J-A05005-19


                               2019 PA Super 84

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
 BRIAN KREMER                             :
                                          :
                   Appellant              :       No. 1720 WDA 2017

                   Appeal from the Order October 3, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0007293-1994


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY GANTMAN, P.J.E.:                         FILED MARCH 20, 2019

      Appellant, Brian Kremer, appeals from the order entered in the

Allegheny County Court of Common Pleas, which purported to “correct”

Appellant’s original January 26, 1995 judgment of sentence, to clarify the

court’s intent to run Appellant’s sentences consecutively to each other and to

any other sentence Appellant had been serving at that time. For the following

reasons, we reverse and remand for reinstatement of the original judgment

of sentence, as it appears in the January 26, 1995 signed, written sentencing

order and interpreted by the Department of Corrections (“DOC”).

      The relevant facts and procedural history of this case are as follows. On

November 29, 1994, Appellant entered an open guilty plea to multiple counts

of various sex offenses related to sexual abuse of his stepdaughter. Appellant

proceeded to sentencing on January 26, 1995. At the sentencing hearing, the
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court orally stated as follows:

         [Appellant], at Criminal Complaint 9407293, at Count 2,
         involuntary deviate sexual intercourse, I place the costs on
         Allegheny County, and I order you to serve a term of
         incarceration of not less than eight years nor more than
         twenty years consecutive or following any other
         sentence that you may now be serving.

         At count 3, rape, I order you to serve a term of not less than
         six years nor more than twenty years consecutive or
         following any other sentence you may now be
         serving.

         At Count 4, aggravated indecent assault, I order you to
         serve a term of not less than five years nor more than ten
         years consecutive or following any other sentence you
         may now be serving.

         At Count 7, involuntary deviate sexual intercourse, I order
         you to serve a term of not less than six nor more than
         twenty years consecutive or following any other
         sentence.

         My sentence is not less than 25 years nor more than 70
         years consecutive to any sentence you are now serving.

(N.T. Sentencing, 1/26/95, at 11-12) (emphasis added).

      The signed, written sentencing order entered that same day provided:

at Count 2: 8 to 20 years’ imprisonment “[c]onsecutive to any other sentence

the defendant is now serving”; at Count 3: 6 to 20 years’ imprisonment

“[c]onsecutive to any other sentence the defendant is now serving”; at

Count 4: 5 to 10 years’ imprisonment “[c]onsecutive to any other sentence

the defendant is now serving”; at Count 7: 6 to 20 years’ imprisonment

“[c]onsecutive to any other sentence the defendant is now serving”; all other

counts—NFP (no further penalty).         (Signed/Written Sentencing Order,

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1/26/95, at 1-2) (emphasis added). The signed, written sentencing order did

not include any stated aggregate term of imprisonment. (See id.) At the

time of sentencing in this case, Appellant was already serving sentences at

two unrelated docket numbers.         The DOC received the signed, written

sentencing order and interpreted it to allow Appellant to be released from

prison in 2011.

        On October 26, 2016, Appellant filed a pro se “Motion of Supplemental

Relief in Aid of Writ of Execution and Writ of Habeas Corpus Relief,” challenging

his sex offender registration requirements, which were not in effect when

Appellant committed his offenses or entered his guilty plea back in 1995. The

court treated Appellant’s filing as a petition under the Post Conviction Relief

Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546, appointed counsel, and directed

counsel to file an amended PCRA petition. Counsel filed an amended petition

on April 3, 2017, titled: “Amended Writ of Habeas Corpus and Petition to

Enforce Plea Agreement,” challenging Appellant’s registration requirements

under the Sexual Offender Registration and Notification Act (“SORNA”).

        While preparing its response to Appellant’s petition, the Commonwealth

claimed it just discovered that the DOC “misinterpreted” the January 26, 1995

sentencing    order,   calculated   the   sentences   concurrently,   instead   of

consecutively, and erroneously allowed Appellant to be released on parole in

2011.      Consequently, the Commonwealth filed a “Motion to Enforce

Sentencing Order,” claiming the sentencing court had unambiguously declared


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its   sentencing   intentions   at    the    sentencing   hearing   and    due   to   a

“misinterpretation” of the court’s sentencing order, Appellant was mistakenly

ordered to serve only 8 to 20 years’ imprisonment, consecutive to the

sentences he was already serving at other unrelated dockets on January 26,

1995. The Commonwealth asked the court to issue an order enforcing its

original oral sentence as the court had intended in order to “correct”

Appellant’s sentence structure as a “clerical error.” (See Commonwealth’s

Motion to Enforce Sentencing Order, filed 9/29/17, at 4-5.)

       By order of October 3, 2017, the court effectively granted the

Commonwealth’s motion and entered a “corrected” sentencing order that

stated:

             AND NOW, this 3rd day of October, 2017, upon
          consideration of the Commonwealth’s Motion to Enforce
          Sentencing Order, it is hereby ORDERED, ADJUDGED, and
          DECREED that the defendant’s sentence structure should be
          amended so that it complies with this [c]ourt’s original order
          of sentence, as follows:

             2. IDSI−Forcible        Compulsion:     8−20    years    of
             incarceration

             3. Rape: 6−20 years of incarceration

             4. Aggravated Indecent Assault: 5−10 years of
             incarceration

             7. IDSI−Forcible        Compulsion:     6−20    years    of
             incarceration.

          These sentences shall run consecutively to each other, for a
          total sentence of 25 to 70 years of incarceration, and
          consecutive to the sentences that the defendant was already
          serving at the time of sentencing at CP-02-CR-0004058-

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        1993 and CP-02-CR-0010079-1993. No further penalty is
        ordered at the remaining counts.

(Order of Court, filed October 3, 2017). The court proposed this order was to

“clarify” the court’s original intent in 1995, to sentence Appellant to

consecutive sentences at Counts 2, 3, 4, and 7, for an aggregate sentence of

25 to 70 years of incarceration, to also run consecutive to the sentences

Appellant was already serving at unrelated dockets on January 26, 1995.

     Following entry of this amended sentencing order, Appellant timely filed

post-sentence motions on October 13, 2017, challenging the court’s

jurisdiction to amend the original sentencing order as well as the exercise of

the court’s discretion in the resentencing. The court denied Appellant’s post-

sentence motions on October 17, 2017.      Appellant timely filed a notice of

appeal on November 15, 2017. On November 17, 2017, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b); Appellant timely complied.

     Appellant raises three issues for our review:

        DID THE TRIAL COURT LACK JURISDICTION TO MODIFY
        APPELLANT’S SENTENCE 22 YEARS AFTER THE ORIGINAL
        SENTENCE WAS IMPOSED?

        DID THE TRIAL COURT ACT VINDICTIVELY IN MODIFYING
        APPELLANT’S SENTENCE ORDER ONLY AFTER APPELLANT
        HAD FILED A PETITION FOR WRIT OF HABEAS CORPUS
        SEEKING TO BE RELIEVED FROM SORNA REGISTRATION
        REQUIREMENTS AFTER THE TRIAL COURT HAD HAD
        PREVIOUS OPPORTUNITIES TO REVIEW THE ORIGINAL
        SENTENCE ORDER?

        DID THE TRIAL COURT VIOLATE APPELLANT’S FEDERAL

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         AND STATE DUE PROCESS RIGHTS, AND DOUBLE
         JEOPARDY RIGHTS, BY MODIFYING HIS ORIGINAL
         SENTENCING ORDER IN A MANNER THAT INCREASED HIS
         PERIOD OF INCARCERATION 22 YEARS AFTER THE
         ORIGINAL SENTENCE WENT INTO EFFECT AND ALMOST 5
         YEARS AFTER APPELLANT HAD BEEN PAROLED ON THE
         ORIGINAL SENTENCE?

(Appellant’s Brief at 4).

      Appellant initially argues the court’s oral sentence on January 26, 1995,

was ambiguous in that the court imposed the sentences at Count 2, 3, and 4

“consecutive or following any other sentence that you may now be serving”

but used different language at Count 7, stating the length of sentence at that

count was “consecutive or following any other sentence.” Appellant insists the

court’s oral sentence relative to Counts 2, 3, and 4 can be interpreted to mean

the sentences on those counts were to be served concurrently but consecutive

to the sentences Appellant was already serving on other unrelated docket

numbers. Appellant submits the language used to impose sentence at Count

7 can be interpreted to mean that sentence was to be served consecutive to

the sentences Appellant was serving at the other docket numbers or

consecutive to the sentences imposed at Counts 2, 3, and 4 in this case.

Appellant also highlights the court’s general statement at the conclusion of

the oral sentencing, indicating an aggregate sentence of 25 to 70 years

actually conflicts with the court’s specific sentences at each count, which

created internal confusion about the court’s intended sentence in this case.

      Unlike the court’s oral sentence, however, Appellant insists the signed,


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written sentencing order makes clear the sentences at Counts 2, 3, 4, and 7

were to run consecutive only to the sentences Appellant was already serving

on the other docket numbers but concurrent in this case. Appellant stresses

that former Pennsylvania Rule of Criminal Procedure 1406, in effect at the

time of the original 1995 sentence, provided a presumption of concurrent

sentences unless the judge expressly stated otherwise. Appellant maintains

the oral sentencing was subject to more than one interpretation, internally

inconsistent, and ambiguous. Given the passage of two decades during which

the DOC’s interpretation of the sentence went unchallenged, Appellant

suggests the signed, written sentencing order should prevail; and the court

lacked authority to modify the signed, written sentencing order as a “clear

clerical error.” Appellant concludes we should reverse the court’s October 3,

2017 order and restore his original signed, written sentencing order to control

the terms of his sentence.       For the following reasons, we agree with

Appellant’s contentions.

      The question of whether a trial court has the “authority to correct an

alleged sentencing error poses a pure question of law.” Commonwealth v.

Borrin, 12 A.3d 466, 471 (Pa.Super. 2011) (en banc), aff’d, 622 Pa. 422, 80

A.3d 1219 (2013).     “Accordingly, our scope of review is plenary and our

standard of review is de novo.” Id.

      “Trial courts have the power to alter or modify a criminal sentence within

thirty days after entry, if no appeal is taken.” Commonwealth v. Quinlan,


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639 A.2d 1235, 1238 (Pa.Super. 1994), appeal dismissed as improvidently

granted, 544 Pa. 183, 675 A.2d 711 (1996). See also 42 Pa.C.S.A. § 5505

(stating except as otherwise provided or prescribed by law, court upon notice

to parties may modify or rescind any order within 30 days after its entry,

notwithstanding prior termination of any term of court, if no appeal from such

order has been taken or allowed). Nevertheless, once the thirty-day period

expires, the trial court usually loses the power to alter its orders. Quinlan,

supra.    An exception to this general rule exists to correct “clear clerical

errors.” Borrin, supra at 471. “This exception to the general rule of Section

5505 cannot expand to swallow the rule.” Commonwealth v. Holmes, 593

Pa. 601, 617, 933 A.2d 57, 66 (2007). Thus, the court’s inherent authority to

correct patent errors is a “limited judicial power.” Id. at 618, 933 A.2d at 67.

       “[A]n alleged error must qualify as a clear clerical error (or a patent and

obvious mistake) in order to be amenable to correction.” Borrin, supra at

473.

          This Court’s case law has addressed the situations
          where…the terms of a defendant’s sentence as stated at the
          sentencing hearing conflict (or are deemed incompatible)
          with the terms of the defendant’s sentence as stated in the
          sentencing order.

          In these circumstances, for a trial court to exercise its
          inherent authority and enter an order correcting a
          defendant’s written sentence to conform with the terms of
          the sentencing hearing, the trial court’s intention to impose
          a certain sentence must be obvious on the face of the
          sentencing transcript. … Stated differently, only when a
          trial court’s intentions are clearly and unambiguously
          declared during the sentencing hearing can there be a “clear

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          clerical error” on the face of the record, and the [signed]
          sentencing order subject to later correction.

          If, on the other hand, a trial court’s stated intentions during
          the sentencing hearing are ambiguous, then the terms of
          the sentence in the [signed] sentencing order control, and
          the trial court cannot correct its perceived mistake. See
          Commonwealth v. Isabell, 503 Pa. 2, [12,] 467 A.2d
          1287, 129[2] (1983) ([stating:] “Generally, the signed
          sentencing order, if legal, controls over oral statements of
          the sentencing judge not incorporated into the signed
          judgment of sentence”); …. This is because the alleged
          error in the sentencing transcript is not a “clear clerical
          error,” but rather, is an ambiguity that must be resolved by
          reference to the written sentencing order.

Id. (some internal citations omitted). Stated another way, the signed, written

sentencing order controls, where the sentencing transcript is ambiguous; the

ambiguity in the transcript must be resolved by reference to the signed,

written sentencing order. Id. (citing U.S. v. Daddino, 5 F.3d 262, 266 (7th

Cir. 1993)). “The presumption that the written sentencing order is what the

sentencing judge intended increases with the length of time that the written

sentencing order goes unchallenged.” Quinlan, supra at 1240.1

       If the sentencing transcript supports inconsistent inferences and is open


____________________________________________


1 At the original sentencing in 1995, Pennsylvania Rule of Criminal Procedure
1406 was in effect and provided in pertinent part: “Rule 1406. Imposition
of Sentence: (a) Whenever more than one sentence is imposed at the same
time on a defendant, or whenever a sentence is imposed on a defendant who
is incarcerated for another offense, such sentences shall be deemed to run
concurrently unless the judge states otherwise.”         Pa.R.Crim.P. 1406(a)
(effective March 31, 1975). This Rule was amended in 1996, and renumbered
as Rule 705, which eliminated the presumption of concurrent sentences and
now requires the court to specify if sentences are intended to run concurrently
or consecutively. See Pa.R.Crim.P. 705(B).

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to competing interpretations, it is ambiguous, proves nothing and must yield

to the signed, written sentencing order. Borrin, supra.

        Were this Court to hold otherwise, we would permit a trial
        court to retroactively alter a defendant’s sentence to
        conform to the court’s “intentions” when those intentions
        are not clearly expressed on the record. As noted by our
        Supreme Court, this is problematic: “[W]e are of the opinion
        that such alleged inadvertence [concerning a trial court’s
        unexpressed intentions during a sentencing hearing] cannot
        be tolerated as a matter of public policy. The possibility of
        abuses inherent in broad judicial power to increase
        sentences outweighs the possibility of windfalls to a few
        prisoners.” Commonwealth v. Allen, 443 Pa. 96, [104-
        05,] 277 A.2d 803, 807 (1971) (citation and internal
        quotation marks omitted). Accordingly, we cannot accept
        the trial judge’s proclamation of his own intentions because
        those intentions were only known to the trial judge himself
        and do not appear on the face of the sentencing transcript.

                                 *     *      *

        Notably, our decision does not render the Commonwealth
        and/or a trial court unable to rectify perceived discrepancies
        between the oral sentence and the sentencing order when
        those discrepancies are ambiguous and do not qualify as a
        clerical error.       For instance, in this case, if the
        Commonwealth felt that the original sentencing order did
        not reflect the trial judge’s intentions during the sentencing
        hearing, the Commonwealth could have filed a post-
        sentence motion to modify the sentence under Pa.R.Crim.P.
        720. … In accordance with 42 Pa.C.S.A. § 5505, the trial
        judge could also have modified the sentencing order, sua
        sponte, within 30 days of its entry so long as an appeal had
        not been filed. See 42 Pa.C.S.A. § 5505[.] … Once the
        time period for these options elapsed, however, the trial
        judge could only correct its written sentencing order if the
        sentencing transcript evidenced a clear clerical error.
        Because the sentencing transcript in this case failed to
        display a clear clerical error, this Court is compelled to
        reverse the trial judge’s order.

Id. at 475-76 (some internal citations and footnote omitted).

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      Instantly, during the original sentencing hearing on January 26, 1995,

the court orally imposed terms of incarceration at Counts 2, 3, and 4

“consecutive or following any other sentence that you may now be serving.”

(N.T., 1/26/95, at 11). The court used different language at Count 7, as it

imposed the sentence at Count 7 “consecutive or following any other

sentence.”   (Id.)   At the conclusion of the hearing, the court stated: “My

sentence is not less than 25 years nor more than 70 years consecutive to any

sentence you are now serving.” (Id. at 12).

      Nevertheless, the signed, written sentencing order entered that same

day provided: at Count 2: 8 to 20 years’ imprisonment “[c]onsecutive to any

other sentence the defendant is now serving”; at Count 3: 6 to 20 years’

imprisonment “[c]onsecutive to any other sentence the defendant is now

serving”; at Count 4: 5 to 10 years’ imprisonment “[c]onsecutive to any other

sentence the defendant is now serving”; at Count 7: 6 to 20 years’

imprisonment “[c]onsecutive to any other sentence the defendant is now

serving”; all other counts—NFP (no further penalty).          (Signed/Written

Sentencing Order, 1/26/95, at 1-2) (emphasis added). The signed, written

sentencing order did not include any stated aggregate term of imprisonment.

(See id.) At the time of sentencing in this case, Appellant was already serving

sentences at two unrelated docket numbers. The DOC received the signed,

written sentencing order and interpreted it to allow Appellant to be released

from prison in 2011.


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      Here, the sentencing transcript as a whole was internally inconsistent

and did not display a “clear clerical error.” The variable use of the concept of

“consecutive” sentences gave rise to several opposing inferences which were

open to competing interpretations, as evidenced not only on the face of the

transcript but also by the signed, written sentencing order. Additionally, the

court’s general statement at the conclusion of the sentencing transcript,

providing a sentence of “not less than 25 years nor more than 70 years

consecutive to any sentence you are now serving,” directly conflicts with the

court’s specific sentences at each count. Therefore, the sentencing transcript

was ambiguous, proved nothing, and must yield to the signed, written

sentencing order. See Borrin, supra.

      Unlike the sentencing transcript, the signed, written sentencing order

makes clear the terms of incarceration were to run “[c]onsecutive to any other

sentence the defendant is now serving,” which means consecutive only to the

sentences Appellant was already serving in 1995, at the unrelated docket

numbers. Given the presumption of concurrent sentences under the rule of

criminal procedure in effect at the 1995 sentencing, the DOC interpreted the

signed, written sentencing order to mean the sentences at the current docket

number were to run concurrent to each other. See Pa.R.Crim.P. 1406(a).

Moreover, the signed, written sentencing order did not incorporate the oral

statement of an aggregate sentence that the court made at the sentencing

hearing. See Isabell, supra at 12, 467 A.2d at 1292 ([stating:] “Generally,


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the signed sentencing order, if legal, controls over oral statements of the

sentencing judge not incorporated into the signed judgment of sentence”).

       Further, no efforts were made to “correct” the sentence until over two

decades after its entry, which supports the presumption that the 1995 signed,

written sentencing order reflects the sentencing court’s intentions.        See

Quinlan, supra. Under these circumstances, therefore, the trial court in the

present case lacked any inherent authority to “correct” Appellant’s sentence,

by “modifying” the 1995 signed, written sentencing order and to issue the new

sentencing order on October 3, 2017.           See 42 Pa.C.S.A. § 5505; Borrin,

supra; Quinlan, supra.            Accordingly, we reverse the October 3, 2017

“corrected” sentencing order and remand for reinstatement of the original

January 26, 1995 judgment of sentence, as reflected in the court’s signed,

written sentencing order of that date and as interpreted by the DOC.2

       Order reversed; case remanded with instructions.           Jurisdiction is

relinquished.




____________________________________________


2Due to our disposition of issue one, we decline to address Appellant’s second
and third issues on appeal, referring to allegations of vindictiveness or the
denial of due process.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2019




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