Com. v. Schultz, P.

J-S60023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PETER J. SCHULTZ, JR.
Appellant No. 580 MDA 2014
Appeal from the Order Entered March 7, 2014
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000114-2012, CP-54-CR-0000117-
2012, CP-54-CR-0000655-2011, CP-54-CR-0000655-2011
BEFORE: OTT, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 27, 2015
Appellant, Peter J. Schultz, Jr., appeals from the March 7, 20141 order2
extending his participation in a State Intermediate Punishment (“SIP”)3
program for three months. We vacate and remand.
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1
The order on appeal was entered in the certified docket on March 7, 2014
rather than March 5, the date of Appellant’s hearing. We have amended the
caption accordingly.
2
The order is final and appealable because, as we explain below, it imposed
a new judgment of sentence.
3
61 Pa.C.S.A. §§ 4101-08. “SIP is a two-year program designed to benefit
persons with drug and alcohol problems.” Commonwealth v. Kuykendall,
2 A.3d 559, 560 (Pa. Super. 2010).
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The Commonwealth charged Appellant with multiple counts of
possession of a controlled substance, possession with intent to deliver,
delivery of a controlled substance, and possession of drug paraphernalia 4 at
the above-captioned criminal docket numbers. Appellant entered a
negotiated guilty plea, and on May 17, 2012, the trial court imposed a
sentence of 24 months of State Intermediate Punishment (“SIP”), with 59
days of credit for time served dating to March 20, 2012. On March 5, 2014,
shortly before the 24-month SIP sentence was set to expire, the trial court
found Appellant in violation of the program and therefore ordered him to
serve an additional three months. At the conclusion of the hearing, the trial
court issued the following order:
AND NOW, this 5th day of March 2014, upon
Motion of the Commonwealth, the Defendant’s
participation in the State Intermediate Punishment
Program is hereby extended for 3 months to allow
the defendant sufficient time to complete the
Program. In light of the defendant having consumed
alcohol on a home pass during the 3rd phase of his
SIP treatment [sic].
Order, 3/7/14.
Appellant filed a timely notice of appeal on April 2, 2014. He raises a
single issue: “Whether the Sentencing Court improperly revoked Appellant’s
participation in the State Intermediate Punishment Program without
providing him the opportunity to be represented by counsel.” Appellant’s
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4
35 P.S. § 780-113(a)(16), (30), (32).
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Brief at 4. In its Pa.R.A.P. 1925(a) opinion, the trial court concedes the
point and asks us to vacate the March 5, 2014 order and remand for a
hearing at which Appellant can be represented by counsel. Trial Court
Opinion, 4/10/14, at 1. Appellant would have us order him discharged
rather than remand for a hearing, as the term of his sentence has now
expired. The Commonwealth argues Appellant had no right to counsel at the
March 5, 2014 hearing, as it was simply a revocation hearing, and that we
should therefore affirm the trial court’s order.
Before we address the merits of Appellant’s argument and the trial
court’s request for a remand, we consider whether the trial court had
jurisdiction to enter the order on appeal. Pursuant to § 5505 of the Judicial
Code, the trial court cannot modify an order more than 30 days after its
entry. 42 Pa.C.S.A. § 5505. Absent a patent or obvious mistake in the
sentencing order, fraud, or other extreme circumstances justifying judicial
intervention, the trial court lacks jurisdiction to modify a final judgment of
sentence. Commonwealth v. Walters, 814 A.2d 253, 255-56 (Pa. Super.
2002), appeal denied, 831 A.2d 599 (Pa. 2003).
The trial court’s May 27, 2012 judgment of sentence imposed 24
months of SIP. In the March 7, 2014 order on appeal, the trial court
effectively extended the term of Appellant’s sentence to 27 months. Despite
language in the order indicating the contrary, the trial court did not revoke
Appellant’s SIP sentence. Rather, the trial court permitted Appellant to
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remain in SIP for an extra three months. Pursuant to § 5505, the trial court
had no jurisdiction to take such action. Id. at 256.5 This is so because the
record fails to reflect a patent or obvious mistake, fraud, or any other basis
for modifying the judgment of sentence outside the thirty-day period
specified in § 5505. Under these circumstances, the Walters Court held
that a modified sentencing order is void. Id. Though neither party briefed
this issue, this Court can raise a jurisdictional issue sua sponte.
Commonwealth v. Concordia, 97 A.3d 366, 371 (Pa. Super. 2014).
We observe that the trial court’s original judgment of sentence was in
accord with the SIP statute, which provides that the duration of an SIP
sentence “shall be 24 months . . . .” 61 Pa.C.S.A. § 4105(b) (emphasis
added). Nothing in the express terms of the SIP statute authorizes an SIP
sentence of lesser or greater duration than 24 months. Section 4105(b)
subsections (1) through (4) provide for the SIP participant to spend time in
a state correctional facility, a therapeutic community, an outpatient facility,
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5
On November 12, 2014, this Court received a supplemental record
indicating the trial court has revoked Appellant’s SIP sentence and sentenced
him to a term of incarceration in a judgment of sentence dated September
4, 2014. We remind the trial court and the parties that, pursuant to Rule
1701(a) of the Rules of Appellate Procedure, the trial court had no
jurisdiction to conduct further proceedings in this case during the pendency
of this appeal subject to the exceptions set forth in other subsections of Rule
1701. Pa.R.A.P. 1701(a), (b). Appellant has filed an appeal from the
September 4 judgment of sentence. We leave it to the panel assigned to
that appeal to discern the propriety of the proceedings that post-date the
instant appeal.
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and supervised reintegration into the community, respectively. 61 Pa.C.S.A.
§ 4105(b)(1)-(4). Likewise, § 4105(c) permits the Department of
Corrections “maximum flexibility” to move the participant back and forth
between and among the four phases of treatment identified in § 4105(b)(1)-
(4). Nothing in § 4105(c), however, expressly authorizes the Department of
Corrections to extend participation beyond the 24 months specified in
§ 4105(b).
Section 4105(f)(3), in tandem with § 9774 of the Sentencing Code,
provides that a trial court “shall” revoke the SIP sentence if the participant is
expelled from or fails to complete the program. 61 Pa.C.S.A. § 4105(f)(3);
42 Pa.C.S.A. § 9774.6 Here, the trial court acknowledged that Appellant
failed to complete the SIP program within the two-year period. N.T.
Hearing, 3/5/14, at 8.
The trial court explained the circumstances and reasoning behind its
order at the March 5, 2014 hearing:
Okay. So we received a letter. When I say
we, it was addressed to me, Judge Miller, because
I’m the one that approved you for the SIP Program
on February 22 of 2012.
They’ve indicated that they’re willing to have
you continue in the program, even though when you
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6
We observe that § 9774 provides only for revocation of an SIP sentence,
in contrast with § 9771 of the Sentencing Code, which provides for
revocation or modification of a probationary sentence. See 42 Pa.C.S.A.
§ 9771.
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were issued a home pass during the third phase of
the SIP treatment, you consumed alcohol while on
the pass, and you were issued a misconduct. As part
of the discipline process, you were reassessed and
returned to SIP level 1 to start over in treatment in
an institutional therapeutic community. They’ve
indicated you’ve done well in treatment since then,
but the three months[’] sentence extension is
needed to allow you sufficient time to complete a
minimum of six months treatment through the
community based outpatient treatment program.
If they didn’t grant you this extension, then
you’d be back here; and we’d be revoking you from
the program; and we’d have to do an evaluation as
to what a recommended sentence would be. But
that’s not the case. They’re recommending that you
continue in the program, and don’t violate any terms
of the program again, so that you can continue and
complete the program.
N.T. Hearing, 3/5/14, at 3-4.
Our research has uncovered no case law governing a trial court’s
authority to modify an SIP sentence to extend beyond the statutorily
prescribed 24-month period. The parties have not briefed this issue (indeed,
the argument section of Appellant’s Brief contains no citation to any legal
authority), and the trial court did not address it. We therefore decline to
opine on an apparent question of first impression without the benefit of
briefs or argument.
Next, we address Appellant’s argument that we should order him
discharged, inasmuch as the term of his sentence is now expired. We
disagree. In Kuykendall, the defendant appealed his sentence of
imprisonment after the trial court revoked his SIP participation.
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Kuykendall, 2 A.3d at 550. The defendant argued the trial court erred
because, despite the defendant’s various violations, the 24-month SIP term
expired prior to re-sentencing. Id. at 563. This Court disagreed. “[T]he
two-year SIP sentence requires successful completion of the program
through a systematic satisfaction of all phases of the SIP program.” Id.“[Defendant] did not successfully navigate his way through the SIP; thus, he
cannot assert that he completed his SIP sentence.” Id. at 563-64. Here, as
in Kuykendall, Appellant failed to complete his SIP sentence successfully by
the end of the 24-month term of the sentence. We therefore decline
Appellant’s request to order his discharge.
Finally, since we have decided to vacate and remand on a jurisdictional
issue, we need not address the parties’ arguments concerning Appellant’s
right to counsel. The trial court has already decided to appoint counsel to
represent Appellant on remand, and nothing in the law prevents it from
doing so.
Based on all of the foregoing, we vacate the trial court’s order and
remand for further proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2015
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