J-S38025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

OLIVER MERVIN BURBAGE,

                         Appellant                   No. 3072 EDA 2013


          Appeal from the Judgment of Sentence October 9, 2013
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0005041-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and SHOGAN, JJ.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 08, 2014

      Oliver Mervin Burbage appeals from the October 9, 2013 judgment of

sentence that altered the amount of credit for time served that Appellant

received against a sentence imposed on March 12, 2013. We reverse the

judgment of sentence and remand for a new sentencing hearing.

      On January 29, 2013, a jury found Appellant guilty of escape.      The

trial court outlined the evidence supporting this conviction:

            The testimony indicates that Trooper [Richard] Kirby had
      knowledge of the defendant from a prior incident, including, but
      not limited to a prior arrest of the defendant for Burglary in
      2004. (N.T., 1/29/13, p. 78, 79). An arrest warrant for the
      defendant for a felony charge from Bucks County was issued on
      or about June 15, 2011 and Trooper Kirby was aware of the
      existence of the arrest warrant. With his prior familiarity with
      the defendant, Trooper Kirby went to the vicinity of 835
      MacDowell Street, Chester, Pennsylvania, which was believed to
      be the address for the defendant's girlfriend.
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            Trooper Kirby indicated that he was in the area of
      MacDowell Street, and was aware of the issuance of the warrant.
      "And at the time I knew there was a warrant for his arrest that
      was a felony warrant out of Bucks County." (N.T., 1/29/2013, p.
      12). As Trooper Kirby approached the location, he was dressed
      in plain clothes and was driving an unmarked vehicle. He did
      indicate however, that he was not wearing a jacket and had his
      police badge in plain view. (N.T., 1/29/2013, p. 15).

            When Trooper Kirby drove near to the house, he observed
      the defendant from 40 to 50 feet away. He parked his vehicle
      and then crept alongside the parked vehicles until he was close
      upon the defendant (within 20 to 25 feet). Trooper Kirby then
      approached the defendant, with his ASP Baton fully extended
      and yelled several times that he was state police, that the
      defendant was under arrest and for the defendant to get on the
      ground. (N.T., 1/29/2013, p. 17-18). At that point in time, the
      defendant froze and stared at the Trooper. For a brief period of
      time, the two men stared at each other and based upon the
      posture of the defendant, Trooper Kirby pulled his hand gun and
      aimed it in the direction of the defendant. (N.T., 1/29/2013, p.
      19-20).

            Defendant then ran off and entered into the residence at
      835 MacDowell. As there was no back up and there was a four
      year old boy on the front porch, Trooper Kirby was delayed in his
      attempt to enter the residence. (N.T., 1/29/2013, p. 20-21).
      When Trooper Kirby and the other officers were able to
      effectuate entry into the residence, the defendant was not
      inside. The defendant was eventually arrested on or about
      August 8, 2011.

Trial Court Opinion, 6/6/13, at 2-3.

      On March 21, 2013, Appellant was sentenced to three to six years

imprisonment and was granted credit for time served in jail from August 8,

2011 to March 21, 2013.     At the sentencing hearing, the Commonwealth

and Appellant both indicated that he was entitled to credit for time served

for that period. Appellant filed a timely notice of appeal from that judgment



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of sentence and, on June 3, 2014, we affirmed.             Commonwealth v.

Burbage,       A.3d         (No. 1219 EDA 2013, Pa.Super. 2014). The record

was transmitted to this Court for purposes of that appeal in June 2013.

      The   trial   court   apparently   was   informed   by   the   Pennsylvania

Department of Corrections that Appellant already had received credit for

time served in jail from August 8, 2011, to November 29, 2011, for a

sentence that he received in Chester County criminal action number 6364-

2011. On October 9, 2013, the trial court herein appears to have altered its

March 21, 2013 sentence to eliminate certain credit for time served by

Appellant. That sentencing order does not appear in the record certified to

this Court for purposes of this appeal nor is it entered on the docket.

      Nevertheless, the trial court in its Pa.R.A.P. 1925(a) opinion, the

Commonwealth in its brief, and the Appellant all indicate that credit for time

served that was awarded on March 21, 2013, was eliminated by the trial

court in an order executed on October 9, 2013. Hence, we believe that it

exists for purposes of this appeal. Commonwealth v. Galendez, 27 A.3d

1042, 1047-1048 (Pa.Super. 2011) (although certified record did not

contain copy of order contested by defendant on appeal and this Court did

not have a copy of the order, we reviewed its propriety since the

Commonwealth acknowledged that the order in question was entered and

since the trial court stated in its Pa.R.A.P. 1925(a) opinion that it signed the

order). A notice of appeal was processed on November 6, 2013. Appellant

presents one issue with two subparts:

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     I) Whether the amended sentence imposed on October 9, 2013
     is illegal since the court lacked jurisdiction to vacate the original
     sentence imposed in this matter on March 21, 2013, and where
     the amended sentence was imposed without Mr. Burbage, or his
     attorney being present and having the opportunity to be heard
     with regard to the substantive changes made to his original
     sentence which involved stripping him of nearly nineteen months
     of credit time.



     For the reasons that follow, we conclude that the court had

jurisdiction to amend the sentence despite the pendency of the prior appeal.

However, we agree that Appellant should have been present when the

sentence was amended so that Appellant had the opportunity to verify the

correct amount of time served to be credited against the sentence herein.



amend its March 21, 2013 sentencing order in October under 42 Pa.C.S. §

                        wise provided or prescribed by law, a court upon

notice to the parties may modify or rescind any order within 30 days after



     A contention that a sentence was changed in violation of § 5505



standard of review is de novo.   Commonwealth v. Borrin, 80 A.3d 1219,

1225 (Pa. 2013). Due to the operation of § 5505, a trial court, in general,

lacks jurisdiction to modify an order more than thirty days after it has been



intended to eliminate the inherent power of a court to correct obvious and



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patent mistakes in its orders, judgments and decrees." Commonwealth v.

Holmes, 933 A.2d 57, 65 (Pa. 2007).

      A comparison of Holmes with Borrin demonstrates the difference

between a patent sentencing error correctible more than thirty days after

entry of the sentencing order or when the case is on appeal and a

sentencing error that is not obvious and thus cannot be altered.           In

Holmes                                                                       -

committed to serve the balance of the sentence from which he had been

paroled, the defendant was given a new term of imprisonment.              The



patently and obviously erroneous in that a court is legally authorized only to

re-commit a defendant to serve the unexpired term of his original sentence

when it is revoking parole.      Holmes, supra at 58, n.5 (citation and



violation of parole in cases not under the control of the State Board of

Parole is to recommit to jail.    There is no authority for giving a new



the sentence was entered, the trial court, recognizing its error, vacated

what it characterized as an illegal sentence and re-committed Holmes to

serve the remainder of the term of incarceration originally imposed.

      The Supreme Court in Holmes ruled that the original sentencing

order imposing a new term of imprisonment was contrary to law and could

be corrected more than thirty days after its entry as it contained a patent

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and obvious error. It upheld the second sentencing order, which correctly



sentence remained on his original sentence rather than serve a new term of

imprisonment.

     In Holmes, the Supreme Court also addressed a companion case

involving a defendant named Whitfield.       Whitfield was found to be in

violation of a probationary sentence that was supposedly imposed on

specified offenses, and he was sentenced to a term of incarceration. The

problem was that probationary terms were never imposed on the

convictions in question, and Whitfield was not serving a probationary term.

Instead, concurrent terms of incarceration, which Whitfield already had

served, were the sentences imposed on the crimes for which the trial court

revoked probation. Whitfield filed a PCRA petition contesting the legality of

the sentence imposed, relief was denied, and the defendant appealed.

     During the pendency of the appeal, the trial court concluded that its

sentence was indeed illegal and vacated it. Whitfield withdrew his appeal,



sentence under § 5505, given that § 5505 prevents the correction of an

order when an appeal has been filed.      The trial court responded that it

retained the authority to correct its obviously illegal sentence despite the

operation of that statute. Our Supreme Court agreed. It opined:

     The trial courts in both cases before us clearly lacked
     jurisdiction, absent the exercise of the rarely used power of the
     courts to correct patent errors. While the causes of the two trial

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       courts' lack of jurisdiction are undeniably distinct, nonetheless,
       both are encompassed under the language of Section 5505. . . .
       Despite the different causes of the divestiture of jurisdiction,
       both cases fall within the limited class of cases amenable to the
       exercise by a trial court of the inherent power to correct patent
       errors despite the absence of traditional jurisdiction. As we have
       in the past, we hold today that the limits of jurisdiction
       enshrined in Section 5505 do not impinge on that time-honored
       inherent power of courts.

Id. at 65 (footnote omitted).

       In contrast to Holmes, the plurality opinion in Borrin, supra,

involved the following. The defendant was convicted of numerous offenses.



sentences all consecutive to each other.         The transcript, however, was

ambiguous as to that point.     In the sentencing order signed by the court

after sentencing, nine of the offenses were made consecutive to the first

sentence    imposed   but   they   were   made    concurrent   to   each   other.

Spec

104 months whereas, if all ten sentences would have been consecutive to



Following receipt of inquiries from the prison

the trial court changed the original sentencing order in 2009 so that it read

that his sentence was 93 to 186 months. The trial court explained that its

intention at sentencing was to enter that term of incarceration and

concluded that it had the authority to make the change after three years

since it was merely correcting a patent error. We ruled that the trial court




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did not have the authority to correct the sentencing order after three years

since it did not contain a patent error, and our Supreme Court agreed.

      The Borrin

2009 order merely clarified the terms of the 2006 order. It outlined that

the 2006 order provided that nine offenses were consecutive to the

sentence imposed on the first offense but that they were not consecutive to

each other. It held that the trial court's 2009 order, by stating that all of



other, did not clarify his sentence, but modified it.     The Borrin Court



                                                            Id.   However, it

noted that the only type of mistakes that can be remedied after the thirty-

day period are those that are patent and obvious.      It concluded that the

2006 order was not patently and obviously erroneous since it was unclear

from the sentencing transcript whether all ten sentences were imposed

consecutively to each other or merely the first one.

      In the present case, we conclude that, in issuing its October 9, 2013

order, the court was correcting an obvious and patent error in the original

order it entered on March 21, 2013. The pertinent provision as to credit for

time served is as follows:

      (1) Credit against the maximum term and any minimum term
      shall be given to the defendant for all time spent in custody as a
      result of the criminal charge for which a prison sentence is
      imposed or as a result of the conduct on which such a charge is
      based. Credit shall include credit for time spent in custody prior

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     to trial, during trial, pending sentence, and pending the
     resolution of an appeal.

           ....

     (4) If the defendant is arrested on one charge and later
     prosecuted on another charge growing out of an act or acts that
     occurred prior to his arrest, credit against the maximum term
     and any minimum term of any sentence resulting from such
     prosecution shall be given for all time spent in custody under
     the former charge that has not been credited against another
     sentence.

42 Pa.C.S. § 9760.




Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa.Super. 1996). Thus,

where a defendant received credit for time served with respect to a prior

sentence, he cannot receive credit for the same time in jail as to a

subsequently imposed sentence. Commonwealth v. Hollawell, 604 A.2d

723 (Pa.Super. 1992).

     Herein, the court was correcting a patent error on October 9, 2013 if

there was a mistake when Appellant was originally sentenced and he was

given credit for time served when he already had been accorded credit for

that time against a previously-imposed sentence. This action constituted a

violation of § 9760(4).   In Hollawell, supra, we ruled specifically that

where there is a challenge to the amount of credit for time served given as

to a sentence, it is considered a question of law and the trial court

possesses the inherent power to correct a sentence if incorrect credit for



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time served was awarded. Thus, § 5505 did not prevent the trial court from

examining whether proper credit for time served was given despite the fact

that the March 21, 2013 sentence had been appealed.              Id.; Holmes,

supra; cf. Commonwealth v. Rohrer, 719 A.2d 1078 (Pa.Super. 1998)

(where imposition of restitution was not mandatory, failure of court to

impose restitution did not render sentence illegal and sentence could not be

amended more than thirty days after its entry to impose restitution due to

§ 5505).

      However, Appellant also maintains that he was denied his right to be

present and be heard on October 9, 2013, when the revised sentencing

order was entered. The Commonwealth is in agreement that Appellant

should have been present when the sentence was corrected. Section 5505



previous orders.    We interpreted the predecessor statute to § 5505 in

Commonwealth v. Reed, 386 A.2d 41 (Pa.Super. 1978).                Therein, the

trial court imposed a sentence in excess of the legal maximum and fifteen

months later, without notice to either party, amended the order to reflect

the proper maximum sentence.

      We recognized in Reed that the trial court could perform that action,

but concluded it could do so only after notification to the parties.         We



sentence . . . only if it notifies the defendant and the district attorney of its

intention to do so. In the instant case, the modification was accomplished

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without regard to the clear requirement of the proviso, and, therefore, is

                 Id. at 42.   Both parties herein agree that there was no

advance notice of the proposed alteration so that Appellant could ensure

that he received the proper amount of credit for time served.

      The case law unquestionably gives the trial court the authority to

correct a sentence that improperly accorded credit for time served when

none was due.    However, the current record fails to substantiate in what

respect the March 21, 2013 sentence was erroneous.        Appellant has the

right to have the proper facts adduced as to whether he received all credit

for time served to which he was legally entitled.     We thus reverse the

judgment of sentence and remand for further proceedings.

      Judgment of sentence reversed.        Case remanded.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2014




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