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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OLIVER MERVIN BURBAGE,
Appellant No. 3072 EDA 2013
Appeal from the Judgment of Sentence October 9, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005041-2012
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and SHOGAN, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 08, 2014
Oliver Mervin Burbage appeals from the October 9, 2013 judgment of
sentence that altered the amount of credit for time served that Appellant
received against a sentence imposed on March 12, 2013. We reverse the
judgment of sentence and remand for a new sentencing hearing.
On January 29, 2013, a jury found Appellant guilty of escape. The
trial court outlined the evidence supporting this conviction:
The testimony indicates that Trooper [Richard] Kirby had
knowledge of the defendant from a prior incident, including, but
not limited to a prior arrest of the defendant for Burglary in
2004. (N.T., 1/29/13, p. 78, 79). An arrest warrant for the
defendant for a felony charge from Bucks County was issued on
or about June 15, 2011 and Trooper Kirby was aware of the
existence of the arrest warrant. With his prior familiarity with
the defendant, Trooper Kirby went to the vicinity of 835
MacDowell Street, Chester, Pennsylvania, which was believed to
be the address for the defendant's girlfriend.
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Trooper Kirby indicated that he was in the area of
MacDowell Street, and was aware of the issuance of the warrant.
"And at the time I knew there was a warrant for his arrest that
was a felony warrant out of Bucks County." (N.T., 1/29/2013, p.
12). As Trooper Kirby approached the location, he was dressed
in plain clothes and was driving an unmarked vehicle. He did
indicate however, that he was not wearing a jacket and had his
police badge in plain view. (N.T., 1/29/2013, p. 15).
When Trooper Kirby drove near to the house, he observed
the defendant from 40 to 50 feet away. He parked his vehicle
and then crept alongside the parked vehicles until he was close
upon the defendant (within 20 to 25 feet). Trooper Kirby then
approached the defendant, with his ASP Baton fully extended
and yelled several times that he was state police, that the
defendant was under arrest and for the defendant to get on the
ground. (N.T., 1/29/2013, p. 17-18). At that point in time, the
defendant froze and stared at the Trooper. For a brief period of
time, the two men stared at each other and based upon the
posture of the defendant, Trooper Kirby pulled his hand gun and
aimed it in the direction of the defendant. (N.T., 1/29/2013, p.
19-20).
Defendant then ran off and entered into the residence at
835 MacDowell. As there was no back up and there was a four
year old boy on the front porch, Trooper Kirby was delayed in his
attempt to enter the residence. (N.T., 1/29/2013, p. 20-21).
When Trooper Kirby and the other officers were able to
effectuate entry into the residence, the defendant was not
inside. The defendant was eventually arrested on or about
August 8, 2011.
Trial Court Opinion, 6/6/13, at 2-3.
On March 21, 2013, Appellant was sentenced to three to six years
imprisonment and was granted credit for time served in jail from August 8,
2011 to March 21, 2013. At the sentencing hearing, the Commonwealth
and Appellant both indicated that he was entitled to credit for time served
for that period. Appellant filed a timely notice of appeal from that judgment
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of sentence and, on June 3, 2014, we affirmed. Commonwealth v.
Burbage, A.3d (No. 1219 EDA 2013, Pa.Super. 2014). The record
was transmitted to this Court for purposes of that appeal in June 2013.
The trial court apparently was informed by the Pennsylvania
Department of Corrections that Appellant already had received credit for
time served in jail from August 8, 2011, to November 29, 2011, for a
sentence that he received in Chester County criminal action number 6364-
2011. On October 9, 2013, the trial court herein appears to have altered its
March 21, 2013 sentence to eliminate certain credit for time served by
Appellant. That sentencing order does not appear in the record certified to
this Court for purposes of this appeal nor is it entered on the docket.
Nevertheless, the trial court in its Pa.R.A.P. 1925(a) opinion, the
Commonwealth in its brief, and the Appellant all indicate that credit for time
served that was awarded on March 21, 2013, was eliminated by the trial
court in an order executed on October 9, 2013. Hence, we believe that it
exists for purposes of this appeal. Commonwealth v. Galendez, 27 A.3d
1042, 1047-1048 (Pa.Super. 2011) (although certified record did not
contain copy of order contested by defendant on appeal and this Court did
not have a copy of the order, we reviewed its propriety since the
Commonwealth acknowledged that the order in question was entered and
since the trial court stated in its Pa.R.A.P. 1925(a) opinion that it signed the
order). A notice of appeal was processed on November 6, 2013. Appellant
presents one issue with two subparts:
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I) Whether the amended sentence imposed on October 9, 2013
is illegal since the court lacked jurisdiction to vacate the original
sentence imposed in this matter on March 21, 2013, and where
the amended sentence was imposed without Mr. Burbage, or his
attorney being present and having the opportunity to be heard
with regard to the substantive changes made to his original
sentence which involved stripping him of nearly nineteen months
of credit time.
For the reasons that follow, we conclude that the court had
jurisdiction to amend the sentence despite the pendency of the prior appeal.
However, we agree that Appellant should have been present when the
sentence was amended so that Appellant had the opportunity to verify the
correct amount of time served to be credited against the sentence herein.
amend its March 21, 2013 sentencing order in October under 42 Pa.C.S. §
wise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30 days after
A contention that a sentence was changed in violation of § 5505
standard of review is de novo. Commonwealth v. Borrin, 80 A.3d 1219,
1225 (Pa. 2013). Due to the operation of § 5505, a trial court, in general,
lacks jurisdiction to modify an order more than thirty days after it has been
intended to eliminate the inherent power of a court to correct obvious and
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patent mistakes in its orders, judgments and decrees." Commonwealth v.
Holmes, 933 A.2d 57, 65 (Pa. 2007).
A comparison of Holmes with Borrin demonstrates the difference
between a patent sentencing error correctible more than thirty days after
entry of the sentencing order or when the case is on appeal and a
sentencing error that is not obvious and thus cannot be altered. In
Holmes -
committed to serve the balance of the sentence from which he had been
paroled, the defendant was given a new term of imprisonment. The
patently and obviously erroneous in that a court is legally authorized only to
re-commit a defendant to serve the unexpired term of his original sentence
when it is revoking parole. Holmes, supra at 58, n.5 (citation and
violation of parole in cases not under the control of the State Board of
Parole is to recommit to jail. There is no authority for giving a new
the sentence was entered, the trial court, recognizing its error, vacated
what it characterized as an illegal sentence and re-committed Holmes to
serve the remainder of the term of incarceration originally imposed.
The Supreme Court in Holmes ruled that the original sentencing
order imposing a new term of imprisonment was contrary to law and could
be corrected more than thirty days after its entry as it contained a patent
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and obvious error. It upheld the second sentencing order, which correctly
sentence remained on his original sentence rather than serve a new term of
imprisonment.
In Holmes, the Supreme Court also addressed a companion case
involving a defendant named Whitfield. Whitfield was found to be in
violation of a probationary sentence that was supposedly imposed on
specified offenses, and he was sentenced to a term of incarceration. The
problem was that probationary terms were never imposed on the
convictions in question, and Whitfield was not serving a probationary term.
Instead, concurrent terms of incarceration, which Whitfield already had
served, were the sentences imposed on the crimes for which the trial court
revoked probation. Whitfield filed a PCRA petition contesting the legality of
the sentence imposed, relief was denied, and the defendant appealed.
During the pendency of the appeal, the trial court concluded that its
sentence was indeed illegal and vacated it. Whitfield withdrew his appeal,
sentence under § 5505, given that § 5505 prevents the correction of an
order when an appeal has been filed. The trial court responded that it
retained the authority to correct its obviously illegal sentence despite the
operation of that statute. Our Supreme Court agreed. It opined:
The trial courts in both cases before us clearly lacked
jurisdiction, absent the exercise of the rarely used power of the
courts to correct patent errors. While the causes of the two trial
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courts' lack of jurisdiction are undeniably distinct, nonetheless,
both are encompassed under the language of Section 5505. . . .
Despite the different causes of the divestiture of jurisdiction,
both cases fall within the limited class of cases amenable to the
exercise by a trial court of the inherent power to correct patent
errors despite the absence of traditional jurisdiction. As we have
in the past, we hold today that the limits of jurisdiction
enshrined in Section 5505 do not impinge on that time-honored
inherent power of courts.
Id. at 65 (footnote omitted).
In contrast to Holmes, the plurality opinion in Borrin, supra,
involved the following. The defendant was convicted of numerous offenses.
sentences all consecutive to each other. The transcript, however, was
ambiguous as to that point. In the sentencing order signed by the court
after sentencing, nine of the offenses were made consecutive to the first
sentence imposed but they were made concurrent to each other.
Spec
104 months whereas, if all ten sentences would have been consecutive to
Following receipt of inquiries from the prison
the trial court changed the original sentencing order in 2009 so that it read
that his sentence was 93 to 186 months. The trial court explained that its
intention at sentencing was to enter that term of incarceration and
concluded that it had the authority to make the change after three years
since it was merely correcting a patent error. We ruled that the trial court
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did not have the authority to correct the sentencing order after three years
since it did not contain a patent error, and our Supreme Court agreed.
The Borrin
2009 order merely clarified the terms of the 2006 order. It outlined that
the 2006 order provided that nine offenses were consecutive to the
sentence imposed on the first offense but that they were not consecutive to
each other. It held that the trial court's 2009 order, by stating that all of
other, did not clarify his sentence, but modified it. The Borrin Court
Id. However, it
noted that the only type of mistakes that can be remedied after the thirty-
day period are those that are patent and obvious. It concluded that the
2006 order was not patently and obviously erroneous since it was unclear
from the sentencing transcript whether all ten sentences were imposed
consecutively to each other or merely the first one.
In the present case, we conclude that, in issuing its October 9, 2013
order, the court was correcting an obvious and patent error in the original
order it entered on March 21, 2013. The pertinent provision as to credit for
time served is as follows:
(1) Credit against the maximum term and any minimum term
shall be given to the defendant for all time spent in custody as a
result of the criminal charge for which a prison sentence is
imposed or as a result of the conduct on which such a charge is
based. Credit shall include credit for time spent in custody prior
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to trial, during trial, pending sentence, and pending the
resolution of an appeal.
....
(4) If the defendant is arrested on one charge and later
prosecuted on another charge growing out of an act or acts that
occurred prior to his arrest, credit against the maximum term
and any minimum term of any sentence resulting from such
prosecution shall be given for all time spent in custody under
the former charge that has not been credited against another
sentence.
42 Pa.C.S. § 9760.
Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa.Super. 1996). Thus,
where a defendant received credit for time served with respect to a prior
sentence, he cannot receive credit for the same time in jail as to a
subsequently imposed sentence. Commonwealth v. Hollawell, 604 A.2d
723 (Pa.Super. 1992).
Herein, the court was correcting a patent error on October 9, 2013 if
there was a mistake when Appellant was originally sentenced and he was
given credit for time served when he already had been accorded credit for
that time against a previously-imposed sentence. This action constituted a
violation of § 9760(4). In Hollawell, supra, we ruled specifically that
where there is a challenge to the amount of credit for time served given as
to a sentence, it is considered a question of law and the trial court
possesses the inherent power to correct a sentence if incorrect credit for
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time served was awarded. Thus, § 5505 did not prevent the trial court from
examining whether proper credit for time served was given despite the fact
that the March 21, 2013 sentence had been appealed. Id.; Holmes,
supra; cf. Commonwealth v. Rohrer, 719 A.2d 1078 (Pa.Super. 1998)
(where imposition of restitution was not mandatory, failure of court to
impose restitution did not render sentence illegal and sentence could not be
amended more than thirty days after its entry to impose restitution due to
§ 5505).
However, Appellant also maintains that he was denied his right to be
present and be heard on October 9, 2013, when the revised sentencing
order was entered. The Commonwealth is in agreement that Appellant
should have been present when the sentence was corrected. Section 5505
previous orders. We interpreted the predecessor statute to § 5505 in
Commonwealth v. Reed, 386 A.2d 41 (Pa.Super. 1978). Therein, the
trial court imposed a sentence in excess of the legal maximum and fifteen
months later, without notice to either party, amended the order to reflect
the proper maximum sentence.
We recognized in Reed that the trial court could perform that action,
but concluded it could do so only after notification to the parties. We
sentence . . . only if it notifies the defendant and the district attorney of its
intention to do so. In the instant case, the modification was accomplished
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without regard to the clear requirement of the proviso, and, therefore, is
Id. at 42. Both parties herein agree that there was no
advance notice of the proposed alteration so that Appellant could ensure
that he received the proper amount of credit for time served.
The case law unquestionably gives the trial court the authority to
correct a sentence that improperly accorded credit for time served when
none was due. However, the current record fails to substantiate in what
respect the March 21, 2013 sentence was erroneous. Appellant has the
right to have the proper facts adduced as to whether he received all credit
for time served to which he was legally entitled. We thus reverse the
judgment of sentence and remand for further proceedings.
Judgment of sentence reversed. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2014
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