Com. v. Schier, B.

J-A19044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN SCOTT SCHIER :
:
Appellant : No. 482 EDA 2020
Appeal from the Judgment of Sentence Entered January 3, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002008-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN SCOTT SCHIER :
:
Appellant : No. 483 EDA 2020
Appeal from the Judgment of Sentence Entered January 3, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003088-2018
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 04, 2020
Brian Scott Schier (Appellant) takes these consolidated appeals from the
judgments of sentence entered in the Chester County Court of Common Pleas,
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following the revocation of his parole.1 Appellant’s counsel, Deborah Brown,
Esquire, (Counsel), has filed a petition to withdraw from representation and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We deny Counsel’s
petition and remand for the trial court to file a supplemental opinion.
We first note the certified record does not include any transcripts from
the proceedings, and upon informal inquiry by this panel, the trial court
responded it did not have any in its possession. We glean the following
procedural history from the certified record. On February 6, 2019, Appellant
appeared before the Honorable David Bortner and pleaded guilty to a third
offense of driving under the influence2 (DUI) at trial docket CP-15-CR-
0002008-2018 (Docket 2008). The court imposed a sentence of one to two
years’ imprisonment, and set an RRRI-minimum sentence of nine months.3
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1 Appellant filed separate notices of appeal at each of his two trial dockets.
Thus, Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), is not
implicated. See id. at 977 (pursuant to Pa.R.A.P. 341(a), “when a single
order resolves issues arising on more than one lower court docket, separate
notices of appeal must be filed”). The two appeals were consolidated by this
Court on April 2, 2020.
2 75 Pa.C.S. § 3802(d)(2) (under the combined influence of alcohol and a
drug). See Sentencing Sheet, Docket 2008, 2/6/19 (stating this is Appellant’s
third DUI offense).
3See 61 Pa.C.S. §§ 4501-4512 (recidivism risk reduction incentive). This
Court has explained:
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The sentencing sheet stated the trial court and the Commonwealth did not
object to Appellant serving this sentence at Chester County Prison. 4 The court
paroled him that same day. Order, Docket 2008, 2/6/19.
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[O]ffenders eligible for the RRRI program are sentenced to the
minimum and maximum sentences under 42 Pa.C.S. § 9752, and
then receive the RRRI minimum sentence, which constitutes
three-fourths of a minimum sentence of three years or less . . . .
See 61 Pa.C.S. § 4505(c). After the defendant serves the RRRI
minimum sentence, the Pennsylvania Board of Probation and
Parole assesses the defendant’s progress in RRRI programs, along
with other factors, and determines whether the defendant shall be
paroled. 61 Pa.C.S. § 4506. A trial court is required, by statute,
to determine if a defendant is eligible for an RRRI minimum
sentence. See 42 Pa.C.S. § 9756 (b.1).
Commonwealth v. Pardo, 35 A.3d 1222, 1224 n.3 (Pa. Super. 2011).
4 See Sentencing Sheet, Docket 2008 (“*Court/CW has no objection to
sentence being served @ CCP”); Trial Docket, Docket 2008 at 5
(“Court/Commonwealth has no objection to sentence being served @ Chester
County Prison.”).
However, we note Subsection 9762(b) of the Pennsylvania Sentencing
Code generally provides that unless certain conditions are fulfilled, sentences
with a maximum terms of two years or more shall be served in state prison,
while only sentences with a maximum term of less than two years may be
served in county prison:
[(b)](2) Maximum terms of two years or more but less than
five years shall be committed to the Department of Corrections for
confinement, except upon a finding of all of the following:
(i) The chief administrator of the county prison, or the
administrator’s designee, has certified that the county prison
is available for the commitment of persons sentenced to
maximum terms of two or more years but less than five years.
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Also on the same day, Appellant pleaded guilty to criminal use of a
communication facility5 (CUCF) at trial docket CP-15-CR-0003088-2018
(Docket 3088). The trial court sentenced him to 221 days to 23 months and
one day’s incarceration, to run concurrently with the sentence at Docket
2008.6 Appellant did not file a post-sentence motion at either docket.
Twenty-two days later, on February 28, 2019, the trial court sua sponte
amended Appellant’s sentence at Docket 3088 (CUCF). It appears the sole
modification to the sentence was the additional condition, “Sentence may be
served at CCP at Warden’s discretion.” Amended Sentencing Sheet, Docket
3088, 2/28/19.
The following procedural history pertains to Docket 2008 (DUI). On
April 12, 2019, Appellant, although represented by counsel, submitted a pro
se “Petition for Good Time.” The motion stated: (1) the trial court had
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(ii) The attorney for the Commonwealth has consented
to the confinement of the person in the county prison.
(iii) The sentencing court has approved the confinement
of the person in the county prison within the jurisdiction of
the court.
(3) Maximum terms of less than two years shall be committed
to a county prison within the jurisdiction of the court.
42 Pa.C.S. § 9762(b)(2)-(3).
5 18 Pa.C.S. § 7512(a).
6 There was no immediate parole order at Docket 3088.
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sentenced him “to a 1 to 2 year State sentence to be served in the Chester
County Prison;” (2) the court also set a RRRI-minimum sentence of nine
months; (3) the Chester County Prison did not offer a RRRI program; and (4)
Appellant has received no disciplinary infractions. Appellant’s Petition for
Good Time, 4/12/19, at 2 (unpaginated). Appellant thus requested that
“instead of RRRI Eligibility[,] he be granted Good Time” so that he may be
released. Id. The corresponding docket entry for this motion indicates the
pro se petition was served on the trial court, Appellant’s counsel, and the
Commonwealth.7 The Docket 2008 trial docket also includes an entry for a
counseled May 14, 2019, “Motion for Parole,” but the motion itself is not
included in the certified record.
On May 28, 2019 — more than three and a half months after sentencing
on February 2, 2019 — the trial court entered an order, which: (1) stated
Appellant and the Commonwealth agree the sentence is illegal; and (2)
ordered Appellant to be resentenced “in accordance with the negotiated
sentencing agreement.” Order, Docket 2008, 5/28/19. However, the order
does not explain why the sentence was illegal. An amended sentencing sheet
issued that same day set forth a new imprisonment term of 11 months and
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7 See Pa.R.Crim.P. 576(A)(4) (where represented defendant submits pro se
filing, the clerk of courts shall, inter alia, accept it for filing, make a docket
entry reflecting the date of receipt; copy of filing shall be forwarded to the
defendant’s attorney and Commonwealth within 10 days).
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29 days to 23 months and 29 days.8 Amended Sentencing Sheet, Docket
2008, 5/28/19. We note the new minimum and maximum terms were each
approximately one day less than the original terms (1 year and 2 years,
respectively). The amended sentencing sheet also provided Appellant was
immediately eligible for parole.
On December 12, 2019,9 Appellant’s parole officer filed a petition for a
bench warrant, which was granted. According to Counsel’s Anders brief,
Appellant was arrested on December 17th, and the trial court conducted a
Gagnon I hearing on December 23, 2019, and a Gagnon II hearing on
January 3, 2020.10 Anders Brief at 6. Counsel entered her appearance on
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8 The amended sentence also omitted any minimum RRRI sentence.
9 For ease of review, we note that while the petition for a bench warrant was
signed December 10, 2019, and the accompanying trial court order was dated
December 11th, the order was entered on the trial docket on December 12th.
10 See Gagnon v. Scarpelli, 411 U.S. 778 (1973). This Court has explained:
When a parolee or probationer is detained pending a revocation
hearing, due process requires a determination at a pre-revocation
hearing, a Gagnon I hearing, that probable cause exists to
believe that a violation has been committed. Where a finding of
probable cause is made, a second, more comprehensive hearing,
a Gagnon II hearing, is required before a final revocation decision
can be made.
Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000)
(citations omitted).
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January 3, 2020.11 At the Gagnon II hearing, the Honorable Robert Shenkin
revoked parole at both dockets. At Docket 2008 (DUI), the court recommitted
Appellant to the balance of his maximum term: twelve months and 27 days’
incarceration. At Docket 3088 (criminal use of a communication facility), the
court recommitted Appellant to the balance of the maximum term of 15
months and 19 days’ incarceration. At both sentences, the court awarded
credit for time served from December 17, 2019 to January 3, 2020.
On February 3, 2020, Appellant filed notices of appeal, as well as a
motion for a transcript of the January 3rd proceedings. Although the certified
record does not include this transcript, we note Counsel’s Anders brief cites
to specific pages of such a transcript. See Anders Brief at 8-9. On February
18th, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained on appeal within 21 days. In response, on March 5th,
Counsel filed a statement of intent to file an Anders brief.
The Anders brief submitted to this Court raises one issue: “Were the
sentences imposed at Appellant’s violation of probation and parole hearing
illegal by extending the end date of supervision?” Anders Brief at 4. In
support, Appellant would argue “his sentence was illegal as the court did not
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11 While the text of the entry of appearance is dated January 3, 2020, it is
time stamped as “filed,” and was entered on the docket, on January 14th.
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credit him for time spent while on parole without violation.” Id. at 12. The
trial court issued an opinion, the main discussion of which states in sum:
No issues have been preserved for appeal. No concise
statement of errors complained of on appeal has been filed.[FN]
We are satisfied that the sentences imposed on [Appellant] are
appropriate for his parole violation and other circumstances.
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[FN] In lieu of such statement, pursuant to Pa.R.A.P. No.
1925(c)(4), counsel filed a notice of intent to file an
Anders/Santiago brief. If this case should be remanded
pursuant to the aforesaid rule, we will file a supplemental opinion.
Trial Ct. Op., 3/25/20.
After review of the record — which, as stated above, does not include
any notes of testimony — Counsel’s Anders brief, the Commonwealth’s brief,
and the trial court’s opinion, we determine we are unable to review the merits
of the issue presented in the Anders brief. Thus, we remand this matter for
the trial court to file, within 30 days of this memorandum, a supplemental
opinion addressing these issues: whether Appellant’s “sentence was illegal as
the court did not credit him for time spent while on parole without violation,”
and whether this issue was preserved for appeal. See Trial Ct. Op. (“No issues
have been preserved for appeal.”); Anders Brief at 12.
Furthermore, the trial court shall address the related issues of: (1) why
the February 6, 2019, sentencing order was illegal; (2) whether the court had
authority, on May 28, 2019, to amend the sentence more than 30 days after
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the original sentencing;12 (3) whether the sentencing modification related to
allowing Appellant to serve his sentence in county prison, see 42 Pa.C.S. §
9762(b)(2)-(3), and if so, whether this modification was a correction of a
“clear clerical error[ ]” and whether the statutory conditions of Subsection
9762(b)(2) were met. See 42 Pa.C.S. § 9762(b)(2)-(3); Borrin, 12 A.3d at
471. Finally, the trial court shall supplement the record with any available
notes of testimony — including those for the February 6, 2019, and January
3, 2020, proceedings — that would facilitate review of this appeal and
Counsel’s Anders petition. We acknowledge that Judge Shenkin did not
impose or amend the original sentence. Judge Shenkin may thus direct the
parties to file memoranda or conduct any hearing that may assist the court.
The trial court prothonotary is directed to certify and transmit the
supplemental record containing the trial court’s opinion within 7 days of
receipt of the opinion.
In light of our disposition to remand, we deny Counsel’s petition to
withdraw from representation.
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12 See 42 Pa.C.S. § 5505 (generally, a court “may modify or rescind any order
within 30 days after its entry . . . if no appeal from such order has been taken
or allowed”); Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa. Super. 2011)
(“[A] trial court has the inherent, common-law authority to correct ‘clear
clerical errors’ in its orders[,] even after the expiration of the 30 day time
limitation set forth in 42 Pa.C.S.A. § 5505[.]”). See also Commonwealth
v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (“motion to correct illegal
sentence” must be treated as PCRA petition and may be reviewed if it meets
PCRA’s timeliness requirements).
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Counsel’s petition to withdraw from representation denied. Case
remanded for trial court to prepare an opinion. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/20
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