Com. v. Johnson, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAMON JOHNSON,
Appellant No. 2934 EDA 2017
Appeal from the Judgment of Sentence Entered August 23, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003295-2011
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 12, 2019
Appellant, Damon Johnson, appeals from the judgment of sentence of
1-2 years' incarceration, imposed for a violation of probation due to his
conviction on new charges. Appellant argues that his sentence is illegal
because he had already completed his probation when he was arrested on the
new charges. After careful review, we reverse.
As this Court previously reported during the direct appeal from
Appellant's judgment of sentence at CP-51-CR-0003295-2011:
Appellant was incarcerated at a county correctional facility in
Philadelphia County. On August 30, 2010, at 10:30 a.m., Kanisha
Ellis visited Appellant. County Correctional Officer Mary Hornick
observed the two take a picture together, during which time
Appellant made several reaching motions behind Ms. Ellis's back.
Appellant was warned twice regarding the motions. Officer
Hornick then witnessed Appellant place a small object in his jump
* Retired Senior Judge assigned to the Superior Court.
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suit. She informed another officer and two officers escorted
Appellant to a search room. Appellant previously had been
stripped searched before putting on the jump suit. When officers
asked Appellant to remove the suit, he refused. After a brief
struggle with the officers, an object fell from Appellant's pant leg.
He grabbed the object and put it into his mouth before spitting it
out when he was pepper sprayed. The object was a plastic bag
containing 9.7 grams of marijuana. A property receipt reflected
that the bag was taken from Ms. Ellis.
Commonwealth v. Johnson, No. 173 EDA 2012, unpublished memorandum
at 2 (Pa. Super. filed Mar. 8, 2013).
The trial court sentenced Appellant to "one and one-half to four years[']
incarceration ... after [it] convicted him of possession of a controlled substance
by an inmate, conspiracy to commit possession of a controlled substance by
an inmate, possession of a controlled substance (marijuana), possession of a
small amount of marijuana, and tampering with evidence." Id. at 1. The trial
court imposed a concurrent term of 2 years' probation for tampering with
evidence. N.T., 12/21/11, at 54. However, the written sentencing order filed
by the court imposed the two-year term of probation for tampering with
evidence to run consecutive to the term of incarceration. Order of Sentence,
12/21/11, at 1. Appellant served his term of incarceration and was
subsequently released.'
On January 29, 2016, Appellant was arrested on new charges. Following
a trial, he was convicted of resisting arrest, three firearm charges, criminal
mischief, simple assault, and reckless endangerment. On August 11, 2017,
" The parties are unable to provide this Court with Appellant's release date.
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the trial court sentenced Appellant to 6-12 years' incarceration, and to a
consecutive term of 8 years' probation.
On August 23, 2017, Appellant appeared before the Honorable Judge
Robert F. Gordon for a probation violation hearing. Relying on the sentencing
order from the case at CP-51-CR-0003295-2011, Appellant's counsel stated
at the beginning of the hearing that Appellant's probationary term in that case
was ordered to run consecutive to the term of incarceration imposed. N.T.,
8/23/17, at 4. It appears that Appellant's counsel's statement was prompted
by a prior discussion with the court that was not transcribed. Id.
Ultimately, the court determined that Appellant's new crimes constituted
a direct violation of the terms of his probation. On that basis, the court
imposed a new term of 1-2 years' incarceration for tampering with evidence.
Id. at 22. Appellant filed a timely notice of appeal, and a timely, court -
ordered, Pa.R.A.P. 1925(b) statement. However, during the interim, Judge
Gordon retired. As such, no Rule 1925(a) opinion was filed in this matter.
Appellant now presents the following question for our review:
Should not the lower court's revocation sentence be vacated
where, at the time the trial court revoked Appellant's probation
and resentenced him, Appellant's term of probation had already
expired, since Appellant's probation term was to run concurrent
with his original sentence on other counts, that probation expired
in 2013 and the violating acts in 2016 which formed the basis for
the revocation occurred after the probation had expired?
Appellant's Brief at 3.
Appellant's claim concerns the legality of his sentence. See
Commonwealth v. Mathias, 121 A.3d 558, 563 (Pa. Super. 2015) (holding
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that a sentence imposed for a violation of probation was illegal where the term
of probation had already expired); compare Commonwealth v. Mitchell,
955 A.2d 433,435 n.2 (Pa. Super. 2008) ("Under Pennsylvania law, an order
of probation can be changed or revoked if, at any time before the
defendant has completed the maximum period of probation, or before
he has begun service of his probation the defendant commits offenses or
otherwise demonstrates he is unworthy of probation.") (cleaned up, emphasis
added). "A challenge to the legality of the sentence may be raised as a matter
of right, is non-waivable, and may be entertained so long as the reviewing
court has jurisdiction." Commonwealth v. Robinson, 931 A.2d 15,19-20
(Pa. Super. 2007).
Appellant argues that, at his original sentencing hearing, the trial court
unambiguously expressed its intent to impose the at -issue probationary term
to run concurrent to his term of incarceration. Appellant's Brief at 11. As
such, Appellant contends that the contrary language in the written sentencing
order constituted a "patent and obvious mistake and not the actual sentence
imposed on" Appellant. Id. at 13.
The Commonwealth argues that the sentencing order controls.
Commonwealth's Brief at 7. The Commonwealth concedes only that "the trial
court's statements at sentencing were not completely clear," and that the trial
court "mischaracterized [Appellant]'s probation term in its April 26, 2013
opinion." Id. at 8. However, the Commonwealth maintains that "the text of
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a written sentencing order is determinative of the actual sentence" in light of
such ambiguities. Id. at 9.
Generally speaking, "it is well -settled that the signed sentencing order
takes precedence over oral statements of the sentencing court not
incorporated into that order." Commonwealth v. Kubiac, 550 A.2d 219,
229 (Pa. Super. 1988). However, this Court has permitted the correction of
a sentencing order by a trial court, outside the time period permitted by 42
Pa.C.S. § 5505,2 where the unambiguous, on -the -record statement of the
sentence conflicted with the written order. See Kubiac, 550 A.2d at 231;
compare Commonwealth v. Borrin, 12 A.3d 466 (Pa. Super. 2011)
(refusing to permit alteration to the written sentencing order outside of the
framework of Section 5505 where "the trial judge's intentions ... were not
clearly and unequivocally expressed at sentencing."). Here, the trial court's
intention at the original sentencing hearing was unambiguous: "And [at]
Count 5, tampering[,] is two years['] probation concurrent." N.T., 12/21/11,
at 54 (emphasis added).
The Commonwealth contends that "the court confirmed at the
revocation hearing that the written order was correct" in ordering Appellant's
term of probation to run consecutive to his term of incarceration.
2 Section 5505 provides: "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."
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Commonwealth's Brief at 10. We disagree with the Commonwealth's
characterization of the record,3 but, in any event, comments made "after-the -
fact" regarding a sentencing court's "subjective intent" at a prior sentencing
proceeding are "irrelevant[.]" Commonwealth v. Borrin, 80 A.3d 1219,
1227 (Pa. 2013).
Accordingly, we conclude that the unambiguous intent of the trial court
at the December 21, 2011 sentencing hearing was to impose a term of
probation concurrent to Appellant's term of incarceration, and that the written
sentencing order's statement to the contrary was a patent clerical error.
Consequently, Appellant's term of probation expired on December 21, 2013,
long before his arrest on January 29, 2016, on the new charges that served
as the basis for court's revocation of his probation. As such, the sentence
imposed for that revocation of an expired term of probation was illegal. See
Matthias, supra. Thus, we reverse Appellant's judgment of sentence.
Judgment of sentence reversed.
3 The record could just as easily be interpreted to show that the court was
simply restating the text from the sentencing order. See N.T., 8/23/17, at
21. Moreover, the trial court's Rule 1925(a) opinion filed during Appellant's
direct appeal stated that the at -issue term of probation was ordered to run
concurrent to Appellant's term of incarceration, consistent with the court's
statement at the sentencing hearing. Rule 1925(a) Opinion, 4/26/13, at 2.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/12/19
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