J-A14029-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

RONALD E. HOOVER, JR.

                         Appellant                   No. 1954 MDA 2015


          Appeal from the Judgment of Sentence October 9, 2015
             In the Court of Common Pleas of Montour County
           Criminal Division at No(s): CP-47-CR-0000001-2015


BEFORE: BOWES, OTT AND PLATT,* JJ.

DISSENTING MEMORANDUM BY BOWES, J.:               FILED OCTOBER 04, 2016

      My learned colleagues conclude that a criminal sentence simply does

not exist until it is reduced to writing and docketed. I respectfully disagree.

      The facts are straightforward.     Appellant appeared before the trial

judge on October 5, 2015 for sentencing following an earlier guilty plea, and

received a sentence announced in open court of twelve to thirty months of

incarceration.   However, the judge erroneously determined that Appellant

was not eligible for the Recidivism Risk Reduction Incentive (“RRRI”)

program, 61 Pa.C.S. §§ 4501-4512. The RRRI statute offers, as an incentive

for completion of the program, an opportunity for eligible offenders to be

considered for parole at the expiration of their RRRI minimum sentence.

The RRRI minimum is equal to three-fourths of the minimum sentence


* Retired Senior Judge assigned to the Superior Court.
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imposed when the minimum sentence, as herein, is three years or less. 61

Pa.C.S. § 4505(c).

       After sentencing, the judge realized that Appellant was, in fact,

entitled to an RRRI minimum. Thus, the sentence was clearly illegal. “It is

legal error to fail to impose a RRRI minimum on an eligible offender.

Separate from legal error . . . it is an illegal sentence to fail to impose a

RRRI     minimum,        which     is   subject   to   sua   sponte   correction.”

Commonwealth v. Tobin, 89 A.3d 663, 670 (Pa.Super. 2014).

       The trial judge, acting sua sponte, attempted to fix the error by

convening the parties for a re-sentencing on October 9, 2015. At the time of

this proceeding, the oral sentence of October 5, 2015 had yet to be reduced

to writing.     The judge vacated the original sentence, imposed a new

sentence of fifteen to thirty months, and applied the RRRI minimum to the

newly-imposed fifteen month period of incarceration.1 The Commonwealth

never requested an increase in the minimum imposed, and the trial court

offered no rationale for its alteration.


____________________________________________


1
  The Commonwealth misses the point when it highlights that the October 9,
2015 RRRI minimum is less than the minimum imposed on October 5, 2015.
An RRRI minimum sentence does not guarantee parole at that date, and
therefore, Appellant could end up serving a longer minimum sentence. In
any event, Appellant’s entire argument is that the RRRI minimum should be
applied to the twelve-month period of incarceration, which would reduce his
RRRI minimum even further.



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      According to the majority, the October 5, 2015 sentence simply did not

exist, and the judge was free to impose any sentence he saw fit on October

9, 2015. I believe that a sentence was imposed on October 5, 2015. In my

view, the only error the trial court could lawfully correct was the failure to

apply the RRRI minimum to the sentence imposed on October 5, 2015.

      The majority maintains that the trial court was not vacating an existing

sentence on October 9, 2015, but rather imposing a sentence in the first

instance. “Hoover was not resentenced on October 9, 2015, never having

been formally sentenced prior to that date.”    Majority memorandum at 6.

Certain statements in the memorandum, however, belie this position. It

states, “A pre-sentence report was provided to the trial judge prior to the

October 5, 2015 sentencing hearing.”           Majority memorandum at 2

(emphasis added). It also concedes that the October 9, 2015 hearing was a

second proceeding.    “On October 9, 2015, the trial court held another

sentencing hearing[.]”   Majority memorandum at 1-2 (emphasis added).

These entirely accurate descriptions notwithstanding, the majority states

that the October 5, 2015 sentence was a mere proposal:

      The trial court noted that while it stated that the October 9,
      2015 hearing was for re-sentencing Hoover, “re-sentencing” was
      a misnomer. The October 5, 2015 proposed sentence, which
      itself was based upon the false premise that Hoover was not
      RRRI eligible, was never reduced to writing nor entered on the
      docket.

Majority memorandum at 6.



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        This conclusion contradicts Commonwealth v. Green, 862 A.2d 613,

618 (Pa.Super. 2004).       In Green, this Court had to determine whether a

post-sentence motion was timely filed when it was filed ten days after the

sentence was reduced to writing in a sentencing order, but more than ten

days after its announcement in open court.          Green determined the oral

sentencing date controlled, and the motion was therefore untimely.

       [We] conclude that for purposes of Pa.R.Crim.P. 720(A)(1),
       regardless of the date the sentence was entered on the docket, a
       written post-sentence motion must be filed no later than 10 days
       after the date of imposition of sentence. If for some reason, the
       sentence was not entered on the docket the day the sentence was
       imposed, a defendant who wishes to file a post-sentence motion
       must still do so no later than 10 days after the date of imposition of
       sentence. This interpretation comports with the plain language of
       Pa.R.Crim.P. 720(A)(1).

Id. at 617.

        Appellant was obligated, under Green, to file any post-sentence

motion challenging his sentence within ten days of October 5, 2015.

Obviously, then, the sentence existed as a matter of law upon its oral

pronouncement. But if we refuse to apply the logic of Green to this case,

the October 5, 2015 sentence simultaneously did not exist as a matter of

law.    To quote the majority, the October 5, 2015 sentence was merely a

proposed sentence.         Majority memorandum at 6.           However: “It is

implausible to argue that the date on which the trial court pronounces the

sentence is not the date on which sentence is imposed.” Green, supra at

619.


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      The majority’s analysis rests on law holding that a defendant’s

sentence is that which is reduced to a written order when the sentence

conflicts with that imposed at the sentencing hearing. “The only sentence

known to the law is the sentence or judgement entered upon the records the

court.” Majority memorandum at 6, n.6 (quoting Hill v. United States ex

rel. Wampler, 298 U.S. 460 (1935)). All this principle stands for is that,

when a court is called upon to resolve an alleged discrepancy between a

written and oral sentence, the written sentence of record controls. In other

words, the written order is the authority regarding the components of the

sentence. This principle does not indicate that a sentence imposed in open

court does not exist. Consider the entire context of the above-cited quote:

      Two of the questions certified to us, the first question and the
      third, make mention of a variance between the commitment and
      the sentence ‘orally pronounced.’ If that were the only variance,
      we should deem it unimportant. The only sentence known to the
      law is the sentence or judgment entered upon the records of the
      court. If the entry is inaccurate, there is a remedy by motion to
      correct it to the end that it may speak the truth. But the
      judgment imports verity when collaterally assailed.          Until
      corrected in a direct proceeding, it says what it was meant to
      say, and this by an irrebuttable presumption. In any collateral
      inquiry, a court will close its ears to a suggestion that the
      sentence entered in the minutes is something other than the
      authentic expression of the sentence of the judge.

Hill, supra at 464. The reference to collateral inquiry makes plain that we

will not look at two different sentences, oral versus written, to ascertain the

terms of the sentence. This point of law therefore only dictates the manner




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in which we determine what the sentence is.      It does not govern how we

determine when the sentence came into existence.

      Appellant was sentenced on October 5, 2015, as a matter of public

record and common sense. The court could not thereafter impose a higher

minimum sentence on its own initiative. In my view, the only sua sponte

action the court could take was an application of the RRRI minimum

sentence to the previously-imposed sentence.        Where an appeal is not

pending, a court may “modify or rescind any order within 30 days after its

entry[.]” 42 Pa.C.S. § 5505. Since no appeal was taken from this order as

of October 9, 2015, the trial court had the power to modify its order. This,

however, does not answer the question of whether the trial court could,

completely of its own accord, thereafter increase the imposed sentence to

account for the RRRI reduction.       While I agree with the majority that

Appellant’s precise claim is somewhat unclear, it is readily apparent that

Appellant is arguing the court was permitted to correct only its failure to

impose an RRRI reduction to the sentence imposed on October 5, 2015.

      Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007), provides some

support for this position.   In Holmes, our Supreme Court considered the

interaction between 42 Pa.C.S. § 5505 and the long-standing, inherent

power of courts to correct patent errors in orders when a court lacks

jurisdiction under the statute (i.e., the thirty day period has expired or an

appeal has been taken).      Therein, the Court held that a trial court could

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correct a patently illegal sentence even if it lacks jurisdiction under 42

Pa.C.S. § 5505:

      Although the defendants before this court warrant relief under
      the inherent power of courts to correct patent errors, we must
      also emphasize the limits of this power. This exception to the
      general rule of Section 5505 cannot expand to swallow the rule.
      In applying the exception to the cases at bar, we note that it is
      the obviousness of the illegality, rather than the illegality itself,
      that triggers the court's inherent power. Not all illegal sentences
      will be amenable to correction as patent errors. Moreover, the
      inherent power to correct errors does not extend to
      reconsideration of a court's exercise of sentencing discretion. A
      court may not vacate a sentencing order merely because
      it later considers a sentence too harsh or too lenient.

Id. at 67 (emphasis added).      While Holmes was discussing situations in

which a sentence may be corrected outside the 42 Pa.C.S. § 5505 window,

and is thus referring to a limitation on the power to correct patent errors, I

discern no reason why the court should be permitted to revisit, on its own

initiative, its own exercise of sentencing discretion. The trial judge clearly

believed, at the time of sentencing on October 5, 2015, that twelve months

was a sufficient minimum sentence. The trial court lacked authority to sua

sponte modify the previously-imposed minimum, and hence, the sentence is

illegal and should be vacated.

      In this respect, I note that Appellant lodged a challenge to both the

legality and the discretionary aspects of his sentence. As I have discussed,

in my view this appeal involves two sentences: The first sentence, on

October 5, 2015, which was illegal due to the failure to apply a RRRI



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minimum, and the second sentence, on October 9, 2015, which in my view

was illegal in that the trial judge exceeded the bounds of the Section 5505

power.   However, assuming arguendo that the court could lawfully vacate

the entire sentence under Section 5505, I would find in the alternative that

the trial court abused its discretion in increasing the minimum.             In

Commonwealth v. Robinson, 931 A.2d 15 (Pa.Super. 2007) (en banc), we

held that a challenge to an increase in a sentence, imposed upon remand for

resentencing, implicates the discretionary aspects of the sentence:

     Here, Appellant's claim is one of vindictiveness. In light of recent
     en banc case law, such a claim must be viewed as one
     implicating the discretionary aspects of the sentence. Appellant's
     claim does not fall within the “narrow class of cases” described
     above; he is not claiming that the sentence fell outside of the
     parameters prescribed by a statute, or that the claim implicates
     double jeopardy or Apprendi principles. More generally, he is
     not   arguing     that   the   trial  court   lacked     the    legal
     authority/jurisdiction to impose a sentence of that length or
     type. Instead, Appellant is essentially claiming that the court
     exercised its discretion in a way that is harsh, unreasonable,
     and motivated by impermissible factors such as personal animus
     or revenge. These are the very hallmarks of a claim that
     implicates the discretionary aspects of a sentence. . . .

     We recognize that a claim of vindictiveness implicates due
     process concerns. Commonwealth v. Speight, 578 Pa. 520,
     854 A.2d 450, 455 (2004), citing Pearce, 395 U.S. at 725, 89
     S.Ct. 2072; see also McHale, 2007 PA Super 131, ¶ 14, 924
     A.2d 664. In Speight, our Supreme Court reasoned that a
     sentencing court may not punish a defendant for exercising his
     constitutional rights, or chill the exercise of those rights by
     resentencing a defendant vindictively. Id. at 455.




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Id. at 22.2 The right to an RRRI sentence is obviously not of constitutional

dimension, but there is a plausible argument that the trial judge vindictively

increased the sentence based on Appellant’s statutory right to an RRRI

minimum. By narrowly viewing this claim as implicating the legality of the

October 9, 2015 sentence—the only sentence that exists in the majority’s

view—the majority commits further error by failing to address Appellant’s

discretionary aspects of sentencing claim.           Since I would grant relief on

other grounds, I need not reach this question.

       I would hold that the trial court lacked legal authority to sua sponte do

anything other than apply the RRRI minimum to the minimum sentence

imposed on October 5, 2015. Hence, Appellant is serving an illegal sentence

and is entitled to relief. I respectfully dissent.




____________________________________________


2
   Appellant does not raise any claim that an increase in his minimum
sentence violated the Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution or discuss any expectation of finality in his
sentence.



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