Lead Opinion
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
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,
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
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,
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,
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.
An omission from an original sentence, however, is not a patent error per se. Commonwealth v. Cooper,
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,
Under Commonwealth v. Foster,
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,
Order reversed.
Notes
. 18 Pa.C.S.A. § 4101.
. The Honorable William E. Pfadt had retired from the bench prior to this time. Appellee’s Brief at 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 with
. 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,
. In the present case, appellant challenges the retroactive imposition of probation, principally, and all proceedings incident thereto. As such, Commonwealth v. Grier,
Dissenting Opinion
dissenting.
Unlike the Majority, I do not find that the revocation of the appellant’s probation and imposition of sentence are violative of the Double Jeopardy clause, and, as a consequence, the denial of the appellant’s Post Conviction Relief Act (PCRA) petition should be affirmed.
The facts are not in dispute and reveal that the appellant pleaded guilty to eighteen counts of forgery and was sentenced as follows:
At Docket No. 457 of 1988, Count II, a term of incarceration of eleven and one-half to twenty-three months, to run concurrent with the sentence imposed at Docket No. 263 of 1988, Count I, and a consecutive term of probation for a period of five years. Counts 23 through 29, a concurrent term of incarceration of eleven and one-half to twenty-three months.
N.T. 5/20/88 at 9 (Emphasis added). The sentence of probation is consistent with the official transcript, the Clerk of Courts’ records, the notation in the Probation Office reports and the District Attorney’s documents on the case.
However, despite the oral sentence of the court, no mention was made of the period of probation when the sentence was reduced to a written order of even date. See Exhibit “T”
In Erie County at the time the petitioner was originally sentenced, it was the responsibility of the Clerk of Courts to notify the Probation/Parole Department of the imposition of probation, which was then responsible for drafting an order of probation for the [sentencing] judge’s signature. In this case an order of probation was not prepared and signed until [the] Judge[, assigned to act in place of the then retired sentencing judge,] signed one on November 29,1990, to reflect the actual sentence imposed on May 20, 1988.
More specifically, it was not until the appellant had been paroled on the forgery counts, and the time under the original sentence (without compliance with the probationary term) was served, that he was detained by his probation officer for violations of probation. In fact, the appellant was incarcerated until a probation revocation hearing could be conducted.
When the appellant filed a motion to remove the detainer, on the ground that “no probation was issued in addition to the terms of incarceration on May 20, 1988,” the requested relief was denied. Further, on November 29, 1990, the court issued an order of probation retroactive to May 20, 1988 (the date of the original sentence), to reflect the actual sentence of the court.
With the issuance of the November 29, 1990, order, the appellant’s May 20, 1988, probation was revoked and he was sentenced to a term of incarceration of one to three years to be served from September 28, 1990. A motion to modify sentence was denied, an appeal therefrom was filed and withdrawn by the appellant, but a pro se PCRA petition followed. Counsel was appointed and an amended petition was filed challenging the legality of the probation revocation and subsequent sentence imposed by the court. No relief was granted and this appeal ensued claiming that the imposition of the probationary sentence, with its subsequent revocation and serving of jail time as a result thereof, was invalid and
In resolving the issue posed, I note that, more than nine decades ago, the United States Supreme Court in Gagnon v. United States,
The power to amend its record to correct mistakes of the clerk or other officer of the court, inadvertencies of counsel, or supply defects or omissions in the record, even after the lapse of the term, is inherent in courts of justice____
Accord Commonwealth v. Cole,
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 Act of July 9, 1976, P.L. 586, No. 142, § 2.
In interpreting the predecessor to Section 5505, i.e., the Act of June 1, 1959, P.L. 342, No. 70, § 1, our Supreme Court has held that the “patently erroneous” nature of an order rendered it subject to rectification, notwithstanding that the thirty-day limitation of the Act of 1959 had expired because, “[b]oth before and since the passage of th[e] statute, a court retains its inherent power to correct any patent mistakes in its orders.” Cole, supra,
In determining whether a correction is called for, we may look to the sentencing hearing where the record does indicate that the court expressly intended to impose a period of probation as an element of the appellant’s sentence. Contrast Commonwealth v. Cooper,
Rather, the more rational explanation for the discrepancy between the oral and written sentence is the Clerk of Courts’ failure (via the Probation Office) to draft a probation order for the court’s signature. See PCRA Court Opinion at 3, wherein it is written that:
In Erie County at the time the petitioner was originally sentenced, it was the responsibility of the Clerk of Courts to notify the Probation/Parole Department of the imposition of probation, which was then responsible for drafting an order of probation for the judge’s signature. In this case an order of probation was not prepared and signed until Judge Connelly signed one on November 29, 1990, to reflect the actual sentence imposed on May 20, 1988.
In light of the preceding, it would appear that the correct sentence was not issued as a result of a breakdown in the court’s operation. Under such circumstances, the appellant’s position is without merit since “it is fundamental that a court has the inherent power to correct such mistakes. Moreover, this power includes the power to correct mistakes affecting
Whether there has been a mistake is a question for the court; and, after the passage of many years, extreme caution should be used to correct such records. Commonwealth ex rel. Paylor v. Claudy,
It is not as if the appellant is being surprised by the fact that the court had imposed a 5-year term of probation in the sentence: He was present during the sentencing hearing and executed a probation agreement on August 8, 1988, with the Erie County Adult Probation/Parole Department listing the terms of his probation. See Exhibit “P” in the Appellant’s Brief; PCRA Court Opinion at 4.
Lastly, in support of the position that the appellant’s claim seeking to invalidate his violation of probation should be denied even though the written sentencing order did not indicate the imposition of a period of probation as had been stated orally by the court during the sentencing hearing, we look to Commonwealth v. Kubiac,
In this case, at the sentencing hearing, on the record, the trial court sentenced Mr. Kubiac to a twenty-year maximum term of imprisonment for each of the ... offenses. However, it is well-settled that the signed sentencing order takes precedence over oral statements of the sentencing court not incorporated into that order. It is equally clear that the sentencing court may correct clerical errors regarding a sentence. This power, is, however, bounded by considerations of timeliness on the part of the trial court, see 42 Pa.C.S.A. § 5505 (court may modify or rescind order within thirty days if no appeal is taken), and on the part of the aggrieved party, see Pa.R.Crim.P. 1410 (appellant must file motion to modify sentence within ten days). The supreme court of this Commonwealth has also indicated that that power is bounded by constitutional considerations, chiefly, double jeopardy concerns.
It would seem that our course, then, [in light of Commonwealth v. Brown,455 Pa. 274 ,314 A.2d 506 (1974); Commonwealth v. Allen,443 Pa. 96 ,277 A.2d 803 (1971); Commonwealth v. Thomas,219 Pa.Super. 22 ,280 A.2d 651 (1971) ], is to vacate the sentence calling for a mandatory twenty years imprisonment, and reinstate the sentence originally written on the indictment, which set the maximum term at ten years imprisonment. There are two factors which we must consider before deciding to reach that disposition. Firstly, Ex Parte Lange [85 U.S. 163 ,21 L.Ed. 872 (1873) ], the Supreme Court case upon which Allen, and therefore Brown and Thomas, rely, has since been limited to its facts by that Court. In United States v. DiFrancesco,*128 449 U.S. 117 ,101 S.Ct. 426 ,66 L.Ed.2d 328 (1980), the Supreme Court held that Lange did not state a blanket rule that the trial judge could never increase a sentence if the defendant had begun to serve that sentence. Id. at 138-39,101 S.Ct. at 438-39 . A panel of this court in Commonwealth v. Adams [350 Pa.Super. 506 ,504 A.2d 1264 (1986) ], supra, has pointed out that the Supreme Court’s decision in DiFrancesco throws into some doubt the rationale and holding in both Allen and Thomas, and has accepted the less expansive reading of the double jeopardy rule espoused by the DiFrancesco Court. The Adams court held that the error in recording sentences on the wrong bills of indictment was clerical, and therefore could be corrected. Adams,350 Pa.Super. at 513 ,504 A.2d at 1268 , relying on Commonwealth v. Ford,315 Pa.Super. 281 ,461 A.2d 1281 (1983) (trial court incorrectly sentenced appellant to three inchoate offenses which merged with ultimate crime, correction of sentence did not result in double jeopardy because merely substituting new sentences for vacated sentence) and Commonwealth v. Bailey,250 Pa.Super. 402 ,378 A.2d 998 (1977) (trial court found offenses to merge which did not, permitting trial court to correct error of law did not increase punishment, but merely modified sentence to base it on valid conviction). Further, although the Adams court stated, in dicta, that an increase in sentence would violate the double jeopardy clause, id., it is not clear that that is the case here. We do not agree that the correction here increases the sentence. The sentence given and recorded at the sentencing hearing was five to twenty years on the involuntary deviate sexual intercourse counts, and Mr. Kubiac was aware of that fact, as is evident from his untimely motion to reconsider sentence.
Secondly, while the supreme court in Broum did note that the thrust of the Allen opinion was toward a prophylactic rule, id., to apply that rule here would be illogical. In Allen, the trial court attempted to change a sentence orally given, and written on the indictment. Id. [443 Pa.] at 104,277 A.2d at 806 . Brown involved a similar scenario.*129 Brown,455 Pa. at 275 ,314 A.2d at 507-508 . Here, the sentence was stated initially at twenty years maximum on both counts of involuntary deviate sexual intercourse. This is reflected by the record of the sentencing hearing, the judge’s notes, the court reporter’s notes, and the notes of the institution. Further, in his untimely motion for reconsideration of sentence, Mr. Kubiac stated that his sentence was ten to forty years imprisonment. With such documentation, no abuse is possible. We are not dealing with a “slip of the tongue” on the part of the sentencing judge, as were the Allen and Brown courts. We believe that the remarks of the Allen court stating that to allow corrections would be against public policy and that “ ‘[t]he possibility of abuses inherent in broad judicial power to increase sentences outweighs the possibility of windfalls to a few prisoners,’” Allen,443 Pa. at 105 ,277 A.2d at 807 (quoting United States v. Sacco,367 F.2d 368 , 370 (2nd Cir.1966), have no relevance here.
While we are aware that the trial judge had signed the order, and therefore ideally should have known of the error, we believe that to make such a decision contravenes common sense, and creates an injustice. “The same may be said here as was said of the appellant in [Commonwealth v.] Bailey [,250 Pa.Super. 402 ,378 A.2d 998 (1977) ]: He would receive an undeserved windfall if the trial court could not correct its sentence. It would be undeserved because it would be based on a clerical error — the trial court’s mistake in correcting its order____” Adamss350 Pa.Super. at 513 ,504 A.2d at 1268 . We cannot accept the reasoning in Thomas that an oral sentence which is on the record, written incorrectly by the clerk of courts, and then corrected by the trial judge, is not a clerical error. The error here was clearly a clerical one, and subject to correction under Commonwealth v. Meyer, supra.
It was a clerical error that needed to be remedied in Kubiac, while instantly we have a breakdown in the court’s operation (with the Clerk of Courts and Probation Department not carrying out their roles in providing the sentencing court with a probation order) which requires rectification. Not to allow the court’s correction of the record would be at odds with Kubiac’s logic, not to mention the precept allowing a court to correct a record through its traditional inherent power. Neither point is violative of the Double Jeopardy clause.
“The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.”
Commonwealth v. Anderson,
Therefore, in light of the preceding, I would affirm the order of the PCRA court. To the extent that the Majority concludes otherwise, I respectfully dissent.
. The Double Jeopardy clause of the Fifth Amendment is applicable to the states. Benton v. Maryland,