J-S67006-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellee               :
                                           :
            v.                             :
                                           :
WILLIAM MILLER,                            :
                                           :
                    Appellant              : No. 1980 WDA 2013

                 Appeal from the Order dated November 4, 2013,
                    Court of Common Pleas, Allegheny County,
                 Criminal Division at No. CP-02-CR-0014519-2008

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED NOVEMBER 20, 2014

      Appellant, William Miller (“Miller”), appeals from the trial court’s denial

of his motion to transfer the supervision of his probation from the

Pennsylvania Board of Probation and Parole to the Allegheny County Adult

Probation Department.       For the reasons that follow, we affirm the trial

court’s order.

      On May 12, 2009, Miller pled guilty to one count of simple assault, 18

Pa.C.S.A. § 2701(a)(1), one count of criminal mischief, id. at § 3304, and

several summary offenses. The trial court delayed sentencing until June 29,

2009 while Miller resolved two other criminal cases. At sentencing, the trial

court sentenced Miller to two years of probation to commence upon his

release from the Allegheny County jail on the other pending cases. While

the sentencing transcript does not specify whether the probation would be




*Former Justice specially assigned to the Superior Court.
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supervised by state or county authorities, the sentencing order reflects that

the supervision would be conducted by the Allegheny County Adult Probation

Department. On July 6, 2011, while Miller remained incarcerated, the trial

court entered an order indicating that upon his release from county jail, the

Pennsylvania Board of Probation and Parole should instead supervise Miller’s

probation.

     On June 20, 2012, Miller filed a pro se petition for relief pursuant to

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46 (“PCRA”). The trial

court appointed counsel to represent Miller, but on September 30, 2013,

appointed counsel filed a petition pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988), on the grounds that Miller’s PCRA petition was untimely. After

reviewing the record, however, appointed counsel also concluded that the

trial court’s July 6, 2013 order was in error, and filed on Miller’s behalf a

Motion to Enforce Judgment of Sentence, requesting that the trial court

correct the error and reinstitute supervision of Miller’s probation to county

authorities. On November 4, 2013, the trial court denied this motion. Miller

appeals this decision and raises the following issue for our review and

determination:

             Whether the trial court erred in holding that [Miller’s]
             term of probation is properly supervised by the
             Pennsylvania Board of Probation and Parole, rather
             than   the   Allegheny     County    Adult   Probation
             Department.



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Miller’s Brief at 6.

      On appeal, Miller contends that the trial court lacked jurisdiction to

alter its sentencing order, as 42 Pa.C.S.A. § 5505 does not permit non-

clerical modifications of a sentencing order after thirty days from the date of

its entry.   According to Miller, the trial court’s original sentencing order,

which designated that the Allegheny County Adult Probation Department

would supervise his probation, contained no clerical error, and thus the trial

court had no statutory authority to issue its July 6, 2011 order transferring

supervision responsibilities to the Pennsylvania Board of Probation and

Parole. Id. at 12. Review of a trial court’s jurisdiction to alter a judgment of

sentence presents a question of law, and thus our scope of review is plenary

and our standard of review is de novo. Commonwealth v. Borrin, 12 A.3d

466, 471 (Pa. Super. 2011), affirmed, 80 A.3d 1219 (Pa. 2013).

      We cannot agree with Miller that the trial court lacked jurisdiction to

modify the terms of his probation. Subsection (a) of 42 Pa.C.S.A. § 9771,

entitled “Modification or revocation of order of probation,” provides as

follows:

             (a) General rule.--The court may at any time
             terminate continued supervision or lessen or increase
             the conditions upon which an order of probation has
             been imposed.

42 Pa.C.S.A. 9771(a).     Pursuant to this provision, trial courts retain the

statutory authority to lessen or increase the probationary conditions “at any



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time.” In his appellate brief, Miller concedes, “State Probation is generally

more intensive than County Probation, and therefore amounts to a more

onerous sentence than County Probation.”            Miller’s Brief at 8 n.2.

Consequently, subsection 9771(a) provided the trial court with authority to

increase the conditions of his probation through its issuance of the July 6,

2011 order.

      Section 5505 has no application to sentencing orders imposing

probation. The limitation on modification of orders in section 5505 applies

only to final orders. See, e.g., Commonwealth v. Nicodemus, 636 A.2d

1118, 1120 (Pa. Super. 1993).        As our Supreme Court has recognized,

however, because of subsection 9771(a), a probation order is not final but

rather “is conditional by its very nature.” Commonwealth v. Nicely, 638

A.2d 213, 217 (Pa. 1994).       In Nicely, the Supreme Court, relying on

subsection 9771(a), found that the trial court had jurisdiction to modify the

terms of the appellee’s probation ten months after its entry to comply with a

newly enacted legislative mandate that persons on probation pay a monthly

fee to contribute to the cost of their supervision. Id.

      For the same reasons, we must reject the Commonwealth’s contention

that Miller’s Motion to Enforce Judgment of Sentence was an untimely PCRA

petition because it collaterally attacks the judgment of sentence but was

filed well after the one-year time bar in 42 Pa.C.S.A. § 9545(b).

Commonwealth’s Brief at 9.         Subsection 9545(b) provides that PCRA



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petitions must be filed “within one year of the date the judgment becomes

final ….”   42 Pa.C.S.A. § 9545(b) (emphasis added).   In accordance with

Nicely and subsection 9771(a), however, probation orders are not final but

rather conditional, and thus the time bar in subsection 9545(b) does not

begin to run at the time of their entry.

      Order affirmed. Jurisdiction relinquished.

      Fitzgerald, J. joins the Memorandum.

      Mundy, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/20/2014




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