Com. v. Fletcher, S.

J-A24013-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEPHANIE LOUISE FLETCHER :
:
Appellant : No. 1300 WDA 2019
Appeal from the Judgment of Sentence Entered July 26, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005007-2016
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 07, 2020
Appellant, Stephanie Louise Fletcher, appeals from the judgment of
sentence of five to ten years’ incarceration, followed by three years’ probation,
imposed after her probation was revoked due to her committing a new criminal
offense. Appellant challenges the legality and discretionary aspects of her
sentence on appeal. After careful review, we vacate Appellant’s judgment of
sentence and remand for further proceedings.
On January 18, 2017, Appellant pled guilty to possession of a firearm
by a person prohibited, 18 Pa.C.S. § 6105, and possession of a controlled
substance, 35 P.S. § 780-113(a)(13). She was sentenced to serve a term of
incarceration of one year less one day, to two years less two days. The court
also imposed a consecutive term of probation. Appellant was ultimately
released on parole, and she began serving her term of probation.
J-A24013-20
While on probation, Appellant was arrested and convicted of retail theft.
On July 26, 2019, the court held a probation revocation hearing in the present
case. At the close thereof, the court revoked Appellant’s probationary
sentence and resentenced her to the above-stated, aggregate term of
incarceration and probation. In its sentencing order, the court set forth that
Appellant would receive 406 days’ credit for time served.
Appellant thereafter filed a timely notice of appeal, and she also filed a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
However, on September 4, 2019, Appellant also filed an untimely, pro se
motion for reconsideration of her sentence, contending, inter alia, that the
court had failed to give her full credit for time she had served in this case. On
October 24, 2019, the court filed a corrected sentencing order, affording
Appellant credit for the time served that she requested in her post-sentence
motion. Additionally, the court filed a Rule 1925(a) opinion on November 21,
2019.
Herein, Appellant states two issues for our review, which we reorder for
ease of disposition:
1. Was the [five] to [ten] year probation violation sentence
imposed on Appellant manifestly excessive, given that the
conviction that violated her probation was a low-level offense
(retail theft), given that she suffered from both Bipolar Disorder
and drug addiction, and given that her successful rehabilitative
efforts while in the Allegheny County Jail suggested that a lesser
confinement sentence was appropriate?
2. Was the [five] to [ten] year probation violation sentence
imposed on Appellant for a second[-]degree felony an[] illegal
sentence, pursuant to Commonwealth v. Infante, 63 A.3d 358-2-
J-A24013-20
(Pa. Super. 2013), and Commonwealth v. Williams, 662 A.2d
658 (Pa. Super. 1995), owing to the … court’s failure to credit
Appellant for all time spent in custody in her case?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
Appellant’s first issue challenges the discretionary aspects of her
sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
-3-
J-A24013-20
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
In this case, Appellant filed a timely notice of appeal, and she has
included a Rule 2119(f) statement in her brief. Therein, she contends that
her sentence is manifestly excessive because: her criminal history involves
mostly non-violent crimes; the crime she committed while on probation was
retail theft; she has mental health and drug addiction issues; “[s]he
demonstrated during her pre-violation confinement, the ability to do well while
on probation”; and “there [is] little need to protect the public from her.”
Appellant’s Brief at 15. However, our review of the record confirms that
Appellant did not preserve this sentencing claim in a timely-filed post-
sentence. As set forth, supra, Appellant was sentenced on July 26, 2019, yet
she did not file a motion for reconsideration of her sentence until September
4, 2019. Moreover, that motion was filed pro se, despite that Appellant was
represented by counsel, and it was also filed after counsel had filed a notice
of appeal. Therefore, Appellant failed to preserve her sentencing claim for our
review.1
____________________________________________
1 In any event, we would conclude that no sentencing relief is due for the
reasons set forth by the trial court in its Rule 1925(a) opinion. See Trial Court
Opinion (TCO), 11/21/19, at 6-16. Therein, the court explains that, despite
Appellant’s lengthy criminal history, it had originally given her a lenient
sentence to provide her with one last opportunity to rehabilitate herself. The
court repeatedly warned Appellant that this was her final chance to change
and that, if she reoffended, it would impose a lengthy sentence of
incarceration. Appellant ignored these warnings and committed a new crime
-4-
J-A24013-20
In Appellant’s second sentencing claim, she avers that the court
imposed an illegal sentence by not giving her full credit for time she has served
in this case. In the court’s Rule 1925(a) opinion, it concedes that it erred in
this regard, but concludes that Appellant’s issue on appeal is moot because it
“entered an order to rectify that error on September 27, 2019….”2 TCO at 16.
Appellant, however, insists that the amended sentencing order is a legal nullity
— and, thus, her sentence remains illegal — because she filed a notice of
appeal on August 23, 2019. Appellant avers that her filing of an appeal
divested the trial court of jurisdiction to enter the corrected sentencing order.
We are compelled to agree with Appellant. Initially, we observe that a
question “regarding the power of courts to correct allegedly illegal sentencing
orders absent jurisdiction pursuant to 42 Pa.C.S. § 5505 or the [Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546,] is a question of law.
Accordingly, our scope of review is plenary and our standard of review is de
novo.” Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007) (citation
omitted). Additionally, we have explained that,
____________________________________________
while serving her probation in this case. Consequently, the court resentenced
her to the lengthy term of imprisonment it had promised. Given these
circumstances, we would discern no manifest abuse of discretion in the court’s
decision. See Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.
Super. 2006) (“Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on appeal absent
a manifest abuse of discretion.”).
2The docket indicates that the court’s amended sentencing order was filed on
October 24, 2019, not September 27, 2019.
-5-
J-A24013-20
“[t]rial courts have the power to alter or modify a criminal
sentence within thirty days after entry, if no appeal is
taken.” Commonwealth v. Quinlan, … 639 A.2d 1235, 1238
([Pa. Super.] 1994) (citing 42 Pa.C.S.[] § 5505). “Generally, once
the thirty-day period is over, the trial court loses the power to
alter its orders.” Id. (citation omitted). Once an appeal is taken,
the trial court loses jurisdiction to modify its sentence. Id. (citing
Pa.R.A.P. 1701(a)).
“Exceptions to these general rules exist ....” Id. The court
has the inherent 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….” Id. at 1239 (citation omitted). “This inherent power of
the court to correct obvious and patent mistakes is not eliminated
by the expiration of the thirty-day appeal period.” Id. (citation
omitted).
Commonwealth v. Johnson, 860 A.2d 146, 152 (Pa. Super. 2004) (citation
omitted; emphasis added), disapproved of on other grounds by
Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007) (en banc).
In Commonwealth v. Klein, 781 A.2d 1133 (Pa. 2001), our Supreme
Court found that the trial court had the power to correct a time-credit error in
its original sentencing order, even though it no longer had jurisdiction over
Klein’s case. There, at the sentencing hearing,
the trial court made clear that its intent was that [Klein] would
serve one month in prison. In order to accomplish this, it
sentenced [Klein] to time served, 33 days, to twelve months
based upon the erroneous record supplied by the York County
prison. It then corrected this mistake at the June 30th
[re]sentencing hearing, by essentially issuing the same sentence,
but crediting [Klein] with only one day for time served.
Id. at 1135. Our Supreme Court held that, “[w]hile normally a court would
not be permitted to take such action once it was divested of jurisdiction
pursuant to [42 Pa.C.S.] § 5505, we find that under the limited circumstances
-6-
J-A24013-20
of this case, the court could take further action in this matter since it was
merely correcting a patent defect or mistake in the record.” Id.
In this case, unlike in Klein, there was no patent or obvious error in the
court’s July 26, 2019 sentencing order. Therein, the court provided Appellant
406 days’ credit for time previously served, which correlated with the
information provided to the court at Appellant’s sentencing hearing. See N.T.
Revocation/Resentencing, 7/29/19, at 16. Thus, when the court amended the
sentencing order to change Appellant’s time-credit to 772 days, it was not
correcting a patent mistake in the record or an obvious error in its original
sentencing order. Instead, it was wholly changing Appellant’s sentence,
seemingly in light of the information provided by Appellant in her untimely,
pro se post-sentence motion. We must agree with Appellant that the court’s
effort to change her time-credit, where it lacked jurisdiction over her case,
exceeded its inherent power to correct patent and obvious mistakes in the
sentencing order.
Accordingly, Appellant’s sentence is illegal to the extent that she has not
been afforded full credit for time served. See Commonwealth v. Gibbs, 181
A.3d 1165, 1166 (Pa. Super. 2018) (“A claim asserting that the trial court
failed to award credit for time served implicates the legality of the sentence.”).
Therefore, while we reject Appellant’s claim that her sentence is manifestly
excessive, we vacate her judgment of sentence and remand for the court to
issue a new sentencing order that sets forth the correct amount of credit for
time served by Appellant.
-7-
J-A24013-20
Judgment of sentence vacated. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2020
-8-