PA Superior Court: Post-Sentence Motion Nunc Pro Tunc Must Be Filed Within 10 Days of the Order Granting Permission

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Wirfel, 2026 PA Super 224, holding that once a trial court grants a defendant permission to file a post-sentence motion nunc pro tunc, the defendant has ten days from that order to file the motion. If the motion never gets filed, the order does nothing for the appeal deadline, and the notice of appeal is still due thirty days after sentencing. The Court also rejected a vindictiveness challenge to a sentence that the trial judge increased after the defendant sent a threatening letter to a prosecutor.

The Facts

In Wirfel, a York County jury convicted the defendant of possession with intent to deliver cocaine and simple possession. On July 21, 2025, the trial judge sentenced him to two to four years in state prison on the PWID and no further penalty on the possession. The judge did not tell him anything about his right to file a post-sentence motion or an appeal, or how long he had to do either.

Shortly after sentencing, the chief deputy prosecutor in the York County District Attorney’s Office received a letter from the defendant. According to the trial court’s description, he called her “a miserable pig of a woman” and “Ms. Piggy,” told her he had a private investigator watching her, and made a point of saying he knew she had a daughter and what kind of car she drove. He also wrote, “I will go to war with each and every one of you.”

Procedural History

The Commonwealth moved to modify the sentence under Rule 721, which gives the prosecution ten days after sentencing to ask the judge to reconsider. At a hearing on August 19, 2025, the defendant admitted writing the letter and told the judge, “I was just frustrated, honestly.” The judge called the letter “a veiled threat,” granted the motion, and resentenced him to three to six years. For the second time, the judge did not advise him of his post-sentence and appeal rights.

After the court appointed counsel, the defendant asked for permission to file a post-sentence motion nunc pro tunc because the judge had never advised him of his rights. On September 16, 2025, still within thirty days of the amended sentence, the trial court granted that request under 42 Pa.C.S. § 5505. The order did not say when the motion had to be filed. Counsel then decided not to file a post-sentence motion. Instead, she filed a notice of appeal on October 16, 2025, which was thirty days after the order granting permission but fifty-eight days after the resentencing.

The Superior Court’s Decision

The Court took up jurisdiction first. Nothing in the Rules of Criminal Procedure says how long a defendant has to file a post-sentence motion once a trial court grants leave to file one nunc pro tunc. The Court answered that question with two of its earlier cases. Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en banc), treats a post-sentence motion filed with the trial court’s express permission under Section 5505 as if it had been filed within the original ten days. Commonwealth v. Wright, 846 A.2d 730 (Pa. Super. 2004), gives a defendant whose appeal rights are restored nunc pro tunc the same thirty days he would have had at the start. Putting the two together, the Court held that an order granting nunc pro tunc relief “winds back” the clock to the day of sentencing, and the Rule 720 deadlines then run from the order. That means ten days to file the post-sentence motion and thirty days from the ruling on that motion to appeal.

The problem for Wirfel was that he never filed the motion. Quoting Dreves, the Court explained that “the time for filing an appeal can be extended beyond 30 days after the imposition of sentence only if the defendant files a timely post-sentence motion.” With no motion on file, his appeal deadline stayed at thirty days from August 19, and the October 16 notice of appeal missed it by about a month.

The Court heard the appeal anyway. Under Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007), when a sentencing judge fails to advise the defendant of his post-sentence and appeal rights, that is a breakdown in the court system, and an appellate court can excuse a late appeal because of it. This judge skipped the colloquy at both sentencings. The Court said it was “troubled” by that and treated the appeal as timely.

On the merits, the Court affirmed. In Commonwealth v. Prinkey, 277 A.3d 554 (Pa. 2022), the Pennsylvania Supreme Court explained how the presumption of vindictiveness from North Carolina v. Pearce works. When a judge imposes a harsher sentence the second time around and does not say on the record that the increase rests on objective information about something the defendant did after the first sentencing, the increase is presumed vindictive. But if there is objective evidence of a post-sentencing event that likely gave the judge new information about the defendant’s character and prospects for rehabilitation, the presumption does not apply, and the defendant has to prove that the judge actually acted out of vindictiveness. The Superior Court found that the letter was that kind of event. It came after the July sentencing, the defendant admitted writing it, and the trial court reasonably read it as a threat. His explanation that he was frustrated did not meet his burden.

The Court also vacated the no further penalty sentence on the simple possession count on its own. That count merged into the PWID because both rested on the same cocaine, and under Commonwealth v. Hill, 238 A.3d 399 (Pa. 2020), a sentence of no further penalty on a merged count is an illegal sentence.

The Takeaway

The ten-day holding is the part of Wirfel that will likely come up again. Until now, there was no clear answer on when a post-sentence motion had to be filed after a trial court grants nunc pro tunc relief under Section 5505. The answer is ten days from the order. Previously, that was just an assumption. If the plan is to skip the motion and appeal directly, the thirty days still run from the sentence. Wirfel was still able to appeal only because the trial judge twice failed to give him the required colloquy. Most defendants will not have that excuse.

The vindictiveness ruling is a warning for anyone who has just been sentenced. The Commonwealth has ten days to ask the judge for more time, and the Pearce presumption will not help a defendant who hands the judge a new reason during that window. Wirfel’s letter cost him a year on the minimum and two years on the maximum. If you are angry about your sentence, it is better to tell your lawyer than write to the prosecutor.

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