J-S84008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT
                                                                      OF
                                                                 PENNSYLVANIA
                               Appellee

                          v.

    ANDREW RICHARDSON,

                               Appellant                      No. 2707 EDA 2017


            Appeal from the Judgment of Sentence Entered July 24, 2017
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0005490-2014


BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                           FILED DECEMBER 06, 2019

        Appellant, Andrew Richardson, appeals from the judgment of sentence

of an aggregate term of 12½-25 years’ incarceration, followed by 10 years’

probation, imposed following his conviction for involuntary deviate sexual

intercourse with a child (IDSIC), unlawful contact with a minor (UCM), and

corruption of minors (COM).1 In this appeal, Appellant challenges his sentence

of 10 years’ probation imposed at count 4, which was nolle prossed prior to

his trial. After careful review, we vacate Appellant’s sentence and remand for

resentencing consistent with this memorandum.

        A    recitation   of   the   facts     underlying   Appellant’s   convictions   is

unnecessary to our disposition in this matter. A jury convicted Appellant of

____________________________________________


1   18 Pa.C.S. §§ 3123(b), 6318, and 6301, respectively.
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IDSIC (at count 1), UCM, and COM.                On July 24, 2017, the trial court

sentenced him to consecutive terms of 10-20 years’ incarceration for UCM,

2½-5 years’ incarceration for COM, and 10 years’ probation for IDSIC (at

count 4). Appellant filed a timely notice of appeal. On October 18, 2017, this

Court permitted Appellant’s trial counsel to withdraw. New counsel, John Belli,

Esq., was appointed on January 12, 2018. Attorney Belli then filed a timely

Pa.R.A.P. 1925(c)(4) statement on Appellant’s behalf, and the trial court

issued a Rule 1925(a) opinion on June 20, 2018. Then, pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009), Attorney Belli filed an Anders brief and a petition to

withdraw as counsel.

       In a memorandum dated April 8, 2019, this Court denied Attorney Belli’s

motion to withdraw, and remanded for further proceedings.2 The trial court

appointed new counsel, who then filed a timely Rule 1925(b) statement on

Appellant’s behalf.       The trial court issued a supplemental Rule 1925(a)

statement on July 31, 2019.

       Appellant now presents the following question for our review:


____________________________________________


2 We rejected Attorney Belli’s petition to withdraw as counsel because we
discovered at least one potentially meritorious claim on the face of the certified
record. Commonwealth v. Richardson, 2707 EDA 2017, unpublished
memorandum at 15 (Pa. Super. filed April 8, 2019). We then remanded with
instructions for the filing of a new Rule 1925(b) statement on Appellant’s
behalf, and encouraged the trial court to consider the appointment of new
counsel at its discretion. Id.


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      Did the trial court err when it imposed a sentence (of 10 years of
      probation) on count four in the bills of information in this matter
      – namely the charge of [IDSIC] (18 Pa.C.S.[] § 3123(a)(7)) -
      where that charge was nolle prossed by the Commonwealth and
      [Appellant] was never arraigned or tried with respect to that
      charge?

Appellant’s Brief at 4.

      As we stated in our prior memorandum,

      The Commonwealth charged Appellant under two provisions of the
      IDSI statute in the criminal information.             See Criminal
      Information, 5/22/14, at 1. He was charged with a violation of
      Section 3123(a)(1) at count 1, and Section 3123(a)(7) at count
      4. Subsequently, count 4 was nolle prossed prior to trial. See
      Trial Disposition and Dismissal Form (hereinafter “TDDF”),
      7/19/16, at 1. However, the verdict slip indicates that the jury
      found Appellant guilty of “Involuntary Sexual Deviate Intercourse
      with a [c]hild under 13[,]” indicating a violation under Section
      3123(b). See Verdict Report, 7/15/16, at 1 (single page).
      Moreover, the TDDF indicates that Appellant was convicted at
      count 1 of a violation of Section 3123(b), where, as noted above,
      count 1 was listed as a violation of Section 3123(a)(1) in the
      criminal information.      In the sentencing order, Appellant was
      sentenced for a violation of Section 3123(a)(7) at count 4,
      whereas the trial court indicated in the TDDF that count 4 had
      been nolle prossed prior to trial. These discrepancies, which
      potentially indicate the presence of non-frivolous claims that could
      have been raised on direct appeal,3 were not addressed in
      Attorney Belli’s Anders Brief, nor were they addressed in the trial
      court’s Rule 1925(a) opinion.

         3 We decline to formulate specific claims based on this
         record; however, these discrepancies potentially indicate,
         inter alia, the presence of due process and/or illegal
         sentencing concerns.

Richardson, 2707 EDA 2017, unpublished memorandum at 13-14.

      On remand, the trial court, the Commonwealth, and Appellant reached

a consensus that the court erroneously sentenced Appellant at count 4, a

charge that had been nolle prossed prior to trial.     See Supplemental Trial

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Court Opinion (STCO), 7/31/19, at 4; Commonwealth’s Post-Remand Brief at

9; Appellant’s Post-Remand Brief at 33. The trial court attributes this to a

clerical error, and indicates that it intended to sentence Appellant to 10 years’

probation at count 1, not count 4. STCO at 4. The Commonwealth agrees,

and suggests a limited remand for correction of the sentencing order.

Commonwealth’s Post-Remand Brief at 9. Appellant argues that we need only

vacate the sentence imposed at count 4. Appellant’s Post-Remand Brief at

35.   He contends that we need not remand for resentencing—ostensibly

because vacating the sentence at count 4 does not upset the sentencing

scheme below. Id. at 33.

      The trial court’s sentencing scheme clearly would be impacted if we

vacated Appellant’s sentence at count 4 and took no further action. The trial

court sentenced Appellant to 10-20 years’ incarceration at count 2 (UCM); to

a 2½-5 years’ incarceration at count 3 (COM), consecutive to count 2; and to

10 years’ probation at count 4, consecutive to the imposed terms of

incarceration. Vacating a consecutive term of 10 years’ probation will have a

substantial effect on the sentencing scheme by reducing the time which

Appellant will be under supervision by 10 years.

      Moreover, Appellant concedes that 1) he was also charged with IDSIC

at count 1; 2) the trial court instructed the jury on that charge, and 3) the

jury convicted him for that offense. Id. Yet, Appellant makes no argument

disputing the trial court’s finding that it intended the sentence imposed at




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count 4 to be applied at count 1. For these reasons, we reject Appellant’s

request that we vacate his sentence at count 4 and take no further action.

      However, we note that the trial court has acted inconsistently with its

contention that the mistake here was merely a clerical error. “It is well-settled

in Pennsylvania that a trial court has the inherent, common-law authority to

correct ‘clear clerical errors’ in its orders.” Commonwealth v. Borrin, 12

A.3d 466, 471 (Pa. Super. 2011). “A trial court maintains this authority even

after the expiration of the 30 day time limitation set forth in 42 Pa.C.S.[] §

5505 for the modification of orders.”       Id.; see also 42 Pa.C.S. § 5505

(“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.”). Here, the trial court describes the

sentence imposed at count 4 as a clerical error, but it provides no indication

to this Court that the error has been corrected. As no correction has been

made, Appellant’s sentence imposed at count 4 remains illegal. If we were to

merely vacate Appellant’s sentence at count 4, the trial court’s overall

sentencing scheme will be disrupted.        Accordingly, we vacate Appellant’s

sentence and remand for resentencing.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/19




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