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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
THOMAS HOLLIDAY,                        :            No. 324 EDA 2015
                                        :
                       Appellant        :


         Appeal from the Judgment of Sentence, January 14, 2015,
              in the Court of Common Pleas of Bucks County
             Criminal Division at No. CP-09-CR-0006660-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 08, 2016

     Thomas Holliday appeals from the judgment of sentence entered

January 14, 2015, by the Court of Common Pleas of Bucks County, following

his conviction in a bench trial of 233 counts of various sexual offenses

against a minor, offenses against the family, and invasion of privacy.

Appellant was also classified as a sexually violent predator. As we conclude

that we are without jurisdiction, we quash the appeal.

     Appellant raises three issues for our review:

           I.    Whether the verdict concluding that the
                 [c]omplainant was under 16 years of age was
                 against the weight of the evidence since the
                 physical evidence including the video tape [sic]
                 documentation and the [c]omplainant’s own
                 written statement demonstrated that the
                 [c]omplainant was over 16 years of age before
                 any sex act occurred.
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             II.      Whether the [t]rial [c]ourt erred in viewing a
                      highly prejudicial statement handwritten by the
                      [c]omplainant stating that the [a]ppellant
                      raped her sister and using that as a factor at
                      sentencing.      Said statement was to be
                      redacted before trial, but the prosecutor
                      redacted it in front of the trial judge, with a
                      piece of tape, after the damage was already
                      done. The witness was not cautioned before
                      trial not to mention it.

             III.     Whether the [t]rial [c]ourt erred at sentencing
                      when it disregarded the sentencing guidelines
                      giving [a]ppellant a consecutive and maximum
                      sentence on many of the charges well beyond
                      any aggravated sentencing guideline range.

Appellant’s brief at 4.

      We address the Commonwealth’s contention that we must quash this

appeal for lack of jurisdiction.     The question of timeliness of an appeal is

jurisdictional.     Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.Super.

2000) (citation omitted).

      A defendant convicted of a crime has ten days from the imposition of

sentence to file a timely motion to modify.             Pa.R.Crim.P. 720(A)(1).

Generally, however, a trial court may modify or rescind any order within

30 days of its entry, provided that no appeal has been taken. 42 Pa.C.S.A.

§ 5505.    Once the 30-day period has expired or once a defendant files a

notice of appeal, the trial court lacks jurisdiction to modify or alter its order.

Commonwealth v. Martz, 926 A.2d 514, 525 (Pa.Super. 2007) (citation

omitted). The only exception is when a party applies for and the trial court

expressly grants reconsideration of an order within the 30-day period.


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Pa.R.A.P. 1701(b)(3); Moir, 766 A.2d at 1254. The trial court’s failure to

expressly grant reconsideration within the time set by the rules for filing an

appeal will cause the trial court to lose its power to act on an application for

reconsideration. Moir, 766 A.2d at 1254 (citation omitted).

      Here, the trial court imposed judgment of sentence on May 13, 2014.

Although appellant failed to file timely post-sentence motions, he did file a

timely notice of appeal of judgment of sentence to this court on June 12,

2014, the 30th day following his judgment of sentence. Appellant’s filing of

his notice of appeal, therefore, divested the trial court of jurisdiction.

Simultaneous with the filing of his notice of appeal, however, appellant filed

what would have been an untimely motion to vacate and reconsider

sentence with the trial court on June 12, 2014.

      On June 24, 2014, which was 12 days after appellant filed his notice of

appeal to this court, the trial court entered an order granting appellant’s

motion for reconsideration.     The trial court lacked jurisdiction to do so

because, again, appellant’s filing of his notice of appeal divested it of

jurisdiction. Moreover, even assuming that appellant had not filed his notice

of appeal to this court on June 12, 2014, the trial court’s grant of

reconsideration would nevertheless have been untimely because it failed to

expressly grant the motion within 30 days of entry of judgment of sentence.

Therefore, the trial court would have still lost its power to act on appellant’s

motion for reconsideration.



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      Then, on June 25, 2014, appellant filed a notice of withdraw of appeal

to this court with the trial court. On July 10, 2014, the deputy prothonotary

of this court entered an order that discontinued appellant’s direct appeal.

      Thereafter, on January 10, 2015, the trial court “resentenced”

appellant and entered a modification order. During that proceeding, the trial

court stated:

            The only question today remaining is what I do with
            the sentence. The original sentence I imposed was,
            I will admit, done in a moment when I was angry at
            [appellant], angry at having read his statement in
            the pre-sentence investigation, and that anger
            should not have entered into my decision-making.
            That is why I granted this reconsideration, along with
            the effort to alleviate some of the harm by providing
            for the sale of the house, and now through the sale
            of that house also to provide in a smaller way for
            [appellant’s] daughter.

Forfeiture/reconsideration of sentence, 1/14/15 at 20-21.

      On January 26, 2015, appellant filed the instant notice of appeal.

      Our supreme court has held that where a sentencing order contains a

patent mistake, a fact apparent from a review of the docket without resort to

third-party information, a trial court’s ability to correct the error absent

jurisdiction under 42 Pa.C.S.A. § 5505 or the Post-Conviction Relief Act,

42 Pa.C.S.A. § 9541 et seq., lies within “the inherent powers of the courts

to correct patent errors.”   Commonwealth v. Holmes, 933 A.2d 57, 66

(Pa. 2007) (en banc). The Holmes court, however, cautioned:

            This exception to the general rule of Section 5505
            cannot expand to swallow the rule. In applying the


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           exception to the cases at bar, we note that it is the
           obviousness of the illegality, rather than the illegality
           itself, that triggers the court’s inherent power. Not
           all illegal sentences will be amenable to correction as
           patent errors. Moreover, the inherent power to
           correct       errors     does     not    extend        to
           reconsideration of a court’s exercise of
           sentencing discretion. A court may not vacate
           a sentencing order merely because it later
           considers a sentence too harsh or too lenient.
           The cases at bar are not cases where a court
           reconsidered the application of its sentencing
           discretion or its interpretation of a nuanced or
           ambiguous statutory provision. These cases involve
           clear errors in the imposition of sentences that were
           incompatible with the record, as in Whitfield, or
           black letter law, as in Holmes. As we have in the
           past, we emphasize that this is a limited judicial
           power.

Id. at 67 (emphasis added).

     Here, the record demonstrates that the trial court, after reflection,

granted reconsideration of the judgment of sentence imposed on appellant

on May 13, 2014 because it viewed that sentence as too harsh.

(Forfeiture/reconsideration of sentence, 1/14/15 at 20-21.)               Because the

reconsideration   resulted   from   the   court’s   exercise   of   its    sentencing

discretion, its inherent power to correct errors did not extend to that

reconsideration and, therefore, the trial court lacked jurisdiction to grant

reconsideration and to resentence appellant.

     Appellant’s conviction and judgment of sentence became final on

June 12, 2014.    Although appellant filed a timely notice of appeal to this

court, he later withdrew the appeal, and the appeal was discontinued on



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July 10, 2014. We are, therefore constrained to quash this appeal for lack of

jurisdiction.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/8/2016




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