J-S40036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

KURT J. KEIPER

                      Appellant           No. 2275 MDA 2013, 2276
                                          MDA 2013, 2277 MDA 2013,
                                          2278 MDA 2013, 2279 MDA
                                          2013, 2280 MDA 2013, 2281
                                          MDA 2013, 2282 MDA 2013,
                                          2283 MDA 2013, 2284 MDA
                                          2013, 2285 MDA 2013, 2286
                                          MDA 2013, 2287 MDA 2013


       Appeal from the Judgment of Sentence November 19, 2013
            In the Court of Common Pleas of Snyder County
          Criminal Division at No(s): CP-55-CR-0000351-2010
                                      CP-55-CR-0000352-2010
                                      CP-55-CR-0000087-2011
                                     CP-55-CR-0000088-2011
                                     CP-55-CR-0000089-2011
                                     CP-55-CR-0000090-2011
                                     CP-55-CR-0000091-2011
                                     CP-55-CR-0000092-2011
                                     CP-51-CR-0000106-2011
                                     CP-55-CR-0000347-2012
                                     CP-55-CR-0000349-2012
                                     CP-55-CR-0000350-2012
                                     CP-51-CR-0000351-2012


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.                    FILED AUGUST 20, 2014
J-S40036-14


        Appellant, Kurt James Keiper, appeals from the amended judgment of

sentence entered on November 19, 2013, by the Court of Common Pleas of

Snyder County. We affirm.

        On January 31, 2012, Keiper pled guilty to 15 counts of theft by

deception1 (13 of those counts amount to third degree felonies and 2 of

those counts were first-degree misdemeanors) and one count for bad

checks2 (a first-degree misdemeanor). Keiper pled guilty to taking down

payments from individuals and businesses for their purchase of high-end

vehicles without ever providing the purchased vehicle to the customer and



issuing two checks for services provided to him which were subsequently not

                                       y was not strictly limited to Synder County,

Pennsylvania. It reached for example, British Columbia and Massachusetts.

        On November 14, 2012, the trial court sentenced Keiper to an



originally sentenced Keiper to a Recidivism Risk Reduction Incentive

                                                                                  -

quarters of the minimum sentence. However, on March 15, 2013, the trial

court subsequently amended the RRRI minimum to 12.5 years, calculated by

taking five-sixths of the minimum sentence. The trial court amended the
____________________________________________


1
    18 Pa.C.S.A. § 3922.
2
    18 Pa.C.S.A. § 4015.



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J-S40036-14


sentence after receiving notice from the Pennsylvania Department of

Corrections that there could be a sentencing error. No appeal was filed after

the amended sentence.

      Subsequently, Keiper filed two PCRA petitions and on October 4, 2013,

the PCRA court reinstated his appellate rights nunc pro tunc. Keiper then

filed a motion to modify his sentence. On November 19, 2013, the trial court

denied the motion in part and decided to strike the provision that the

restitution be paid in full before Keiper is eligible for parole. This timely

appeal now follows.



was manifestly excessive and that the trial court failed to consider all the

required sentencing factors within the sentencing code. As a general rule,

sentencing is a matter vested within the sound discretion of the trial court,

and this Court will not disturb the sentence on appeal absent manifest abuse

of discretion. See Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa.

Super. 2011). An appeal challenging the discretionary aspects of a sentence

is not available as of right and we can only reach the merits where there is a

substantial question that the sentence imposed is not appropriate under the

sentencing code. See Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.

Super. 1995); 42 Pa.C.S. § 9781(b). Our review must solely focus on the

reasons for which the appeal is sought as opposed to the facts underlying




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the appeal. See Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.

Super. 2006).

     In order to raise an appeal challenging the discretionary aspects of a

sentence the appellant must satisfy four requirements. First, the appellant

must file a timely appeal. See Commonwealth v. Malovich, 903 A.2d

1247, 1250 (Pa. Super. 2006). Second, the appellant must preserve his

objection in the trial court in order for it to be presented on appeal.   See

Shugars, 895 A.2d at 1274.        Third, pursuant to Pa.R.A.P. 2119(f), the



allowance of appeal. Lastly, pursuant to 42 Pa.C.S. § 9721(b), the appellant

must demonstrate that a substantial question exists as to whether the

sentence imposed is inappropriate under the Sentencing Code.

     A substantial question exists when the appellant advances a colorable



with a specific provision of the Sentencing Code or 2) contrary to the

fundamental     norms   that   underlie    the   sentencing   process.    See

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005).

     Furthermore, we consider substantial questions on a case-by-case

basis. See Urrutia, 653 A.2d at 710. In determining whether a substantial

question exists, this court does not examine the merits of the questions

posed to us for our review. See Commonwealth v. Tuladziecki, 522 A.2d

17, 19 (Pa. 1987). A substantial question is not raised when the appellant


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contends that the trial court failed to c

                                                                            See

Urrutia, 653 A.2d at 706.

      We   find   that   Keiper   has   satisfied   the   four   above-mentioned

requirements.     Further, we find that Keiper has raised two substantial

questions for our review. First, that the trial court failed to consider did not

analyze of the factors found within 42 Pa.C.S.A. § 9721(b), specifically his

rehabilitative needs. See Commonwealth v. Dodge, 77 A.3d 1263, 1272



the consecutive sentence is unreasonably excessive in light of the fact that it

is a virtual life-sentence for a non-violent property crime. See id., at 1273.

      We begin with the argument that the trial court failed to consider the

factors in § 9721(b). In fashioning its sentence, a trial court must consider

the protection of the public, the gravity of the offense on the victim and

community, and the rehabilitative needs of the defendant. See 42 Pa.C.S.A.

§ 9721(b). Where the sentencing judge has the benefit of a pre-sentence

investigation report, a presumption exists that he was aware of and



mitigating factors. See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.

1988).

      Instantly, when fashioning its sentence, the trial court had the benefit

of a pre-sentence report. See N.T., Sentencing, 11/14/12, at 8. As such,


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there is a strong presumption that the trial court considered all the factors

required by 42 Pa.C.S. § 9721.                 Indeed, a review of the sentencing

transcript reveals that the trial court considered all of the required

sentencing factors found within 42 Pa.C.S.A. § 9721.              In particular, the

record indicates that the trial court considered the nature of his crime as well

                                                      See id. Furthermore, there is




of taking advant

he had committed. Id.



manifestly excessive as it is a virtual life sentence for non-violent property

crimes. First, we must note that Keiper does not have a virtual life sentence.

While it is true that Keiper has an aggregate sentence of 12.5 to 78 years,

Keiper will be eligible for parole at around age 54.3 As such, this does not

amount to a life sentence, especially when the trial court vacated the

requirement that Keiper is not eligible for parole until his restitution has

been paid in full. See

lifetime when he is first eligible for parole.



____________________________________________


3
    Defendant was approximately 42 years old at the time of sentencing.



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      Here, the trial court imposed a standard range sentence for each

offense, but ran them consecutively.         A panel of this Court in Dodge

determined that it was not excessive or unreasonable for a defendant to

receive an aggregate sentence of 40 years, seven months to 81 years, two

months for multiple counts of stolen property. See 77 A.3d at 1275. Like in

Dodge, Keiper was charged with multiple counts of non-violent property

crimes. As such, we find that, just as the defendant in Dodge did not have

an excessive sentence, the sentence imposed upon Keiper by the trial court

is not an excessive or unreasonable sentence. Therefore, we find that the

trial court did not abuse its discretion in imposing the consecutive aggregate

sentence upon Keiper.

      The second issue that Keiper raises on appeal is that the trial court did

not have the ability to amend his RRRI minimum sentence after 30 days

elapsed pursuant to 42 Pa.C.S.A. § 5505. The issue that Keiper raises on

appeal, challenging the power of courts to correct an allegedly illegal

sentence absent jurisdiction pursuant to 42 Pa.C.S.A. § 5505, is a question

of law for which our review is plenary. See Commonwealth v. Holmes,

933 A.2d 57, 65 (Pa. 2007).

      The statute states in relevant part:

      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.


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42 Pa.C.S.A. § 5505. Notwithstanding the tri



courts still have the inherent power to correct patent errors absent

traditional jurisdiction. See Holmes

has been upheld as an exception to section 5505 because section 5505 was

never intended to create a strict jurisdictional deadline for correcting orders

                                                          Commonwealth v.

Jackson, 30 A.3d 516, 522 (Pa. Super. 2011).         As such, the jurisdiction



imposition of an obviously illegal sentence. See Holmes, 933 A.2d at 67.

       We find that the above-mentioned exception applies here. In imposing



The statute, 61 Pa.C.S.A. § 4505(c)(2), requires the trial court to fashion a

                                                      -sixths of the minimum
                                                                   4
sentence if the minimu                                                 However,

the trial court originally imposed a RRRI sentence that was three-quarters of



because the statute required the usage of the five-sixths formula. It was

during the November 19, 2013, hearing that the trial court amended the

original RRRI minimum sentence to a legal sentence using the five-sixths
____________________________________________


4

minimum sentence is based is greater than three years.



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formula.   Although this amendment to sentencing occurred outside of the

30-day statutory time bar, we find that the trial court permissibly used its

inherent power to modify the patently erroneous illegal RRRI sentence.

     Judgment of sentence affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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