Com. v. Kremer, B. , 206 A.3d 543 ( 2019 )

J-A05005-19
2019 PA Super 84COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRIAN KREMER :
:
Appellant : No. 1720 WDA 2017
Appeal from the Order October 3, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007293-1994
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
OPINION BY GANTMAN, P.J.E.: FILED MARCH 20, 2019
Appellant, Brian Kremer, appeals from the order entered in the
Allegheny County Court of Common Pleas, which purported to “correct”
Appellant’s original January 26, 1995 judgment of sentence, to clarify the
court’s intent to run Appellant’s sentences consecutively to each other and to
any other sentence Appellant had been serving at that time. For the following
reasons, we reverse and remand for reinstatement of the original judgment
of sentence, as it appears in the January 26, 1995 signed, written sentencing
order and interpreted by the Department of Corrections (“DOC”).
The relevant facts and procedural history of this case are as follows. On
November 29, 1994, Appellant entered an open guilty plea to multiple counts
of various sex offenses related to sexual abuse of his stepdaughter. Appellant
proceeded to sentencing on January 26, 1995. At the sentencing hearing, the
J-A05005-19
court orally stated as follows:
[Appellant], at Criminal Complaint 9407293, at Count 2,
involuntary deviate sexual intercourse, I place the costs on
Allegheny County, and I order you to serve a term of
incarceration of not less than eight years nor more than
twenty years consecutive or following any other
sentence that you may now be serving.
At count 3, rape, I order you to serve a term of not less than
six years nor more than twenty years consecutive or
following any other sentence you may now be
serving.
At Count 4, aggravated indecent assault, I order you to
serve a term of not less than five years nor more than ten
years consecutive or following any other sentence you
may now be serving.
At Count 7, involuntary deviate sexual intercourse, I order
you to serve a term of not less than six nor more than
twenty years consecutive or following any other
sentence.
My sentence is not less than 25 years nor more than 70
years consecutive to any sentence you are now serving.
(N.T. Sentencing, 1/26/95, at 11-12) (emphasis added).
The signed, written sentencing order entered that same day provided:
at Count 2: 8 to 20 years’ imprisonment “[c]onsecutive to any other sentence
the defendant is now serving”; at Count 3: 6 to 20 years’ imprisonment
“[c]onsecutive to any other sentence the defendant is now serving”; at
Count 4: 5 to 10 years’ imprisonment “[c]onsecutive to any other sentence
the defendant is now serving”; at Count 7: 6 to 20 years’ imprisonment
“[c]onsecutive to any other sentence the defendant is now serving”; all other
counts—NFP (no further penalty). (Signed/Written Sentencing Order,
-2-
J-A05005-19
1/26/95, at 1-2) (emphasis added). The signed, written sentencing order did
not include any stated aggregate term of imprisonment. (See id.) At the
time of sentencing in this case, Appellant was already serving sentences at
two unrelated docket numbers. The DOC received the signed, written
sentencing order and interpreted it to allow Appellant to be released from
prison in 2011.
On October 26, 2016, Appellant filed a pro se “Motion of Supplemental
Relief in Aid of Writ of Execution and Writ of Habeas Corpus Relief,” challenging
his sex offender registration requirements, which were not in effect when
Appellant committed his offenses or entered his guilty plea back in 1995. The
court treated Appellant’s filing as a petition under the Post Conviction Relief
Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546, appointed counsel, and directed
counsel to file an amended PCRA petition. Counsel filed an amended petition
on April 3, 2017, titled: “Amended Writ of Habeas Corpus and Petition to
Enforce Plea Agreement,” challenging Appellant’s registration requirements
under the Sexual Offender Registration and Notification Act (“SORNA”).
While preparing its response to Appellant’s petition, the Commonwealth
claimed it just discovered that the DOC “misinterpreted” the January 26, 1995
sentencing order, calculated the sentences concurrently, instead of
consecutively, and erroneously allowed Appellant to be released on parole in
2011. Consequently, the Commonwealth filed a “Motion to Enforce
Sentencing Order,” claiming the sentencing court had unambiguously declared
-3-
J-A05005-19
its sentencing intentions at the sentencing hearing and due to a
“misinterpretation” of the court’s sentencing order, Appellant was mistakenly
ordered to serve only 8 to 20 years’ imprisonment, consecutive to the
sentences he was already serving at other unrelated dockets on January 26,
1995. The Commonwealth asked the court to issue an order enforcing its
original oral sentence as the court had intended in order to “correct”
Appellant’s sentence structure as a “clerical error.” (See Commonwealth’s
Motion to Enforce Sentencing Order, filed 9/29/17, at 4-5.)
By order of October 3, 2017, the court effectively granted the
Commonwealth’s motion and entered a “corrected” sentencing order that
stated:
AND NOW, this 3rd day of October, 2017, upon
consideration of the Commonwealth’s Motion to Enforce
Sentencing Order, it is hereby ORDERED, ADJUDGED, and
DECREED that the defendant’s sentence structure should be
amended so that it complies with this [c]ourt’s original order
of sentence, as follows:
2. IDSI−Forcible Compulsion: 8−20 years of
incarceration
3. Rape: 6−20 years of incarceration
4. Aggravated Indecent Assault: 5−10 years of
incarceration
7. IDSI−Forcible Compulsion: 6−20 years of
incarceration.
These sentences shall run consecutively to each other, for a
total sentence of 25 to 70 years of incarceration, and
consecutive to the sentences that the defendant was already
serving at the time of sentencing at CP-02-CR-0004058-
-4-
J-A05005-19
1993 and CP-02-CR-0010079-1993. No further penalty is
ordered at the remaining counts.
(Order of Court, filed October 3, 2017). The court proposed this order was to
“clarify” the court’s original intent in 1995, to sentence Appellant to
consecutive sentences at Counts 2, 3, 4, and 7, for an aggregate sentence of
25 to 70 years of incarceration, to also run consecutive to the sentences
Appellant was already serving at unrelated dockets on January 26, 1995.
Following entry of this amended sentencing order, Appellant timely filed
post-sentence motions on October 13, 2017, challenging the court’s
jurisdiction to amend the original sentencing order as well as the exercise of
the court’s discretion in the resentencing. The court denied Appellant’s post-
sentence motions on October 17, 2017. Appellant timely filed a notice of
appeal on November 15, 2017. On November 17, 2017, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b); Appellant timely complied.
Appellant raises three issues for our review:
DID THE TRIAL COURT LACK JURISDICTION TO MODIFY
APPELLANT’S SENTENCE 22 YEARS AFTER THE ORIGINAL
SENTENCE WAS IMPOSED?
DID THE TRIAL COURT ACT VINDICTIVELY IN MODIFYING
APPELLANT’S SENTENCE ORDER ONLY AFTER APPELLANT
HAD FILED A PETITION FOR WRIT OF HABEAS CORPUS
SEEKING TO BE RELIEVED FROM SORNA REGISTRATION
REQUIREMENTS AFTER THE TRIAL COURT HAD HAD
PREVIOUS OPPORTUNITIES TO REVIEW THE ORIGINAL
SENTENCE ORDER?
DID THE TRIAL COURT VIOLATE APPELLANT’S FEDERAL
-5-
J-A05005-19
AND STATE DUE PROCESS RIGHTS, AND DOUBLE
JEOPARDY RIGHTS, BY MODIFYING HIS ORIGINAL
SENTENCING ORDER IN A MANNER THAT INCREASED HIS
PERIOD OF INCARCERATION 22 YEARS AFTER THE
ORIGINAL SENTENCE WENT INTO EFFECT AND ALMOST 5
YEARS AFTER APPELLANT HAD BEEN PAROLED ON THE
ORIGINAL SENTENCE?
(Appellant’s Brief at 4).
Appellant initially argues the court’s oral sentence on January 26, 1995,
was ambiguous in that the court imposed the sentences at Count 2, 3, and 4
“consecutive or following any other sentence that you may now be serving”
but used different language at Count 7, stating the length of sentence at that
count was “consecutive or following any other sentence.” Appellant insists the
court’s oral sentence relative to Counts 2, 3, and 4 can be interpreted to mean
the sentences on those counts were to be served concurrently but consecutive
to the sentences Appellant was already serving on other unrelated docket
numbers. Appellant submits the language used to impose sentence at Count
7 can be interpreted to mean that sentence was to be served consecutive to
the sentences Appellant was serving at the other docket numbers or
consecutive to the sentences imposed at Counts 2, 3, and 4 in this case.
Appellant also highlights the court’s general statement at the conclusion of
the oral sentencing, indicating an aggregate sentence of 25 to 70 years
actually conflicts with the court’s specific sentences at each count, which
created internal confusion about the court’s intended sentence in this case.
Unlike the court’s oral sentence, however, Appellant insists the signed,
-6-
J-A05005-19
written sentencing order makes clear the sentences at Counts 2, 3, 4, and 7
were to run consecutive only to the sentences Appellant was already serving
on the other docket numbers but concurrent in this case. Appellant stresses
that former Pennsylvania Rule of Criminal Procedure 1406, in effect at the
time of the original 1995 sentence, provided a presumption of concurrent
sentences unless the judge expressly stated otherwise. Appellant maintains
the oral sentencing was subject to more than one interpretation, internally
inconsistent, and ambiguous. Given the passage of two decades during which
the DOC’s interpretation of the sentence went unchallenged, Appellant
suggests the signed, written sentencing order should prevail; and the court
lacked authority to modify the signed, written sentencing order as a “clear
clerical error.” Appellant concludes we should reverse the court’s October 3,
2017 order and restore his original signed, written sentencing order to control
the terms of his sentence. For the following reasons, we agree with
Appellant’s contentions.
The question of whether a trial court has the “authority to correct an
alleged sentencing error poses a pure question of law.” Commonwealth v.
Borrin, 12 A.3d 466, 471 (Pa.Super. 2011) (en banc), aff’d, 622 Pa. 422, 80
A.3d 1219 (2013). “Accordingly, our scope of review is plenary and our
standard of review is de novo.” Id.“Trial courts have the power to alter or modify a criminal sentence within
thirty days after entry, if no appeal is taken.” Commonwealth v. Quinlan,
-7-
J-A05005-19
639 A.2d 1235, 1238 (Pa.Super. 1994), appeal dismissed as improvidently
granted, 544 Pa. 183, 675 A.2d 711 (1996). See also 42 Pa.C.S.A. § 5505
(stating except as otherwise provided or prescribed by law, court upon notice
to parties may modify or rescind any order within 30 days after its entry,
notwithstanding prior termination of any term of court, if no appeal from such
order has been taken or allowed). Nevertheless, once the thirty-day period
expires, the trial court usually loses the power to alter its orders. Quinlan,
supra. An exception to this general rule exists to correct “clear clerical
errors.” Borrin, supra at 471. “This exception to the general rule of Section
5505 cannot expand to swallow the rule.” Commonwealth v. Holmes, 593
Pa. 601, 617, 933 A.2d 57, 66 (2007). Thus, the court’s inherent authority to
correct patent errors is a “limited judicial power.” Id. at 618, 933 A.2d at 67.
“[A]n alleged error must qualify as a clear clerical error (or a patent and
obvious mistake) in order to be amenable to correction.” Borrin, supra at
473.
This Court’s case law has addressed the situations
where…the terms of a defendant’s sentence as stated at the
sentencing hearing conflict (or are deemed incompatible)
with the terms of the defendant’s sentence as stated in the
sentencing order.
In these circumstances, for a trial court to exercise its
inherent authority and enter an order correcting a
defendant’s written sentence to conform with the terms of
the sentencing hearing, the trial court’s intention to impose
a certain sentence must be obvious on the face of the
sentencing transcript. … Stated differently, only when a
trial court’s intentions are clearly and unambiguously
declared during the sentencing hearing can there be a “clear
-8-
J-A05005-19
clerical error” on the face of the record, and the [signed]
sentencing order subject to later correction.
If, on the other hand, a trial court’s stated intentions during
the sentencing hearing are ambiguous, then the terms of
the sentence in the [signed] sentencing order control, and
the trial court cannot correct its perceived mistake. See
Commonwealth v. Isabell, 503 Pa. 2, [12,] 467 A.2d
1287, 129[2] (1983) ([stating:] “Generally, the signed
sentencing order, if legal, controls over oral statements of
the sentencing judge not incorporated into the signed
judgment of sentence”); …. This is because the alleged
error in the sentencing transcript is not a “clear clerical
error,” but rather, is an ambiguity that must be resolved by
reference to the written sentencing order.
Id. (some internal citations omitted). Stated another way, the signed, written
sentencing order controls, where the sentencing transcript is ambiguous; the
ambiguity in the transcript must be resolved by reference to the signed,
written sentencing order. Id. (citing U.S. v. Daddino, 5 F.3d 262, 266 (7th
Cir. 1993)). “The presumption that the written sentencing order is what the
sentencing judge intended increases with the length of time that the written
sentencing order goes unchallenged.” Quinlan, supra at 1240.1
If the sentencing transcript supports inconsistent inferences and is open
____________________________________________
1 At the original sentencing in 1995, Pennsylvania Rule of Criminal Procedure
1406 was in effect and provided in pertinent part: “Rule 1406. Imposition
of Sentence: (a) Whenever more than one sentence is imposed at the same
time on a defendant, or whenever a sentence is imposed on a defendant who
is incarcerated for another offense, such sentences shall be deemed to run
concurrently unless the judge states otherwise.” Pa.R.Crim.P. 1406(a)
(effective March 31, 1975). This Rule was amended in 1996, and renumbered
as Rule 705, which eliminated the presumption of concurrent sentences and
now requires the court to specify if sentences are intended to run concurrently
or consecutively. See Pa.R.Crim.P. 705(B).
-9-
J-A05005-19
to competing interpretations, it is ambiguous, proves nothing and must yield
to the signed, written sentencing order. Borrin, supra.
Were this Court to hold otherwise, we would permit a trial
court to retroactively alter a defendant’s sentence to
conform to the court’s “intentions” when those intentions
are not clearly expressed on the record. As noted by our
Supreme Court, this is problematic: “[W]e are of the opinion
that such alleged inadvertence [concerning a trial court’s
unexpressed intentions during a sentencing hearing] cannot
be tolerated as a matter of public policy. The possibility of
abuses inherent in broad judicial power to increase
sentences outweighs the possibility of windfalls to a few
prisoners.” Commonwealth v. Allen, 443 Pa. 96, [104-
05,] 277 A.2d 803, 807 (1971) (citation and internal
quotation marks omitted). Accordingly, we cannot accept
the trial judge’s proclamation of his own intentions because
those intentions were only known to the trial judge himself
and do not appear on the face of the sentencing transcript.
* * *
Notably, our decision does not render the Commonwealth
and/or a trial court unable to rectify perceived discrepancies
between the oral sentence and the sentencing order when
those discrepancies are ambiguous and do not qualify as a
clerical error. For instance, in this case, if the
Commonwealth felt that the original sentencing order did
not reflect the trial judge’s intentions during the sentencing
hearing, the Commonwealth could have filed a post-
sentence motion to modify the sentence under Pa.R.Crim.P.
720. … In accordance with 42 Pa.C.S.A. § 5505, the trial
judge could also have modified the sentencing order, sua
sponte, within 30 days of its entry so long as an appeal had
not been filed. See 42 Pa.C.S.A. § 5505[.] … Once the
time period for these options elapsed, however, the trial
judge could only correct its written sentencing order if the
sentencing transcript evidenced a clear clerical error.
Because the sentencing transcript in this case failed to
display a clear clerical error, this Court is compelled to
reverse the trial judge’s order.
Id. at 475-76 (some internal citations and footnote omitted).
- 10 -
J-A05005-19
Instantly, during the original sentencing hearing on January 26, 1995,
the court orally imposed terms of incarceration at Counts 2, 3, and 4
“consecutive or following any other sentence that you may now be serving.”
(N.T., 1/26/95, at 11). The court used different language at Count 7, as it
imposed the sentence at Count 7 “consecutive or following any other
sentence.” (Id.) At the conclusion of the hearing, the court stated: “My
sentence is not less than 25 years nor more than 70 years consecutive to any
sentence you are now serving.” (Id. at 12).
Nevertheless, the signed, written sentencing order entered that same
day provided: at Count 2: 8 to 20 years’ imprisonment “[c]onsecutive to any
other sentence the defendant is now serving”; at Count 3: 6 to 20 years’
imprisonment “[c]onsecutive to any other sentence the defendant is now
serving”; at Count 4: 5 to 10 years’ imprisonment “[c]onsecutive to any other
sentence the defendant is now serving”; at Count 7: 6 to 20 years’
imprisonment “[c]onsecutive to any other sentence the defendant is now
serving”; all other counts—NFP (no further penalty). (Signed/Written
Sentencing Order, 1/26/95, at 1-2) (emphasis added). The signed, written
sentencing order did not include any stated aggregate term of imprisonment.
(See id.) At the time of sentencing in this case, Appellant was already serving
sentences at two unrelated docket numbers. The DOC received the signed,
written sentencing order and interpreted it to allow Appellant to be released
from prison in 2011.
- 11 -
J-A05005-19
Here, the sentencing transcript as a whole was internally inconsistent
and did not display a “clear clerical error.” The variable use of the concept of
“consecutive” sentences gave rise to several opposing inferences which were
open to competing interpretations, as evidenced not only on the face of the
transcript but also by the signed, written sentencing order. Additionally, the
court’s general statement at the conclusion of the sentencing transcript,
providing a sentence of “not less than 25 years nor more than 70 years
consecutive to any sentence you are now serving,” directly conflicts with the
court’s specific sentences at each count. Therefore, the sentencing transcript
was ambiguous, proved nothing, and must yield to the signed, written
sentencing order. See Borrin, supra.
Unlike the sentencing transcript, the signed, written sentencing order
makes clear the terms of incarceration were to run “[c]onsecutive to any other
sentence the defendant is now serving,” which means consecutive only to the
sentences Appellant was already serving in 1995, at the unrelated docket
numbers. Given the presumption of concurrent sentences under the rule of
criminal procedure in effect at the 1995 sentencing, the DOC interpreted the
signed, written sentencing order to mean the sentences at the current docket
number were to run concurrent to each other. See Pa.R.Crim.P. 1406(a).
Moreover, the signed, written sentencing order did not incorporate the oral
statement of an aggregate sentence that the court made at the sentencing
hearing. See Isabell, supra at 12, 467 A.2d at 1292 ([stating:] “Generally,
- 12 -
J-A05005-19
the signed sentencing order, if legal, controls over oral statements of the
sentencing judge not incorporated into the signed judgment of sentence”).
Further, no efforts were made to “correct” the sentence until over two
decades after its entry, which supports the presumption that the 1995 signed,
written sentencing order reflects the sentencing court’s intentions. See
Quinlan, supra. Under these circumstances, therefore, the trial court in the
present case lacked any inherent authority to “correct” Appellant’s sentence,
by “modifying” the 1995 signed, written sentencing order and to issue the new
sentencing order on October 3, 2017. See 42 Pa.C.S.A. § 5505; Borrin,
supra; Quinlan, supra. Accordingly, we reverse the October 3, 2017
“corrected” sentencing order and remand for reinstatement of the original
January 26, 1995 judgment of sentence, as reflected in the court’s signed,
written sentencing order of that date and as interpreted by the DOC.2
Order reversed; case remanded with instructions. Jurisdiction is
relinquished.
____________________________________________
2Due to our disposition of issue one, we decline to address Appellant’s second
and third issues on appeal, referring to allegations of vindictiveness or the
denial of due process.
- 13 -
J-A05005-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2019
- 14 -