J-A18024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

BRIAN P. STROH

                            Appellee                 No. 1875 WDA 2016


                Appeal from the Order Entered November 9, 2016
                  In the Court of Common Pleas of Blair County
               Criminal Division at No(s): CP-07-CR-0000621-2012


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

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 29, 2017

        The Commonwealth of Pennsylvania appeals from the trial court’s

order1 granting Defendant Brian P. Stroh’s motion to be placed on electronic

monitoring to serve the remainder of the incarceration portion of his


____________________________________________


1
    The trial court’s order states:

        AND NOW, this 9th day of November, 2016, consistent with the
        foregoing Opinion, it is hereby ORDERED, DIRECTED and
        DECREED that the Defendant's Motion for Electronic Monitoring
        is granted. Therefore, the Defendant shall be placed on the
        Electronic Monitoring Program. He shall be responsible to pay all
        the fees and expenses relative to the Electronic Monitoring
        Program in full upfront, and he shall be fully compliant with the
        terms and conditions of the Electronic Monitoring Program under
        the supervision of Blair County Adult Parole & Probation Office.
        Assuming his compliance, he shall remain on electronic
        monitoring until his release to parole. All the prior terms and
        conditions of his supervision remain in full force and effect.
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sentence following the entry of a negotiated guilty plea to possession with

the intent to deliver2 and criminal use of a communication facility.3       After

careful review, we vacate.

        On July 31, 2015, Stroh entered into a negotiated plea agreement; 4

the parties agreed that Stroh would serve 2½ years, minus one day, to 5


____________________________________________


2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S. § 7512(a).
4
  The parties placed the following agreement on the record at the plea
hearing:

        BY ATTORNEY GORMAN [Prosecuting Attorney]: [A]s a result of
        the plea, Your Honor, [Defendant would] be sentenced to Count
        1, the Possession With Intent to Deliver, to a period of
        incarceration of two and a half minus a day to five years minus
        two days and that whatever sentence the Court would give on
        Count 6 would be the same sentence that would not run beyond
        the two and a half minus a day to five years minus two days.
        It's a binding plea agreement to be presented to the Court
        and the placement of incarceration would be up to the
        Court and that the Commonwealth recognizes, Your Honor, that
        Mr. Stroh would be RRRI eligible based upon the lack of any
        substantial prior record or the offense would not preclude him
        from RRRI consideration and that RRRI number, Your Honor,
        would be twenty-two and a half months. All other counts, Your
        Honor, to that information would be nol prossed. That's my
        understanding of the plea agreement, Your Honor, being
        presented to the court. I would ask Attorney Passarello if that's
        his understanding of the plea agreement.

        BY THE COURT: Attorney Passarello.

        BY ATTORNEY PASSARELLO [Defense Attorney]: That's my
        understanding, Your Honor.
(Footnote Continued Next Page)


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years, minus two days, of incarceration for the possession charge and 9-18

months’ incarceration for the criminal use charge. The court was permitted

to determine where Stroh would be incarcerated.          The court chose to

incarcerate Stroh in a county prison; any remaining charges were dismissed

and Stroh was awarded credit for time served in Blair County Prison.5

      On September 19, 2016, while he was still incarcerated, Stroh filed a

motion to serve the remainder of his sentence on house arrest.          After a

hearing, the trial court granted the motion on November 9, 2016, and placed

Stroh on house arrest/electronic monitoring after he had served 15 months

of his negotiated sentence in county jail.        On November 16, 2016, the

Commonwealth filed a motion for reconsideration of sentence claiming that

there was no legal authority for the court to grant Stroh’s motion and that

the court did not have jurisdiction to amend the original sentencing order.

The trial court denied the Commonwealth’s motion on December 1, 2016.6


                       _______________________
(Footnote Continued)

N.T. Guilty Plea/Sentencing, 7/31/15 at 1-2 (emphasis added). Prior to
imposing sentence, defense counsel placed two things on the record: (1)
that he had talked to someone at prison and informed him that the court
could sentence defendant to county time; and (2) that defendant would like
a 30-day deferral period prior to starting serving his sentence. Id. at 5-6.
5
 Stroh was also made eligible under the Risk Recidivism Reduction Incentive
(RRRI) Act at 22½ months, see 61 Pa.C.S. §§ 4501-4512, and was granted
work release.
6
 On December 9, 2016, the Commonwealth filed a motion to stay pending
appeal, see Pa.R.A.P. 1732(a), which the trial court denied on March 20,
2017.



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       The Commonwealth filed a timely notice of appeal and court-ordered

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On

appeal,      the   Commonwealth        presents   the   following   issues   for   our

consideration:

       (1)     Over 15 months after sentencing Stroh, did the trial court
               have jurisdiction to grant Stroh's motion to serve the
               remainder of his sentence of incarceration on electronic
               monitoring/house arrest?

       (2)     If the trial court had jurisdiction, does electronic
               monitoring constitute a sentence of incarceration where
               the plea agreement required a sentence of incarceration of
               2 1/2 years (minus 1 day) to 5 years (minus 2 days)?

       (3)     If the trial court had jurisdiction, did the trial court's order
               directing Stroh to serve the remainder of his incarceration
               portion of his sentence on electronic monitoring violate the
               plea agreement and sentencing order, which required a
               sentence of incarceration of 2 ½ years (minus 1 day) to 5
               years (minus 2 days)?

       In its first issue on appeal, the Commonwealth contends that the trial

court did not have jurisdiction to grant Stroh’s motion to serve the

remainder of his sentence on electronic monitoring/house arrest.7

       Pursuant to 42 Pa.C.S. § 5505, a trial court may alter or modify a

sentencing order within 30 days after its entry, if no appeal has been taken.

The only exception to the general rule under section 5505 is where there has
____________________________________________


7
  With regard to whether the Commonwealth waived this issue, we note that
because the issue goes directly to the jurisdiction of the trial court to
consider and rule on the motion, it is non-waivable. See Borough of Media
v. County of Delaware, 82 A.3d 509 (Pa. Commw. Ct. 2013) (section 5505
time limit was jurisdictional and could not be waived by parties).



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been a technical mistake or clerical error. The exception does not extend to

reconsideration of a court’s exercise of sentencing discretion.            See

Commonwealth v. Borrin, 80 A.3d 1219 (Pa. 2013) (after trial court

entered order imposing sentence on inmate, it lacked power to issue second

order three years later, which granted Commonwealth’s petition to clarify

and restated sentence, because second order was well outside 30-day

window for modification or rescission of final order).

        Here Stroh entered a negotiated guilty plea on July 31, 2015. Stroh

filed no post-sentence motions, direct appeal, or Post Conviction Relief Act

(PCRA)8 petition. On September 19, 2016, Stroh filed a motion to serve the

remainder of his sentence on house arrest/electronic monitoring. The court

granted the motion on November 9, 2016 – more than one year and three

months after its original sentence.

        To rebut the Commonwealth’s jurisdictional argument, Stroh claims

that the court’s order never “modified” his sentence because “the sentence

number remains the same.”9 See Appellee’s Brief, at 14. However, the trial
____________________________________________


8
    42 Pa.C.S. §§ 9541-9546.
9
 How Stroh could make this argument is confounding where at the hearing
on his motion to serve the remainder of his sentence on house arrest, his
counsel stated:

        [T]he only avenue that would allow for [him to serve the balance
        of his sentence on house arrest or electronic monitoring] would
        be to come back to you, the sentencing judge, to order that[.]

(Footnote Continued Next Page)


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court’s order is more than a mere clarification of a clerical error or technical

mistake.     The court’s original sentence, based on the parties’ negotiated

plea, was clear – it is for a term of incarceration in Blair County Prison. See

supra n.4.     There is no patent and obvious error in the court’s original

sentencing order that the trial court was empowered to correct.           Borrin,

supra.     Accordingly, because the trial court did not have jurisdiction to

modify defendant’s sentence and place him on house arrest/electronic

monitoring,10 the court’s November 9, 2016 order is a nullity.          Thus, we

                       _______________________
(Footnote Continued)

N.T. Motion to Serve Remainder of Sentence on House Arrest, 11/7/2016, at
2 (emphasis added).
10
    Even assuming that the trial court had jurisdiction to modify Stroh’s
sentence, the order should be reversed on its merits. In Commonwealth
v. Kyle, 874 A.2d 12 (Pa. 2005), our Supreme Court held that time spent
subject to electronic monitoring at home is not time spent “in custody” for
purposes of credit under 42 Pa.C.S. § 9760. The Court noted the following:

      Incarceration in an institutional setting is different in kind, not in
      mere degree, from "confinement" to the comforts of one's home.
      Sentences, and particularly relatively short sentences such as is
      at issue here, can be designed to punish, to rehabilitate, and to
      teach lessons and personal responsibility.

                                        *        *   *

      One of the benefits of home monitoring is the flexibility it affords
      the defendant and the court. If a court is to be required to
      pretend that such release is a period of incarceration, it may
      determine that actual incarceration, rather than bail release, is
      the only way to ensure service of an appropriate punishment.

Id. at 22.
(Footnote Continued Next Page)


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must vacate that order and remand this case to the trial court for

reinstatement of Stroh’s July 31, 2015 sentence.

      Order vacated.        Case remanded for reinstatement of July 31, 2015,

judgment of sentence. Jurisdiction relinquished.11




                       _______________________
(Footnote Continued)

      However, the Kyle Court specifically recognized there are exceptions
to the general rule “when equity [is] deemed to require it[].” Id. at 17.
Specifically, where prison authorities, without the knowledge of the
sentencing court, released a DUI-defendant to electronic home confinement,
because the release had not been the defendant’s fault, he was entitled to
credit for time spent in home monitoring program toward parole eligibility.
See Commonwealth v. Kriston, 588 A.2d 898 (Pa. 1991). Here, however,
we have a binding negotiated plea; no reassurances, however well-intended
by the prison and work release coordinator that time spent on house arrest
would count as time spent in jail, should overcome the parties’ court-ordered
agreement. See Commonwealth v. Anderson, 643 A.2d 109, 113 (Pa.
Super. 1994) (upon acceptance of plea agreement, trial court is bound to
comply with terms of agreement; negotiated sentence is binding on court
where sentence is plainly set forth on record, understood and agreed to by
parties and approved by trial court).
11
   We recognize that Stroh is the least culpable party under the limited facts
of this case where he has personally paid $5,100 in electronic monitoring
fees and now will presumably lose that money due to the trial court's lack of
jurisdiction to grant him the right to be placed on electronic monitoring.



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J-A18024-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2017




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