Com. v. Richardson, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ANDREW RICHARDSON,
Appellant No. 2707 EDA 2017
Appeal from the Judgment of Sentence Entered July 24, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005490-2014
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 06, 2019
Appellant, Andrew Richardson, appeals from the judgment of sentence
of an aggregate term of 12½-25 years’ incarceration, followed by 10 years’
probation, imposed following his conviction for involuntary deviate sexual
intercourse with a child (IDSIC), unlawful contact with a minor (UCM), and
corruption of minors (COM).1 In this appeal, Appellant challenges his sentence
of 10 years’ probation imposed at count 4, which was nolle prossed prior to
his trial. After careful review, we vacate Appellant’s sentence and remand for
resentencing consistent with this memorandum.
A recitation of the facts underlying Appellant’s convictions is
unnecessary to our disposition in this matter. A jury convicted Appellant of
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1 18 Pa.C.S. §§ 3123(b), 6318, and 6301, respectively.
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IDSIC (at count 1), UCM, and COM. On July 24, 2017, the trial court
sentenced him to consecutive terms of 10-20 years’ incarceration for UCM,
2½-5 years’ incarceration for COM, and 10 years’ probation for IDSIC (at
count 4). Appellant filed a timely notice of appeal. On October 18, 2017, this
Court permitted Appellant’s trial counsel to withdraw. New counsel, John Belli,
Esq., was appointed on January 12, 2018. Attorney Belli then filed a timely
Pa.R.A.P. 1925(c)(4) statement on Appellant’s behalf, and the trial court
issued a Rule 1925(a) opinion on June 20, 2018. Then, pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), Attorney Belli filed an Anders brief and a petition to
withdraw as counsel.
In a memorandum dated April 8, 2019, this Court denied Attorney Belli’s
motion to withdraw, and remanded for further proceedings.2 The trial court
appointed new counsel, who then filed a timely Rule 1925(b) statement on
Appellant’s behalf. The trial court issued a supplemental Rule 1925(a)
statement on July 31, 2019.
Appellant now presents the following question for our review:
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2 We rejected Attorney Belli’s petition to withdraw as counsel because we
discovered at least one potentially meritorious claim on the face of the certified
record. Commonwealth v. Richardson, 2707 EDA 2017, unpublished
memorandum at 15 (Pa. Super. filed April 8, 2019). We then remanded with
instructions for the filing of a new Rule 1925(b) statement on Appellant’s
behalf, and encouraged the trial court to consider the appointment of new
counsel at its discretion. Id.-2-
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Did the trial court err when it imposed a sentence (of 10 years of
probation) on count four in the bills of information in this matter
– namely the charge of [IDSIC] (18 Pa.C.S.[] § 3123(a)(7)) -
where that charge was nolle prossed by the Commonwealth and
[Appellant] was never arraigned or tried with respect to that
charge?
Appellant’s Brief at 4.
As we stated in our prior memorandum,
The Commonwealth charged Appellant under two provisions of the
IDSI statute in the criminal information. See Criminal
Information, 5/22/14, at 1. He was charged with a violation of
Section 3123(a)(1) at count 1, and Section 3123(a)(7) at count
4. Subsequently, count 4 was nolle prossed prior to trial. See
Trial Disposition and Dismissal Form (hereinafter “TDDF”),
7/19/16, at 1. However, the verdict slip indicates that the jury
found Appellant guilty of “Involuntary Sexual Deviate Intercourse
with a [c]hild under 13[,]” indicating a violation under Section
3123(b). See Verdict Report, 7/15/16, at 1 (single page).
Moreover, the TDDF indicates that Appellant was convicted at
count 1 of a violation of Section 3123(b), where, as noted above,
count 1 was listed as a violation of Section 3123(a)(1) in the
criminal information. In the sentencing order, Appellant was
sentenced for a violation of Section 3123(a)(7) at count 4,
whereas the trial court indicated in the TDDF that count 4 had
been nolle prossed prior to trial. These discrepancies, which
potentially indicate the presence of non-frivolous claims that could
have been raised on direct appeal,3 were not addressed in
Attorney Belli’s Anders Brief, nor were they addressed in the trial
court’s Rule 1925(a) opinion.
3 We decline to formulate specific claims based on this
record; however, these discrepancies potentially indicate,
inter alia, the presence of due process and/or illegal
sentencing concerns.
Richardson, 2707 EDA 2017, unpublished memorandum at 13-14.
On remand, the trial court, the Commonwealth, and Appellant reached
a consensus that the court erroneously sentenced Appellant at count 4, a
charge that had been nolle prossed prior to trial. See Supplemental Trial
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Court Opinion (STCO), 7/31/19, at 4; Commonwealth’s Post-Remand Brief at
9; Appellant’s Post-Remand Brief at 33. The trial court attributes this to a
clerical error, and indicates that it intended to sentence Appellant to 10 years’
probation at count 1, not count 4. STCO at 4. The Commonwealth agrees,
and suggests a limited remand for correction of the sentencing order.
Commonwealth’s Post-Remand Brief at 9. Appellant argues that we need only
vacate the sentence imposed at count 4. Appellant’s Post-Remand Brief at
35. He contends that we need not remand for resentencing—ostensibly
because vacating the sentence at count 4 does not upset the sentencing
scheme below. Id. at 33.
The trial court’s sentencing scheme clearly would be impacted if we
vacated Appellant’s sentence at count 4 and took no further action. The trial
court sentenced Appellant to 10-20 years’ incarceration at count 2 (UCM); to
a 2½-5 years’ incarceration at count 3 (COM), consecutive to count 2; and to
10 years’ probation at count 4, consecutive to the imposed terms of
incarceration. Vacating a consecutive term of 10 years’ probation will have a
substantial effect on the sentencing scheme by reducing the time which
Appellant will be under supervision by 10 years.
Moreover, Appellant concedes that 1) he was also charged with IDSIC
at count 1; 2) the trial court instructed the jury on that charge, and 3) the
jury convicted him for that offense. Id. Yet, Appellant makes no argument
disputing the trial court’s finding that it intended the sentence imposed at
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count 4 to be applied at count 1. For these reasons, we reject Appellant’s
request that we vacate his sentence at count 4 and take no further action.
However, we note that the trial court has acted inconsistently with its
contention that the mistake here was merely a clerical error. “It is well-settled
in Pennsylvania that a trial court has the inherent, common-law authority to
correct ‘clear clerical errors’ in its orders.” Commonwealth v. Borrin, 12
A.3d 466, 471 (Pa. Super. 2011). “A trial court maintains this authority even
after the expiration of the 30 day time limitation set forth in 42 Pa.C.S.[] §
5505 for the modification of orders.” Id.; see also 42 Pa.C.S. § 5505
(“Except as otherwise provided or prescribed by law, a court upon notice to
the parties may modify or rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of court, if no appeal from
such order has been taken or allowed.”). Here, the trial court describes the
sentence imposed at count 4 as a clerical error, but it provides no indication
to this Court that the error has been corrected. As no correction has been
made, Appellant’s sentence imposed at count 4 remains illegal. If we were to
merely vacate Appellant’s sentence at count 4, the trial court’s overall
sentencing scheme will be disrupted. Accordingly, we vacate Appellant’s
sentence and remand for resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/19
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