Com. v. Seger, R.

J-S05013-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RENEE SEGER :
:
Appellant : No. 438 WDA 2022
Appeal from the Order Entered March 16, 2022
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000529-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RENEE SEGER :
:
Appellant : No. 439 WDA 2022
Appeal from the Order Entered March 16, 2022
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000039-2020
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: MAY 15, 2023
Appellant, Renee Seger, purports to appeal from the judgment of
sentence imposed on December 16, 2021, but has actually appealed from
orders entered on March 16, 2022.1 Appointed counsel has filed a petition to
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1 As established within, we conclude that Appellant has appealed from
interlocutory orders. We have amended the captions.
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withdraw and a brief.2 For the reasons that follow, we conclude that the March
16, 2022 orders were a mere clarification of the trial court’s sentencing order.
Because the time for appealing Appellant’s judgment of sentence had elapsed,
the orders are interlocutory, and we quash Appellant’s appeals. We therefore
deny counsel’s application to withdraw as moot.
This case presents an unusual procedural posture. Appellant was
charged at docket CP-42-CR-0000529-2019 with twenty-two counts, including
one count of possession with intent to deliver (PWID), 35 P.S. § 780-
113(a)(30). At docket CP-42-CR-0000039-2020, Appellant was charged with
possession of paraphernalia, 35 P.S. § 780-113(a)(32).
The plea and sentencing transcripts were not ordered and are not part
of the certified record.3 However, the trial court’s opinion and Appellant’s
filings establish the material points. Appellant accepted a negotiated guilty
plea of 15 to 30 months’ incarceration on July 23, 2021, to one count of PWID
and the paraphernalia charge. On September 8, 2021, Appellant filed a
motion to continue sentencing, stating that the Commonwealth agreed to
recommend to the trial court that the sentence be imposed concurrently to
any sentence imposed at three criminal cases pending in the Potter County
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2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
3 “[T]he duty to ensure the certified record contains all the facts and
documents necessary for our review lies with the appellant.”
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008).
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Court of Common Pleas. As stated in the motion to postpone, Appellant
wished to defer sentencing until those cases were resolved:
Other material terms of the plea agreement are that (1) the
Commonwealth would not oppose [Appellant] being placed in the
State Drug Treatment Court Program, and (2) the Commonwealth
would recommend that [Appellant]’s sentences in [these cases]
be run concurrent to any sentence at Potter County Case
Numbers[] 112 CR 2021, 152 CR 2020 and 220 CR 2020.
....
[Appellant] has not yet been sentenced in Potter County [and] …
there is no Potter County sentence to which the McKeane County
sentence will be run concurrently.
Motion to Continue Sentencing, 9/8/21, at 1-2.
Appellant was sentenced in Potter County on October 27, 2021.
Sentencing at the instant two dockets took place on December 16, 2021, with
the trial court memorializing the sentence in a written order docketed on
December 20, 2021. That order did not indicate whether the sentences were
consecutive or concurrent in nature.
Appellant filed a timely post-sentence motion, requesting that the trial
court reconsider its decision to impose the sentences consecutively. By order
entered January 6, 2022, the trial court denied the post-sentence motion and
explicitly referenced its intent to sentence Appellant consecutively. Appellant,
however, did not file an appeal within thirty days of that order.4
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4 Appellant was required to file the post-sentence motion on or before
December 26, 2021, which was a Sunday. Therefore, Appellant was required
to file the motion on the following Monday, December 27. See 1 Pa.C.S. §
1908 (stating that if the last day in a time period falls on a weekend or holiday,
(Footnote Continued Next Page)
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The next relevant filing was docketed on March 16, 2022. This order
explains that the Department of Corrections (“DOC”) “sent an inquiry to the
court as to whether the [sentence] in this case was to run consecutive or
concurrent to the sentence [Appellant] is currently serving in Potter County[.]”
Order, 3/15/22 (single page). The order concludes by stating “the sentence
… [is] to run consecutive to all other terms and numbers.” Id. (unnecessary
capitalization omitted). Appellant filed separate notices of appeal at each
docket from this order, on the theory that the trial court amended her criminal
sentence. See Notice of Appeal, 4/18/22 (“[Appellant] hereby appeals … the
Amended Sentencing Order dated March 1[6], 2022.”).5 This Court
consolidated the appeals sua sponte on August 1, 2022.
Appellant’s characterization of this order is crucial to our jurisdiction,
which we may consider sua sponte. Commonwealth v. Yarris, 731 A.2d
581, 587 (Pa. 1999). “As we have explained, prior to reaching the merits of
any appeal, this Court must ‘first ascertain whether the [order appealed from]
is properly appealable.’” Commonwealth v. Horn, 172 A.3d 1133, 1135
(Pa. Super. 2017) (quoting Commonwealth v. Borrero, 692 A.2d 158, 159
(Pa. Super. 1997) (bracketing in original)). The parties treat this as an appeal
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that day is omitted from the computation). Due to the Christmas holidays,
the court offices may have been closed on Monday, December 26. We opt to
consider the motion timely for purposes of our disposition as the appeal must
be quashed regardless.
5The thirtieth day was Good Friday, April 15, 2022, which was an observed
holiday. Thus, the notice of appeal was timely as it was filed on the following
Monday.
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from Appellant’s judgment of sentence, which in this case was made final by
the denial of post-sentence motions. Commonwealth v. Shamberger, 788
A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (citing Commonwealth v.
Chamberlain, 658 A.2d 395, 397 (Pa. Super. 1995)). Thus, Appellant was
required to file an appeal within thirty days of January 6, 2022.
We now address the effect of the March 16, 2022 order from which
Appellant has appealed. In making our assessment, we examine a similar
case, Commonwealth v. Borrin, 12 A.3d 466 (Pa. Super. 2013) (en banc),
aff’d, 80 A.3d 1219 (Pa. 2013) (OAJC), where Borrin entered an open guilty
plea to twenty counts. At sentencing, the trial court orally imposed a sentence
of incarceration at count one and then declared that several other periods of
incarceration were “consecutive” to that count but did not specify whether
each of those terms was consecutive to each other or merely consecutive to
count one (and thus concurrent to each other). Adding to the confusion, the
court declared that several periods of probation were “consecutive to each
other.” Id. at 468. The next day, the court entered a handwritten sentencing
order stating that the periods of incarceration were “consecutive to count
[one],” again specifying that the periods of probation were “consecutive to
each other and count [one].” Id. at 469. Neither party sought clarification
within the applicable time periods, and Borrin did not appeal.
Approximately two years later, the DOC sent a letter stating that Borrin
had sought prerelease and asked for the judge’s input. The trial court
responded by sending a letter stating that the sentencing order was incorrect.
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The Commonwealth then filed a motion asking the trial court to clarify its
sentence. This resulted in the trial court “enter[ing] an order sentencing
[Borrin],” with the new order making clear that the periods of incarceration
were all consecutive to each other. Id. at 470.
Borrin appealed. We agreed with Borrin’s assertion that the trial judge
lacked authority to modify the terms of the original sentencing order. In so
concluding, we accepted that the trial court was permitted to issue the order
if there were “clear errors in the imposition of sentences that were
incompatible with the record….” Id. at 473 (quotation marks, emphasis, and
citation omitted). By statute, a trial court’s jurisdiction to modify an order
must occur within thirty days. 42 Pa.C.S. § 5505. However, orders entered
after this time period are not barred by Section 5505 if the court is exercising
its “inherent power to correct patent errors despite the absence of traditional
jurisdiction.” Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007).
However, this exception is quite limited in scope as “it is the obviousness of
the illegality, rather than the illegality itself, that triggers the court’s inherent
power.” Id. at 66-67. Accordingly, the court may issue an order outside of
the thirty-day window that corrects the written terms of the judgment of
sentence, provided the error was patent. A corollary to this is that this
inherent power does not extend to reconsidering the sentence. That would
represent an actual resentencing, which the court cannot do once it loses
jurisdiction. Holmes, 933 A.2d at 67 (“[T]he inherent power to correct errors
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does not extend to reconsideration of a court’s exercise of sentencing
discretion.”).
Borrin, like this case, involves a sentencing order that, while not illegal,
was arguably incompatible with the record. We explained that “case law has
addressed the situations where, as here, the terms of a defendant’s sentence
as stated at the sentencing hearing conflict (or are deemed incompatible) with
the terms of the defendant’s sentence as stated in the sentencing order.”
Borrin, 12 A.3d at 473. Applying this principle to Borrin’s order, we explained
that the trial court’s order was lawful only if the “intention to impose a certain
sentence [was] obvious on the face of the sentencing transcript.” Id. The
sentencing transcript did not reveal any obvious intent to impose the periods
of incarceration consecutive to each other. We concluded that the trial judge’s
comments were ambiguous, as reflected in the trial judge’s statement that
the counts of probation were all consecutive to each other. As a result, the
trial court’s order was vacated.
Two points flow from Borrin. First, this Court would have jurisdiction
to address the order if it did in fact alter Appellant’s sentence as opposed to
merely fixing a clerical error in the written order; the authority to issue an
order like the one disputed here is premised on the fact that the order does
not actually alter the underlying sentence. This means we must examine the
order to determine if it exceeded the judge’s authority. Second, in the event
the trial court did in fact do more than fix a clerical error, we would be required
to vacate and direct the trial judge to reinstate the original judgment of
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sentence. We would not, however, be permitted to address issues unrelated
to this “resentencing,” a point borne out by Commonwealth v. McKeever,
947 A.2d 782 (Pa. Super. 2008). There, McKeever entered a negotiated plea
which he successfully challenged in federal court, with the court determining
that several of those convictions were invalid while leaving other counts
undisturbed. Upon resentencing, McKeever sought to, inter alia, withdraw his
guilty plea. On appeal to this Court, McKeever challenged the trial court’s
failure to permit his withdrawal. We explained that the scope of his direct
appeal was limited to only those matters implicated by the resentencing:
Although [McKeever] successfully challenged his corrupt
organizations convictions and sentences successfully in federal
court, the remainder of his convictions, each having a distinct
sentence, were not disturbed by the Eastern District Court’s grant
of habeas corpus relief or by the trial court when it vacated the
corrupt organizations sentences in its resentencing order.
Further, while it is correct that [McKeever] had an absolute
constitutional right to appeal his judgment of sentence entered
after the Eastern District Court’s grant of habeas corpus relief, in
that direct appeal, he was permitted to raise issues pertaining only
to the re-sentencing procedure itself; his underlying claims of trial
error regarding his non-vacated convictions could not be
addressed on direct appeal from re-sentencing.
Id. at 785-86 (footnote and citation omitted). Similarly, the scope of any
such appeal from the March order, assuming arguendo that it did alter
Appellant’s sentence, would be limited to issues regarding the sentence itself.
We could not examine the merits of claims that Appellant could have raised in
a timely notice of appeal. In this regard, counsel’s Anders brief discusses,
inter alia, whether the underlying plea was valid.
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Applying Borrin, we conclude that the trial court’s March 16, 2022 order
was a lawful exercise of the trial court’s authority to confirm that the sentences
were set consecutively to any existing sentence from Potter County. While
there is no sentencing transcript to establish what the trial court stated, it is
a modest extension of Borrin to conclude that the trial court’s intention to
impose a certain sentence is clearly evident from something in the record
other than the sentencing transcript itself. Indeed, the common law authority
is rooted in the obviousness of the error. Holmes, 933 A.2d at 66 (explaining
that the sentencing order “contained a patent mistake, a fact apparent from
a review of the docket without resort to third-party information”). While the
sentencing transcript is not available, Appellant’s own motion to reconsider
establishes that the written order was erroneous; there would be no need to
reconsider Appellant’s sentence if the court imposed concurrent sentences.
But we need not even rely solely on that logical conclusion, as the order
denying Appellant’s post-sentence motion removed any doubt concerning the
trial court’s intentions. The order did not simply state that Appellant’s motions
were denied. It stated, “the court … already considered these arguments at
the time of sentence and concluded … that a consecutive sentence is
appropriate[.]” Order, 1/6/22 (single page). This fact again serves as another
distinction from Borrin. We pointed out that the parties in Borrin did not file
a post-sentence motion. Here, Appellant did, and the record establishes that
the written sentencing order was incompatible with the trial court’s oral
sentence.
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Finally, this case is unlike Borrin in that there is no possible ambiguity
with respect to the judge’s intent. Having accepted the parties’ proposed
length of incarceration, the only real exercise of discretion left to the trial court
was whether the sentences would be concurrent or consecutive to Appellant’s
Potter County cases. In reviewing our Borrin decision, the lead opinion
authored by then-Justice, now-Chief Justice, Todd stated that “the trial court
should have focused on the text of the [written] order itself and construed it
in its entirety according to established canons of construction.”
Commonwealth. v. Borrin, 80 A.3d 1219, 1227 (Pa. 2013) (OAJC). Here,
the written sentencing order was simply silent on whether the sentence was
consecutive or concurrent, not ambiguous. The contemporaneous orders from
sentencing establish that the trial court intended Appellant to serve
consecutive sentences.
Having concluded that the March 16, 2022 order was a proper exercise
of the trial court’s inherent authority to conform the record to the trial court’s
intended sentence, a matter that is sufficiently established by the certified
record, we are constrained to quash the appeal. As we have explained, an
appeal properly lies only from the judgment of sentence. We are authorized
only to determine whether the order resentenced Appellant; if so, we must
vacate and direct the court to reinstate the original sentence. We cannot treat
that order as if it revived any issues preserved for direct appellate review.
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Because we find that this order merely clarified the sentence, it is an
interlocutory order not appealable as of right.6
Appeals quashed. Petition to withdraw denied as moot.
Judge Lazarus joins this memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2023
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6 While an appeal from a judgment of sentence made final by the denial of
post-sentence motions is the most common type of order appealed in a
criminal matter, we acknowledge that appeals may be taken from four general
categories: “1) a final order or one certified by the trial court as final; 2) an
interlocutory order as of right; 3) an interlocutory order by permission; or 4)
a collateral order.” Commonwealth v. Parker, 173 A.3d 294, 296 (Pa,
Super. 2017). Appellant does not argue that this order falls within any of the
other categories, and we note that the order is not an appealable interlocutory
or collateral order under Pa.R.A.P. 311 and Pa.R.A.P. 313. Additionally,
Appellant did not seek permission to appeal. See 42 Pa.C.S. § 702(b).
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