J-S38006-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES HOLLEY : : Appellant : No. 3130 EDA 2023
Appeal from the Judgment of Sentence Entered November 17, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0006143-2013
BEFORE: STABILE, J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 3, 2025
Appellant, James Holley, appeals from the modified judgment of
sentence imposed on November 17, 2023, by the Court of Common Pleas of
Philadelphia County (trial court). He challenges the trial court’s authority to
modify his sentence beyond the 30-day period set forth in 42 Pa.C.S.A. §
5505, as well as the legality of the modified sentence. Upon review, we find
merit in the claim that part of the modified sentence is illegal, requiring us to
vacate the judgment of sentence, and remand the case for further
proceedings.
The trial court aptly summarized the factual and procedural history of
this case as follows:
On August 20, 2013, [Appellant] entered a negotiated guilty plea to aggravated indecent assault of a child, graded as a felony of ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S38006-24
the first degree, and [sexual abuse of children], graded as a felony of the second degree. As part of the negotiated guilty plea, [Appellant] specifically agreed to a sentence of 7 ½ to 20 years of incarceration for aggravated indecent assault of a child, to be followed by 10 years of state-supervised sex offender probation. The [trial court] accepted [Appellant’s] plea as knowingly and voluntarily tendered, and deferred sentencing pending a Megan’s Law assessment by the Sexual Offender Assessment Board (“SOAB”).
On December 5, 2013, [Appellant] appeared for sentencing, at which time the [trial court] imposed the negotiated sentence of 7 ½ to 20 years of incarceration, followed by 10 years of state- supervised sex offender probation. (N.T. 12/05/13 at 4). [Appellant] did not file a motion for reconsideration of sentence or a direct appeal.
On April 19, 2023, the Pennsylvania Department of Corrections inadvertently released [Appellant] from prison based on the mistaken belief that he had maxed out the incarceration portion of his sentence.4
4 [Appellant’s] written sentencing order erroneously indicated a sentence of 7 ½ to 10 years, which not only is an illegal sentence, but conflicted with the [trial court’s] unambiguous oral sentence on the record, as well as the written guilty plea forms and secure docket entries.
The matter came before the [trial court] on May 2, 2023, following the state parole/probation agent’s request for GPS monitoring of [Appellant] and implementation of sex offender conditions. In the interim, there was an alleged violation by [Appellant], which brought him before the [trial court] – at which time it became apparent to the [trial court] that the written sentencing order contained the erroneous, illegal sentence of 7 ½ to 10 years.
On November 17, 2023, the [trial court] held a hearing on the matter, and following argument by the parties, found that the 7 ½-to-10-year sentence in the written order was a patent mistake in light of the record:
THE COURT: . . . I find that the seven and a half to ten years was a patent mistake in the sentencing
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order and I’m going to sentence [Appellant] to the sentence that was agreed upon and was negotiated of seven and a half to 20 years on the aggravated indecent assault of a child, followed by ten years of state sex offender probation.
(N.T. 11/17/23 at 16-17).
Trial Court Opinion, 6/29/24, at 1-2 (some footnotes omitted). This appeal
followed. Both the trial court and Appellant have complied with Pa.R.A.P.
1925. Appellant raises four related issues for our review:
Did the trial court err when it amended [Appellant’s] sentence and increased his maximum sentence of incarceration from ten to twenty years because: (1) the written sentencing order controls, (2) the increase in sentence violated the prohibition against double jeopardy, (3) the trial court lacked jurisdiction and (4) the new sentence was illegal?
Appellant’s Brief, at 3.
We start with Appellant’s claim that the trial court lacked jurisdiction to
modify his sentence beyond the 30-day period prescribed by Section 5505.
See id. at 24-26. A question regarding the power of a trial court to correct
an alleged sentencing error presents a pure question of law; thus, our scope
of review is plenary, and our standard of review is de novo. Commonwealth
v. Borrin, 12 A.3d 466, 471 (Pa. Super. 2011) (en banc).
Generally, a trial court may only modify or rescind an order within 30
days after its entry, unless an appeal has been filed sooner. 42 Pa.C.S.A. §
5505. After that point, the trial court loses jurisdiction over the case. See
Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007). However, it is
well-settled in Pennsylvania that a trial court has inherent, common-law
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authority to correct clear clerical errors in its orders. See id. A trial court
maintains this authority even after the expiration of the 30-day period set
forth in Section 5505. Id. Nevertheless, our Supreme Court has cautioned:
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 lenient.
Id. at 66-67.
In Holmes, our Supreme Court considered two companion cases –
Commonwealth v. Holmes, 837 A.2d 501 (Pa. Super. 2003) and
Commonwealth v. Whitfield, 833 A.2d 1152 (Pa. Super. 2003) – to
determine whether a trial court had inherent jurisdiction to modify or rescind
an illegal order absent statutory jurisdiction under Section 5505. Id. at 58.
In Holmes, the defendant violated his parole, requiring him to serve the
balance of the original sentence.1 Id. at 59. The trial court, however,
sentenced him as if he had violated probation and imposed a new sentence.
Id. The trial court realized its mistake more than 30 days after its imposition
and sua sponte vacated the sentence. Id. This Court reversed, concluding
____________________________________________
1 “If the offender’s parole is revoked, the offender shall be recommitted to serve the remainder of the term which the offender would have been compelled to serve had the parole not been granted[.]” 61 Pa.C.S.A. § 6138(a)(2).
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that the mistake was not patent and obvious and “the sentence was not
facially self-contradictory or irreconcilable nor did it contain a clerical error.”
Id. at 60-61.
In Whitfield, the defendant received a sentence of incarceration, but
no probation. Id. at 62. The trial court subsequently revoked his “probation”
and imposed a new sentence. Id. at 63. The defendant filed a motion to
vacate his sentence, which was denied by the trial court. Id. While pending
appeal, and two months after the sentence was imposed, the trial court sua
sponte vacated the order, finding that the sentence was illegal. Id. As a
result, the defendant withdrew his appeal because he was no longer
aggrieved. Id. Thereafter, the Commonwealth appealed, asserting that the
trial court did not have jurisdiction to sua sponte vacate the defendant’s
sentence. Id.
In both cases, our Supreme Court concluded that the trial courts had
the inherent authority to vacate the illegal sentences even after the expiration
of the 30-day period in Section 5505. Holmes, 933 A.2d at 67. In so holding,
the Court noted that “[t]hese cases involve clear errors in the imposition of
sentences that were incompatible with the record, as in Whitfield, or black
letter law, as in Holmes.” Id.
Here, Appellant argues that Holmes precluded the trial court’s
modification of his sentence because it lacked a patent and obvious error.
Appellant analogizes his case to Commonwealth v. Jackson, 30 A.3d 516
(Pa. Super. 2011), where this Court relied on such a proposition to vacate a
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sentence modified beyond the 30-day period of Section 5505. See Appellant’s
Brief, at 24-26.
In Jackson, the defendant was initially sentenced to 20 years’
probation. Several years later, the trial court revoked the defendant’s
probation and resentenced him to 2 to 20 years’ incarceration, to be served
consecutively to any sentence the defendant was serving or awaiting to serve.
The defendant appealed, and this Court affirmed the judgment of sentence.
About 20 years later, the defendant filed a PCRA petition arguing that
his initial sentence was illegal because the trial court failed to specify the
authority that would conduct his probation supervision, in violation of 42
Pa.C.S.A. § 9754(a).2 Relying on Holmes, the defendant argued that the
PCRA court had authority to consider his claim under its inherent jurisdiction
to correct patent errors in sentences. This Court disagreed on two grounds:
(1) there was no error in the defendant’s sentence, let alone a patent and
obvious illegality; and (2) the defendant failed to prove an exception to the
PCRA time requirements as the claim was cognizable under the PCRA.
Appellant’s argument is unavailing. First, this Court has distinguished
Holmes, where the action was taken by the trial court on its own initiative,
from cases where relief is being sought by a prisoner through the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. See ____________________________________________
2 At the time Jackson was decided, Section 9754 stated, in relevant part: “In
imposing an order of probation the court shall specify at the time of sentencing . . . the authority that shall conduct the supervision.” 42 Pa.C.S.A. § 9754(a) (effective until December 17, 2019).
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Commonwealth v. Whiteman, 204 A.3d 448, 451 (Pa. Super. 2019). We
concluded that Holmes permits a trial court to modify a sentence, sua sponte,
to correct a patent and obvious error; Jackson limits the authority recognized
in Holmes in cases where a prisoner challenges the legality of his or her
sentence through a PCRA petition because postconviction relief is subject to
the PCRA’s jurisdictional time-bar. Id. Thus, Holmes applies in the instant
case, and the trial court had the inherent jurisdiction to correct a patent and
obvious illegality in the sentence; Jackson did not bar the trial court here
from correcting the illegality because it was not acting as a PCRA court
granting postconviction relief.
Second, the error in Appellant’s written sentencing order was patent and
obvious. When imposing sentence on each offense “[t]he court shall impose a
minimum sentence of confinement which shall not exceed one-half of the
maximum sentence imposed.” 42 Pa.C.S.A. 9756(b)(1). A sentence of 7.5
to 10 years is incompatible with black letter law because it violates Section
9756(b)(1). Additionally, it is incompatible with the record wherein the trial
court imposed the negotiated sentence of 7.5 to 20 years’ incarceration.
Therefore, the illegality of Appellant’s sentence is patent and obvious, and the
trial court had inherent authority to sua sponte correct that error.
Appellant next argues that the trial court violated the prohibition against
double jeopardy when it increased his maximum sentence after he had served
the maximum sentence as set forth in the written sentencing order. See
Appellant’s Brief, at 15-25. “By increasing the sentence, it subjected
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[Appellant] to additional punishment for the same offense, in violation of
double jeopardy.” Id. at 16.
Challenges related to double jeopardy implicate the legality of the
sentence; therefore, our standard of review is de novo. Commonwealth v.
Foster, 17 A.3d 332, 337 (Pa. 2011) (citation omitted). The double jeopardy
clause of the federal constitution provides, in relevant part, that no person “be
subject for the same offense to be twice put in jeopardy of life or limb.” U.S.
Const. Amend. V. Similarly, the Pennsylvania Constitution provides that “[n]o
person shall, for the same offense, be twice put in jeopardy of life or limb.”
Pa. Const. Art. I, § 10. Moreover, the double jeopardy clause “protects against
a second prosecution for the same offense after acquittal. It protects against
a second prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.” Commonwealth v.
Decker, 664 A.2d 1028, 1029 (Pa. Super. 1995).
On this issue, we find Commonwealth v. Jones, 554 A.2d 50 (Pa.
1989) and Commonwealth v. Harrison, 661 A.2d 6 (Pa. Super. 1995) to be
instructive. In Jones, the defendant was sentenced to concurrent sentences
of 48 to 64 months each on three counts. Jones, 554 A.2d at 51. The trial
court immediately recognized that the sentence was illegal because the
minimum sentence was more than one-half the maximum sentence, in
violation of 42 Pa.C.S.A. § 9756(b) (“The court shall impose a minimum
sentence of confinement which shall not exceed one-half the maximum
sentence imposed.”), and corrected the sentence to 48 to 96 months. Id.
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Our Supreme Court held that “an illegal sentence is a legal nullity, and
sentencing courts must have the authority to correct such a sentence even if
that means increasing the sentence.” Id. at 52. In so holding, the Supreme
Court noted that its disposition was consistent with U.S. v. DiFrancesco, 449
U.S. 117 (1980), wherein the High Court held that the federal constitution
does not prohibit a trial court from increasing a sentence after the defendant
begins serving the sentence. Id. at 389-90. The double jeopardy guarantee
in the Pennsylvania Constitution is coextensive with federal constitutional
standards. See Commonwealth v. Sojourner, 518 A.2d 1145, 1149 n.6
(Pa. 1986). “Thus, there can be no constitutional bar in this jurisdiction to an
increase in sentence after service of the sentence has begun.” Jones, 554
A.2d at 389.
In Harrison, this Court applied the holding of Jones to a case where
the defendant appeared to have completed serving an illegal sentence. There,
the defendant was convicted of driving under the influence (“DUI”) and driving
while operating privilege is suspended or revoked. Harrison, 661 A.2d at 6-
7. The trial court sentenced Harrison to 90 days of house arrest, in violation
of 75 Pa.C.S.A. § 1543(b)(1) which, at the time, provided for a mandatory 90
days of incarceration. Id. at 7. The Commonwealth appealed the illegal
sentence, and Harrison argued that the appeal was moot because he had
completed his 90 days of house arrest. Id.
This Court rejected Harrison’s argument, vacated the illegal sentence
imposed on the driving while suspended conviction and remanded for the trial
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court to impose the statutory sentence set forth in Section 1543(b)(1). Id.
at 7-8. In so holding, we noted our Supreme Court’s pronouncement in Jones
– an illegal sentence is a legal nullity – and concluded that the fact that the
appellant “served” the illegal portion of his sentence does not prohibit a trial
court from subsequently imposing a legal sentence. Id. at 8. “To hold
otherwise would condone the imposition of patently illegal sentences and
would invite trial courts to fashion sentences contrary to clear legislative
intent.” Id.
Here, Appellant argues that he had a legitimate expectation of finality
in his written sentence; therefore, any modification or correction of the
sentence violated double jeopardy. This argument too is unavailing.
Appellant negotiated a plea deal wherein he would plead guilty to aggravated
indecent assault of a child and sexual abuse of children and receive a sentence
of 7.5 to 20 years of incarceration with a consecutive 10 years of probation.
At sentencing, the trial court imposed said sentence, albeit failing to indicate
on which count the incarceration and probation sentence were to be imposed.
However, the written guilty plea colloquy indicated that the parties had
negotiated a sentence of 7.5 to 20 years of incarceration for aggravated
indecent assault of a child. See Guilty Plea Colloquy, 8/20/13.
The written sentencing order, entered on the same day, provided as
follows:
Count 3 – 18 § 6312 §§ B – [Sexual Abuse of Children] (F2)
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To be placed on probation – state (PBPP) regular probation – for a maximum period of 10 year(s) to be supervised by state sex offender unit of probation
Count 4 – 18 § 3125 §§ B – Agg. Ind. Assault of Child (F1)
To be confined for a minimum period of 7 year(s) 6 month(s) and a maximum period of 10 year(s) at state correctional institution
The following conditions are imposed:
Credit for time served: credit to be calculated by the Phila. Prison System Other: Not RRRI eligible Other: Defendant not a sexually violent predator
To be placed on probation – state (PBPP) regular probation – for a maximum period of 10 year(s) to be supervised by state sex offender unit of probation.
Supervision – supervision under sex offender’s unit: defendant to be supervised under sex offender’s unit
[Count 4 probation is consecutive to Count 4 incarceration. Count 3 probation is concurrent to Count 4 probation.]
Sentencing Order, 12/5/13 (emphasis added).
In sum, the written sentencing order imposed a term of 7.5 to 10 years
of incarceration, with a consecutive 10 years of probation on Count 4
(aggravated indecent assault of a child), and a separate concurrent 10-year
term of probation for Count 3 (sexual abuse of children). The sentence of 7.5
to 10 years of incarceration is clearly illegal because the minimum sentence
is more than one-half the maximum sentence, in violation of Section 9756(b).
The written sentencing order had a patent error. Appellant cannot now
claim that he had an expectation of finality in that sentence. Appellant was
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aware that he negotiated a plea deal with a specific sentence, and that
sentence was imposed orally by the trial court. It is evident from the
sentencing transcript that the trial court imposed the negotiated sentence of
7.5 to 20 years, and Appellant could not have been surprised by the
modification of his sentence to those terms. He signed the written guilty plea
colloquy acknowledging as much, and he was present for the sentencing
hearing. Thus, the illegality of Appellant’s sentence prevented double
jeopardy from attaching, and the trial court’s correction – increasing the
maximum sentence to comport with the negotiated sentence – was valid. See
Jones, Harrison, supra.3
Lastly, Appellant contends that the modified sentence imposed on
November 17, 2023, is illegal on its face. We agree.
Appellant pleaded guilty to aggravated indecent assault of a child,
graded as a felony of the first-degree, and sexual abuse of children, graded
as a felony of the second-degree. The maximum sentence for a felony of the
first-degree is 20 years, including any term of probation. 18 Pa.C.S.A. §
1103(1); 42 Pa.C.S.A. § 9754(a) (stating that any term of probation imposed
by the trial court cannot exceed the maximum term that a defendant could be
confined). The maximum sentence for a felony of the second-degree is 10 ____________________________________________
3 The cases relied upon by Appellant in his brief, Commonwealth v. Quinlan,
639 A.2d 1235 (Pa. Super. 1994) and Commonwealth v. Borrin, 12 A.3d 466 (Pa. Super. 2011) are inapposite as they were not decided on double jeopardy grounds. Therefore, any discussion of double jeopardy in those cases was dicta. Additionally, Appellant has not completed his sentence because he is serving, at the least, 10 years of consecutive probation.
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years, including any term of probation. 18 Pa.C.S.A. § 1103(2); 42 Pa.C.S.A.
§ 9754(a).
Here, Appellant was sentenced to 7.5 to 20 years of incarceration with
10 years of consecutive probation on Count 4 (aggravated indecent assault
with a child), and 10 years of probation on Count 3 (sexual abuse of children),
concurrent with the probation imposed at Count 4. The sentence on Count 4
is illegal because it exceeds the maximum term allowed by statute. To correct
the error as to Count 4, we must vacate the entire judgment of sentence and
remand for resentencing, as our disposition upsets the trial court’s overall
sentencing scheme. See Commonwealth v. Ali, 197 A.3d 742, 759 (Pa.
Super. 2018).
Judgment of sentence vacated. Remanded for resentencing.
Jurisdiction relinquished.
Date: 2/3/2025
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