J-S60023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PETER J. SCHULTZ, JR.

                            Appellant                 No. 580 MDA 2014


                   Appeal from the Order Entered March 7, 2014
                In the Court of Common Pleas of Schuylkill County
    Criminal Division at No(s): CP-54-CR-0000114-2012, CP-54-CR-0000117-
           2012, CP-54-CR-0000655-2011, CP-54-CR-0000655-2011


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 27, 2015

        Appellant, Peter J. Schultz, Jr., appeals from the March 7, 20141 order2

extending his participation in a State Intermediate Punishment (“SIP”)3

program for three months. We vacate and remand.




____________________________________________


1
   The order on appeal was entered in the certified docket on March 7, 2014
rather than March 5, the date of Appellant’s hearing. We have amended the
caption accordingly.
2
  The order is final and appealable because, as we explain below, it imposed
a new judgment of sentence.
3
  61 Pa.C.S.A. §§ 4101-08. “SIP is a two-year program designed to benefit
persons with drug and alcohol problems.” Commonwealth v. Kuykendall,
2 A.3d 559, 560 (Pa. Super. 2010).
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       The   Commonwealth           charged    Appellant   with    multiple   counts   of

possession of a controlled substance, possession with intent to deliver,

delivery of a controlled substance, and possession of drug paraphernalia 4 at

the above-captioned criminal docket numbers.                      Appellant entered a

negotiated guilty plea, and on May 17, 2012, the trial court imposed a

sentence of 24 months of State Intermediate Punishment (“SIP”), with 59

days of credit for time served dating to March 20, 2012. On March 5, 2014,

shortly before the 24-month SIP sentence was set to expire, the trial court

found Appellant in violation of the program and therefore ordered him to

serve an additional three months. At the conclusion of the hearing, the trial

court issued the following order:

                     AND NOW, this 5th day of March 2014, upon
              Motion of the Commonwealth, the Defendant’s
              participation in the State Intermediate Punishment
              Program is hereby extended for 3 months to allow
              the defendant sufficient time to complete the
              Program. In light of the defendant having consumed
              alcohol on a home pass during the 3rd phase of his
              SIP treatment [sic].

Order, 3/7/14.

       Appellant filed a timely notice of appeal on April 2, 2014. He raises a

single issue: “Whether the Sentencing Court improperly revoked Appellant’s

participation    in   the   State    Intermediate    Punishment      Program     without

providing him the opportunity to be represented by counsel.”                  Appellant’s
____________________________________________


4
    35 P.S. § 780-113(a)(16), (30), (32).



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Brief at 4.   In its Pa.R.A.P. 1925(a) opinion, the trial court concedes the

point and asks us to vacate the March 5, 2014 order and remand for a

hearing at which Appellant can be represented by counsel.         Trial Court

Opinion, 4/10/14, at 1.     Appellant would have us order him discharged

rather than remand for a hearing, as the term of his sentence has now

expired. The Commonwealth argues Appellant had no right to counsel at the

March 5, 2014 hearing, as it was simply a revocation hearing, and that we

should therefore affirm the trial court’s order.

      Before we address the merits of Appellant’s argument and the trial

court’s request for a remand, we consider whether the trial court had

jurisdiction to enter the order on appeal. Pursuant to § 5505 of the Judicial

Code, the trial court cannot modify an order more than 30 days after its

entry.   42 Pa.C.S.A. § 5505.     Absent a patent or obvious mistake in the

sentencing order, fraud, or other extreme circumstances justifying judicial

intervention, the trial court lacks jurisdiction to modify a final judgment of

sentence. Commonwealth v. Walters, 814 A.2d 253, 255-56 (Pa. Super.

2002), appeal denied, 831 A.2d 599 (Pa. 2003).

      The trial court’s May 27, 2012 judgment of sentence imposed 24

months of SIP.     In the March 7, 2014 order on appeal, the trial court

effectively extended the term of Appellant’s sentence to 27 months. Despite

language in the order indicating the contrary, the trial court did not revoke

Appellant’s SIP sentence.     Rather, the trial court permitted Appellant to


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remain in SIP for an extra three months. Pursuant to § 5505, the trial court

had no jurisdiction to take such action. Id. at 256.5 This is so because the

record fails to reflect a patent or obvious mistake, fraud, or any other basis

for modifying the judgment of sentence outside the thirty-day period

specified in § 5505.       Under these circumstances, the Walters Court held

that a modified sentencing order is void. Id. Though neither party briefed

this   issue,   this   Court   can    raise    a   jurisdictional   issue   sua   sponte.

Commonwealth v. Concordia, 97 A.3d 366, 371 (Pa. Super. 2014).

       We observe that the trial court’s original judgment of sentence was in

accord with the SIP statute, which provides that the duration of an SIP

sentence “shall be 24 months . . . .”              61 Pa.C.S.A. § 4105(b) (emphasis

added). Nothing in the express terms of the SIP statute authorizes an SIP

sentence of lesser or greater duration than 24 months.                 Section 4105(b)

subsections (1) through (4) provide for the SIP participant to spend time in

a state correctional facility, a therapeutic community, an outpatient facility,

____________________________________________


5
    On November 12, 2014, this Court received a supplemental record
indicating the trial court has revoked Appellant’s SIP sentence and sentenced
him to a term of incarceration in a judgment of sentence dated September
4, 2014. We remind the trial court and the parties that, pursuant to Rule
1701(a) of the Rules of Appellate Procedure, the trial court had no
jurisdiction to conduct further proceedings in this case during the pendency
of this appeal subject to the exceptions set forth in other subsections of Rule
1701. Pa.R.A.P. 1701(a), (b). Appellant has filed an appeal from the
September 4 judgment of sentence. We leave it to the panel assigned to
that appeal to discern the propriety of the proceedings that post-date the
instant appeal.



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and supervised reintegration into the community, respectively. 61 Pa.C.S.A.

§ 4105(b)(1)-(4).         Likewise,     § 4105(c)   permits   the   Department     of

Corrections “maximum flexibility” to move the participant back and forth

between and among the four phases of treatment identified in § 4105(b)(1)-

(4). Nothing in § 4105(c), however, expressly authorizes the Department of

Corrections to extend participation beyond the 24 months specified in

§ 4105(b).

       Section 4105(f)(3), in tandem with § 9774 of the Sentencing Code,

provides that a trial court “shall” revoke the SIP sentence if the participant is

expelled from or fails to complete the program. 61 Pa.C.S.A. § 4105(f)(3);

42 Pa.C.S.A. § 9774.6        Here, the trial court acknowledged that Appellant

failed to complete the SIP program within the two-year period.                   N.T.

Hearing, 3/5/14, at 8.

       The trial court explained the circumstances and reasoning behind its

order at the March 5, 2014 hearing:

                    Okay. So we received a letter. When I say
              we, it was addressed to me, Judge Miller, because
              I’m the one that approved you for the SIP Program
              on February 22 of 2012.

                   They’ve indicated that they’re willing to have
              you continue in the program, even though when you
____________________________________________


6
   We observe that § 9774 provides only for revocation of an SIP sentence,
in contrast with § 9771 of the Sentencing Code, which provides for
revocation or modification of a probationary sentence. See 42 Pa.C.S.A.
§ 9771.



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            were issued a home pass during the third phase of
            the SIP treatment, you consumed alcohol while on
            the pass, and you were issued a misconduct. As part
            of the discipline process, you were reassessed and
            returned to SIP level 1 to start over in treatment in
            an institutional therapeutic community.       They’ve
            indicated you’ve done well in treatment since then,
            but the three months[’] sentence extension is
            needed to allow you sufficient time to complete a
            minimum of six months treatment through the
            community based outpatient treatment program.

                  If they didn’t grant you this extension, then
            you’d be back here; and we’d be revoking you from
            the program; and we’d have to do an evaluation as
            to what a recommended sentence would be. But
            that’s not the case. They’re recommending that you
            continue in the program, and don’t violate any terms
            of the program again, so that you can continue and
            complete the program.

N.T. Hearing, 3/5/14, at 3-4.

     Our research has uncovered no case law governing a trial court’s

authority to modify an SIP sentence to extend beyond the statutorily

prescribed 24-month period. The parties have not briefed this issue (indeed,

the argument section of Appellant’s Brief contains no citation to any legal

authority), and the trial court did not address it.     We therefore decline to

opine on an apparent question of first impression without the benefit of

briefs or argument.

     Next, we address Appellant’s argument that we should order him

discharged, inasmuch as the term of his sentence is now expired.              We

disagree.     In Kuykendall, the defendant appealed his sentence of

imprisonment    after   the   trial   court   revoked   his   SIP   participation.


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Kuykendall, 2 A.3d at 550.        The defendant argued the trial court erred

because, despite the defendant’s various violations, the 24-month SIP term

expired prior to re-sentencing.    Id. at 563. This Court disagreed. “[T]he

two-year SIP sentence requires successful completion of the program

through a systematic satisfaction of all phases of the SIP program.”     Id.

“[Defendant] did not successfully navigate his way through the SIP; thus, he

cannot assert that he completed his SIP sentence.” Id. at 563-64. Here, as

in Kuykendall, Appellant failed to complete his SIP sentence successfully by

the end of the 24-month term of the sentence.          We therefore decline

Appellant’s request to order his discharge.

      Finally, since we have decided to vacate and remand on a jurisdictional

issue, we need not address the parties’ arguments concerning Appellant’s

right to counsel. The trial court has already decided to appoint counsel to

represent Appellant on remand, and nothing in the law prevents it from

doing so.

      Based on all of the foregoing, we vacate the trial court’s order and

remand for further proceedings.

      Order vacated. Case remanded. Jurisdiction relinquished.




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J-S60023-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2015




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