Commonwealth v. Wesley

688 A.2d 201, 455 Pa. Super. 343, 1997 Pa. Super. LEXIS 1
CourtSuperior Court of Pennsylvania
DecidedJanuary 7, 1997
Docket00657
StatusPublished
Cited by8 cases

This text of 688 A.2d 201 (Commonwealth v. Wesley) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Wesley, 688 A.2d 201, 455 Pa. Super. 343, 1997 Pa. Super. LEXIS 1 (Pa. Ct. App. 1997).

Opinions

CIRILLO, President Judge Emeritus:

Sjonna Wesley appeals from the judgment of sentence entered in the Court of Common Pleas of Delaware County. We affirm.

On December 5, 1994, appellant Wesley was sentenced to a term of imprisonment of eight to twenty-three months for aggravated assault, and three years probation for possession of an instrument of crime and criminal conspiracy. Wesley was permitted to serve her term of imprisonment on weekends and to be furloughed during the week, with an additional 200 hours of community service. The certificate of imposition of judgment of sentence entered by the clerk, and signed by the trial judge, reflected this sentence in most respects; however, [346]*346the weekend imprisonment term was listed as 60 consecutive weekends, which is the equivalent of 120 days or 4 months imprisonment.

On January 6, 1995, thirty-one days after entry of the original sentencing order, the trial court, acting sua sponte, amended the certifícate of imposition of judgment of sentence, changing the weekend imprisonment term from 60 consecutive weekends to 120 consecutive weekends, which is the equivalent of 240 days or 8 months imprisonment. Appellant Wesley petitioned for a Writ of Habeas Corpus on December 1, 1995, averring that the. January 6,1995 sentencing order was unlawful and requested that the December 5, 1994 sentencing order be reinstated. On December 14, 1995, the trial court granted this request and the December 5, 1994 sentencing order was reinstated.

Shortly thereafter, the Commonwealth filed a “Motion for Reconsideration of Early Parole.” On February 12, 1996, the trial court, per the Honorable Harry J. Bradley, granted the Commonwealth’s motion and entered the following order:

AND NOW, to wit, this 12th day of February, 1996, upon consideration of the Commonwealth’s motion to reconsider early parole and defendant’s response thereto, and after oral argument thereon, it is hereby ORDERED and DECREED that the motion is GRANTED; it is further ORDERED and DECREED that this court’s order dated December 14, 1995 granting early parole is VACATED and the order dated January 6,1995 is reinstated. Although the resentence imposed on January 6, 1995 was imposed more than thirty (30) days from the date of the original sentence, December 5, 1994, the resentence merely corrected an obvious, clerical error in calculating the number of weekends to be served. It did not increase the total aggregate sentence imposed on December 4,1994----

Wesley appealed, and now raises the following two issues for our consideration:

(1) Did the court err in resentencing the defendant on January 6,1995?
[347]*347(2) Did the court err in granting the Commonwealth’s motion for reconsideration of early parole on February 16, 1996, and reinstating its order of January 6,1995?

Section 5505 of the Judicial Code provides the means by which a court may sua sponte modify or rescind a prior order. See 42 Pa.C.S.A. § 5505. Section 5505 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.A. § 5505.

As a general rule, a court is without power to modify or rescind an order after this thirty-day statutory limitation has expired. 42 Pa.C.S.A. § 5505; Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235 (1994), appeal granted, 540 Pa. 648, 659 A.2d 986 (1995)(citing Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985)). This general rule, however, must be considered along with the inherent powers of a court “to modify a sentence in order to amend records, to correct mistakes of court officers or counsel’s inadvertencies, or to supply defects or omissions in the record. ...” Quinlan, 433 Pa.Super. at 118, 639 A.2d at 1239 (citing Commonwealth v. Fiore, 341 Pa.Super. 305, 491 A.2d 276 (1985)). In that regard, where a mistake is obvious and patent, the inherent power of the court to correct it is not eliminated even though the thirty-day appeal period has passed. See Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970) (affirming trial court order entered three and one-half months after entry of original order, where trial court’s original order granting defendant’s motion for a new trial and arrest of judgment was viewed as patently erroneous); See also In re Austin Trust, 449 Pa.Super. 467, 674 A.2d 293 (1996) (affirming trial court order issued more than thirty days after original order, where original order erroneously sustained objection to payment of trustee fees solely from trust income).

[348]*348In this case, Wesley asserts that the trial court erred when it entered the sentencing order dated January 6, 1995, which altered the original sentencing order entered thirty-one days earlier on December 5,1994. In support of this position, Wesley relies heavily on the case of Commonwealth v. Quinlan, supra.

In Quinlan, this court was faced with an appeal from a judgment of sentence which was entered over two and one-half years after the original sentence, in order to correct a “clerical error.” Quinlan, supra. The clerical error was an omission from the original written sentencing order of a five-year probation period which was a part of the oral sentence handed down by the trial judge. Quinlan, 433 Pa.Super. at 114-15, 639 A.2d at 1237. In reversing the trial court’s belated resentencing order, the majority of the Quinlan court reiterated the general rule of this Commonwealth that “[o]ral statements made by the judge in passing sentence, but not incorporated in the written sentence signed by [the sentencing judge], are not part of the judgment of sentence.” Quinlan, 433 Pa.Super. at 119, 639 A.2d at 1239 (quoting Commonwealth v. Foster, 229 Pa.Super. 269, 324 A.2d 538 (1974) (citations omitted)). The power of the trial court to correct these “clerical errors” is bounded by the considerations of timeliness on the part of both the aggrieved party and the court. Quinlan, 433 Pa.Super. at 118-20, 639 A.2d at 1239 (citing 42 Pa.C.S.A § 5505; Pa.R.Crim.P. 1410, 42 Pa.C.S.A.; Commonwealth v. Kubiac, 379 Pa.Super. 402, 421-22, 550 A.2d 219, 229 (1988), appeal denied, 522 Pa. 611, 563 A.2d 496 (1989)).

Comparing Quinlan to the case at hand, it is readily apparent that the facts of the instant case present a different situation and compel a different outcome. Initially we note that we are not faced with the type of delay which faced the Quinlan court. As the Quinlan

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Commonwealth v. Wesley
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Bluebook (online)
688 A.2d 201, 455 Pa. Super. 343, 1997 Pa. Super. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wesley-pasuperct-1997.