J-S13041-20
2020 PA Super 81
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEON HOSMOND BLAIR :
:
Appellant : No. 1681 MDA 2019
Appeal from the Judgment of Sentence Entered July 10, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000312-2018
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED MARCH 31, 2020
Deon Hosmond Blair (Blair) appeals nunc pro tunc from the judgment
of sentence imposed following his entry of a guilty plea in the Court of
Common Pleas of Luzerne County (trial court) to involuntary deviate sexual
intercourse and simple assault.1 We vacate the judgment of sentence and
remand.
On June 26, 2018, Blair entered a negotiated guilty plea to the above-
mentioned charges. The conviction arises from an incident with his former
girlfriend during which he slapped her, punched her, hit her head, and forced
her to perform oral sex on him in front of three young children, ages two and
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3123(a)(1) and 2701(a)(1).
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under. On February 27, 2019, the trial court sentenced Blair to an aggregate
term of not less than 60 nor more than 120 months’ imprisonment. The court
awarded 231 days of credit for time served. Blair did not file a direct appeal.
On June 18, 2019, the trial court received a letter from the
Commonwealth of Pennsylvania Department of Corrections (DOC) regarding
the time credit. The DOC advised that it had already applied a portion of the
time credit the court had awarded in this case (for the period from September
22, 2018, through February 27, 2019) to a previously imposed Monroe County
sentence. Blair was, therefore, not entitled to application of the credit to the
sentence imposed in this case, which was to run consecutive to the Monroe
County sentence.2
On July 10, 2019, without giving notice to Blair or an opportunity for
him to respond, the trial court entered an order amending the February 27,
2019 sentence to reduce the amount of credit for time served by 160 days for
the relevant September 2018 through February 2019 period. (See Order
7/10/19). It directed that all other provisions of the sentencing disposition
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2 The DOC, an executive agency, has no power to change sentences or to add
or remove sentencing conditions, including credit for time served; this power
is vested with the sentencing court. See Commonwealth v. Ellsworth, 97
A.3d 1255, 1257 (Pa. Super. 2014). In Ellsworth, we also held “that the
duplicative imposition of credit for time served constitutes a patent and
obvious mistake that is amenable to correction after the thirty-day period
prescribed in 42 Pa.C.S. § 5505.” Id.; see also 42 Pa.C.S. § 9760 (governing
the award of credit for time served).
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remain in full force and effect. On September 12, 2019, the trial court granted
Blair’s motion to reinstate his direct appeal rights nunc pro tunc. This timely
appeal followed. Blair and the trial court complied with Rule 1925(b). See
Pa.R.A.P. 1925(a)-(b).
Blair argues that the trial court erred in failing to provide notice and hold
a hearing on the time credit issue, with him physically present or by video
conference, before it amended his judgment of sentence to reduce the number
of days of credit for time served.3 He contends that the procedure utilized by
the trial court violates the requirements of Section 5505 of the Judicial Code.
(See Blair’s Brief, at 6-7).
This section provides:
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.
42 Pa.C.S. § 5505. “Generally, 42 Pa.C.S. § 5505 precludes the entry of an
order modifying a final order more than thirty days after its entry.”
Commonwealth v. Concordia, 97 A.3d 366, 371 (Pa. Super. 2014).
Nonetheless, a trial court retains the inherent jurisdiction to correct obvious
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3Claims asserting trial court error regarding its award of credit for time served
implicates the legality of the sentence. See Commonwealth v. Saunders,
2020 WL 113401, at *2 (Pa. Super. filed Jan. 10, 2020). Because issues
relating to the legality of a sentence are questions of law, our standard of
review is de novo and the scope of review is plenary. See id.
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or patent errors in its orders, even if it is outside the standard 30-day
paradigm, when warranted. See id. “An alleged error must qualify as a clear
clerical error or a patent and obvious mistake in order to be amenable to
correction.” Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super.
2014) (citation omitted).
Even if there is a clear mistake, that does not relieve the court of its
obligation to give notice as required by 42 Pa.C.S. § 5505 to both the
defendant and the district attorney of the proposed changes and an
opportunity to respond to those changes. Not only is such a notice required
by 42 Pa.C.S. § 5505, the sentencing process must also satisfy due process,
which similarly requires a notice and opportunity to respond. See
Commonwealth v. Wright, 494 A.2d 354, 359 (Pa. 1985); Commonwealth
v. Eldred, 207 A.3d 404 (Pa. Super. 2019).
It is in accord with those mandates that we have held that a trial court
“is empowered to modify a sentence only if it notifies the defendant and the
district attorney of its intention to do so.” Commonwealth v. Hobson, 452
A.2d 22, 23 (Pa. Super. 1982) (citing Commonwealth v. Horsman, 361
A.2d 433 (Pa. Super. 1976)). Modification of a sentence without notifying the
defendant is inconsistent with “the accused being present at every vital stage
of the criminal process.” Commonwealth. v. Pastorkovic, 567 A.2d 1089,
1092 (Pa. Super. 1989). Moreover, if the sentence is modified without giving
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notice, it is without effect. See Commonwealth v. Reed, 386 A.2d 41 (Pa.
Super. 1978).
Because Blair did not receive notice and an opportunity to respond, we
vacate the sentence of the trial court and remand for resentencing after Blair
receives notice and an opportunity to respond.
Judgement of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/31/2020
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