Commonwealth v. Borrin

Justice SAYLOR,

concurring.

I have some differences with the reasoning applied in the lead opinion,1 and, there*1235fore, I respectfully concur in the result. In my view, if the Commonwealth was dissatisfied with the judgment of sentence as framed by the trial court in its written sentencing order, it should have pursued clarification or modification in a timely fashion. Absent that, I agree with the majority and the en banc panel of the Superior Court that there are insufficient grounds on this record to support a belated modification of a written order which is reasonably clear on its face to lengthen Appellee’s aggregate term of incarceration. To the extent there is an ambiguity in a sentencing order which has not been addressed by the Commonwealth in a timely fashion, I also believe that it is appropriate to accord a role to the rule of lenity.

. For example, in assessing whether the trial court clarified or modified Appellee’s sentence, the majority indicates that the text of a sentencing order "is determinative of the [trial] court’s sentencing intentions.” See Opinion Announcing the Judgment of the Court, op. at 1226. Further, the majority admonishes that trial court’s are to put aside their own understanding of the sentence they meant to impose and evaluate their previous orders solely by reference to canons of construction. See id. at 1226-27. This admonition, however, appears only to hold true in an initial assessment of the sentencing order, since the majority appears to sanction review of a sentencing-hearing transcript in deter*1235mining whether a written sentencing order contains an error. See id. at 1228-29.

From my point of view, to lessen the confusion in an area of law in which courts tend to make inconsistent statements, it would be preferable to simply rely more consistently on the axiom that untimely challenges to sentencing orders which are reasonably unambiguous on their face are disfavored. Cf. id. at 1227.