J-S51026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BRADLEY S. SAAM

                            Appellant                No. 329 MDA 2014


           Appeal from the Judgment of Sentence January 28, 2014
            In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0002337-2012


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

MEMORANDUM BY OTT, J.:                              FILED MARCH 10, 2015

        Bradley S. Saam appeals the judgment of sentence imposed January

28, 2014, in the Lackawanna County Court of Common Pleas, following his

guilty plea to charges of driving under the influence of controlled substances

(DUI) and possession of drug paraphernalia.1      The trial court imposed an

aggregate sentence of 16 to 48 months’ imprisonment, followed by two

years’ probation, after it had vacated Saam’s original sentence imposed on

March 26, 2013.        On appeal, Saam contends (1) the trial court had no

jurisdiction to revoke his original sentence and resentence him to a longer

period of incarceration, and (2) the second sentence imposed by the trial

court was harsh and unreasonable. For the reasons set forth below, we are

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1
    75 Pa.C.S. § 3802(d)(2) and 35 P.S. § 780-113(a)(32), respectively.
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compelled to vacate the sentence imposed on January 28, 2014, and

remand the case to the trial court for reinstatement of Saam’s original

sentence.

      The relevant facts and procedural history underlying this appeal are as

follows. On November 30, 2012, Saam entered a guilty plea to one count

each of DUI and possession of drug paraphernalia, following his arrest during

a lawful traffic stop on August 27, 2012.     The court permitted Saam to

remain free on bail pending his sentencing, but directed that he undergo

drug testing by the Lackawanna County Adult Probation Department. Saam

tested positive for marijuana, suboxone and benzodiazipines. Thereafter, on

December 3, 2012, the court revoked Saam’s bail and ordered him to county

prison until his sentencing hearing.

      Because Saam was found to meet the criteria for inpatient care by the

Lackawanna Office of Drug and Alcohol in late January of 2013, he was

furloughed to Pyramid Health Care for inpatient treatment, where he

remained for 42 days, until he was discharged for a violation. On March 26,

2013, Saam appeared at his sentencing hearing. The trial court sentenced

Saam to a standard range term of 14 to 36 months’ imprisonment for the

charge of DUI, and one year of consecutive probation for the charge of

possession of paraphernalia.     At the conclusion of the hearing, Saam’s




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counsel asked the trial court, “Your Honor, if he is eligible for state IP[2]

would the Court be willing to consider that?” to which the court replied,

“Absolutely.” N.T., 3/26/2013, at 6.

        That same day, Saam filed a motion for reconsideration of his

sentence, asking the court to consider him eligible for the state IP program.

See Petition for Reconsideration of Sentence, 3/26/2013.            The trial court

denied the motion on April 3, 2013.            However, on April 5, 2013, the trial

court entered an order committing Saam “to the Department of Corrections

for an evaluation to be used by the Court to determine whether the

defendant shall be sentenced to State Intermediate Punishment.”                See

Order, 4/5/2013.3


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2
    See 61 Pa.C.S. §§ 4101-4108 (State Intermediate Punishment).
3
   In its opinion, the trial court explains that it mistakenly denied Saam’s
motion for reconsideration by “incorrectly mark[ing] the underscore [on the
standard order utilized by Saam’s counsel] corresponding to the denial of
[Saam’s] Motion.” Trial Court Opinion, 2/10/2015, at 5 n.1. Further, the
trial court indicates its April 5th order authorizing Saam’s evaluation for the
state IP program was entered in response to a motion by the Commonwealth
seeking Saam’s placement in the program. Id. at 5. However, the court
provides no explanation why, when the court’s order was entered April 5,
2013, the Commonwealth’s motion was not filed until April 8, 2013.
Moreover, the Commonwealth’s motion reads as if it was intended to be
presented to the court before Saam’s sentencing hearing.                   See
Commonwealth Motion for Placement in the State Intermediate Punishment
Program, 4/8/13, at ¶ 3 (“The defendant is set to be sentenced in the near
future.”).




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        On April 15, 2013, Saam filed a notice of appeal from the March 26,

2013, judgment of sentence. Nevertheless, on May 1, 2013, more than 30

days after sentence was imposed and 16 days after the notice of appeal was

filed, the trial court entered the following order:

             AND NOW, this 1st day of May 2013, it is hereby ORDERED
        and DECREED that [Saam’s] previously imposed sentence is
        VACATED.

              It is FURTHER ORDERED that [Saam] shall be evaluated
        for the State Intermediate Punishment (SIP) Program.    All
        previous conditions shall remain in place.

Order, 5/1/2013. Subsequently, Saam filed an application in this Court to

withdraw his appeal, which was granted on June 10, 2013.

        On June 20, 2013, the Department of Corrections deemed Saam

ineligible for state IP because he refused to participate in the IP program.

After providing Saam with additional opportunities to participate in the

program or withdraw his guilty plea, the trial court convened a resentencing

hearing on January 28, 2014. Based, in part, upon Saam’s “unwillingness to

obtain treatment,”4 the trial court resentenced Saam to a term of 14 to 36

months’ imprisonment followed by two years’ probation for his DUI

conviction, and a consecutive term of two to 12 months’ imprisonment for




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4
    Trial Court Opinion, 2/10/2015, at 7.




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the possession of paraphernalia offense, for an aggregate prison term of 16

to 48 months’ imprisonment. This timely appeal followed.5

       In his first issue, Saam contends the trial court had no authority to

vacate his March 26, 2013, judgment of sentence, and resentence him to a

longer term of imprisonment. We agree.

       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,

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
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5
   On February 3, 2014, the trial court ordered Saam to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
After receiving an extension of time, Saam complied with the court’s
directive, and filed a concise statement on March 11, 2014.



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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).

      Turning to the present matter, Saam’s judgment of sentence was

imposed on March 26, 2013.       Therefore, the trial court had 30 days from

that date, or until April 25, 2013, to modify or vacate the sentence. See 42

Pa.C.S. § 5505. However, on April 15, 2013, Saam filed a notice of appeal,

thereby divesting the trial court of jurisdiction in this matter. See Pa.R.A.P.

1701(a).    Thereafter, the trial court had no authority to alter Saam’s

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

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

granting reconsideration of Saam’s sentence within the initial 30-day

period, i.e., before April 25, 2013. See Pa.R.A.P. 1701(b)(3).

      Here, neither of those exceptions applies as the trial court denied

Saam’s     motion   for   reconsideration,   and   never    expressly   granted

reconsideration of the sentence before the 30-day period expired. Although,

with respect to the relevant period, the court entered an order directing that

Saam be evaluated to determine his eligibility for the state IP program, that

order (1) was not entered following a motion for reconsideration by the

Commonwealth, and (2) did not expressly grant reconsideration of the

March 26, 2013, sentencing order.      Therefore, we conclude the trial court




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had no jurisdiction to vacate Saam’s sentence on May 1, 2013, and the

sentence imposed on January 28, 2014, is a nullity.6

       Accordingly, we vacate the judgment of sentence imposed on January

28, 2014, and remand this case to the trial court for reinstatement of the

March 26, 2013, judgment of sentence. Because our resolution of Saam’s

first issue is dispositive, we need not address his second claim on appeal

challenging the discretionary aspects of his January 28, 2014, sentence.




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6
  We note the trial court explained in its opinion that it had inadvertently
denied Saam’s motion for reconsideration and had intended, all along, to
designate Saam eligible for state IP. See Trial Court Opinion, 2/10/2015, at
15. Regardless of the trial court’s admirable intentions, absent an order
expressly granting reconsideration of the judgment of sentence within 30
days of its entry, the court was without jurisdiction to vacate the original
sentencing order.

Moreover, while a referral to state IP is usually made prior to sentencing, a
trial court has the authority to resentence a defendant to state IP, within
365 days of the date the defendant enters prison, under certain limited
circumstances. See 61 Pa.C.S. § 4104(e) (court may resentence defendant
to state IP when (1) the Department of Corrections has recommended the
defendant be placed in a drug treatment program, (2) the Commonwealth
agrees to the placement and modification of sentence, and (3) the court
determines that the defendant meets the prerequisites for commitment set
forth in subsection (d)). Id. Therefore, in the present case, the court could
have approved a state IP sentence for Saam, without vacating his original
sentence.    It was, however, without jurisdiction, at that stage in the
proceedings, to resentence Saam to a longer period of incarceration.



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     Judgment of sentence vacated.       Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2015




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