. 905(a) addresses this problem. In response to an extensive history of appeals which were quashed because of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P. 905(a) was drafted to create a legal fiction that treats a premature notice of appeal as filed after the entry of the appealable order. For a discussion of this provision, see Darlington, McKeon, Schuckers, and Brown, Pennsylvania Appellate Practice, 2d., §  905.3.

   Commonwealth Motion to Modify Sentence Filed

   Paragraph (B)(2)(b) covers the time for filing the notice of appeal when the Commonwealth has elected to file a motion to modify sentence with the trial judge. As in paragraph (B)(2)(a), the time for notice depends on whether the defendant files a post-sentence motion. If the defendant has filed a post-sentence motion, the disposition of the Commonwealth’s and the defendant’s motion is simultaneous. See Rule 721(C)(1). If the defendant does not file a post-sentence motion, the 30-day appeal period begins to run from the entry of the order disposing of the Commonwealth’s motion pursuant to the time limit of paragraph (C)(2).

   Official Note

   Rule 1411 adopted August 22, 1997, effective January 1, 1998; renumbered Rule 721 and amended March 1, 2000, effective April 1, 2001; Comment revised March 3, 2004, effective July 1, 2004; amended January 18, 2007, effective August 1, 2007.

   Committee Explanatory Reports:

   Final Report explaining the new rule published with the Court’s Order at 27 Pa.B. 4553 (September 6, 1997).

   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).

   Final Report explaining the March 3, 2004 amendments updating the cross-references correlative to the March 3, 2004 changes to the motions rules published with the Court’s Order at 34 Pa.B. 1561 (March 20, 2004).

   Final Report explaining the January 18, 2007 amendments clarifying the time for appeal in paragraph (B)(2)(a)(ii) published with the Court’s Order at 37 Pa.B. 526 (February 3, 2007).

Source

   The provisions of this Rule 721 amended March 3, 2004, effective July 1, 2004, 34 Pa.B. 1547; amended February 2, 2007, effective August 1, 2007, 37 Pa.B. 523. Immediately preceeding text appears at serial pages (312471), (299437) to (299438) and (303705) to (303707).



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