Com. v. Burkett, J.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

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v. :

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JOSHUA GENE BURKETT :

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Appellant : No. 1523 WDA 2025

Appeal from the Order Entered October 20, 2025 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000134-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

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v. :

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:

JOSHUA GENE BURKETT :

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Appellant : No. 1524 WDA 2025

Appeal from the Order Entered October 20, 2025 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000135-2022

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.* MEMORANDUM BY DUBOW, J.: FILED: August 27, 2026 Appellant, Joshua Gene Burkett, appeals from the October 20, 2025 order entered by the Jefferson County Court of Common Pleas denying his “Motion to Modify Sentencing Order.” Because the Court of Common Pleas lacked jurisdiction to entertain the motion and Appellant is no longer serving

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* Former Justice specially assigned to the Superior Court.

a term of supervision, we vacate the order denying modification and dismiss this appeal.

A detailed factual history is unnecessary to our disposition. Briefly, on July 20, 2022, Appellant pled guilty to two Driving Under the Influence (“DUI”) offenses that occurred on separate dates. On October 5, 2022, the trial court sentenced him to terms of six months of reporting probation on the first DUI and five years of reporting probation on the second DUI, to be served concurrently. He did not file post-sentence motions or direct appeals.

On September 16, 2025, nearly three years after his judgment of sentence became final, Appellant filed the instant “Motion to Modify Sentencing Order” (“Motion”). Citing Vellon v. Pennsylvania Department of Transportation, 292 A.3d 882 (Pa. 2023), he alleged that because he was sentenced on the two DUI convictions at the same time, the court should have considered each offense to be an ungraded misdemeanor for purposes of sentencing. Appellant requested that his sentencing order be modified accordingly. Motion, 9/16/25, at 2 (unpaginated).

The Common Pleas Court held oral argument on the motion. On October 17, 2025, the court entered an order denying the motion. On November 17, 2025, Appellant filed an appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

In his Statement of Question Involved, Appellant raises the following issue for our review:

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Whether the trial court abused its discretion, committed error of law, or violated constitutional rights of [Appellant] in imposing an unlawful grading and sentence in relation to his first charged DUI, when that first charged DUI was graded as a misdemeanor of the first degree—although he had no prior DUI convictions—and although he incurred a second DUI charging during his prosecution on the first, he was sentenced on the same day and same time in relation to both DUIs; whereby, based on the statutory text and legion of precedent, both should have been graded, penalized, and sentenced as first time DUIs, even though his former counsel advised him to plead to the unlawful sentencing.

Appellant’s Br. at 2-3 (footnotes omitted).1 Generally, “a court upon notice to the parties may modify or rescind any order within 30 days after its entry . . . if no appeal from such order has been taken[.]” 42 Pa.C.S. § 5505. Under certain circumstances, a trial court may entertain a modification motion outside that time limit. See Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007) (recognizing that § 5505 does not limit a court’s “inherent power . . . to correct obvious and patent mistakes in its orders” beyond the statutory 30-day time period); Commonwealth v. McGee, 302 A.3d 659, 669 (Pa. 2023) (concluding, as a threshold matter, that appellant had not identified a patent and obvious error in the record, and therefore there was no need to consider whether a trial court could correct a patent and obvious error in a sentencing order beyond the time limitations of the PCRA).

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1 Appellant’s attempts to challenge the stewardship of counsel in his brief are

waived for failing to raise the issue in his Pa.R.A.P. 1925(b) statement. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), superseded by statute on other grounds as stated in Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super. 2009) (en banc).

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Here, Appellant filed his motion for modification nearly three years after the entry of his judgment of sentence alleging only that the convictions to which he pled guilty were improperly graded for purposes of sentencing. Because the court no longer had the authority to address the motion to modify its sentence pursuant to 42 Pa.C.S. § 5505, its order is a legal nullity. See Commonwealth v. Green, 265 A.3d 798, 800 (Pa. Super. 2021) (observing that “[i]f a court issues an order after statutory time limits have passed, that order is a legal nullity”).

Moreover, it is well established that a “claim that the court improperly graded an offense for sentencing purposes implicates the legality of a sentence.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). Under the proper circumstances, such a challenge to the legality of Appellant’s sentence would be cognizable under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S. § 9543(a)(2)(vii); Commonwealth v. Moore, 247 A.3d 990, 993 (Pa. 2021) (“A claim a petitioner is serving an illegal sentence is cognizable under the PCRA, as long as the claim is raised in a timely petition.”). Thus, “[r]egardless of how a petition is titled, courts are to treat a petition filed after a judgment of sentence becomes final as a PCRA petition if it requests relief contemplated by the PCRA.” Commonwealth v. Hagan, 306 A.3d 414, 421-22 (Pa. Super. 2023).

While Appellant’s request for relief would be reviewable pursuant to the PCRA, PCRA relief was not available to Appellant. In order to obtain PCRA

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relief, a petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S. 9543(a)(1)(i). The fact that a petitioner is subject to collateral consequences, such as a driver’s license suspension, has no bearing on whether someone is currently serving a sentence for purposes of PCRA relief. Commonwealth v. Kirwan, 221 A.3d 196, 200 (Pa. Super. 2019); see also Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (rejecting appellant’s argument that “driver’s license suspension and possibility of future sentencing and recidivist enhancements” made petitioner eligible for PCRA relief, where appellant was no longer incarcerated for DUI and related offenses).

Based on our review of the record, Appellant is no longer serving a sentence of incarceration, probation, or parole. His six-month probationary term expired on April 5, 2023. On March 6, 2026, six months before Appellant filed his motion to modify, the trial court entered an order terminating his five- year probationary term early. See Order Granting Early Termination of Supervision, 3/6/26.

Because Appellant is no longer serving a sentence of incarceration, probation, or parole, he is unable to obtain relief from this Court.

Order vacated. Jurisdiction relinquished.

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DATE: 8/27/2026