submitted: May 16, 1988.
COMMONWEALTH OF PENNSYLVANIA
THOMAS E. JONES, APPELLANT
Appeal from the Judgment of Sentence December 21, 1987 in the Court of Common Pleas of Monroe County Criminal Division, No. 316, 1987
Mark L. Newman, Assistant Public Defender, Stroudsburg, for appellant.
James F. Marsh, District Attorney, Stroudsburg, for Com., appellee.
Olszewski, Watkins and Cercone, JJ.
[ 376 Pa. Super. Page 343]
This is an appeal from a judgment of sentence in which the sole question for decision is whether the sentencing court deprived appellant of a reconsideration of sentence.
[ 376 Pa. Super. Page 344]
Appellant Thomas E. Jones was arrested and charged on June 4, 1987 with criminal trespass and criminal mischief. On November 4, 1987, appellant entered a plea of guilty to criminal trespass and was sentenced on December 21, 1987 to term of imprisonment of one and one-half (1 1/2) to three (3) years. Appellant filed on December 28, 1987 a timely motion to reconsider and modify sentence. The trial court scheduled a hearing on the motion for February 6, 1988.
Pennsylvania Rule of Criminal Procedure 1410 provides: "A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence." Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. Upon the issuance of an order by the sentencing court denying the motion, notice of appeal may be filed.*fn1 A notice of appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. However, "[t]he failure of the sentencing court to act within the thirty day appeal period will normally result in the loss of the court's jurisdiction to modify sentence, and will have the same effect as a denial of the motion." Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. comment (emphasis added). See also Pa.R.A.P., Rule 1701(a), 42 Pa.C.S.A. ("[A]fter an appeal is taken . . . the trial court . . . may no longer proceed further in the matter.").
[ 376 Pa. Super. Page 345]
In Commonwealth v. Lee, 278 Pa. Super. 609, 420 A.2d 708 (1980), the appellant filed a timely motion for reconsideration on March 23, 1979 and a hearing was scheduled for April 2, 1979. Subsequently, the hearing was continued until May 15, 1979 and the appellant filed a notice of appeal on April 18, 1979. The sentencing court issued an order on the following day canceling the hearing. In considering the procedural propriety of the appeal, this Court discerned that "the failure of the trial court to vacate the sentence or take other action within the thirty-day appeal period and the filing of an appeal have the same effect as a denial of the motion." Id. 278 Pa. Super. at 612, 420 A.2d at 709. See also Commonwealth v. Villaloz, 303 Pa. Super. 518, 521, 450 A.2d 47, 48 (1982) ("The lower court's failure to act upon the petition within the thirty-day period has the same effect as a denial of the motion.").
In the matter sub judice, appellant surmised that the sentencing court would lose jurisdiction to reconsider the sentence when it set a hearing on the motion in excess of the thirty (30) day period of appeal. This deduction was correct in that the court's inaction effectively amounted to a denial of the motion. Although appellant properly and timely brought this appeal, he failed to preserve for our review any challenges on the merits to his sentence.*fn2 As a result, we are constrained to affirm the judgment of sentence.