J-S50041-14



                             2014 PA Super 167



COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JAMES JOSEPH ELLSWORTH,

                        Appellant                  No. 480 WDA 2014


            Appeal from the Order entered February 27, 2014,
               in the Court of Common Pleas of Erie County,
           Criminal Division, at No(s): CP-25-CR-0000659-2010


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.

OPINION BY ALLEN, J.:                            FILED AUGUST 12, 2014

                                                    pro se from the order




docket].   As such,

2/27/14.

     The trial court explained:

           [A]ppellant pled guilty to burglary on July 2, 2010 at
     Docket 569 - 2010. On September 22, 2010, he was sentenced
     to serve a period of incarceration of 2½ to 60 months. At that
     time he was given credit for 312 days. [A]ppellant did not file a
     post-sentencing motion, nor did he take a direct appeal. On
     February 27, 2014, this Court received a letter from the
     Commonwealth of Pennsylvania Department of Corrections, a
     copy of which is attached. At that time the Department of
     Corrections advised this Court that it had awarded backtime
     credit for the period of March 12, 2010 to October 18, 2010 for a
J-S50041-14


      state parole revocation at Docket 2634 2006. As such, it was
      inquiring of this Court whether double credit should be applied,
      which is not authorized. See, 42 Pa.C.S.A. § 9760.

            As has been the Department of Corrections policy for some
      time, it requested that this Court issue an order if it did not want
      [A]ppellant to obtain duplicate credit. After its review, this Court
      agreed and issued the February 27, 2014 Order.

Trial Court Memorandum Opinion, 4/10/14, at 1.

                          pro se

credit for time served.   Ap




defendant who is already serving a sentence at the time of sentencing on




the lower court in its Memorandum Opinion, dated April 10, 2014, in which it

relied upon Commonwealth v. Lloyd

      The trial court stated:

             Pursuant to [42 Pa.C.S.A. § 9760], [A]ppellant is not
      entitled to duplicate credit for time spent in custody. See,
      Commonwealth v. Lloyd, 509 A.2d 868, 872 (Pa. Super. 1986).
      Moreover, a trial court always has the ability to correct an illegal
      sentence. In this case, awarding [A]ppellant credit to which he
      is not entitled would violate § 9760. As credit issues can relate
      to the legality of a sentence, this Court acted within its authority
      when it issued the February 27, 2014 Order.             Finally, the
      [A]ppellant has not suffered any harm as he cannot claim a right
      to credit to which he is not entitled.



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J-S50041-14



Trial Court Memorandum Opinion, 4/10/14, at 2.

      Appellant relies upon 42 Pa.C.S.A. § 5505, which provides for

modification of orders as follows:

      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.




the thirty-day modification period. Jones v. Department of Corrections,

683 A.2d 340, 342 (Pa. Cmwlth. 1996) (citation omitted). An alleged error

must qualify as a clear clerical error or a patent and obvious mistake in

order to be amenable to correction.    Commonwealth v. Borrin, 12 A.3d

466, 473 (Pa. Super. 2011).

      Here, we conclude that the duplicative imposition of credit for time

served constituted a patent and obvious mistake that was amenable to

correction.

credit against mor

Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa. Super. 1996).             We



statutory language of Section 9760 and by the principle that a defendant be

                                                    for a particular offense

Commonwealth v. Hollawell, 604 A.2d at 723, 725 (Pa. Super. 1992).

Finally, it is noteworthy that the Department of Corrections, an executive



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J-S50041-14



agency, has no power to change sentences, or to add or remove sentencing

conditions, including credit for time served; this power is vested with the

sentencing court.   Commonwealth v. Mann, 957 A.2d 746 (Pa. Super.

2008).

     Given the foregoing, we expressly hold that the duplicative imposition

of credit for time served constitutes a patent and obvious mistake that is

amenable to correction after the thirty-day period prescribed in 42 Pa.C.S.A.

§ 5505.   We agree with the Commonwealth and the trial court that the

February 27, 2014 order denying Appellant credit for time served was



     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2014




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