J-S53027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANNA MARIE POLITSOPOULOS

                            Appellant                No. 483 MDA 2015


           Appeal from the Judgment of Sentence January 16, 2015
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0003447-2013


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                           FILED OCTOBER 15, 2015

        Anna Marie Politsopoulos appeals the judgment of sentence imposed

January 16, 2015, in the Dauphin County Court of Common Pleas, following

her guilty plea to 190 counts of failure to make required disposition of funds

received (“theft”).1 That day, the trial court imposed an aggregate sentence

of two and a half to six years’ incarceration, followed by probation, after

vacating Politsopoulos’ original sentence imposed on October 20, 2014. On

appeal, Politsopoulos contends the trial court did not have jurisdiction to

revoke her original sentence and resentence her to a longer period of

incarceration. For the reasons set forth below, we are compelled to vacate


____________________________________________


1
    18 Pa.C.S. § 3927(a).
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the sentence imposed on January 16, 2015, and remand the case to the trial

court for reinstatement of Politsopoulos’ original sentence.

        The relevant facts and procedural history underlying this appeal are as

follows.     Politsopoulos was the business manager of seven restaurants:

Leola Restaurant, Jennie’s Diner, Farmer’s Wife, Crossroads Café, Turn In

Restaurant, Ephrata Diner, and John’s Diner. From 2008 to 2012, she failed

to file sales tax and employer withholding tax returns, and failed to remit the

collected sales tax and state income taxes for 164 tax periods. On August 5,

2013, an information was filed, charging Politsopoulos with 190 counts of

theft. On June 9, 2014, she entered a guilty plea to all counts. On October

20, 2014, the court sentenced Politsopoulos to an aggregate term of two and

a half to five years’ incarceration, with a concurrent term of 245 years’

probation, and to pay restitution in the amount of $856,703.14.2



____________________________________________


2
    Specifically, the court ordered:

              AND NOW, this 20th day of October 2014, on each of the
        149 Felony counts, [Politsopoulos] is sentenced to two and a half
        to five years in state prison, a fine of $25, plus costs. Those
        sentences shall run concurrent one to the other.

               On each of the 49 Misdemeanor-1 counts, [Politsopoulos]
        is sentenced to five years of state supervision. Those sentences
        shall run concurrent to the 141 felony counts, but consecutive to
        each other until [Politsopoulos] pays back the full restitution of
        $856,703.14.

(Footnote Continued Next Page)


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      On October 28, 2014, counsel for Politsopoulos filed a post-sentence

motion, followed by a supplemental motion, requesting modification of

sentence and seeking a delay in her report date, which were both denied on

November 3, 2014.           On that day, Politsopoulos failed to appear at the

courthouse to begin serving her sentence, and a bench warrant was issued.

On November 19, 2014, counsel for Politsopoulos filed a notice of appeal.3

The police subsequently found Politsopoulos at her home and took her into

custody on January 7, 2015.

      On January 16, 2015, following a hearing, the court re-sentenced

Politsopoulos to the following:         (1) at count one, nine to 24 months in a

state correctional facility; (2) at count two, a consecutive term of nine to 24

months in a state correctional facility; (3) at count three, a consecutive term

of six to 12 months in a state correctional facility; (4) at count four, a

consecutive term of six to 12 months in a state correctional facility; and (5)
                       _______________________
(Footnote Continued)

             Sentence is deferred until November 3rd, 2014, when
      [Politsopoulos] is to appear at the Dauphin County Courthouse at
      8 a.m. to begin serving her sentence.

             Once restitution is paid, we will close her cases.

Sentencing Order, 10/20/2014.
3
   The appeal was docketed at 2000 MDA 2014. On January 5, 2015, the
Commonwealth filed an application to quash because Politsopoulos was a
fugitive during the entire period allotted for filing an appeal. On February 9,
2015, Politsopoulos discontinued that appeal. On February 20, 2015, a
panel of this Court denied the Commonwealth’s application to quash as
moot.



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at counts five to 56, a term of five years’ probation for each count, to be

served consecutively. In imposing the sentence, the court stated:

       Because of the violation, Counts 1 through 10 shall be
       consecutive. Counts 11 through 56 shall be concurrent unless
       there is a violation and [Politsopoulos] fails to pay back
       $856,000 in restitution to the State.

       All other aspects of the sentence imposed on October 20, 2014
       shall remain the same.

Sentencing Order, 1/20/2015.

       Counsel for Politsopoulos filed a post-sentence motion on January 21,

2015, requesting transcripts and credit for time served, and/or to vacate the

sentence because the trial court lacked jurisdiction to amend the sentence.

On February 19, 2015, the court granted Politsopoulos’ request for

transcripts and credit for time served but denied her motion to vacate the

sentence. Politsopoulos filed a notice of appeal on March 9, 2015. On March

18, 2015, the trial court ordered Politsopoulos to file a concise statement of

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

did not file a concise statement within the requisite 21-day period.

Accordingly, on April 27, 2015, the trial court issued an order stating that

because Politsopoulos failed to file and serve a concise statement, all issues

were waived. See Order of Court, 4/27/2015.4 Politsopoulos subsequently

filed a concise statement on May 14, 2015.

____________________________________________


4
    The court did not file an opinion pursuant to Pa.R.A.P. 1925(a).



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       In her sole issue on appeal, Politsopoulos claims her January 16, 2015,

judgment of sentence is illegal because the court was without lawful

jurisdiction under 42 Pa.C.S. § 5505 to modify her sentence after imposing

the original sentence on October 20, 2014, and denying her post-sentence

motions on November 3, 2014.5 Politsopoulos’ Brief at 9. Specifically she

states:

              In the instant case, the trial court was not correcting an
       illegal sentence.    The trial court resentenced [Politsopoulos]
       because she failed to report to begin serving her sentence on
       November 3, 2014. Dauphin County Adult Probation did not file
       a probation detainer or notice of violation in an attempt to
       resentence [Politsopoulos].     The trial court simply modified
       [Politsopoulos’] sentence; however, the trial court lacked the
       jurisdiction to do so.

Politsopoulos’ Brief at 12-13. We agree.6

       Pursuant to 42 Pa.C.S. § 5505, a trial court possesses the inherent

authority to modify or rescind any order within 30 days of its entry, if no

appeal has been taken. “Generally, once the thirty-day period is over, the

trial court loses the power to alter its orders.” Commonwealth v. Melvin,

____________________________________________


5
   Despite the court’s finding that Politsopoulos waived all claims for failure
to file a concise statement, we note “this Court has the authority to address
an illegal sentence and remand the matter to the trial court even in the
absence of the preservation of the claim as the issue is non-waivable.”
Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.3 (Pa. Super. 2009)
(citation omitted). Accordingly, we will address the merits of the appeal.
6
    The Commonwealth “concurs with Politsopoulos’ request to vacate the
January 16, 2015 sentence due to the trial court’s lack of subject matter
jurisdiction.” Commonwealth’s Brief at 8.



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103 A.3d 1, 57 (Pa. Super. 2014) (citation omitted). Likewise, Pennsylvania

Rule of Appellate Procedure 1701 provides that a trial court lacks the

authority to proceed further in any matter after an appeal is taken.

Pa.R.A.P. 1701(a). Accordingly, “[o]nce [the] 30–day period has expired or

once a defendant files a notice of appeal, … the trial court is without

jurisdiction to alter or modify its order.”   Commonwealth v. Martz, 926

A.2d 514, 525 (Pa. Super. 2007) (citation omitted). The only exception to

this rule is when a party applies for, and the trial court expressly grants,

reconsideration of an order within the 30-day period.            See Pa.R.A.P.

1701(b)(3). “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 the application for reconsideration.” Commonwealth v. Moir, 766

A.2d 1253, 1254 (Pa. Super. 2000) (citation omitted).

      After the 30-day period, “a trial court has the inherent, common-law

authority to correct ‘clear clerical errors’ in its orders.” Commonwealth v.

Borrin, 12 A.3d 466, 471 (Pa. Super. 2011) (en banc) (citation omitted),

aff’d, 80 A.3d 1219 (Pa. 2013) (opinion announcing judgment). “We have

previously concluded that a ‘clear clerical error’ exists on the face of the

record ‘when a trial court’s intentions are clearly and unambiguously

declared during the sentencing hearing[.]” Commonwealth v. Thompson,

106 A.3d 742, 766 (Pa. Super. 2014), quoting Borrin, 12 A.3d at 473.




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     Turning to the present matter, Politsopoulos’ judgment of sentence

was imposed on October 20, 2014. Therefore, the trial court had 30 days

from that date, or until November 19, 2014, to modify or vacate the

sentence. See 42 Pa.C.S. § 5505. On November 3, 2014, the court denied

Politsopoulos’ post-sentence motion.    Moreover, on November 19, 2014,

Politsopoulos filed a notice of appeal, thereby divesting the trial court of

jurisdiction in this matter. See Pa.R.A.P. 1701(a).

     As such, the trial court had no authority to alter Politsopoulos’

sentence, absent (1) the filing of a motion for reconsideration, by either

Politsopoulos or the Commonwealth, and (2) the entry of an order expressly

granting reconsideration of Politsopoulos’ sentence within the initial 30-day

period, i.e., before November 19, 2014. See Pa.R.A.P. 1701(b)(3). Here,

neither of those exceptions applies as the trial court denied Politsopoulos’

motion for reconsideration, and never expressly granted reconsideration of

the sentence before the 30-day period expired.

     Furthermore, a review of the October 20, 2014, and January 16, 2015,

sentencing hearings makes it clear the court was not correcting a clerical

error when it resentenced Politsopoulos on the latter date.     See Borrin,

supra.

     Therefore, we conclude the trial court had no jurisdiction to vacate

Politsopoulos’ sentence on October 20, 2014, and the sentence imposed on

January 16, 2015, is a nullity. Accordingly, we vacate the judgment of


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sentence imposed on January 16, 2015, and remand this case to the trial

court for reinstatement of the October 20, 2014, judgment of sentence.

     Judgment of sentence vacated.       Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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