Com. v. Miller, W.

J-S67006-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM MILLER, :
:
Appellant : No. 1980 WDA 2013
Appeal from the Order dated November 4, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0014519-2008
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 20, 2014
Appellant, William Miller (“Miller”), appeals from the trial court’s denial
of his motion to transfer the supervision of his probation from the
Pennsylvania Board of Probation and Parole to the Allegheny County Adult
Probation Department. For the reasons that follow, we affirm the trial
court’s order.
On May 12, 2009, Miller pled guilty to one count of simple assault, 18
Pa.C.S.A. § 2701(a)(1), one count of criminal mischief, id. at § 3304, and
several summary offenses. The trial court delayed sentencing until June 29,
2009 while Miller resolved two other criminal cases. At sentencing, the trial
court sentenced Miller to two years of probation to commence upon his
release from the Allegheny County jail on the other pending cases. While
the sentencing transcript does not specify whether the probation would be
*Former Justice specially assigned to the Superior Court.
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supervised by state or county authorities, the sentencing order reflects that
the supervision would be conducted by the Allegheny County Adult Probation
Department. On July 6, 2011, while Miller remained incarcerated, the trial
court entered an order indicating that upon his release from county jail, the
Pennsylvania Board of Probation and Parole should instead supervise Miller’s
probation.
On June 20, 2012, Miller filed a pro se petition for relief pursuant to
the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46 (“PCRA”). The trial
court appointed counsel to represent Miller, but on September 30, 2013,
appointed counsel filed a petition pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988), on the grounds that Miller’s PCRA petition was untimely. After
reviewing the record, however, appointed counsel also concluded that the
trial court’s July 6, 2013 order was in error, and filed on Miller’s behalf a
Motion to Enforce Judgment of Sentence, requesting that the trial court
correct the error and reinstitute supervision of Miller’s probation to county
authorities. On November 4, 2013, the trial court denied this motion. Miller
appeals this decision and raises the following issue for our review and
determination:
Whether the trial court erred in holding that [Miller’s]
term of probation is properly supervised by the
Pennsylvania Board of Probation and Parole, rather
than the Allegheny County Adult Probation
Department.
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Miller’s Brief at 6.
On appeal, Miller contends that the trial court lacked jurisdiction to
alter its sentencing order, as 42 Pa.C.S.A. § 5505 does not permit non-
clerical modifications of a sentencing order after thirty days from the date of
its entry. According to Miller, the trial court’s original sentencing order,
which designated that the Allegheny County Adult Probation Department
would supervise his probation, contained no clerical error, and thus the trial
court had no statutory authority to issue its July 6, 2011 order transferring
supervision responsibilities to the Pennsylvania Board of Probation and
Parole. Id. at 12. Review of a trial court’s jurisdiction to alter a judgment of
sentence presents a question of law, and thus our scope of review is plenary
and our standard of review is de novo. Commonwealth v. Borrin, 12 A.3d
466, 471 (Pa. Super. 2011), affirmed, 80 A.3d 1219 (Pa. 2013).
We cannot agree with Miller that the trial court lacked jurisdiction to
modify the terms of his probation. Subsection (a) of 42 Pa.C.S.A. § 9771,
entitled “Modification or revocation of order of probation,” provides as
follows:
(a) General rule.--The court may at any time
terminate continued supervision or lessen or increase
the conditions upon which an order of probation has
been imposed.
42 Pa.C.S.A. 9771(a). Pursuant to this provision, trial courts retain the
statutory authority to lessen or increase the probationary conditions “at any
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time.” In his appellate brief, Miller concedes, “State Probation is generally
more intensive than County Probation, and therefore amounts to a more
onerous sentence than County Probation.” Miller’s Brief at 8 n.2.
Consequently, subsection 9771(a) provided the trial court with authority to
increase the conditions of his probation through its issuance of the July 6,
2011 order.
Section 5505 has no application to sentencing orders imposing
probation. The limitation on modification of orders in section 5505 applies
only to final orders. See, e.g., Commonwealth v. Nicodemus, 636 A.2d
1118, 1120 (Pa. Super. 1993). As our Supreme Court has recognized,
however, because of subsection 9771(a), a probation order is not final but
rather “is conditional by its very nature.” Commonwealth v. Nicely, 638
A.2d 213, 217 (Pa. 1994). In Nicely, the Supreme Court, relying on
subsection 9771(a), found that the trial court had jurisdiction to modify the
terms of the appellee’s probation ten months after its entry to comply with a
newly enacted legislative mandate that persons on probation pay a monthly
fee to contribute to the cost of their supervision. Id.For the same reasons, we must reject the Commonwealth’s contention
that Miller’s Motion to Enforce Judgment of Sentence was an untimely PCRA
petition because it collaterally attacks the judgment of sentence but was
filed well after the one-year time bar in 42 Pa.C.S.A. § 9545(b).
Commonwealth’s Brief at 9. Subsection 9545(b) provides that PCRA
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petitions must be filed “within one year of the date the judgment becomes
final ….” 42 Pa.C.S.A. § 9545(b) (emphasis added). In accordance with
Nicely and subsection 9771(a), however, probation orders are not final but
rather conditional, and thus the time bar in subsection 9545(b) does not
begin to run at the time of their entry.
Order affirmed. Jurisdiction relinquished.
Fitzgerald, J. joins the Memorandum.
Mundy, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2014
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