Superior Court 7/18/08 - COMMONWEALTH OF PENNSYLVANIA v. SHAHRAM NAHAVANDIAN

COMMONWEALTH OF PENNSYLVANIA v. SHAHRAM NAHAVANDIAN
No. 839 MDA 2007 2008 PA Super 159 Atlantic: n/a Filed: 7/18/2008
Appeal from the Judgment of Sentence July 24, 2006 In the Court of Common Pleas of Northumberland County Criminal at No(s): CP-49-CR-0000214-2000 CP-49-CR-0000463-2000
Before: STEVENS, PANELLA, and HUDOCK, JJ.
Opinion by: STEVENS, J.
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Northumberland County, after this Court vacated sentence and remanded for resentencing in light of Commonwealth v. Ludwig, 583 Pa. 6, 874 A.2d 623 (2005). Here, Appellant contends his new aggregate sentence impermissibly includes a 21 to 48 month sentence of incarceration for Delivery of a Controlled Substance which the court had initially vacated after remand, based upon the Commonwealth’s concession that the delivery charge and conviction was of questionable fairness. Specifically, Appellant argues (1) the Commonwealth was estopped from seeking reimposition of sentence on the delivery charge once it conceded sentence should not be imposed, and (2) the court lacked jurisdiction to reimpose sentence on the delivery count after 30 days had lapsed from the date of its order vacating sentence on the count. We quash.

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¶ 8 In the case at bar, Appellant filed his notice of appeal within 30 days
after the court denied his February 16, 2007 post-sentence motion, which
itself had been filed within 10 days of when his sentence was reduced to
writing and docketed. As can be seen by the procedural history recounted
supra, however, Appellant’s sentence was first imposed for our purposes
here when the court pronounced it in open court on October 17, 2006.
¶ 9 This Court has held that the date of imposition of sentence in open
court, and not the date on which the sentence is docketed, is the reference
point for computing the time for filing post-sentence motions. See
Commonwealth v. Green, 862 A.2d 613 (Pa. Super. 2004) (collecting
cases on Pa.R.Crim.P. 720 and corresponding Commentary and holding time
calculations used to determine timeliness of post-sentence motions and
notice of appeal refer to date on which sentence is actually imposed,
regardless of when sentence is docketed).