J-S17035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                    v.

JAMIE ALLEN PAINTER

                          Appellant                   No. 1481 WDA 2014


                    Appeal from the Order August 20, 2014
               In the Court of Common Pleas of Clarion County
             Criminal Division at No(s): CP-16-CR-0000349-2012


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

MEMORANDUM BY GANTMAN, P.J.:                           FILED APRIL 08, 2015

      Appellant, Jamie Allen Painter, appeals from the order entered in the

Clarion County Court of Common Pleas, modifying his judgment of sentence.

We vacate the order modifying the judgment of sentence and reinstate the

original sentence imposed on June 12, 2014.

      The relevant facts and procedural history of this appeal are as follows.

On August 22, 2012, Appellant pled guilty to delivery of a controlled

substance and terroristic threats. In exchange, the Commonwealth agreed

to   the   imposition    of   consecutive,   standard-range   sentences.   The

Commonwealth also agreed to dismiss additional charges. Following an oral

colloquy, the court accepted Appellant’s pleas, ordered a pre-sentence

investigation report, and scheduled the matter for sentencing. On October

___________________________

*Former Justice specially assigned to the Superior Court.
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10, 2012, the court sentenced Appellant to nine (9) months to two (2) years

less one (1) day imprisonment for the delivery conviction. For the terroristic

threats conviction, the court sentenced Appellant to a consecutive term of

two (2) years’ probation. The sentences conformed to the plea agreement,

and the court provided credit for time served of eighty-one (81) days.

Appellant did not file post-sentence motions or a notice of appeal.

      On June 28, 2013, the court granted parole. Appellant subsequently

violated the terms of his parole. The court conducted a revocation hearing

on January 23, 2014. Following the hearing, the court revoked parole and

ordered Appellant to serve fifty-eight (58) days of backtime on the delivery

conviction. The court also provided credit for time served of fifty-eight (58)

days and returned Appellant to parole.        The court did not modify the

probationary sentence for Appellant’s terroristic threats conviction.

      Appellant subsequently violated the terms of his probation. The court

conducted a revocation hearing on April 24, 2014, Appellant admitted to the

violations, and the court revoked probation. On June 12, 2014, the court re-

sentenced Appellant to five (5) months to two (2) years less one (1) day

imprisonment, followed by two (2) years’ probation for the terroristic threats

conviction.   The court provided credit for time served of seventy-five (75)

days, and it granted automatic parole at the expiration of the minimum

sentence “unless objected to by the Commonwealth.”              (Order, dated

6/12/14, at 1). Appellant did not file post-sentence motions or a notice of


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appeal.

      On August 13, 2014, the Commonwealth filed an objection to the

court’s grant of automatic parole. The court conducted a hearing on August

20, 2014. After the hearing, the court entered the following order:

          After [a] hearing, the [c]ourt ORDERED that provided
          [Appellant] continues good behavior in the Clarion County
          Prison, the [c]ourt directs that [Appellant] shall be eligible
          and receive parole at the expiration of his minimum
          sentence subject to the normal terms and conditions
          imposed by the Clarion County Adult Probation Department
          which, in this case, shall include drug and alcohol
          treatment.

                                   *    *    *

(Order, dated 8/20/14, at 1).

      Appellant filed a motion to reconsider on August 22, 2014, arguing

that the court modified the sentencing order by making drug treatment a

parole condition.    Appellant claimed the court lacked jurisdiction to act,

because the modification occurred more than thirty (30) days after the

imposition of sentence. The court denied Appellant’s motion to reconsider

on August 27, 2014.       The court insisted it did not actually “amend” the

sentencing order; rather, it entered “an Order granting parole status and

setting forth conditions of parole.” (Order, filed 8/27/14, at 1).

      Appellant timely filed a notice of appeal on September 9, 2014.      On

September 15, 2014, the court ordered Appellant to file a concise statement

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant

timely filed a Rule 1925(b) statement on October 3, 2014.

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      Appellant raises one issue for our review:

         DID THE TRIAL COURT ERR IN AMENDING [APPELLANT’S]
         SENTENCE AFTER THIRTY DAYS HAD PASSED TO INCLUDE
         CONDITIONS THAT HE BE SUBJECT TO “NORMAL TERMS
         AND CONDITIONS” OF [PAROLE] WHICH INCLUDED
         COURT ORDERED TREATMENT?

(Appellant’s Brief at 4).

      Appellant contends the court revoked probation and imposed a new

sentence of total confinement on June 12, 2014.      Appellant asserts there

was no patent or obvious error in the June 12, 2014 sentencing order.

Appellant complains the court amended the sentencing order on August 20,

2014, to include drug treatment as a parole condition.       Pursuant to 42

Pa.C.S.A. § 5505, Appellant insists the court lacked jurisdiction to amend the

sentencing order after thirty days had passed. Appellant concludes the court

erroneously amended the sentencing order. We agree.

      “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.A. § 5505.

Thus, absent an appeal, the trial court retains power to modify or rescind

any order within thirty days after its entry. Commonwealth v. Sheppard,

539 A.2d 1333 (Pa.Super. 1988).       Generally, after the thirty-day period

expires, the court lacks jurisdiction to modify an order. Commonwealth v.

Glunt, 61 A.3d 228 (Pa.Super. 2012).


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      Where a patent or obvious error exists, however, the court may

exercise its inherent power to correct the error despite the absence of

traditional jurisdiction. Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d

57 (2007).    Significantly, “[t]his exception to the general rule of Section

5505 cannot expand to swallow the rule.” Id. at 617, 933 A.2d at 66. See

also Commonwealth v. Robinson, 33 A.3d 89, 92 (Pa.Super. 2011),

appeal denied, 615 Pa. 776, 42 A.3d 292 (2012) (defining “patent” as “a fact

apparent from a review of the record without resort to third-party

information”). The omission of a parole condition from a sentencing order is

not a patent error per se.       Commonwealth v. Cooper, 482 A.2d 1014,

1021 (Pa.Super. 1984).

      “When an offender is sentenced to a maximum term of imprisonment

of less than two years, the common pleas court retains authority to grant

and revoke parole….”     Commonwealth v. Tilghman, 652 A.2d 390, 391

(Pa.Super. 1995), affirmed, 543 Pa. 578, 673 A.2d 898 (1996) (quoting

Commonwealth v. McDermott, 547 A.2d 1236, 1239 (Pa.Super. 1988)).

See also 42 Pa.C.S.A. § 9775 (reiterating sentencing court shall grant

parole from term of imprisonment for less than maximum period of two

years, and parole shall be without supervision by state parole board).

Additionally, 42 Pa.C.S.A. § 9776 sets forth procedures for a trial court to

follow before granting parole:

         § 9776. Judicial power to release inmates


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           (a) General rule.―Except as otherwise provided
        under this chapter or if the Pennsylvania Board of
        Probation and Parole has exclusive parole jurisdiction, a
        court of this Commonwealth or other court of record
        having jurisdiction may, after due hearing, release on
        parole an inmate in the county correctional institution of
        that judicial district.

           (b) Petition required.―No inmate may be paroled
        under this section except on petition verified by the oath of
        the inmate or by the inmate’s representative and
        presented and filed in the court in which the inmate was
        convicted.

           (c) Hearing.―On presentation of the petition, the
        court shall fix a day for the hearing. A copy of the petition
        shall be served on the district attorney and prosecutor in
        the case at least ten days before the day fixed for the
        hearing. Proof of service on the district attorney and the
        prosecutor shall be produced at the hearing.

           (d) Order.―After the hearing, the court shall make
        such order as it may deem just and proper. In case the
        court paroles the inmate, it shall place the inmate in the
        charge of and under the supervision of a designated
        probation officer.

                                  *    *     *

42 Pa.C.S.A. § 9776(a)-(d).

     Instantly, Appellant violated his probation on his terroristic threats

sentence, and the court revoked probation. On June 12, 2014, the court re-

sentenced Appellant to five months to two years less one day imprisonment,

followed by two years’ probation.          The sentencing order also granted

automatic parole at the expiration of the minimum sentence, unless the

Commonwealth objected.        The sentencing order did not include any other




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parole conditions. Following entry of the sentencing order, Appellant did not

file post-sentence motions or a notice of appeal.

       The Commonwealth filed an objection to automatic parole on August

13, 2014.       As a post-sentence motion, the Commonwealth’s filing was

untimely.    See Pa.R.Crim.P. 720(A)(1) (explaining party shall file written

post-sentence motion no later than 10 days after imposition of sentence).

Because the Commonwealth filed its motion beyond the thirty-day period in

which the court could have modified the sentencing order per Section 5505,

the court lacked jurisdiction to entertain the Commonwealth’s motion. See

42 Pa.C.S.A. § 5505; Glunt, supra; Sheppard, supra. Further, the record

does not reveal a patent or obvious error to trigger the court’s limited

judicial power under the narrow exception to Section 5505.1 See Holmes,

supra; Robinson, supra.

       In the     August 27, 2014          order   denying   Appellant’s   motion   to

reconsider, the trial court cited two cases to support its contention that a

court can impose parole conditions “long after the sentence order.” (Order,

filed 8/27/14, at 1). This Court has reviewed the relevant case law, and we

agree with Appellant’s assertion that the cases cited by the trial court “dealt

____________________________________________


1
  On June 12, 2014, the court announced Appellant’s new sentence at the
conclusion of the hearing in open court. The court did not announce its
intention to grant automatic parole at the expiration of the minimum
sentence, and it did not mention any parole conditions. (See N.T. Hearing,
6/12/14, at 27-29.)



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primarily with the substance of the [parole] condition rather than the actual

imposition and timing of those conditions.”          (Appellant’s Brief at 10)

(emphasis in original). We recognize the court could have imposed parole

conditions after sentencing if it had adhered to the procedures set forth in

Section 9776, requiring a separate parole petition, hearing, and order. See

42 Pa.C.S.A. § 9776(a)-(c).      See also Presley v. Pennsylvania Bd. of

Probation and Parole, 748 A.2d 791, 794 n.3 (Pa.Cmwlth. 2000)

(recognizing inconsistencies in statewide practices for courts’ implementation

of prior version of Section 9776; noting some counties’ trial courts had

issued general administrative orders stating defendants sentenced to

minimum term of imprisonment shall be paroled immediately upon serving

minimum sentence, unless Commonwealth filed petition objecting to

defendant’s release on parole). Here, the language in the sentencing order

effectively bypassed the Section 9776 procedures by combining a parole

determination with a sentencing order.

     Under these circumstances, the court lacked jurisdiction to modify the

sentencing   order   after   thirty   days.   See   Cooper,   supra   (holding

amendment of sentence to require participation in drug program as condition

of parole was unlawful, because court amended sentence more than thirty

days after sentencing; although trial court has inherent power to correct

obvious and patent mistakes, even after term of court has expired, omission

of drug therapy as parole condition did not constitute obvious or patent


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mistake). See also Commonwealth ex rel. Powell v. Rosenberry, 645

A.2d 1328 (Pa.Super. 1994) (explaining trial court lacked jurisdiction to

extend defendant’s parole, even though defendant petitioned for extension

of parole to have opportunity to pay fines; court did not act within thirty

days of original sentencing order). Accordingly, we vacate the August 20,

2014 order modifying Appellant’s sentence and reinstate the sentence

imposed on June 12, 2014.

     Order vacated; June 12, 2014 judgment of sentence reinstated.

     Judge Shogan joins this memorandum.

     Justice Fitzgerald concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




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