Commonwealth v. Ellsworth

J-S50041-14
2014 Pa. Super. 167
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES JOSEPH ELLSWORTH,
Appellant No. 480 WDA 2014
Appeal from the Order entered February 27, 2014,
in the Court of Common Pleas of Erie County,
Criminal Division, at No(s): CP-25-CR-0000659-2010
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.
OPINION BY ALLEN, J.: FILED AUGUST 12, 2014
pro se from the order
docket]. As such,
2/27/14.
The trial court explained:
[A]ppellant pled guilty to burglary on July 2, 2010 at
Docket 569 - 2010. On September 22, 2010, he was sentenced
to serve a period of incarceration of 2½ to 60 months. At that
time he was given credit for 312 days. [A]ppellant did not file a
post-sentencing motion, nor did he take a direct appeal. On
February 27, 2014, this Court received a letter from the
Commonwealth of Pennsylvania Department of Corrections, a
copy of which is attached. At that time the Department of
Corrections advised this Court that it had awarded backtime
credit for the period of March 12, 2010 to October 18, 2010 for a
J-S50041-14
state parole revocation at Docket 2634 2006. As such, it was
inquiring of this Court whether double credit should be applied,
which is not authorized. See, 42 Pa.C.S.A. § 9760.
As has been the Department of Corrections policy for some
time, it requested that this Court issue an order if it did not want
[A]ppellant to obtain duplicate credit. After its review, this Court
agreed and issued the February 27, 2014 Order.
Trial Court Memorandum Opinion, 4/10/14, at 1.
pro se
credit for time served. Ap
defendant who is already serving a sentence at the time of sentencing on
the lower court in its Memorandum Opinion, dated April 10, 2014, in which it
relied upon Commonwealth v. Lloyd
The trial court stated:
Pursuant to [42 Pa.C.S.A. § 9760], [A]ppellant is not
entitled to duplicate credit for time spent in custody. See,
Commonwealth v. Lloyd, 509 A.2d 868, 872 (Pa. Super. 1986).
Moreover, a trial court always has the ability to correct an illegal
sentence. In this case, awarding [A]ppellant credit to which he
is not entitled would violate § 9760. As credit issues can relate
to the legality of a sentence, this Court acted within its authority
when it issued the February 27, 2014 Order. Finally, the
[A]ppellant has not suffered any harm as he cannot claim a right
to credit to which he is not entitled.
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J-S50041-14
Trial Court Memorandum Opinion, 4/10/14, at 2.
Appellant relies upon 42 Pa.C.S.A. § 5505, which provides for
modification of orders as follows:
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.
the thirty-day modification period. Jones v. Department of Corrections,
683 A.2d 340, 342 (Pa. Cmwlth. 1996) (citation omitted). An alleged error
must qualify as a clear clerical error or a patent and obvious mistake in
order to be amenable to correction. Commonwealth v. Borrin, 12 A.3d
466, 473 (Pa. Super. 2011).
Here, we conclude that the duplicative imposition of credit for time
served constituted a patent and obvious mistake that was amenable to
correction.
credit against mor
Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa. Super. 1996). We
statutory language of Section 9760 and by the principle that a defendant be
for a particular offense
Commonwealth v. Hollawell, 604 A.2d at 723, 725 (Pa. Super. 1992).
Finally, it is noteworthy that the Department of Corrections, an executive
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J-S50041-14
agency, has no power to change sentences, or to add or remove sentencing
conditions, including credit for time served; this power is vested with the
sentencing court. Commonwealth v. Mann, 957 A.2d 746 (Pa. Super.
2008).
Given the foregoing, we expressly hold that the duplicative imposition
of credit for time served constitutes a patent and obvious mistake that is
amenable to correction after the thirty-day period prescribed in 42 Pa.C.S.A.
§ 5505. We agree with the Commonwealth and the trial court that the
February 27, 2014 order denying Appellant credit for time served was
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2014
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