J-S38020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

IDRIS MUNSON,

                            Appellant                   No. 3160 EDA 2016


             Appeal from the Judgment of Sentence June 21, 2012
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1301659-2006


BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED AUGUST 25, 2017

       Appellant, Idris Munson, appeals from the judgment of sentence

entered following the revocation of his probation. We affirm the judgment of

sentence, but remand for a correction of a clerical error on the docket.

       The trial court set forth the history of this case as follows:

              On February 9, 2007, the Appellant plead guilty1 to one
       count of possession with intent to deliver marijuana and was
       sentenced to eleven and a half months to twenty-three months
       of incarceration plus two years of probation. While serving
       probation, the Appellant was arrested for Luring a Child into a
       Motor Vehicle. According to the court docket, the Appellant’s
       violation of probation hearing was originally scheduled for May
       21, 2010. On January [11], 2011, the Appellant plead 2 nolo
       contendere to Luring a Child into a Motor Vehicle and two counts
       of Corruption of Minors charges. The Appellant was sentenced to
       one to five years of incarceration on the Luring a Child charge
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     and five years of probation on the Corruption of Minors charges
     to run consecutively to his incarceration for possession with
     intent to deliver marijuana. The docket subsequently reflects
     that the violation of probation hearing was continued due to
     administrative reasons including a snow emergency closure,
     failure to bring down the Appellant to the courtroom and
     coordinating a video conference hearing. On June 21, 2012, the
     Honorable Joan A. Brown revoked the Appellant’s probation and
     resentenced the Appellant to two to four years of incarceration
     consecutively to the sentence the Appellant received on the
     Luring a Child charge. N.T. 6/21/12 at p. 7, 11[,] 11-18.
           1
             The Appellant plead guilty before the Honorable
           Gregory E. Smith.
           2
             The Appellant plead nolo contendere for his new
           offense before The Honorable William J. Mazzola.

            On July 2, 2012 the Appellant filed a Petition to Reconsider
     Sentence. Upon review of the Clerk of Quarter Sessions File, the
     court did not respond. On March 5, 2013, the Appellant filed a
     Petition for Post-Conviction Relief.3      Subsequently, counsel
     agreed to reinstate Appellant’s direct appellate rights nunc pro
     tunc. Pursuant to the mutual agreement of counsel, this Court
     issued an Order on September 16, 2016 granting Appellant’s
     right to file a nunc pro tunc appeal within thirty days.
     [Appellant] filed a timely appeal after which this Court issued an
     Order pursuant to Pa.R.A.P. 1925(b).
           3
             The PCRA Petition was administratively reassigned
           to The Honorable Scott DiClaudio due to the
           retirement of The Honorable Joan A. Brown who
           heard [Appellant’s] violation of probation hearing on
           June 21, 2012.

Trial Court Opinion, 1/12/17, at 1-2. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

     Appellant presents the following issue for our review:

           Should [Appellant’s] sentence be vacated because he was
     not afforded a speedy probation revocation hearing, as required
     by Pa.R.Crim.P. 708, and because the 580-day delay between

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      his probation violation and revocation hearing prejudiced him by
      increasing the duration of his incarceration?

Appellant’s Brief at 2.

      Appellant contends that the trial court violated Pa.R.Crim.P. 708 by

failing to hold a revocation hearing as speedily as possible. Appellant’s Brief

at 7-12. Appellant contends that, because of the delay, his sentence should

be vacated.

      In an appeal from a sentence imposed after the court has revoked

probation, we can review “the validity of the revocation proceedings, the

legality of the sentence imposed following revocation, and any challenge to

the discretionary aspects of the sentence imposed.”        Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa. Super. 2015).          In Commonwealth v.

Woods, 965 A.2d 1225 (Pa. Super. 2009), we set forth the following

standard when considering the merits of a challenge to a less-than-speedy

probation violation hearing:

      Pa.R.Crim.P. 708 provides, in relevant part, that:

              Rule 708. Violation of Probation, Intermediate
              Punishment, or Parole: Hearing and Disposition

                                    ***

              (B) Whenever a defendant has been sentenced to
              probation or intermediate punishment, or placed on
              parole, the judge shall not revoke such probation,
              intermediate punishment, or parole as allowed by
              law unless there has been:




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          (1) a hearing held as speedily as possible at which
          the defendant is present and represented by
          counsel; and

          (2) a finding of record that the defendant violated a
          condition of probation, intermediate punishment, or
          parole.

     Pa.R.Crim.P. 708(B)(1), (2).

          The language “speedily as possible” has been
          interpreted to require a hearing within a reasonable
          time.    Rule 708 does not establish a presumptive
          period in which the Commonwealth must revoke
          probation; but instead, the question is whether the
          delay was reasonable under the circumstances of the
          specific case and whether the appellant was
          prejudiced by the delay. The relevant period of
          delay is calculated from the date of conviction or
          entry of guilty plea to the date of the violation
          hearing.

          In evaluating the reasonableness of a delay, the
          court examines three factors: [1] the length of the
          delay; [2] the reasons for the delay; and [3] the
          prejudice resulting to the defendant from the delay.
          The   court must analyze         the circumstances
          surrounding the delay to determine if the
          Commonwealth acted with diligence in scheduling
          the revocation hearing. Prejudice in this context
          compromises the loss of essential witnesses or
          evidence, the absence of which would obfuscate the
          determination of whether probation was violated, or
          unnecessary restraint of personal liberty.

     Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa. Super.
     2004) (citations omitted).

Woods, 965 A.2d at 1227-1228.

     We first consider the length of the delay.   Our review of the record

reflects that on January 11, 2011, after having pled nolo contendere to


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luring a child into a motor vehicle and related crimes, Appellant was

sentenced to an aggregate term of incarceration of one to five years,

followed by five years of probation.         On June 21, 2012, the trial court

ultimately conducted a revocation hearing in the instant matter and found

Appellant to be in violation of his probation.        Hence, the delay involved a

period of approximately one year and five months. We recognize that we

have    held    delays   of    shorter   duration     to    be   reasonable.     See

Commonwealth v. Pelzer, 466 A.2d 159 (Pa. Super. 1993) (holding that a

ten-month delay was reasonable and not violative of former Rule 1409);

Commonwealth v. Woods, 965 A.2d 1225 (Pa. Super. 2009) (holding that

a delay of approximately nine months was not violation of probationer’s right

to speedy violation of probation hearing).          We have also held protracted

delays to be unreasonable. See Commonwealth v. McCain, 467 A.2d 382

(Pa. Super. 1983) (concluding that a twelve-month delay cannot be

dismissed as “intrinsically reasonable”).       Although we conclude that the

length of the delay in holding Appellant’s probation-violation hearing was not

intrinsically reasonable, the length of the delay is not the sole factor we

must review.

       Therefore, “we must [next] examine the reasons for the delay to

determine      whether   the   Commonwealth         acted   with   due   diligence   in

scheduling the revocation hearing.” Woods, 965 A.2d at 1228. Specifically,

the second factor in the reasonableness analysis requires scrutiny of the


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reasons for the delay and the surrounding circumstances to evaluate

whether the Commonwealth was diligent in scheduling the hearing.

Commonwealth v. Mines, 797 A.2d 963, 965 (Pa. Super. 2002).

      In discussing the delay at issue, the trial court stated the following:

      In evaluating the reasons for the time delay, it is apparent that
      the continuances were purely administrative in nature,
      composing chiefly of scheduling and videoconferencing issues.
      Moreover, according to the docket, the Commonwealth did not
      initiate the continuances and therefore the delay was not
      attributable to the Commonwealth.        Therefore, none of the
      continuances “represent[ed] a deliberate attempt by the
      Commonwealth to hamper ... or prejudice” the defense.
      Commonwealth v. Dickens, 475 A.2d 141, 143 (Pa. Super. Ct.
      1984).     Furthermore, the docket reflects that Appellant’s
      violation of probation hearing was originally scheduled less than
      one month after his new arrest.

Trial Court Opinion, 1/12/17, at 4.

      Appellant has offered no reason to overturn the trial court’s conclusion

that the delay was not attributable to the Commonwealth.            Indeed, our

review of the certified record supports the determination of the trial court

that the delays were not attributable to the Commonwealth. Furthermore,

the record reflects multiple docket entries contain explanations for the

revocation hearing being continued, such as: “hearing continued judge not

sitting;” “hearing continued defendant not brought down;” “snow emergency

courts closed;” “violation of probation hearing continued for video date; date

not yet given;” and “violation of probation hearing continued technical issues

with video hearing; defendant to be brought down. writ to be prepared.”




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Hence, any allegation that the Commonwealth was not diligent in scheduling

a revocation hearing lacks merit.

      Nevertheless, even if we were to conclude that the reasons for the

delay in this case appeared to be lacking, we must examine the final factor.

“[W]here the Commonwealth provides no explanation for the delay, the

court should not attribute the delay to the defendant; instead, the court

should   analyze      whether   the   delay   prejudiced   the   defendant.”

Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa. Super. 2010)

(citation omitted).   “To demonstrate a violation of his right to a speedy

probation revocation hearing, a defendant must allege and prove the delay

in holding the revocation hearing prejudiced him.” Id.

      The meaning of prejudice in the context of providing a prompt

revocation hearing “has been interpreted as being something, which could

detract from the probative value and reliability of the facts considered,

vitiating the reliability of the outcome itself.”        Commonwealth v.

Marchesano, 544 A.2d 1333, 1336 (Pa. 1988). “Prejudice in this context

compromises the loss of essential witnesses or evidence, the absence of

which would obfuscate the determination of whether probation was violated,

or unnecessary restraint of personal liberty.”   Woods, 965 A.2d at 1227-

1228 (citation omitted).

      “[W]here a conviction on new charges conclusively establishes the

defendant’s probation violation, the defendant cannot claim a delay in his


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[probation-revocation] hearing prejudiced him because he lost favorable

witnesses and evidence.” Christmas, 995 A.2d at 1263-1264. Moreover, if

a defendant is already incarcerated on the charges that triggered the

probation revocation, he cannot claim the delay in holding his revocation

hearing caused him any loss of personal liberty. Id. at 1263.

      Here, Appellant concedes that he did not suffer prejudice from the

delay related to his ability to defend against whether probation was violated.

Appellant’s Brief at 12 n.2.     Indeed, it is undisputed that Appellant’s

probation revocation was based entirely upon new criminal charges and

convictions. Thus, Appellant has not established prejudice in this regard.

      However, Appellant contends that the delay subjected him to an

unnecessary restraint of personal liberty.       Appellant’s Brief at 11-12.

Appellant baldly alleges that the delay increased the amount of time he

would have to serve in prison. Id. at 11.

      Our review of the record reflects that, at the time of the revocation

hearing, Appellant was serving a term of incarceration of one to five years

for the charges that directly resulted in the violation of his probation. N.T.,

6/21/12, at 7.   Upon the revocation of his probation, the court sentenced

Appellant to serve a term of incarceration of two to four years to run

consecutively to the sentence imposed at CP-51-CR-0007379-2010, which

involved the charges that led to the revocation of his probation.      Hence,

Appellant was not unnecessarily deprived of personal liberty by the delay


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because he was not incarcerated for additional time. Christmas, 995 A.2d

at 1263. See also Clark, 847 A.2d at 125 (no prejudice as defendant was

not incarcerated for additional time).       Accordingly, we conclude that

Appellant’s claim of prejudice lacks merit and find that he is not entitled to

relief based upon a claimed violation of his right to a speedy revocation

hearing.

      As an additional matter, we observe that Appellant incorrectly

indicates that the sentence imposed upon revocation of his probation was to

run “concurrent” to the sentence he was serving on the subsequent charges

at CP-51-CR-0007379-2010. Appellant’s Brief at 1, 5 and 11. However, our

careful review of the certified record reflects that, at the time of sentencing

following the revocation of probation, the court specified that Appellant’s

sentence was to be served “consecutive” to the sentence that he was

currently serving.   N.T., 6/21/12, at 7.   Likewise, the written sentencing

order also specifies that the revocation sentence was to be served

“consecutive” to the sentence Appellant was serving at CP-51-CR-0007379-

2010. Nevertheless, the trial court’s corresponding docket entry erroneously

indicates that the sentence of two to four years is to run concurrent to the

sentence at CP-51-CR-0007379-2010.

      As we have expressed, the written sentencing order controls any

sentencing dispute. See Commonwealth v. Willis, 68 A.3d 997, 1010 (Pa.

Super. 2013) (reiterating the rule that written sentence generally controls


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where discrepancy exists between sentence as written and sentence as

orally pronounced). We must conclude that the erroneous docket entry was

due to a clerical error.       In addition, we are mindful of the long standing

proposition that “[c]lerical errors or inaccuracies in docket entries may be

corrected   by   the   trial   court   so   that   they   conform   to   the   facts.”

Commonwealth v. Mount, 93 A.2d 887, 888 (Pa. Super. 1953).

Accordingly, we remand for the trial court to exercise its authority and

correct the clerical error on the docket so that the docket entry comports

with the sentencing order.

      Judgment of sentence affirmed.          Case remanded for correction of a

clerical error on the docket. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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