J-S25014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

LOUIS MICHAEL PINDER

                       Appellant                 No. 1182 MDA 2013


          Appeal from the Judgment of Sentence June 3, 2013
             In the Court of Common Pleas of Berks County
          Criminal Division at No(s): CP-06-CR-0003169-2009
_____________________________________________________________

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

LOUIS MICHAEL PINDER

                       Appellant                 No. 1183 MDA 2013


           Appeal from the Judgment of Sentence June 3, 2013
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0000459-2013


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

MEMORANDUM BY OTT, J.:                        FILED OCTOBER 09, 2014

     Louis Michael Pinder brings these consolidated appeals from the

judgments of sentence originally entered April 30, 2013, and subsequently

modified on June 3, 2013, in the Berks County Court of Common Pleas. On

April 30, 2013, Pinder was sentenced to an aggregate term of three to 23
J-S25014-14




months’ incarceration following his guilty plea, at Docket No. CR-459-2013,

to charges of fleeing or attempting to elude police officer and driving while

operating privilege is suspended (DUS).1 That same day, he was sentenced

to a consecutive 364 to 728 days’ incarceration, at Docket No. CR-3169-

2009, for violating his previously imposed probation. On June 3, 2013, the

trial court entered amended sentencing orders in both cases indicating that

the sentences were to be served in a state correctional facility, rather than

the Berks County prison as previously designated.                On appeal, Pinder

challenges both the legality and discretionary aspects of the trial court’s

June 3, 2013, amended/corrected sentencing orders, as well as the

ineffectiveness of trial counsel. For the reasons set forth below, we affirm.

        The facts underlying this appeal are as follows. On August 10, 2009,

Pinder entered a negotiated guilty plea to charges of terroristic threats and

simple assault at CR-3169-2009.2               In exchange for the plea, Pinder was

sentenced to two consecutive terms of two years’ probation.            However, in

December of 2012, he was arrested on charges of fleeing and eluding police

and DUS. On April 30, 2013, Pinder entered a negotiated guilty plea to the

new charges at CR-459-2013, and was sentenced to a term of 3 to 23
____________________________________________


1
    75 Pa.C.S. §§ 3733 and 1543, respectively.
2
    18 Pa.C.S. §§ 2706 and 2701, respectively.




                                           -2-
J-S25014-14




months’ imprisonment for the fleeing and eluding charge and a concurrent

30 days’ incarceration for the DUS charge. At the same proceeding, the trial

court held a Gagnon II3 hearing for the violation of his 2009 probation.

Pinder admitted the violation, and requested a county sentence, particularly

since the trial court had just imposed a county sentence on the 2013

charges.     The Adult Probation Office, however, recommended a state

sentence of 12 to 24 months’ imprisonment.                  At the conclusion of the

hearing, the      trial   court imposed        a sentence    of 364   to   728   days’

imprisonment, to be served consecutively to the sentence imposed at CR-

459-2013. N.T., 4/30/2013, at 9-13. The sentencing orders indicated that

both sentences were to be served in the Berks County prison. See Sentence

Order, 4/30/2013, CR-459-2013; Sentence Order, 4/30/2013, CR-3169-

2013.

        On May 10, 2013, Pinder filed a timely post sentence motion seeking a

new Gagnon II hearing.             Pinder argued that, although the trial court

intended to impose a county sentence in both cases, the two sentences, run

consecutively, would be aggregated and result in a state sentence. See Post

Sentence Motion, 5/10/2013, at 1. The trial court promptly denied the post

sentence motion on May 15, 2013.
____________________________________________


3
    Gagnon v. Scarpelli, 411 U.S. 788 (1973).




                                           -3-
J-S25014-14




       Thereafter,      on    June      3,     2013,    the   trial   court   entered

amended/corrected sentencing orders in both of the above captioned cases.

The only correction to the orders was the place of confinement, i.e., a state

correctional facility rather than the Berks County prison. On June 14, 2013,

Pinder filed a post sentence motion nunc pro tunc seeking modification of

the newly imposed sentences.           The court conducted a hearing on July 3,

2013, at the conclusion of which it denied Pinder’s motion.               This timely

appeal followed.4

       Preliminarily, we note Pinder’s challenge to the effective assistance of

trial counsel must be deferred until collateral review.                Recently, the

Pennsylvania Supreme Court in Commonwealth v. Holmes, 79 A.3d 562

(Pa. 2013), reaffirmed the general rule first set forth in Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002), that “claims of ineffective assistance of

counsel are to be deferred to PCRA review; trial courts should not entertain

claims of ineffectiveness upon post-verdict motions; and such claims should

not be reviewed upon direct appeal.”               Holmes, supra, 79 A.3d at 576.

Although the Holmes Court recognized two exceptions to that general rule,
____________________________________________


4
  On July 11, 2013, the trial court ordered Pinder to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. After receiving two
extensions of time, and the appointment of new counsel, Pinder complied
with the court’s directive and filed a concise statement on September 6,
2013.




                                             -4-
J-S25014-14




neither is applicable here.5 Accordingly, we dismiss Pinder’s ineffectiveness

claims without prejudice to him to raise them in a timely collateral

proceeding.

       Pinder next challenges the legality of the court’s amended sentences.

Specifically, he argues the trial court had no jurisdiction to amend/correct

his sentencing order more than 30 days after it was entered. Further, he

contends the amended order did not simply correct a clerical error, but

rather, reflected a “substantial change to the original sentencing order …

[and i]n fact, the change is contradictory to everything that occurred at the

re-sentencing hearing.”       Pinder’s Brief at 21.

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

any order within 30 days after its entry, … if no appeal from such order has

been taken or allowed.” Once that 30-day period has expired, or an appeal

has been filed, a trial court is generally divested of jurisdiction. However,

the Supreme Court has explained that:

____________________________________________


5
  The Holmes Court limited those exceptions to the following: (1) where
the trial court determines that a claim of ineffectiveness is “both meritorious
and apparent from the record so that immediate consideration and relief is
warranted[;]” or (2) where the trial court finds “good cause” for unitary
review, and the defendant makes a “knowing and express waiver of his
entitlement to seek PCRA review from his conviction and sentence, including
an express recognition that the waiver subjects further collateral review to
the time and serial petition restrictions of the PCRA.” Holmes, supra, 79
A.3d at 564, 577 (footnote omitted).



                                           -5-
J-S25014-14




         [T]his rule must be read in conjunction with a court’s inherent
         powers “to amend its records, to correct mistakes of the clerk or
         other officer of the court, inadvertencies of counsel, or supply
         defects or omissions in the record, even after the lapse of the
         term.” … Thus, under limited circumstances, even where the
         court would normally be divested of jurisdiction, a court may
         have the power to correct patent and obvious mistakes.

Commonwealth v. Klein, 781 A.2d 1133, 1135 (Pa. 2001) (citations

omitted and emphasis supplied).

         A review of the facts in Klein, supra, is instructive. There, the trial

court      originally    imposed   a   sentence   of   time-served   to   12   months’

imprisonment based upon its mistaken belief that Klein served 33 days in

prison. When the court learned that Klein had served only one day in prison

before being released, the court entered an order directing Klein to appear

for resentencing. The order did not, however, vacate the original sentence,

and in the meantime, Klein filed a notice of appeal from the original

judgment of sentence. At the resentencing hearing, over Klein’s objection,

the      trial   court   imposed   a   sentence   of   one   month   to   12   months’

imprisonment, reflecting a credit for the one day of time served.               Id. at

1133-1134.          On appeal, the Supreme Court held the trial court had the

authority to modify Klein’s sentence even after a direct appeal had been

filed.     The Klein Court explained the trial court “was merely correcting a

patent defect or mistake in the record,” and that the trial court “essentially

issu[ed] the same sentence, but credit[ed Klein] with only one day of time

served.”         Id. at 1135.   See also Commonwealth v. Wesley, 688 A.2d


                                           -6-
J-S25014-14




201, 203 (Pa. Super. 1997) (holding that trial court had authority to correct

“obvious and patent error” in original sentence 31 days after it was entered;

defendant was originally permitted to serve sentence of eight to 23 months’

imprisonment on 60 consecutive weekends, however, court amended the

order, directing the sentence to be served on 120 consecutive weekends

to reflect correct minimum term).

     Here, the inherent problem with Pinder’s original sentence was the

aggregation of the two sentences pursuant to 42 Pa.C.S. § 9762.

     Section 9762 provides, in relevant part:

      (b) Sentences or terms of incarceration imposed after a certain
     date.--All persons sentenced three or more years after the
     effective date of this subsection [November 24, 2008] to total or
     partial confinement shall be committed as follows:

        (1) Maximum terms of five or more years shall be
        committed to the Department of Corrections for
        confinement.

        (2) Maximum terms of two years or more but less than five
        years shall be committed to the Department of Corrections
        for confinement, except upon a finding of all of the
        following:

           (i) The chief administrator of the county prison, or
           the administrator's designee, has certified that the
           county prison is available for the commitment of
           persons sentenced to maximum terms of two or
           more years but less than five years.

           (ii) The attorney for the Commonwealth has
           consented to the confinement of the person in the
           county prison.




                                    -7-
J-S25014-14




            (iii) The sentencing court has approved the
            confinement of the person in the county prison
            within the jurisdiction of the court.

         (3) Maximum terms of less than two years shall be
         committed to a county prison within the jurisdiction of the
         court.

                                   ****

      (f) Aggregation.--For purposes of this section, the sentences or
      terms of incarceration shall mean the entire continuous term of
      incarceration to which a person is subject, notwithstanding
      whether the sentence is the result of any of the following:

         (1) One or more sentences.

         (2) Sentences imposed for violations of probation or
         intermediate punishment.

         (3) Sentences to be served upon recommitment for
         violations of parole.

         (4) Any other manner of sentence.

42 Pa.C.S. § 9762(b), (f).

      As the trial court explained in its opinion, it was under the “mistaken

belief that [Pinder] would be legally eligible for confinement in county prison

pursuant to 42 Pa.C.S. § 9762.”       Trial Court Opinion, 10/3/2013, at 4.

Indeed, the trial court had anticipated Pinder would be immediately paroled

on CR-459-2013, because his credit for time served exceeded the minimum

sentence. Id. at 3. See also N.T., 7/13/2013, at 8. However, when the

court subsequently learned that there was never “any intention to parole

him at that time[,]” it realized that under subsection 9762(f), his

consecutive sentences would be aggregated, and result in a maximum term


                                     -8-
J-S25014-14




of more than two years’ imprisonment. Trial Court Opinion, 10/3/2013, at

3.    Therefore, because Pinder’s “parole status made him statutorily

ineligible” for confinement in a county prison, and the court had acted

outside its statutory authority, it amended the sentencing orders to direct

Pinder to serve the sentences in a state correctional facility. Id. at 4.

       We agree. Under the plain language of subsection (f) of the statute,

the trial court was required to aggregate the two sentences imposed

consecutively on April 30, 2013, so that Pinder’s maximum term of

imprisonment was more than two years, but less than five years’

imprisonment.       As such, under subsection (b)(2), the trial court was

required to commit Pinder to a state correctional facility unless (1) the chief

administrator of the Berks County prison certified that the prison was

available for confinement of defendants sentenced to a maximum term

between two and five years’ imprisonment, (2) the attorney for the

Commonwealth consented to county confinement, and (3) the trial court

approved county confinement. See 42 Pa.C.S. § 9762(b)(2). Here, neither

the chief administrator of the Berks County prison,6 nor the Commonwealth,

consented to Pinder’s confinement at the county level. Accordingly, the trial
____________________________________________


6
  The trial court noted in a footnote in its opinion that “the warden of the
Berks County Prison has declined to certify that facility for the housing of
prisoners serving state sentences with a maximum of between 2 and 5
years.” Trial Court Opinion, 10/3/2013, at 3 n.5.



                                           -9-
J-S25014-14




court had no authority to order Pinder to serve his sentence in the Berks

County prison.

      We conclude that the error in the original sentencing order, regarding

the proper place of confinement, constituted a “patent and obvious mistake”

which the trial court had the power to correct 34 days after the order was

entered. Klein, supra. Accordingly, the June 3, 2013, amended sentencing

order correcting that error was not illegal, and Pinder’s legality of sentencing

argument fails.

      Pinder also challenges the discretionary aspects of his sentence,

arguing that the amended/corrected sentences were unreasonable and

excessive in light of the sentencing scheme as a whole.         Specifically, he

contends a review of the sentencing transcript reveals the trial court

intended to impose a county sentence in both cases.          Therefore, Pinder

requests we vacate both sentences, and remand for a new sentencing

hearing.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citation omitted).     In order to reach the merits of such a

claim, this Court must determine:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether

                                     - 10 -
J-S25014-14




      appellant's brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).    Here, Pinder filed a timely post sentence motion

challenging the discretionary aspects of his sentence, as well as a second

post sentence motion nunc pro tunc, and a timely direct appeal. Moreover,

his brief includes the requisite statement pursuant to Pa.R.A.P. 2119(f),

setting forth the reasons relied upon for allowance of appeal. Therefore, we

may proceed to determine whether Pinder has set forth a substantial

question that his sentence is inappropriate under the Sentencing Code. See

Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super. 2003).

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted). In this case, Pinder appears to argue that the trial court

abused its discretion in ordering his sentences to run consecutively, when

such a directive was contradictory to the court’s intention to allow Pinder to

serve his time in the Berks County prison.

      The decision whether to impose consecutive sentences is generally left

to the discretion of the trial court, and raises a substantial question for our


                                    - 11 -
J-S25014-14




review “in only the most extreme circumstances, such as where the

aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.” Commonwealth v. Austin, 66 A.3d 798,

808 (Pa. Super. 2013) (quotation omitted), appeal denied, 77 A.3d 1258

(Pa. 2013). No such “extreme circumstances” exist in the present case.

      While the trial court originally agreed to allow Pinder to serve both

sentences in the Berks County prison, the court learned, soon thereafter,

that it had no authority to do so, and amended the sentencing orders. The

trial court made clear that “[i]t was never our intention to impose a

concurrent sentence.”    Trial Court Opinion, 10/3/2013, at 4.     During the

hearing on post-sentence motions, the court explained:

             Now I’m asked on behalf of [Pinder] to radically reduce the
      [violation of probation] sentence imposed at 3169 of 2009, in
      order to maintain [Pinder’s] status as a county sentence, as
      opposed to a state prison sentence.

            In order for me to do that, I would have to greatly reduce
      the sentence that I intended to impose, which is aggregated by
      the notion of – that there is probably significant credit time that
      [Pinder] would be entitled to have.

            I detect no sense of remorse whatever from [Pinder]. I
      have no doubt that he remains a danger to the community. I
      have no doubt that I will see him again in here in the near future
      once he is released on parole from these sentences and,
      therefore, despite the fact that I made an attempt based on a
      mistaken assumption to keep [Pinder] in the county, that effort
      on my part failed.

N.T., 7/13/2013, at 9-10. Therefore, it is evident the trial court acted within

its discretion when it imposed consecutive sentences, and had no intention

                                    - 12 -
J-S25014-14




to reduce the amount of time Pinder would serve in prison to effectuate a

county sentence.        Accordingly, we conclude Pinder has failed to raise a

substantial question justifying our review.7

       Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2014




____________________________________________


7
  We note our review of the record reveals that both the three to 23 month
sentence imposed for fleeing or attempting to elude police officer under CR-
459-2013, and the 364 to 728 day sentence imposed for violation of his
probation for the simple assault charge under CR-3169-2009, fell within the
standard range of the sentencing guidelines. See Guideline Sentence Form,
4/30/2013, at CR-459-2013; Guideline Sentence Form, 8/10/2009, at CR-
3169-2009. Therefore, to obtain relief, Pinder would have to demonstrate
that his case “involves circumstances where the application of the guidelines
would be clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2). This, he has
failed to do.




                                          - 13 -
