Com. v. Wothman, N.

J-S57030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
NORMAN M. WOTHMAN
Appellant No. 1024 EDA 2016
Appeal from the Order dated March 18, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0203251-2005
CP-51-CR-0203291-2005
CP-51-CR-0203331-2005
CP-51-CR-0203361-2005
CP-51-CR-0308741-2005
CP-51-CR-0308751-2005
CP-51-CR-0309001-2005
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 16, 2017
Appellant Norman Wothman appeals from the order entered March 18,
2016, which corrected his sentencing forms to reflect an aggregate term of
70 to 140 years’ imprisonment. We affirm.
On October 31, 2005, Appellant was convicted by a jury of seven
counts of rape by forcible compulsion1 and related charges.2 Appellant was
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118 Pa.C.S. § 3121(a)(1). Appellant raped seven different victims between
2002 and 2004.
2 Appellant was also convicted of seven counts of sexual assault, 18 Pa.C.S.
§ 3124.1, two counts of involuntary deviate sexual intercourse, 18 Pa.C.S. §
3123(a)(2), two counts of aggravated assault, 18 Pa.C.S. § 2702(a), five
(Footnote Continued Next Page)
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sentenced on April 6, 2006, to serve 10 to 20 years’ incarceration for each of
the rape charges, to be run consecutively, for an aggregate sentence of 70
to 140 years’ incarceration. See N.T., 4/6/06, at 42-48.3 Following
Appellant’s direct appeal in 2010,4 this Court affirmed Appellant’s judgment
of sentence, and the Supreme Court thereafter denied review. See
Commonwealth v. Wothman, No. 1858 EDA 2010 (Pa. Super. Sept. 6,
2012) (unpublished memorandum), appeal denied, 63 A.3d 777 (Pa.
2013).5
(Footnote Continued) _______________________
counts of simple assault, 18 Pa.C.S. § 2701(a), three counts of possessing
an instrument of crime, 18 Pa.C.S. § 907(a), and one count of robbery, 18
Pa.C.S. § 3701(a)(1)(i).
3 The Court stated “As the sentence of the Court, I believe the incarceration
will be 70 to 140 years.” N.T., 4/6/06, at 47. Defense Counsel asked
Appellant, “[D]o you understand the sentence you have been given, 70 to
140 years?” Appellant responded, “Yeah.” Id. at 49. Appellant received
lesser concurrent sentences or no further penalty on the other charges.
4 Appellant did not file a direct appeal following his initial sentencing
proceeding, but filed a Post-Conviction Relief Act (“PCRA”) petition in 2007
requesting that his appellate rights be reinstated nunc pro tunc. The petition
was denied by the PCRA court in 2008, but, in 2009, following Appellant’s
appeal of that dismissal, this Court vacated the order of the PCRA court and
allowed Appellant to file a direct appeal nunc pro tunc.
5 The basis of Appellant’s direct appeal was whether the trial court erred in
consolidating seven cases in one trial, whether the court failed to take
certain mitigating factors into account when sentencing Appellant, and
whether the trial court abused its discretion in running Appellant’s sentences
consecutively. We noted in our decision that Appellant received a sentence
of 10 to 20 years’ incarceration on each of the rape charges and that these
sentences were to be run consecutively. See Wothman, No. 1858 EDA
2010, at 10-11.
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On July 21, 2015, the Commonwealth filed a Motion to Correct Patent
Errors. In the motion, the Commonwealth stated that it had been notified by
an employee of Appellant’s prison facility that Appellant’s commitment forms
incorrectly reflected an aggregate term of 20 to 40 years’ incarceration. The
Commonwealth attached a copy of the bills of information and commitment
forms, which had been generated by the trial court following Appellant’s
sentencing hearing; the forms indicated that Appellant’s second through
seventh sentences of 10 to 20 years’ imprisonment would run consecutively
to Appellant’s first 10 to 20 years’ prison sentence, but not consecutively to
each other. See Ex. C. to Mot. To Correct.6 On March 18, 2016, the trial
court granted the motion and issued an order correcting Appellant’s
sentence “to reflect the . . . sentence as previously imposed by the Court.”7
Appellant filed an appeal to this Court, presenting one issue: “Did the
trial court have authority to modify the judgment of sentence over 9 years
after the sentence was imposed when the alleged error the Court was
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6 The forms for the second through seventh sentences did not specify that
the sentences were to run concurrently to each other, but rather stated that
each sentence was to run consecutive to the first sentence; the first
sentence stated that it should run concurrently to any sentence “now
serving.”
7 Aside from that single order issued that referenced all seven docket
numbers, the court issued additional orders modifying the sentence on each
of the seven docket numbers and generated new commitment forms for
each docket number that reflected the modified sentence.
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attempting to modify was not a patent or clerical error?” Appellant’s Brief at
2.
The issue on appeal is a legal question, and therefore our scope of
review is plenary and the standard of review is de novo. See
Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007) (“[T]he power of
courts to correct allegedly illegal sentencing orders . . . is a question of
law”).
The parties agree that 42 Pa.C.S. § 5505 permits trial courts to modify
an order within 30 days of issuance, after which time the court loses
jurisdiction to do so.8 Beyond the thirty-day limitation, a court may only
correct errors that are “obvious and patent.” Commonwealth v. Cole, 263
A.2d 339, 341 (Pa. 1970); see also Holmes, 933 A.2d at 66 (stating that
courts have “the inherent power to correct patent errors despite the absence
of traditional jurisdiction”).
Appellant asserts that in order for an error to be a patent clerical error,
“the legal nature of the order must appear on its face.” See Appellant’s Brief
at 5 (citing Holmes, 933 A.2d at 66-67, which states “it is the obviousness
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8 42 Pa.C.S. § 5505 states, “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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of the illegality . . . that triggers the court’s inherent power”).9 Appellant
argues that his sentencing order was not illegal on its face because 20 to 40
years’ imprisonment for seven rape charges is a possible legal sentence
under the Sentencing Code. See id. Likewise, Appellant contends that the
“[f]ailure to run sentences consecutive to each other is not an obvious and
patent mistake.” See id.
After a review of the record, the briefs of the parties, the applicable
law, and the well-reasoned opinion of the Honorable George W. Overton, we
conclude that the trial court was correct in finding that it had jurisdiction to
correct the obvious errors in Appellant’s sentencing forms. See Trial Ct. Op.,
11/4/16, at 4-8 (citing Commonwealth v. Thompson, 106 A.3d 742, 766
(Pa. Super. 2014), appeal denied, 134 A.3d 56 (Pa. 2016), which states
that “an oral sentence which is on the record, written incorrectly by the clerk
of courts, and then corrected by the trial judge, is . . . a clerical error,” and
concluding that the aggregate sentence on Appellant’s commitment forms
“constitute[] a clerical error this court can correct because [the forms]
clearly were not in accord with the aggregate sentence the Court announced
at the sentencing hearing”).10 Appellant’s reliance on the quoted language
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9 In the companion cases in Holmes, the trial courts had corrected errors
that had resulted in illegal sentences.
10 We emphasize that the error of the trial court need not result in an
otherwise illegal sentence in order to qualify as a patent clerical error; it
need only be obvious on the record in order for the court to retain
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in Holmes is misplaced. Although in the companion cases in Holmes the
trial courts had corrected errors which had resulted in illegal sentences,
Holmes also stated that a trial court retains jurisdiction to correct “clear
errors in the imposition of sentences that were incompatible with the
record.” The Court in Holmes also noted that in Commonwealth v. Klein,
781 A.2d 1133, 1135 (Pa. 2001), the Supreme Court “did not limit the
inherent power [to correct] to those errors evident on the face of the order,
but rather approved of a trial court’s correction of a ‘patent defect or
mistake in the record.’” 933 A.2d at 66-67 (emphasis added by the Court
in Holmes)).
Thus, we affirm on the basis of the trial court’s opinion, and the parties
are instructed to attach a copy of the trial court’s opinion of November 4,
2016, to any future filing that references this Court’s decision.
Order affirmed.
(Footnote Continued) _______________________
jurisdiction to amend it. See Commonwealth v. Borrin, 80 A.3d 1219,
1228 (Pa. 2013) (“a trial court’s inherent power of correction encompasses
not only those patent and obvious errors that appear on the face of an
order, but extends to such errors that emerge upon consideration of
information in the contemporaneous record” (emphasis added)); see
also Commonwealth v. Walters, 814 A.2d 253, 256 (Pa. Super. 2002)
(examining sentencing transcript and determining that the sentencing order
correctly reflected the imposed sentence and therefore did not contain an
error that could be corrected after thirty days), appeal denied, 831 A.2d
599 (Pa. 2003); Borrin, 80 A.3d at 1226-29 (holding that trial court did not
have jurisdiction to modify the defendant’s sentence to impose consecutive
sentences where the transcript of the sentencing hearing was ambiguous on
whether the court intended to impose consecutive sentences).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2017
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0035_Opinion
Circulated 09/28/2017 01:11 PM