Commonwealth v. Pinder

HOFFMAN, Judge,

concurring and dissenting:

I concur in the affirmance of appellant’s convictions, but must dissent from the remand to the lower court to reconsider and “clarify” the signed judgment of sentence.

The lower court in its oral colloquy pronounced a series of consecutive sentences totalling 38 to 82 years. It then *72signed a more lenient judgment of sentence omitting mention of the consecutive nature of certain sentences and thereby-totalling 20 to 40 years. See Pa.R.Crim.P. 1406. The prison authorities recorded appellant’s sentence on his “Initial Sentence Status Report,” as 38 to .82 years. Appellant challenges the prison authorities’ recording of his sentence.

This Court should not sua sponte attempt to resolve the discrepancy between the orally pronounced and the signed sentence. The lower court had the power in promulgating the signed judgment of sentence to impose without further explanation a sentence more lenient than that announced in open court. Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), citing United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931) (inherent power to mitigate). See 42 Pa.C.S.A. § 5505, 9721; Pa.R.Crim.P. 1410; Commonwealth v. Evans, 299 Pa.Superior Ct. 529, 445 A.2d 1255 (1982). Generally, the signed sentencing order, if legal, controls over oral statements of the sentencing judge not incorporated into the signed judgment of sentence. E.g. Commonwealth v. Hodge, 246 Pa.Superior Ct. 71, 369 A.2d 815 (1977); Commonwealth v. Foster, 229 Pa.Superior Ct. 269, 324 A.2d 538 (1974). If the signed order is inaccurate, the party aggrieved may timely petition to modify it so that it may be corrected. See Pa.R.Crim.P. 1410; Commonwealth v. Anderson, 304 Pa.Superior Ct. 476, 450 A.2d 1011 (1982); Commonwealth ex rel. Woods v. Howard, 249 Pa.Superior Ct. 428, 378 A.2d 370 (1977), citing Hill v. United States ex rel. Wampler, 298 U.S. 460, 56 S.Ct. 760, 80 L.Ed. 1283 (1936) (CARDOZO, J.). The lower court also has limited rights to sua sponte correct formal or substantial errors in the sentencing order. See 42 Pa.C.S.A. § 5505; Pa.R.A.P. 1701; Pa.R.Crim.P. 1410; Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970). Here, the lower court did not choose to change or correct its more lenient signed sentencing order, and the Commonwealth, aggrieved by that order, chose not to petition for its *73modification. We should not intervene where the lower court acted in a matter within its discretion and the aggrieved party has not complained.

Appellant’s challenge to the prison authorities’ recording of sentence does not place before this Court the issue, addressed by the majority, of the discrepancy between the signed judgment of sentence and the oral colloquy. Rather, appellant’s contention is essentially the same as that in Commonwealth ex rel. Woods v. Howard, supra. There a lower court announced a series of consecutive sentences at the oral colloquy, but signed a judgment of sentence omitting mention of their consecutive nature, thus reducing them to concurrent terms. The prison authorities, however, attempted to hold Woods beyond the concurrent terms. Woods challenged the prison authorities’ action by a habeas corpus petition and obtained relief in our Court. 249 Pa.Superior Ct. 428, 378 A.2d 370 (1977). Here, appellant challenges not the prison authorities attempt to hold him, but their recording of his sentence on the “Initial Sentence Status Report.” The bottom of that form declares in boldface type, “Please check this report carefully. If you have any questions or corrections, see your Records Officer.” We have no indication on this record that appellant contacted his records officer or otherwise pursued or exhausted his administrative remedies. To conserve judicial resources and to prevent the circumventing of appropriate lower authorities, an appellate court will not review matters that have not been addressed to those lower authorities. See, e.g., Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Accordingly, we should deny appellant’s request that we order correction of the prison authorities’ records, without prejudice to his right subsequently to pursue his contentions in the appropriate forum.