Com. v. Blair, D.

2020 Pa. Super. 81

• Court: Superior Court of Pennsylvania
• Decided: March 31, 2020
• Docket: 1681 MDA 2019
• Status: Published

Opinion

J-S13041-20

2020 PA Super 81

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEON HOSMOND BLAIR : : Appellant : No. 1681 MDA 2019

Appeal from the Judgment of Sentence Entered July 10, 2019 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000312-2018

BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED MARCH 31, 2020

Deon Hosmond Blair (Blair) appeals nunc pro tunc from the judgment

of sentence imposed following his entry of a guilty plea in the Court of

Common Pleas of Luzerne County (trial court) to involuntary deviate sexual

intercourse and simple assault.1 We vacate the judgment of sentence and

remand.

On June 26, 2018, Blair entered a negotiated guilty plea to the above-

mentioned charges. The conviction arises from an incident with his former

girlfriend during which he slapped her, punched her, hit her head, and forced

her to perform oral sex on him in front of three young children, ages two and

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3123(a)(1) and 2701(a)(1). J-S13041-20

under. On February 27, 2019, the trial court sentenced Blair to an aggregate

term of not less than 60 nor more than 120 months’ imprisonment. The court

awarded 231 days of credit for time served. Blair did not file a direct appeal.

On June 18, 2019, the trial court received a letter from the

Commonwealth of Pennsylvania Department of Corrections (DOC) regarding

the time credit. The DOC advised that it had already applied a portion of the

time credit the court had awarded in this case (for the period from September

22, 2018, through February 27, 2019) to a previously imposed Monroe County

sentence. Blair was, therefore, not entitled to application of the credit to the

sentence imposed in this case, which was to run consecutive to the Monroe

County sentence.2

On July 10, 2019, without giving notice to Blair or an opportunity for

him to respond, the trial court entered an order amending the February 27,

2019 sentence to reduce the amount of credit for time served by 160 days for

the relevant September 2018 through February 2019 period. (See Order

7/10/19). It directed that all other provisions of the sentencing disposition

2 The DOC, an executive agency, has no power to change sentences or to add or remove sentencing conditions, including credit for time served; this power is vested with the sentencing court. See Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014). In Ellsworth, we also held “that the duplicative imposition of credit for time served constitutes a patent and obvious mistake that is amenable to correction after the thirty-day period prescribed in 42 Pa.C.S. § 5505.” Id.; see also 42 Pa.C.S. § 9760 (governing the award of credit for time served).

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remain in full force and effect. On September 12, 2019, the trial court granted

Blair’s motion to reinstate his direct appeal rights nunc pro tunc. This timely

appeal followed. Blair and the trial court complied with Rule 1925(b). See

Pa.R.A.P. 1925(a)-(b).

Blair argues that the trial court erred in failing to provide notice and hold

a hearing on the time credit issue, with him physically present or by video

conference, before it amended his judgment of sentence to reduce the number

of days of credit for time served.3 He contends that the procedure utilized by

the trial court violates the requirements of Section 5505 of the Judicial Code.

(See Blair’s Brief, at 6-7).

This section provides:

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.

42 Pa.C.S. § 5505. “Generally, 42 Pa.C.S. § 5505 precludes the entry of an

order modifying a final order more than thirty days after its entry.”

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

Nonetheless, a trial court retains the inherent jurisdiction to correct obvious

3Claims asserting trial court error regarding its award of credit for time served implicates the legality of the sentence. See Commonwealth v. Saunders, 2020 WL 113401, at *2 (Pa. Super. filed Jan. 10, 2020). Because issues relating to the legality of a sentence are questions of law, our standard of review is de novo and the scope of review is plenary. See id.

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or patent errors in its orders, even if it is outside the standard 30-day

paradigm, when warranted. See id. “An alleged error must qualify as a clear

clerical error or a patent and obvious mistake in order to be amenable to

correction.” Commonwealth v. Ellsworth, 97 A.3d 1255, 1257 (Pa. Super.

2014) (citation omitted).

Even if there is a clear mistake, that does not relieve the court of its

obligation to give notice as required by 42 Pa.C.S. § 5505 to both the

defendant and the district attorney of the proposed changes and an

opportunity to respond to those changes. Not only is such a notice required

by 42 Pa.C.S. § 5505, the sentencing process must also satisfy due process,

which similarly requires a notice and opportunity to respond. See

Commonwealth v. Wright, 494 A.2d 354, 359 (Pa. 1985); Commonwealth

v. Eldred, 207 A.3d 404 (Pa. Super. 2019).

It is in accord with those mandates that we have held that a trial court

“is empowered to modify a sentence only if it notifies the defendant and the

district attorney of its intention to do so.” Commonwealth v. Hobson, 452

A.2d 22, 23 (Pa. Super. 1982) (citing Commonwealth v. Horsman, 361

A.2d 433 (Pa. Super. 1976)). Modification of a sentence without notifying the

defendant is inconsistent with “the accused being present at every vital stage

of the criminal process.” Commonwealth. v. Pastorkovic, 567 A.2d 1089,

1092 (Pa. Super. 1989). Moreover, if the sentence is modified without giving

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notice, it is without effect. See Commonwealth v. Reed, 386 A.2d 41 (Pa.

Super. 1978).

Because Blair did not receive notice and an opportunity to respond, we

vacate the sentence of the trial court and remand for resentencing after Blair

receives notice and an opportunity to respond.

Judgement of sentence vacated. Case remanded. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/31/2020

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