J-S75021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANGEL VASQUEZ-DIAZ                         :
                                               :
                       Appellant               :   No. 642 EDA 2018

            Appeal from the Judgment of Sentence December 5, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008880-2012

BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 09, 2019

       Appellant Angel Vasquez-Diaz appeals from the judgment of sentence

following a jury trial and convictions for rape, involuntary deviate sexual

intercourse with a child, unlawful contact with a minor, endangering the

welfare of a child, indecent assault, and terroristic threats, and a prior remand

by this Court for resentencing.1 At the Commonwealth’s request, we again

vacate the judgment of sentence and remand for the limited purpose of

correcting its sentencing order.

       Because we write for the parties, we need not reiterate the facts and

procedural posture of this matter previously set forth in our prior decision.

See generally Vasquez-Diaz, 369 EDA 2014. Following this Court’s remand

____________________________________________


1Commonwealth v. Vasquez-Diaz, 369 EDA 2014 (Pa. Super. filed May 22,
2017) (unpublished mem.).
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for re-sentencing without reference to an unconstitutional mandatory

minimum sentence, the trial court held a re-sentencing hearing on December

5, 2017.

       At the sentencing hearing, the trial court pronounced the sentence as

follows:

       Count 1, rape, I’m sentencing [Appellant] to ten to 20 years.
       Count 2, involuntary deviate sexual intercourse, I’ll impose the
       sentence of 20 to 40 years.          Those sentences are to run
       concurrent. Count 3, unlawful contact with a minor, I’ll sentence
       [Appellant] to ten to 20 years. That sentence is to run consecutive
       connect [sic].[2] Count 4, endangering the welfare of a child, I’ll
       sentence the defendant to two-and-a-half to five years. That
       sentence is to run consecutive . . . Count 5 is indecent assault,
       it’s two-and-a-half to five. That sentence is to run concurrent with
       the previous sentence and with the sentence on Count 6,
       terroristic threats, I’m sentencing the defendant to two-and-a-half
       to five years. That sentence is to run consecutive to the previous
       terms. My calculation is that it’s 35 to 70 years.

N.T. Sentencing, 12/5/17, at 29-30. The trial court did not specify whether

the sentence for count three was consecutive or concurrent to the sentence

at count one or count two.

       The trial court’s sentencing order, however, did not provide for a thirty-

five to seventy year aggregate sentence. Rather, it provided for a twenty-five

to fifty year aggregate sentence, which we summarize as follows:

           Count       Offense            Term        Consecutive/
                                                       Concurrent
             1     § 3121(a)(1) 10-20 years
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2 The docket reflects that the sentence for count three was made consecutive
to the sentence for count one.


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           2     §   3123(b)      20-40 years    Concurrent to Count 1
           3     §   6318(a)(1)   10-20 years    Consecutive to Count 1
           4     §   4304(a)(1)   2.5-5 years    Consecutive to Count 2
           5     §   3126(a)(2)   2.5-5 years    Concurrent to Count 1
           6     §   2706(a)(1)   2.5-5 years    Consecutive to Count 4

See Sentencing Order, 12/5/17. Neither Appellant nor the Commonwealth

alerted the court to the discrepancy between the trial court’s statements at

sentencing and its sentencing order.

      Appellant filed a timely motion to reconsider the trial court’s thirty-five

to seventy year term of imprisonment. Appellant’s Pet. to Vacate and Recons.

Sentence, 12/15/17, at 1.     The docket reflects that the trial court denied

Appellant’s motion to reconsider sentence on February 7, 2018. Appellant

timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

      Appellant raises the following question:

      Did not the [trial] court err as a matter of law and abuse its
      discretion in imposing a sentence of incarceration totaling thirty-
      five to seventy years, comprised of consecutive sentences for the
      same conduct, inasmuch as the sentence was manifestly
      excessive and unreasonable, where the sentence far surpassed
      what was required to protect the public and account for
      [A]ppellant’s rehabilitative needs?

Appellant’s Brief at 3.

      We need not summarize Appellant’s arguments in support of his issue

in light of our disposition, which we set forth below.          On appeal, the

Commonwealth requests that this Court vacate the judgment of sentence and

remand to have the trial court correct a patent error in the written sentencing

order.   Commonwealth’s Brief at 8.          The Commonwealth highlights the


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differences between the trial court’s pronouncements at the sentencing

hearing and the court’s written sentencing order. Id. at 9.

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

(Borrin I), aff’d, 80 A.3d 1219 (Pa. 2013) (plurality) (Borrin II), the Borrin

I Court explained the standard of review as follows: “[t]he issue in the case,

whether the trial judge had the authority to correct an alleged sentencing

error, poses a pure question of law.       Accordingly, our scope of review is

plenary and our standard of review is de novo.” Borrin I, 12 A.3d at 471

(citations omitted).

      “In Pennsylvania, the text of the sentencing order, and not the

statements a trial court makes about a defendant’s sentence, is determinative

of the court’s sentencing intentions and the sentence imposed.” Borrin II,

80 A.3d at 1226 (citations omitted). The trial court, however, retains “the

inherent power to correct errors in its records or orders so they speak ‘the

truth,’ and thereby reflect what actually took place in judicial proceedings.”

Id. at 1227 (citations omitted).

      It is well-settled in Pennsylvania that a trial court has the inherent,
      common-law authority to correct clear clerical errors in its orders.
      A trial court maintains this authority even after the expiration of
      the 30 day time limitation set forth in 42 Pa.C.S.[] § 5505 for the
      modification of orders.

      A trial court’s inherent authority to correct clerical errors, while
      considered a time-honored tradition, has been described by our
      Supreme Court as a limited judicial power in its scope.




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Borrin I, 12 A.3d at 471-72 (citations and internal quotation marks omitted).3

“As a matter of general guidance, our Supreme Court has sanctioned the use

of the inherent authority in cases that involve clear errors in the imposition of

sentences that were incompatible with the record or black letter law[.]” Id.

at 473 (citation, internal quotation marks, and emphasis omitted). “[O]nly

when a trial court’s intentions are clearly and unambiguously declared during

the sentencing hearing can there be a clear clerical error on the face of the

record, and the sentencing order subject to later correction.” Id. (citation and

internal quotation marks omitted).

       Here, we agree with the Commonwealth that a clear clerical error

occurred. See id. At the sentencing hearing, the trial court announced its

intent to impose an aggregate sentence of thirty-five to seventy years’

imprisonment. N.T. Sentencing at 29-30. The actual sentencing order itself,

however, reflects a twenty-five to fifty year aggregate term of imprisonment.

Sentencing Order, 12/5/17. Therefore, we vacate the judgment of sentence

and remand for correction.         See Borrin I, 13 A.3d at 471-73; see also

Commonwealth’s Brief at 9.




____________________________________________


3“Correctible errors are those determined to be ‘patent and obvious mistakes.’
The term ‘clerical error’ has been long used by our courts to describe an
omission or a statement in the record or an order shown to be inconsistent
with what in fact occurred in a case, and, thus, subject to repair.” Borrin II,
80 A.3d at 1227 (citations omitted).


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      Commonwealth’s Application for Extension of Time to File Brief denied

as moot. Judgment of sentence vacated. Case remanded for correction of

the sentencing order. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/19




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