J-A05005-19

2019 PA Super 84

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

BRIAN KREMER

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 
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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, 
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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 
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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-
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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 postsentence 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 
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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, 
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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, 
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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 
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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 

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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). 
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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 postsentence 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). 
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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. 
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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, 
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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. 

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2 Due 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. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/20/2019