*1 Doleno, appellant Appel- Id. Like the OF voluntary,
lant’s not he COMMONWEALTH tardiness was and PENNSYLVANIA, given opportunity should therefore be an Parks, Appellant, present a defense. See also supra (reversing remanding and for trial appellant alleged where he did not receive hearing,
notice of the rescheduled de novo WALTERS, Appellee. Eric supported and certified record his aver- Pennsylvania. Court of
ments). reasons, 11 For these we conclude that Aug. Submitted vacated, judgment of sentence must be Filed Dec. and matter remanded to the trial court a trial de novo. vacated; 12 Judgment of sentence case
remanded. relinquished. Jurisdiction
¶ MUSMANNO, J., joins.
¶ BECK, J., a Concurring files
statement.
BECK, J., Concurring. 1 I majority judg with the that
ment of sentence should be vacated
the case hearing remanded for a on the
issue of appellant’s the cause of failure to
appear hearing. the de novo Appellant opportunity present entitled to an a
defense, explaining his reasons for his ab my however,
sence. It is judgment,
where a defendant appear fails to bus,
because he missed his and fails to timely
make a communication with the explain happened,
court to what he does provide sufficient excuse. I there distinguish
fore the circumstances of the
instant case from Commonwealth v. Dole (1991)
no,
(attorney’s scheduling or Common (Pa.Su Parks,
wealth
per.2001) of the clerk of notice).
provide proper
¶ 4 further action was taken on the No July matter until at which time Wal- ters filed a motion for modification sen- pro Through tunc. his mo- tence nunc tion, sought prison release from Walters *3 had as the Board of Probation and Parole grant parole. August him On declined Alfieri, D. Atty., Michele Asst. Dist. 30, 2001, permitted the trial court Walters Commonwealth, Smethport, for appellant. previously plea to withdraw his entered trial al- nolo contendere. The court then Ceraso, R. Greensburg, ap- Thomas plea. lowed Walters to enter a Wal- new pellee. again ters of nolo contende- plea entered SOLE, P.J., DEL re. The trial court then re-sentenced Before: GRACI MONTEMURO,* Walters to time served and to an addition- JJ. years
al eight county probation. The SOLE, OPINION BY DEL P.J. objected Commonwealth to the action of timely the trial court and filed this appeal. ¶ 1 The Commonwealth appeals from the ¶ Appellant presents ap- trial 5 two issues on court’s order which allowed Walters peal. Appellant argues First that the trial to withdraw his plea of nolo contendere jurisdiction and enter a new lacked over this matter plea and also included a review, and its action of re-sentencing allowing Walters to with- Upon Walters. plea, draw his enter a new plea we vacate this and then order and reinstate re-sentencing null original sentence. Walters is and void. Appellant’s agree. Brief at 10. We ¶ 2 In Walters entered a negotiat- 6 Section 5505 of Judicial ed of nolo attempted contendere to provides: Procedure assault,2 aggravated rape,1 burglary,3 ter- § 5505. Modification of orders threats,4 roristic and indecent exposure.5 22, 1994, February On Except provided pre- Walters sen- as otherwise or was law, tenced to by upon confinement for a scribed a court notice to period of a minimum parties to a maximum years. may modify any of 16 or rescind 8k days entry, order within 30 after its 3 In December of Walters filed a notwithstanding termination of post motion for conviction collateral relief. court, any term of if no from such appeal Subsequently, an petition amended PCRA order has been taken or allowed. hearing filed. After a on PCRA § 42 Pa.C.S.A. petition, decision, but before rendering a the trial court entered an providing power order 7 Trial have the courts that no further action on modify would be taken to alter or a criminal sentence petition Walters’ thirty days entry, based on Walters’ letter within after if no appeal 5505; abandoning § that stated he was his PCRA taken. 42 is Pa.C.S.A. Common Quinlan, petition. wealth v. 639 * assigned Retired Justice to the Court. § 4. 18 Pa.C.S.A. §§
1. 18 Pa.C.S.A. 901/3121 § 5. 18 Pa.C.S.A. 2702(a)(4)
2. 18 Pa.C.S.A.
3. 18 Pa.C.S.A. (1994). A.2d Generally, intervention, once justifying judicial stances over, is thirty-day period is the trial action void. power loses the to alter its orders. ¶ Appellee argues that there was error Quinlan, at ap an When case in that the order taken, peal juris the trial court no accurately did not reflect the oral sentence modify diction to its sentence. We down court. Appel- handed the trial note, however, that the time constraint Brief lee’s at 6. imposed by 5505 does affect section that a argues second error was committed the inherent powers modify of the court to judge, subject and was records, a sentence in order to “amend beyond thirty-day correction time limi- correct of court or coun mistakes officers Appellee’s tation. Brief 7. Specifically,- *4 inadvertencies, sel’s or supply to defects or Appellee sentencing that the maintains Id., in omissions the record....” at 1239. that, did not judge part advise as Appellee Therefore, patent where the mistake is post-sentence of any motion filed under obvious, and court power the has the to former Rule 1410 of Rules of correct though appeal it even the 30-day Procedure, a Criminal could Appellee file period has expired. Commonwealth v. modify to motion sentence. Id. We dis- Rohrer, (Pa.Su with agree arguments. both per.1998). It is also that well-established ¶ 10 A the review of record indi where showing a of fraud cir or another cates that the order does accu grave cumstance “so or- as to compelling rately reflect the oral sentence rendered constitute ‘extraordinary justifying causes trial court. in his court,’” intervention a by the then court in 'of support memorandum his motion for may open or vacate its order the 30- after sentence, Appellee modification of ac day period expired. Cardwell knowledges that was within the court Chrysler Corp., Fin. sentencing guidelines agreed and terms (Pa.Super.2002). upon when he was According sentenced. ly, cannot there we that was a mis In judice, Appellee the case sub take that could be following corrected ex was February sentenced on 1994. No piration thirty days. appeal direct filed. sen was The order ¶ Next, final, tencing we must consider wheth Appellee was thus Pa. extraordinary er were § there circumstances applies. C.S.A. Accordingly, or necessitating judicial fraud trial court intervention. days, had 30 mistake or barring 1925(a) In opinion, the trial court fraud, its states modify which to The order. Appellee that it when sentenced Febru trial court did not take action within this ary it Appellee did not believe that time period. It was not until August years serve more in prison. would than Appellee 2001 that the trial allowed 1/23/02, Opinion, Trial Court 2. The trial to plea. withdraw and a his re-enter court stated that was sentenced The court Appellee. re-sentenced then years to a maximum of 16 so that he could The trial action well place court’s took 10]/> be supervised years after release beyond after of the thirty days entry Id. prison. judge from The jurisdic final order. As the court had no stated: act, tion to the action correct unless was to
a I patent any mistake was as a he obvious or Had belief that would be im- beyond circum- extraordinary prisoned result of fraud or the minimum sentence behavior, despite good his I power grant would have Board has exclusive to or Id.; structured the differently. deny parole prisoner. to a 61 Pa. C.S.A. 331.17. Id. judge explained The trial further that he it manifestly unjust believed not ¶ 14 opinion, In its the trial court asserts Appellant allow to withdraw guilty his that its action was not a sentence modifica- plea when he had been sentenced a tion, prohibited by as 42 Pa.C.S.A. judge “... who had no idea what 1/23/02, Instead, Trial Opinion, Court at 3. consequence of that sentence would be.” simply the trial court that it maintains Id. It position is the trial court’s that this permitted Appellee plea. to withdraw his injustice resulted from change of rules Regardless Id. of the trial designa- court’s occurred after was sen- tion, following thirty days entry after tenced. juris- the final order the trial court had no ¶ 12 On the face of the trial court’s diction over this matter. The trial court opinion it is unclear as change to which authority permit Appellee had no rules the court referring. Review of plea. withdraw his the notes of testimony from proceed- ings in August 2001 does shed much ¶ 15 The Commonwealth next ar *5 light more on the matter. of Ap- Review gues that the trial court was au without pellee’s in support memorandum of his thority to permit Appellee to withdraw his sentence, motion for modification of how- plea of nolo contendere under the of guise ever, changes refers to in the “rules” re- the Appellant’s Post Conviction Relief Act. garding eligibility parole. for Brief at 4. The Commonwealth maintains
¶ that the time restrictions of the Post 13 We Con agree do not that this viction prohibits Relief Act change of “rules” consideration constitutes such an ex petition of the or motion traordinary guise under the of require ju circumstance as to the provisions, dicial PCRA because under those intervention as by determined both pleadings untimely. were law, court. Under Pennsylvania minimum term imposed a prison on sen ¶ 16 We that the trial court had no merely tence sets the date to which a authority to proceed this matter under prisoner may not paroled. Rogers be v. provisions of Initially, the PCRA. we Pennsylvania Parole, Bd. Probation & provisions note that the time of the PCRA 285, (1999). 319, 321, 2, 555 Pa. 724 A.2d n. prohibit consideration of this matter be- A prisoner has no right absolute Furthermore, it untimely cause was filed. prison released from parole upon on parole a claim of denial of cognizable is not expiration prisoner’s of the minimum term. Vega, under the PCRA. Commonwealth 307; See 61 Rogers, Pa.C.S.A. 724 A.2d 714, 754 A.2d 716 (Pa.Super.2000). Ac- at n. 2. A prisoner only a right to cordingly, authority we find no under the apply parole expiration of his or justifying PCRA the actions taken her minimum term and to have that appli allowing court in Appellee to withdraw his cation considered the Board. Id. If the plea, allowing Appellee plea to re-enter the prisoner’s Board denies the application, and then re-sentencing Appellee. the period of confinement can be the maxi mum period of specified by incarceration 17 Order which allowed Walters to court, the sentencing although prisoner plea withdraw his of nolo contendere and may continue to reapply with the Board enter a new and also included a re- for parole. the Parole original Walters vacated and 258
sentence reinstated. Jurisdiction relin- tion parole, but does not control the quished. decision. See 61 P.S. 331.18. Under our parole system, expiration of the mini Judge concurring GRACI files a mum merely prisoner allows a opinion. parole. be considered for Rogers See Pennsylvania Board Probation and Pa GRACI, CONCURRING OPINION BY role, 555 Pa. A.2d 321 n. J. (1999) (citations omitted). prisoner A oth join 1 I the thorough opinion of the erwise has parole. no entitlement to See court. I write separately my to note con- Parole, circumstances, id. under these cern that the trial court improperly consid- legislative grace matter of vested ered the fact that yet had not discretion of the Parole Tilgh Board. See paroled been in deciding to award him man, 391; 652 A.2d at see also 61 P.S. relief. §§ 331.17 and 331.21. It is not a matter of ¶ 2 There is any right parole. never concern for the court. These “rules” have Stark, See Commonwealth v. not changed since originally (convicted (Pa.Super.1997) per- They sentenced. place were the rules in sons in have no constitutional then. or inherent rights parole). “Parole is a ¶ Moreover, absolutely it is irrelevant grace matter of and mercy to a shown that the trial may have thought prisoner who has demonstrated to the Appellee should or would have been re- Board’s ability satisfaction his to function (R. 81a-85a) leased by now. These are as a abiding law society.” member of matters within the exclusive discretion of Baldwin, Commonwealth v. Board, and, record, the Parole on this we Stark, (Pa.Super.2000) (quoting *6 why have no idea the Board has not 1333). A.2d at When a convict is sen- deemed it appropriate grant parole tenced, he or she legitimate has no expec- Appellee. not a This is matter into which tation except to serve the maximum sen- (or should) the courts can inquire. tence. See Commonwealth v. Daniel 430 642, 400, (1968) (“the Pa. 243 A.2d sentence”);
maximum sentence is the real Com.,
Gundy Board of Parole, 618,
Probation and 82 Pa.Cmwlth. (1984) (stating, “[t]he imposed sentence for a criminal offense is GREATER NORTH AMERICAN the maximum sentence and minimum FUNDING CORP. merely sets the date
which a prisoner may paroled”). not be ENTERPRISES, INC., TARA ¶ 3 Parole of prisoners sentenced to Sinha, Appellants Binod more than years imprisonment two such as Pennsylvania. Court of exclusively province within the of the Pennsylvania Board of Probation Argued Sept. and Parole. See Commonwealth v. Tilgh Filed Dec. man, (1995) (citations omitted); see also 61 P.S.
§§ 331.17 and 331.21. The right
court has a ques- heard on the