Com. v. Wenzel, R.

2021 Pa. Super. 44

• Court: Superior Court of Pennsylvania
• Decided: March 17, 2021
• Docket: 417 WDA 2020
• Status: Published

Opinion

J-S43030-20

2021 PA Super 44

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ROBERT LOUIS WENZEL

Appellant No. 417 WDA 2020

Appeal from the Judgment of Sentence Entered November 1, 2019 In the Court of Common Pleas of Warren County Criminal Division at No.: CP-62-CR-0000550-2018

BEFORE: SHOGAN, J., STABILE, J., and KING, J.

DISSENTING OPINION BY STABILE, J.: FILED: MARCH 17, 2021

I respectfully dissent. In my view, we need not reach the merits of this

appeal, since the appeal should be quashed for want of jurisdiction.

Briefly, as the Majority notes, following a jury conviction for resisting

arrest, on November 1, 2019, the trial court sentenced (“Original Judgment

of Sentence”) Appellant to intermediate punishment for a period of two years

less one day, with a restrictive portion of four months’ incarceration in Warren

County Prison, with credit for time served of 119 days, followed by one month

of house arrest. The trial court cautioned Appellant to file post-sentence

motions within 10 days of sentencing. See N.T. Sentencing, 11/1/19, at 4-5.

Appellant filed his post-sentence motion on Tuesday, November 12, 2019.1 ____________________________________________

1The 10th day fell on Monday, November 11, 2019, which was Veterans Day. See 1 Pa. C.S.A. § 1908 (excluding weekend days and legal holidays from the J-S43030-20

On November 19, 2019, during the pendency of the post-sentence

motion, the trial court on its own amended (“First Amendment”) the Original

Judgment of Sentence.2 It removed the 119 days’ credit for time served.3

Appellant did not file any post-sentence motions or appeal from the First

Amendment.

On December 11, 2019, the trial court once again amended (“Second

Amendment”) the Original Judgment of Sentence. In so doing, the court

clarified that Appellant needed to spend only 90 days of the four-month

restrictive portion at Warren County Prison and that house arrest would be

enforced via electronic monitoring. Appellant, again, did not file any post-

sentence motion or appeal from the Second Amendment.

On February 14, 2020, following an evidentiary hearing, the trial court

denied the post-sentence motion filed from the Original Judgment of

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computation of the time period for a filing when the last day of the time period falls on a weekend or legal holiday).

2 My review of the sentencing transcript reveals that the Commonwealth challenged Appellant’s entitlement to 119 days’ credit for time served. N.T. Sentencing, 11/1/19, at 15-17. The court, however, advised the parties that “[Appellant] is given credit for time served. . . . In the event that, that proves to be inaccurate or incorrect, the [c]ourt will adjust that. But I’m giving him the credit today for that[.]” Id. at 24 (emphasis added). The Majority simply fails to acknowledge this exchange in arriving at its conclusion that there was a breakdown in the operation of the court.

3 The trial court did not commit any errors, as it amended the Original Judgment of Sentence within 30 days of sentencing before any appeal was taken. See 42 Pa.C.S.A. § 5505 (“a court upon notice to the parties may modify or rescind any order within 30 days after its entry . . . if no appeal from such an order has been taken or allowed.”).

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Sentence. On March 10, 2020, Appellant filed the instant appeal from the

Original Judgment of Sentence after the trial court denied his post-sentence

motion arising out of and relating to the same. In my opinion, Appellant’s

appeal is untimely; we therefore lack jurisdiction to entertain this appeal. We

may raise questions about our jurisdiction on our own motion. See

Commonwealth v. Andre, 17 A.3d 951, 958 (Pa. Super. 2011).

It is well-settled that, in criminal cases, an appeal properly lies from the

judgment of sentence. See generally Commonwealth v. Shamberger,

788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc), appeal denied, 800 A.2d

932 (Pa. 2002). Instantly, as noted earlier, the trial court, on November 19,

2019, amended the Original Judgment of Sentence following Appellant’s filing

of a post-sentence motion and before any appeal was taken. In doing so, the

trial court sua sponte removed the 119 days’ credit for time served. The effect

of this amendment is clear. Under the circumstances of this case, where the

Original Judgment of Sentence called for only four months’ incarceration in

Warren County Prison, the removal of 119 days’ credit was significant and not

done merely to correct a patent error or mistake in the record. See 42

Pa.C.S.A. § 5505; see also Commonwealth v. Stevens,4 No. 3442 EDA

2019, 2020 WL 6130155, at *1 n.1, unpublished memorandum, (Pa. Super. ____________________________________________

4 The factual differences between this case and Stevens are of little significance. There, the trial court included credit for time served by amending the judgment of sentence. Here, the trial court removed 119 days’ credit through the First Amendment.

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filed October 19, 2020) (because the trial court amended the judgment of

sentence within 30 days of its entry when no appeal was taken, the appeal at

issue properly lay from the amended judgment by which the court added credit

for time served).5 As illustrated, infra, an amended order that merely corrects

a patent or obvious error in the record does not reestablish the time in which

an appeal from the judgment of sentence must be taken and may be done by

the court at any time. On the other hand, an amended order that does not

merely correct a patent or obvious error in the record constitutes a new

judgment of sentence. Stevens. The trial court must act within 30 days of

its initial order to amend the judgment of sentence while the trial court still

has jurisdiction, see 42 Pa.C.S.A. § 5505. If an appeal is to be taken from

the amended judgment of sentence, it must be filed within 30 days of the

amended judgment. An appeal taken from the original judgment of sentence

will not suffice to preserve appeal rights from the amended judgment of

sentence.

In Commonwealth v. Klein, 781 A.2d 1133 (Pa. 2001), the Supreme

Court reversed an order of this Court quashing the defendant’s appeal as

untimely filed. Klein, 781 A.2d at 1136. Two days after the defendant was

sentenced on June 23, 1999, to time-served to one year in prison, the trial

court learned that there was an error in the defendant’s record concerning the

5 Under Rule 126(b), non-precedential decisions, referring to unpublished memorandum decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value. See Pa.R.A.P. 126(b).

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calculation of his credit for time-served. See id. at 1134. Accordingly, on

June 25, 1999, the trial court issued an order, sua sponte, directing the

defendant to reappear for sentencing on June 30, 1999; however, it did not

vacate its prior sentencing order. Before the resentencing hearing, on June

28, 1999, the defendant filed a notice of appeal from the June 23rd judgment

of sentence. Nevertheless, the resentencing hearing continued as scheduled,

and, on June 30, 1999, the trial court corrected the calculation of time-served

in the original sentencing order, but directed “[a]ll other aspects of the June

23rd order were to remain in effect.” Id. (record citation omitted). A panel

of this Court quashed the defendant’s appeal, reasoning the court’s June 25th

order “implicitly vacated” the June 23rd sentencing order, and, therefore, the

defendant filed an appeal from the wrong order. Id. However, the Supreme

Court disagreed, noting, “this court has never indicated that an order may

‘implicitly vacate’ an earlier order and Section 5505 does not provide for such

ambiguity.” Id. at 1135. Nevertheless, while the defendant’s notice of appeal

divested the trial court of jurisdiction to modify its sentencing order after 30

days, the Supreme Court explained it was clear the trial court’s intent was to

sentence the defendant to serve one month in prison, and the miscalculation

of the time-served undermined that intent; accordingly, the Court held “under

the limited circumstances of this case, the [trial] court could take further

action in this matter since it was merely correcting a patent defect or mistake

in the record.” Id.

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Commonwealth v. Callen, 198 A.3d 1149 (Pa. 2018), is yet another

example of when a trial court may act to correct a clerical error without

affecting the validity of its original judgment of sentence. There the trial court

confused the docket numbers—but not the offenses, counts, or victims—when

it orally pronounced the appellant’s sentence. The confusion caused an

erroneous transcription of the written sentencing order. Months after

sentencing, while the appeal was pending, the trial court amended the

sentencing order. On appeal, we agreed with the trial court’s course of action,

noting that the errors corrected were clerical in nature.

Here, there is no suggestion by Appellant that the trial court committed

any kind of clerical mistake requiring the sua sponte amendment of the

November 1, 2019 judgment of sentence. In fact, the First Amendment should

not have come as a surprise to Appellant. The trial court apprised him on the

record at sentencing that it might adjust time credit. By removing the 119

days’ credit via the First Amendment, which was entered within 30 days of the

entry of the Original Judgment of Sentence, the trial court effectively vacated

the Original Judgment of Sentence. Differently put, the trial court vacated the

Original Judgment of Sentence when it determined that Appellant no longer

was entitled to 119 days’ credit for time served. The change made did not

just correct a calculation error. The court’s determination reevaluated

Appellant’s entitlement to time served. As a result, Appellant needed to take

an appeal from the First Amendment, entered on November 19. He did not.

Instead, on March 10, 2020, Appellant took the instant appeal from the

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Original Judgment of Sentence. The appeal, however, was untimely, as it was

taken more than 30 days after the November 19, 2019 entry of the First

Amendment.6 See Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3).

Furthermore, I also respectfully disagree with the Majority to the extent

it premises our jurisdiction on a breakdown in the court processes and thereby

excuses Appellant’s untimely appeal. See Majority Op. at 8-9. It is well

settled that appellate courts generally cannot extend the time for filing an

appeal. See Pa.R.A.P. 105(b) (“An appellate court . . . may not enlarge the

time for filing a notice of appeal, a petition for allowance of appeal, a petition

for permission to appeal, a petition for review, or a petition for specialized

review.”). However, the official note to Rule 105 provides that Rule 105(b) is

“not intended to affect the power of a court to grant relief in the case of fraud

or breakdown in the processes of a court.” Pa.R.A.P. 105(b), note; see also

Commonwealth v. Patterson, 941 A.2d 493, 499 (Pa. Super. 2007)

(pointing out that despite the general rule that “an appellate court cannot

extend the time for filing an appeal,” this “does not affect the power of courts

to grant relief in the case of fraud or breakdown in the processes of the court”).

6It is unclear whether the Second Amendment replaced the First Amendment as the final, appeal order. Additionally, it unclear whether the Second Amendment was issued pursuant to the court’s inherent powers to correct patent and obvious errors. These questions, however, need not be resolved at this juncture because Appellant did not appeal from the either the First Amendment or the Second Amendment.

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Here, contrary to the Majority’s conclusion, no breakdown in the

processes of the court is alleged and one is not apparent from the face of

record. Thus, by finding there was a breakdown, the Majority sua sponte

grants Appellant nunc pro tunc relief, rendering timely his untimely appeal,

which was not taken until March 2020—months after the November 19, 2019

First Amendment. I do not believe this Court has the authority to sua sponte

grant nunc pro tunc relief, especially when the relief would, as here, result in

the enlargement of the time for filing an appeal. This conclusion would be

consistent with our prior decisions involving a trial court’s sua sponte

reinstatement of direct appeal rights nunc pro tunc. We previously have noted

that it is improper for a trial court to do so. Commonwealth v. Turner, 73

A.3d 1283, 1285 n.2 (Pa. Super. 2013); accord Commonwealth v.

McCollum, 2020 WL 7706810, unpublished memorandum, (Pa. Super. filed

December 29, 2020).

For these reasons, I dissent. I would quash this appeal for want of

jurisdiction.

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