Commonwealth v. Quinlan

KELLY, Judge:

In his appeal from the March 30,1993 order denying PCRA relief, appellant asks us to determine whether the trial court erred when it entered an order on November 29, 1990, sentencing appellant to probation but making that order retroactive to May 20,1988, the date on which appellant was originally sentenced, ostensibly to correct a clerical error. The PCRA court held that the belated imposition of a probation period and its subsequent revocation were proper. Because the facts of this case and the relevant law compel a different conclusion, we reverse.

We set forth the relevant facts and procedural history of this case as follows. On May 20,1988, the original sentencing court sentenced appellant to eleven and one-half to twenty-three months in the Erie County jail on eighteen counts of forgery¹ and related charges. The transcript of the May 20, 1988 sentencing proceedings before the Honorable William E. Pfadt states that, as part of the same sentence, appellant’s term of incarceration was to be followed by a five-year probation period. However, the signed written order embodying appellant’s sentence makes no mention of the five-year probation period. In August, 1988, the same sentencing court placed appellant on parole for the unexpired portion of the maximum term of his imprisonment. Again, no mention of the five-year probation period appears in the written order of parole. Without incident, appellant served out his term of parole which expired in April, 1990.

On September 28, 1990, five months after appellant’s parole had expired, he was arrested on new charges of forgery, theft by deception and receiving stolen property, charges substantially similar to those prosecuted against him in 1988. These offenses were construed as “probation” violations; consequently, appellant was detained. His detainer was extended by the Honorable Shad Connolly, pending appellant’s preliminary hearing on the new charges and probation revocation proceedings. The court denied appellant’s petition for dispensation of the detainer which he sought on the grounds that (1) no order of probation existed in his case; (2) he was not, in fact, serving a probationary term; and (3) therefore, the detainer was unlawful. In response, on November 29, 1990, Judge Connolly entered a written order of probation,² dating that order retroactive to May 20, 1988. Thereafter, appellant sustained revocation of probation and a sentence of one to three years incarceration. Appellant’s motion to modify his sentence was denied. A timely appeal was also filed but later withdrawn.³ Nevertheless, at each stage of his proceedings, appellant challenged, as unlawful, the detainer and belated order of probation.

Appellant filed a pro se petition for post conviction relief under 42 Pa.C.S.A. § 9543 on January 16, 1992. The petition was amended, with the assistance of court-appointed counsel, on March 27, 1992. The PCRA court denied relief on March 30, 1992. This timely appeal followed.

Appellant raises the following issues for our review:

1. WHETHER THE LOWER COURT ERRORED [sic] IN DETERMINING PROBATIONARY ORDER ENTERED ON NOVEMBER 29,1990 BUT DATED MAY 20,1988 WAS VALID AND SUBSEQUENT REVOCATION OF SAME AND IMPOSITION OF JAIL TIME ALSO VALID?

2. WHETHER THE LOWER COURT COMMITTED A VIOLATION OF DOUBLE JEOPARDY IN ENTERING A PROBATIONARY ORDER AT A DOCKET NUMBER WHERE THE ORIGINAL SENTENCE HAD ALREADY EXPIRED?

Appellant’s Brief at 3.

Essentially, appellant’s position is that the trial court erred when it authorized detainer, pursuant to alleged violations of a probation order which did not exist, and then entered a belated probation order made retroactive to May 20, 1988, to justify the detainer. Therefore, appellant concludes, all consequences flowing from the belated probation order are a nullity. We agree because the trial court had no authority to detain appellant pursuant to a non-existent probation order or to enter a belated probation order to justify the detainer, after appellant had served his sentence, as that sentence had been embodied in two written court orders. Furthermore, appellant’s pursuit of relief is cognizable under the Post Conviction Relief Act because appellant’s primary grievance is with the trial court’s imposition of probation. The trial court had neither the jurisdiction nor the authority to impose probation in the fashion employed in this case. Consequently, appellant’s petition merits relief.

An inquiry into the validity of a sentence is a question as to the legality of the sentence, a non-waivable matter. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Ford, 315 Pa.Super. 281, 296, 461 A.2d 1281, 1289 (1983). An issue of double jeopardy which involves the illegality of a sentence is also a non-waivable issue; even if raised for the first time in a petition for post-conviction relief. Commonwealth v. Staples, 324 Pa.Super. 296, 471 A.2d 847 (1984). As well, 42 Pa.C.S.A. § 9543, which defines the eligibility requirements for PCRA relief, provides that a person may be eligible for PCRA relief if a sentence results from a proceeding in a tribunal without jurisdiction. 42 Pa.C.S.A. § 9543(a)(2)(viii); Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989).

Trial courts have the power to alter or modify a criminal sentence within thirty days after entry, if no appeal is taken. 42 Pa.C.S.A. § 5505; Commonwealth v. Kotz, 411 Pa.Super. 319, 601 A.2d 811 (1992). Generally, once the thirty-day period is over, the trial court loses the power to alter its orders. Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985). Also, when an appeal is taken, the trial court has no jurisdiction to modify its sentence. Pa. R.A.P. 1701(a); Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984).

Exceptions to these general rules exist such that, once an appeal is taken, the trial court may still have authority to proceed further in the matter. Pa.R.A.P. 1701(b). For example, the trial court may reconsider its sentence, so long as a motion for reconsideration was timely filed with, Pa.R.A.P. 1701(b)(3)(i), and expressly granted by the trial court within the thirty-day time limit prescribed for filing a notice of appeal, Pa.R.A.P. 1701(b)(3)(ii). Commonwealth v. Gordon, supra.

The power to modify a sentence in order to amend records, to correct mistakes of court officers or counsel’s inadvertencies, or to supply defects or omissions in the record is inherent in our court system. Commonwealth v. Fiore, 341 Pa.Super. 305, 491 A.2d 276 (1985). A sentencing court can, sua sponte, correct an illegal sentence originally imposed, even after the defendant has begun serving the original sentence. Commonwealth v. Jones, 520 Pa. 385, 554 A.2d 50 (1989). Where an initial punishment was procured by fraud, the trial court may decrease or increase the initial sentence. Id.; Commonwealth v. Meyer, 169 Pa.Super. 40, 82 A.2d 298 (1951). This inherent power of the court to correct obvious and patent mistakes is not eliminated by the expiration of the thirty-day appeal period. Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970). In Cole, the Pennsylvania Supreme Court explained that an order granting both a new trial and an arrest of judgment was clearly contradictory; thus, the original order was patently erroneous and could be corrected even after the thirty days had passed. Id.

An omission from an original sentence, however, is not a patent error per se. Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). In Cooper, the omission of drug therapy as a condition of parole was not considered a patent or obvious mistake even though noted at the sentencing hearing; thus, the sentence which was amended to include the parole condition and imposed more than thirty days after sentencing was unlawful and a nullity. Id. See also, Commonwealth v. Martin, supra (trial court lacked jurisdiction to modify a sentence, once the thirty-day period for filing an appeal has passed; i.e., the court lacked jurisdiction to make a concurrent sentence into a consecutive sentence five months after the original concurrent sentence had been entered); Bailey v. Commonwealth of Pennsylvania Board of Probation and Parole, 140 Pa.Cmwlth. 108, 591 A.2d 778 (1991) (common pleas court order, entered eleven to twelve months after entry of original order, retroactively modifying date on which parolee was released from county sentence, and consequently became available to begin serving back time, was a “nullity” under 42 Pa.C.S.A. § 5505).

Well-settled Pennsylvania law permits the Commonwealth to pursue a correction, modification or increase in the originally imposed sentence because no sentence is final until the right of appellate review has been exhausted or waived. Commonwealth v. Fitzhugh, 360 Pa.Super. 217, 520 A.2d 424 (1987), appeal denied, 515 Pa. 598, 528 A.2d 955 (1987); Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982). However, the rule which provides that a motion to modify a sentence must be filed with the sentencing court prior to obtaining appellate review of the sentence applies to the Commonwealth and a failure to comply with the rule constitutes a waiver of the right to appellate review. Pa.R.Crim.P. 1410; Commonwealth v. Rainey, 338 Pa.Super. 560, 488 A.2d 34 (1985); Commonwealth v. Bossche, 324 Pa.Super. 1, 471 A.2d 93 (1984); Commonwealth v. Anderson, supra. Thus, the power of the sentencing court to correct “clerical errors” regarding a sentence is bounded by considerations of timeliness on the part of the trial court, see 42 Pa.C.S.A. § 5505, and on the part of the aggrieved party, see Pa.R.Crim.P. 1410. Commonwealth v. Kubiac, 379 Pa.Super. 402, 421-22, 550 A.2d 219, 229 (1988), appeal denied, 522 Pa. 611, 563 A.2d 496 (1989).

Under Commonwealth v. Foster, 229 Pa.Super. 269, 324 A.2d 538 (1974) and its progeny, the general rule is: “Oral statements made by the judge in passing sentence, but not incorporated in the written sentence signed by [the sentencing judge], are not part of the judgment of sentence.” See also Commonwealth v. Vanderlin, 398 Pa.Super. 21, 580 A.2d 820 (1990) (quoting Commonwealth v. Green, 232 Pa.Super. 555, 557-58, 335 A.2d 392, 393 (1975), quoting United States ex rel. Speaks v. Brierley, 417 F.2d 597, 600 (3d Cir.1969), certiorari denied, 397 U.S. 1051, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970)) (“a sentence, like any other judgment, is to be construed so as to give effect to the intention of the sentencing judge and that to determine this intention, the court will limit itself to the language of the [written, signed and recorded judgment of sentence] despite oral statements of the sentencing judge which are not incorporated in it”); Commonwealth v. Hodge, 246 Pa.Super. 71, 81, 369 A.2d 815, 820 (1977) (an oral pronouncement of sentence is not a “sentence imposed” until incorporated in a signed written judgment). In Commonwealth v. Vanderlin, supra, the trial court recognized a sentencing error before the sentencing orders were reduced to a writing, signed and filed with the Prothonotary; the court contacted the parties and timely reconvened to rectify the sentencing error. Id, 398 Pa.Super. at 40, 580 A.2d at 830. In Commonwealth v. Hodge, supra, the sentencing court imposed sentences on some charges and suspended sentences on the remaining charges. Immediately, the prosecution urged the court to sentence the defendant on all charges. The sentencing court complied with this request. On appeal, this Court held that the revised sentencing on all charges did not constitute a violation of the Double Jeopardy Clause⁴ of the Fifth Amendment because the first oral pronouncement of sentence was not a “sentence imposed.” See also Commonwealth v. Sutton, 400 Pa.Super. 291, 583 A.2d 500 (1990), appeal denied, 528 Pa. 610, 596 A.2d 156 (1991) (remand for resentencing on all counts, where sentence on only one count had been appealed, did not violate double jeopardy clause, where aggregate sentence on resentencing did not exceed aggregate original sentence); Commonwealth v. Grispino, 361 Pa.Super. 107, 521 A.2d 950 (1987), appeal denied, 516 Pa. 617, 581 A.2d 1119 (1987) (sentence challenged on appeal by the Commonwealth may be increased without offending principles of double jeopardy).

Instantly, appellant’s sentence of eleven and one-half months to twenty-three months, as originally written, signed and recorded on May 20, 1988, is not challenged as illegal, patently contradictory, or fraudulently procured. Thus, the rules requiring timely modification of the sentence control. See 42 Pa.C.S.A. § 5505, Pa.R.Crim.P. 1410; Pa.R.A.P. 1701. No attempt was made by the Commonwealth, in this case the aggrieved party, to correct any inconsistency between the oral and written sentencing orders for over two years and five months, long after appellant’s parole was completed. The Commonwealth was obligated to petition for modification of the written sentence or suffer waiver of the issue. See Commonwealth v. Isabell, supra. Accordingly, as no order of probation existed when appellant was detained in September, 1990, the court was without jurisdiction to detain appellant for alleged violations of the non-existent probation order.

Likewise, the court was without authority to enter an order of probation on November 29,1990, making the order retroactive to May 20, 1988, assertedly to correct a “clerical error” in appellant’s original sentencing and parole orders, both of which were written, signed, recorded, and unchallenged. The time for modification of the sentence had long passed. Neither the order entering judgment of sentence nor the order of parole mentions a term of probation. The presumption that the written sentencing order is what the sentencing judge intended increases with the length of time that the written sentencing order goes unchallenged. See Commonwealth v. Thomas, 219 Pa.Super. 22, 280 A.2d 651 (1971). Therefore, a successor court which reaches back two and one-half years and allows the transcript of the sentencing proceeding to trump two written, signed, recorded, and unappealed orders acts without authority of either rule or case law. Accordingly, we conclude that the order of probation and all consequences flowing therefrom are a nullity. Appellant’s petition for post conviction relief should be granted.⁵ The retroactive probation order was erroneously entered and cannot justify an otherwise unlawful detainer. Hence, we reverse the trial court’s order denying appellant PCRA relief.

Order reversed.

POPOVICH, J., filed a dissenting opinion.

1 . 18 Pa.C.S.A. § 4101.

2 . The Honorable William E. Pfadt had retired from the bench prior to this time. Appellee’s Brief at 3.

3 . Appellant’s court-appointed counsel withdrew the appeal. The reason for the withdrawal is unclear. The record states that counsel withdrew the appeal because the verified statement was not correct and counsel was uncertain whether to pursue the appeal. Appellant claims he expected the appeal to go forward. Counsel asserts that he withdrew the appeal on appellant’s directive. In any event, there does not appear to be any outstanding appeal in this matter, as the Commonwealth has suggested.

4 . The protections afforded by the Double Jeopardy Clause of the United States Constitution and the Pennsylvania Constitution are coextensive, involving the same meaning, purpose and end. Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988); Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986). This clause protects against multiple prosecutions for the same offense after acquittal and against multiple punishments for the same crime. Commonwealth v. Arriaga, 422 Pa.Super. 52, 618 A.2d 1011 (1993); Commonwealth v. Rightley, 421 Pa.Super. 270, 617 A.2d 1289 (1992). An order placing a defendant on probation is a punishment for double jeopardy purposes. Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702 (1992). The "expectation of finality” inherent in double jeopardy considerations is present once an appeal is concluded or the time for appeal has expired. Commonwealth v. Jones, supra (citing United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)); see also Commonwealth v. Sojourner, supra.

5 . In the present case, appellant challenges the retroactive imposition of probation, principally, and all proceedings incident thereto. As such, Commonwealth v. Grier, 410 Pa.Super. 284, 599 A.2d 993 (1991), appeal denied, 530 Pa. 639, 607 A.2d 250 (1992) (holding that a challenge to probation revocation is not cognizable under 42 Pa.C.S.A. § 9543, the Post Conviction Relief Act) is inapposite.