J-S59026-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                     Appellee              :
                                           :
             v.                            :
                                           :
BRYAN J. THOMPSON,                         :
                                           :
                     Appellant             :   No. 301 WDA 2015

                   Appeal from the PCRA Order February 2, 2015,
                      Court of Common Pleas, Cambria County,
                  Criminal Division at No. CP-11-CR-0000545-2014

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED SEPTEMBER 28, 2015

       Appellant, Bryan J. Thompson (“Thompson”), appeals from the order

entered on February 2, 2015 in the Court of Common Pleas, Cambria

County, denying his petition for relief pursuant to the Post-Conviction Relief

Act (“PCRA”).1 For the reasons set forth herein, we affirm.

       The PCRA court provided the following summary of the factual and

procedural history:

                On June 3, 2014, Thompson entered a guilty plea
             to one count of [d]efiant [t]respass[1] and was
             sentenced, inter alia, to serve twelve (12) months
             probation with a furlough to inpatient drug and
             alcohol treatment. Following release from treatment
             Thompson was to be returned to the Cambria County
             Prison unless he had pre-approved housing waiting
             for him. The Court was clear that he would be
             returned to county prison after treatment unless he
             had an approved residence waiting. As part of his


1
    42 Pa.C.S.A. §§ 9541-46.


*Former Justice specially assigned to the Superior Court.
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            plea agreement the Commonwealth nolle prossed the
            remaining charge of [d]isorderly [c]onduct thirty-one
            (31) days after sentencing.

                On August 28, 2014, a probation violation bench
            warrant was issued for Thompson on the basis that
            he had left his residential treatment at White Deer
            Run prior to completing the program and failed to
            contact the Cambria County Probation Office to
            approve his residence as required. Thompson was
            apprehended in Westmoreland County on October 1,
            2014, and a hearing on the bench warrant was held
            October 31, 2014, at which time it was alleged that
            he was in violation of his original probation for failure
            to complete treatment, failure to have his residence
            approved, and having new charges filed.              The
            hearing was continued to permit Thompson the
            opportunity to present evidence that he had
            completed the program, that he was released from
            it, that he had [a] residence to return to, and that
            acting upon belief that he could return home he did
            just that. Thompson was remanded to the prison
            following the October 31st hearing due to not having
            a residence. Further, the [c]ourt indicated that if
            Thompson could establish he completed the program
            and had a residence he would be released forthwith.

                A further hearing was held November 21, 2014,
            at which time no evidence was presented to support
            Thompson’s claim and he was found in violation of
            his probation and sentenced to complete a ninety
            (90) [day] treatment program at Peniel after which
            he was to be returned to the prison at which time
            the matter would be revisited. Failure to complete
            the program or leaving the program would be
            considered a further violation.
            _____________________
            [FN1]
                  18 Pa.C.S.A. § 3503(b)(1)(i).

PCRA Court Opinion, 4/7/15, at 1-2 (footnote included in original) (citations

omitted).




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        On December 15, 2014, Thompson filed a PCRA petition pro se

alleging that the trial court illegally modified his sentence after the

sentencing hearing.     Attorney Timothy Burns was appointed as counsel on

December 23, 2014 and filed an amended PCRA petition on January 26,

2014.      In the petition, Thompson alleged that he was serving an illegal

sentence because the trial court changed a condition of his sentence without

a proceeding on the record to reflect the modification. Thompson specifically

assailed the portion of the sentencing order that required him to return to

the Cambria County Prison after completing inpatient treatment rather than

allowing him to be directly released from treatment to a street address he

was to provide to the court as the trial court stated during the sentencing

hearing.

        The PCRA court held an evidentiary hearing on February 2, 2015 and

denied Thompson’s petition by order on that same day.          On February 9,

2015, Thompson filed a timely notice of appeal, raising one issue for our

review:

              1. The [PCRA] [c]ourt erred in finding that it did not
              change [Thompson’s] sentence when on the record
              at [Thompson’s] sentencing, the [c]ourt stated
              [Thompson] would be released from a drug
              treatment center directly to his home address (if he
              had a home address) which was in contradiction to
              the [c]ourt’s sentencing order which indicated that
              he would be returned to the Cambria County Prison
              after completing his time at a drug treatment center.
              The [c]ourt failed to make this change [to]




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            [Thompson’s] sentence on the              record;   thus
            constituting an illegal sentence.

Thompson’s Brief at 3.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's findings of fact, and whether the PCRA

court's determination is free of legal error.     Commonwealth v. Wantz,

84 A.3d 324, 331 (Pa. Super. 2014) (citing Commonwealth v. Phillips,

31 A.3d 317, 319 (Pa. Super. 2011)). A PCRA petitioner must establish the

claim by a preponderance of the evidence.         Commonwealth v. Gibson,

925 A.2d 167, 169 (Pa. 2007).

      In this case, Thompson contends that he is serving an illegal sentence

because the trial court’s sentencing order contradicted the trial court’s

statements at the sentencing hearing. Thompson’s Brief at 7-10. Thompson

specifically assails that portion of the trial court’s order, which provides: “the

Defendant shall be released into short-term inpatient residential treatment.

Upon successful completion of that treatment the Defendant shall be

returned to the Cambria County Prison so that the above case can be

addressed.” Id. at 7-8; Order, 6/5/14. Thompson argues that this portion

of the order contradicts the statements made by the trial court during the

sentencing hearing, specifically pointing to the notes of testimony wherein

the trial court stated:

            When you are done with treatment, if you have a
            residence to go to that has a number on the door



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            and a street address at the mailbox, you will be
            released from the treatment center directly to the
            street address. If you do not have a residence, you
            will be returned to jail until you do because I can’t
            supervise you out in no man’s land. Okay[?]

Thompson’s Brief at 7; N.T., 6/3/14, at 5. Thus, Thompson asserts that the

trial court’s order improperly modified the sentence after the sentencing

hearing to require him to return to prison upon completion of treatment and

is therefore illegal. Thompson’s Brief at 10.

      In its written opinion pursuant to Rule 1925(a) of the Pennsylvania

Rule of Appellate Procedure, the PCRA court determined that Thompson’s

argument that the sentence was illegal was meritless. PCRA Court Opinion,

4/7/15, at 5.   The PCRA Court first concluded that Thompson’s argument

was in error because he “violated the terms of [the] original sentence when

he left the White Deer Run treatment facility prior to completing the program

and going to an unapproved residence resulting in the issuance of [a] bench

warrant for his arrest.” Id. at 4.

      The PCRA court further concluded that:

            [t]he [c]ourt’s sentence on June 3rd did not indicate
            that he would be released directly from treatment to
            his home; indeed the sentence was such that the
            residence has to be approved by the probation office,
            which would preclude such a result. The June 5th
            Order is the [c]ourt’s standard order when
            furloughing a defendant to drug treatment. It is
            designed to ensure that a defendant has not only
            completed the program but that they have
            completed all other sentencing requirements prior to
            their release.     Here that would include that



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            Thompson had a confirmed address to be released
            to.   Accordingly, this order did not modify his
            sentence in anyway [sic] but served as a means of
            ensuring compliance with that sentence.

Id. at 4-5. After our review of the record, we find that the record supports

the PCRA court’s determination.

      First, we conclude that the record supports the PCRA court’s

determination that Thompson’s argument is meritless because he was not

returned to prison based on the alleged modification to the sentencing order.

Instead, the record reflects that Thompson failed to complete a treatment

program and failed to provide an address of a residence to which he could be

released. Id. at 2; N.T., 10/31/14, at 5-6. As Thompson does not dispute

that he was required to complete a treatment program and provide an

address of a residence in order to be released from prison, Thompson has

not established that he is serving an illegal sentence.

      Second, we find that the record belies Thompson’s claim that the trial

court illegally modified the sentence.     While Thompson relies on the trial

court’s statements at the sentencing hearing that he would be released

directly from the treatment center, the record reflects that the trial court

also stated, “When he is done [with treatment], he’s coming back to jail

because you do not get released unless you have a home where we know

where to supervise you. … I am not just opening the gate and chasing him

around for his costs and fines.” N.T., 6/3/14, at 4. These statements are




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conflicting with the trial court’s subsequent statements that he would be

released directly to a residence if he provided the street address. See id. at

5. The trial court’s intentions upon Thompson’s release from the treatment

program were therefore ambiguous.

      In Commonwealth v. Borrin, 12 A.3d 466 (Pa. Super. 2011), this

Court held, that “[i]f … a trial court’s stated intentions during the sentencing

hearing are ambiguous, then the terms of the sentence in the sentencing

order control[.]”   Id. at 473.   “Oral statements made by the sentencing

court, but not incorporated into the written sentence signed by the court,

are not part of the judgment of sentence.” Commonwealth v. Willis, 68

A.3d 997, 1010 (Pa. Super. 2013) (citing Commonwealth v. Quinlan, 639

A.2d 1235 (Pa. 1994)).

      In this case, the sentencing order clarifies the trial court’s intention by

specifying that Thompson was to return to prison upon successful completion

of inpatient treatment until the case could be addressed. The trial court did

not modify its sentence after the sentencing hearing, but rather, clarified the

procedure for releasing Thompson to a residence “as a means of ensuring

compliance with that sentence.” PCRA Court Opinion, 4/7/15, at 5. As the

written judgment of sentence prevails over the trial court’s stated intentions,

we conclude that Thompson’s legality of sentencing claim is meritless.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2015




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