J   -A15001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA
                           Appellee

                      v.

    DAMON JOHNSON,

                           Appellant                   No. 2934 EDA 2017


        Appeal from the Judgment of Sentence Entered August 23, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003295-2011

BEFORE:      BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED AUGUST 12, 2019

        Appellant, Damon Johnson, appeals from the judgment of sentence of

1-2 years' incarceration, imposed for     a   violation of probation due to his

conviction on new charges.       Appellant argues that his sentence    is    illegal

because he had already completed his probation when he was arrested on the

new charges. After careful review, we reverse.

        As   this Court previously reported during the direct appeal from

Appellant's judgment of sentence at CP-51-CR-0003295-2011:

        Appellant was incarcerated at a county correctional facility in
        Philadelphia County. On August 30, 2010, at 10:30 a.m., Kanisha
        Ellis visited Appellant. County Correctional Officer Mary Hornick
        observed the two take a picture together, during which time
        Appellant made several reaching motions behind Ms. Ellis's back.
        Appellant was warned twice regarding the motions.          Officer
        Hornick then witnessed Appellant place a small object in his jump


*   Retired Senior Judge assigned to the Superior Court.
J   -A15001-19


        suit. She informed another officer and two officers escorted
        Appellant to a search room. Appellant previously had been
        stripped searched before putting on the jump suit. When officers
        asked Appellant to remove the suit, he refused. After a brief
        struggle with the officers, an object fell from Appellant's pant leg.
        He grabbed the object and put it into his mouth before spitting it
        out when he was pepper sprayed. The object was a plastic bag
        containing 9.7 grams of marijuana. A property receipt reflected
        that the bag was taken from Ms. Ellis.
Commonwealth v. Johnson,                 No. 173 EDA 2012, unpublished memorandum

at   2 (Pa.   Super. filed Mar. 8, 2013).

        The trial court sentenced Appellant to "one and one-half to four years[']

incarceration     ...   after [it] convicted him of possession of    a   controlled substance

by an inmate, conspiracy to commit possession of                a   controlled substance by

an inmate, possession of a controlled substance (marijuana), possession of a

small amount of marijuana, and tampering with evidence."                    Id. at   1. The   trial

court imposed           a    concurrent term of   2   years' probation for tampering with

evidence. N.T., 12/21/11, at 54. However, the written sentencing order filed

by the court imposed the two-year term of probation for tampering with

evidence to run consecutive to the term of incarceration. Order of Sentence,

12/21/11, at            1.     Appellant served his term of incarceration and was

subsequently released.'

         On January 29, 2016, Appellant was arrested on new charges. Following

a    trial, he was convicted of resisting arrest, three firearm charges, criminal

mischief, simple assault, and reckless endangerment.                     On August 11, 2017,




"   The parties are unable to provide this Court with Appellant's release date.

                                              - 2 -
J   -A15001-19



the trial court sentenced Appellant to 6-12 years' incarceration, and to                      a

consecutive term of 8 years' probation.

          On August 23, 2017, Appellant appeared before the Honorable Judge

Robert     F.   Gordon for   a   probation violation hearing. Relying on the sentencing

order from the case at CP-51-CR-0003295-2011, Appellant's counsel stated

at the beginning of the hearing that Appellant's probationary term in that case

was ordered to run consecutive to the term of incarceration imposed.                      N.T.,

8/23/17, at 4. It appears that Appellant's counsel's statement was prompted
by   a   prior discussion with the court that was not transcribed. Id.

          Ultimately, the court determined that Appellant's new crimes constituted

a    direct violation of the terms of his probation.              On   that basis, the court
imposed         a   new term of 1-2 years' incarceration for tampering with evidence.

Id. at     22.       Appellant filed   a   timely notice of appeal, and     a   timely, court -

ordered, Pa.R.A.P. 1925(b) statement.                   However, during the interim, Judge

Gordon retired. As such, no Rule 1925(a) opinion was filed in this matter.

         Appellant now presents the following question for our review:

         Should not the lower court's revocation sentence be vacated
         where, at the time the trial court revoked Appellant's probation
         and resentenced him, Appellant's term of probation had already
         expired, since Appellant's probation term was to run concurrent
         with his original sentence on other counts, that probation expired
         in 2013 and the violating acts in 2016 which formed the basis for
         the revocation occurred after the probation had expired?
Appellant's Brief at 3.

         Appellant's       claim   concerns     the     legality of his sentence.         See

Commonwealth v. Mathias,                   121 A.3d 558, 563 (Pa. Super. 2015) (holding

                                                - 3 -
J   -A15001-19



that   a   sentence imposed for    a   violation of probation was illegal where the term

of probation had already expired); compare Commonwealth v. Mitchell,

955 A.2d 433,435 n.2 (Pa. Super. 2008) ("Under Pennsylvania law, an order

of probation can be changed or revoked if,                 at any time before the
defendant has completed the maximum period of probation, or before
he has begun service of his probation the defendant commits offenses or

otherwise demonstrates he         is   unworthy of probation.") (cleaned up, emphasis

added). "A challenge to the legality of the sentence may be raised as          a   matter
of right, is non-waivable, and may be entertained so long as the reviewing

court has jurisdiction." Commonwealth v. Robinson, 931 A.2d 15,19-20

(Pa. Super. 2007).

           Appellant argues that, at his original sentencing hearing, the trial court

unambiguously expressed its intent to impose the at -issue probationary term

to run concurrent to his term of incarceration.            Appellant's Brief at 11. As

such, Appellant contends that the contrary language in the written sentencing

order constituted      a   "patent and obvious mistake and not the actual sentence
imposed on" Appellant.         Id. at   13.

           The   Commonwealth          argues that the    sentencing order controls.

Commonwealth's Brief at 7. The Commonwealth concedes only that "the trial

court's statements at sentencing were not completely clear," and that the trial

court "mischaracterized [Appellant]'s probation term in its April 26, 2013

opinion." Id. at 8. However, the Commonwealth maintains that "the text of



                                              -4
J   -A15001-19



a   written sentencing order         is   determinative of the actual sentence" in light of

such ambiguities.      Id. at   9.

        Generally speaking, "it is well -settled that the signed sentencing order

takes     precedence    over oral statements of the sentencing court not

incorporated into that order." Commonwealth v. Kubiac, 550 A.2d 219,

229 (Pa. Super. 1988). However, this Court has permitted the correction of

a   sentencing order by    a    trial court, outside the time period permitted by 42

Pa.C.S.   §   5505,2 where the unambiguous, on -the -record statement of the

sentence conflicted with the written order.               See Kubiac, 550 A.2d at 231;

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

(refusing to permit alteration to the written sentencing order outside of the

framework of Section 5505 where "the trial judge's intentions                     ...   were not

clearly and unequivocally expressed at sentencing.").                  Here, the trial court's

intention at the original sentencing hearing was unambiguous: "And [at]

Count 5, tampering[,] is two years['] probation               concurrent." N.T., 12/21/11,
at 54 (emphasis added).

        The   Commonwealth                contends that "the court          confirmed at the

revocation hearing that the written order was correct" in ordering Appellant's

term    of probation      to    run consecutive          to    his   term    of incarceration.



2 Section 5505 provides: "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."


                                                 -5
J   -A15001-19



Commonwealth's Brief at 10.            We disagree with the Commonwealth's

characterization of the record,3 but, in any event, comments made "after-the -

fact" regarding   a   sentencing court's "subjective intent" at   a   prior sentencing

proceeding are "irrelevant[.]"      Commonwealth v. Borrin, 80 A.3d 1219,
1227 (Pa. 2013).

        Accordingly, we conclude that the unambiguous intent of the trial court

at the December 21, 2011 sentencing hearing was to impose                  a   term of

probation concurrent to Appellant's term of incarceration, and that the written

sentencing order's statement to the contrary was          a    patent clerical error.

Consequently, Appellant's term of probation expired on December 21, 2013,

long before his arrest on January 29, 2016, on the new charges that served

as the basis for court's revocation of his probation.         As such, the sentence

imposed for that revocation of an expired term of probation was illegal. See

Matthias, supra. Thus, we reverse Appellant's judgment of sentence.
        Judgment of sentence reversed.




3 The record could just as easily be interpreted to show that the court was
simply restating the text from the sentencing order. See N.T., 8/23/17, at
21.    Moreover, the trial court's Rule 1925(a) opinion filed during Appellant's
direct appeal stated that the at -issue term of probation was ordered to run
concurrent to Appellant's term of incarceration, consistent with the court's
statement at the sentencing hearing. Rule 1925(a) Opinion, 4/26/13, at 2.
                                        - 6 -
J   -A15001-19




Judgment Entered.




J seph D. Seletyn,
Prothonotary



Date: 8/12/19




                     -7
