J-S38025-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

OLIVER MERVIN BURBAGE, 

 Appellant No. 3072 EDA 2013 

Appeal from the Judgment of Sentence October 9, 2013 

In the Court of Common Pleas of Delaware County 

Criminal Division at No(s): CP-23-CR-0005041-2012 

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and SHOGAN, JJ. 

MEMORANDUM BY BOWES, J.: FILED AUGUST 08, 2014 

Oliver Mervin Burbage appeals from the October 9, 2013 judgment of 

sentence that altered the amount of credit for time served that Appellant 

received against a sentence imposed on March 12, 2013. We reverse the 

judgment of sentence and remand for a new sentencing hearing. 

On January 29, 2013, a jury found Appellant guilty of escape. The 

trial court outlined the evidence supporting this conviction: 

The testimony indicates that Trooper [Richard] Kirby had 

knowledge of the defendant from a prior incident, including, but 

not limited to a prior arrest of the defendant for Burglary in 

2004. (N.T., 1/29/13, p. 78, 79). An arrest warrant for the 

defendant for a felony charge from Bucks County was issued on 

or about June 15, 2011 and Trooper Kirby was aware of the 

existence of the arrest warrant. With his prior familiarity with 

the defendant, Trooper Kirby went to the vicinity of 835 

MacDowell Street, Chester, Pennsylvania, which was believed to 

be the address for the defendant's girlfriend. 
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Trooper Kirby indicated that he was in the area of 

MacDowell Street, and was aware of the issuance of the warrant. 

"And at the time I knew there was a warrant for his arrest that 

was a felony warrant out of Bucks County." (N.T., 1/29/2013, p. 

12). As Trooper Kirby approached the location, he was dressed 

in plain clothes and was driving an unmarked vehicle. He did 

indicate however, that he was not wearing a jacket and had his 

police badge in plain view. (N.T., 1/29/2013, p. 15). 

When Trooper Kirby drove near to the house, he observed 

the defendant from 40 to 50 feet away. He parked his vehicle 

and then crept alongside the parked vehicles until he was close 

upon the defendant (within 20 to 25 feet). Trooper Kirby then 

approached the defendant, with his ASP Baton fully extended 

and yelled several times that he was state police, that the 

defendant was under arrest and for the defendant to get on the 

ground. (N.T., 1/29/2013, p. 17-18). At that point in time, the 

defendant froze and stared at the Trooper. For a brief period of 

time, the two men stared at each other and based upon the 

posture of the defendant, Trooper Kirby pulled his hand gun and 

aimed it in the direction of the defendant. (N.T., 1/29/2013, p. 

19-20). 

Defendant then ran off and entered into the residence at 

835 MacDowell. As there was no back up and there was a four 

year old boy on the front porch, Trooper Kirby was delayed in his 

attempt to enter the residence. (N.T., 1/29/2013, p. 20-21). 

When Trooper Kirby and the other officers were able to 

effectuate entry into the residence, the defendant was not 

inside. The defendant was eventually arrested on or about 

August 8, 2011. 

Trial Court Opinion, 6/6/13, at 2-3. 

On March 21, 2013, Appellant was sentenced to three to six years 

imprisonment and was granted credit for time served in jail from August 8, 

2011 to March 21, 2013. At the sentencing hearing, the Commonwealth 

and Appellant both indicated that he was entitled to credit for time served 

for that period. Appellant filed a timely notice of appeal from that judgment 
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of sentence and, on June 3, 2014, we affirmed. Commonwealth v. 

Burbage, A.3d (No. 1219 EDA 2013, Pa.Super. 2014). The record 

was transmitted to this Court for purposes of that appeal in June 2013. 

The trial court apparently was informed by the Pennsylvania 

Department of Corrections that Appellant already had received credit for 

time served in jail from August 8, 2011, to November 29, 2011, for a 

sentence that he received in Chester County criminal action number 6364-

2011. On October 9, 2013, the trial court herein appears to have altered its 

March 21, 2013 sentence to eliminate certain credit for time served by 

Appellant. That sentencing order does not appear in the record certified to 

this Court for purposes of this appeal nor is it entered on the docket. 

Nevertheless, the trial court in its Pa.R.A.P. 1925(a) opinion, the 

Commonwealth in its brief, and the Appellant all indicate that credit for time 

served that was awarded on March 21, 2013, was eliminated by the trial 

court in an order executed on October 9, 2013. Hence, we believe that it 

exists for purposes of this appeal. Commonwealth v. Galendez, 27 A.3d 

1042, 1047-1048 (Pa.Super. 2011) (although certified record did not 

contain copy of order contested by defendant on appeal and this Court did 

not have a copy of the order, we reviewed its propriety since the 

Commonwealth acknowledged that the order in question was entered and 

since the trial court stated in its Pa.R.A.P. 1925(a) opinion that it signed the 

order). A notice of appeal was processed on November 6, 2013. Appellant 

presents one issue with two subparts: 
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I) Whether the amended sentence imposed on October 9, 2013 

is illegal since the court lacked jurisdiction to vacate the original 

sentence imposed in this matter on March 21, 2013, and where 

the amended sentence was imposed without Mr. Burbage, or his 

attorney being present and having the opportunity to be heard 

with regard to the substantive changes made to his original 

sentence which involved stripping him of nearly nineteen months 

of credit time. 

Appellant’s brief at 7. 

 For the reasons that follow, we conclude that the court had 

jurisdiction to amend the sentence despite the pendency of the prior appeal. 

However, we agree that Appellant should have been present when the 

sentence was amended so that Appellant had the opportunity to verify the 

correct amount of time served to be credited against the sentence herein. 

Appellant’s first position is that the trial court lacked jurisdiction to 

amend its March 21, 2013 sentencing order in October under 42 Pa.C.S. § 

5505 (“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, . . . if no appeal from such order has been taken or allowed.”). 

A contention that a sentence was changed in violation of § 5505 

“raises a question of law; thus, our scope of review is plenary and our 

standard of review is de novo.” Commonwealth v. Borrin, 80 A.3d 1219, 

1225 (Pa. 2013). Due to the operation of § 5505, a trial court, in general, 

lacks jurisdiction to modify an order more than thirty days after it has been 

entered, or if an appeal has been filed. However, that section “was never 

intended to eliminate the inherent power of a court to correct obvious and 
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patent mistakes in its orders, judgments and decrees." Commonwealth v. 

Holmes, 933 A.2d 57, 65 (Pa. 2007). 

A comparison of Holmes with Borrin demonstrates the difference 

between a patent sentencing error correctible more than thirty days after 

entry of the sentencing order or when the case is on appeal and a 

sentencing error that is not obvious and thus cannot be altered. In 

Holmes, a defendant’s parole was revoked, and, rather than being recommitted to serve the balance of the sentence from which he had been 

paroled, the defendant was given a new term of imprisonment. The 

imposition of a new sentence when a defendant’s parole is revoked is 

patently and obviously erroneous in that a court is legally authorized only to 

re-commit a defendant to serve the unexpired term of his original sentence 

when it is revoking parole. Holmes, supra at 58, n.5 (citation and 

quotation marks omitted) (“The power of the court after a finding of 

violation of parole in cases not under the control of the State Board of 

Parole is to recommit to jail. There is no authority for giving a new 

sentence with a minimum and maximum.”) More than the thirty days after 

the sentence was entered, the trial court, recognizing its error, vacated 

what it characterized as an illegal sentence and re-committed Holmes to 

serve the remainder of the term of incarceration originally imposed. 

The Supreme Court in Holmes ruled that the original sentencing 

order imposing a new term of imprisonment was contrary to law and could 

be corrected more than thirty days after its entry as it contained a patent 
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and obvious error. It upheld the second sentencing order, which correctly 

reflected that, since Holmes’ parole was revoked, he had to serve what 

sentence remained on his original sentence rather than serve a new term of 

imprisonment. 

In Holmes, the Supreme Court also addressed a companion case 

involving a defendant named Whitfield. Whitfield was found to be in 

violation of a probationary sentence that was supposedly imposed on 

specified offenses, and he was sentenced to a term of incarceration. The 

problem was that probationary terms were never imposed on the 

convictions in question, and Whitfield was not serving a probationary term. 

Instead, concurrent terms of incarceration, which Whitfield already had 

served, were the sentences imposed on the crimes for which the trial court 

revoked probation. Whitfield filed a PCRA petition contesting the legality of 

the sentence imposed, relief was denied, and the defendant appealed. 

During the pendency of the appeal, the trial court concluded that its 

sentence was indeed illegal and vacated it. Whitfield withdrew his appeal, 

and the Commonwealth contested the trial court’s authority to correct the 

sentence under § 5505, given that § 5505 prevents the correction of an 

order when an appeal has been filed. The trial court responded that it 

retained the authority to correct its obviously illegal sentence despite the 

operation of that statute. Our Supreme Court agreed. It opined: 

The trial courts in both cases before us clearly lacked 

jurisdiction, absent the exercise of the rarely used power of the 

courts to correct patent errors. While the causes of the two trial 
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courts' lack of jurisdiction are undeniably distinct, nonetheless, 

both are encompassed under the language of Section 5505. . . . 

Despite the different causes of the divestiture of jurisdiction, 

both cases fall within the limited class of cases amenable to the 

exercise by a trial court of the inherent power to correct patent 

errors despite the absence of traditional jurisdiction. As we have 

in the past, we hold today that the limits of jurisdiction 

enshrined in Section 5505 do not impinge on that time-honored 

inherent power of courts. 

Id. at 65 (footnote omitted). 

In contrast to Holmes, the plurality opinion in Borrin, supra, 

involved the following. The defendant was convicted of numerous offenses. 

At Borrin’s 2006 sentencing, the trial court intended to impose ten 

sentences all consecutive to each other. The transcript, however, was 

ambiguous as to that point. In the sentencing order signed by the court 

after sentencing, nine of the offenses were made consecutive to the first 

sentence imposed but they were made concurrent to each other. 

Specifically, the sentencing order indicated defendant’s sentence was 52 to 

104 months whereas, if all ten sentences would have been consecutive to 

each other, Borrin’s sentence would have been 93 to 186 months. 

Following receipt of inquiries from the prison as to Borrin’s actual sentence, 

the trial court changed the original sentencing order in 2009 so that it read 

that his sentence was 93 to 186 months. The trial court explained that its 

intention at sentencing was to enter that term of incarceration and 

concluded that it had the authority to make the change after three years 

since it was merely correcting a patent error. We ruled that the trial court 
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did not have the authority to correct the sentencing order after three years 

since it did not contain a patent error, and our Supreme Court agreed. 

 The Borrin Court rejected the Commonwealth’s contention that the 

2009 order merely clarified the terms of the 2006 order. It outlined that 

the 2006 order provided that nine offenses were consecutive to the 

sentence imposed on the first offense but that they were not consecutive to 

each other. It held that the trial court's 2009 order, by stating that all of 

Borrin’s sentences were consecutive to the first conviction as well as to each 

other, did not clarify his sentence, but modified it. The Borrin Court 

recognized that the trial court, despite the strictures of § 5505, “retained 

the inherent power to correct errors” in its 2006 order. Id. However, it 

noted that the only type of mistakes that can be remedied after the thirtyday period are those that are patent and obvious. It concluded that the 

2006 order was not patently and obviously erroneous since it was unclear 

from the sentencing transcript whether all ten sentences were imposed 

consecutively to each other or merely the first one. 

In the present case, we conclude that, in issuing its October 9, 2013 

order, the court was correcting an obvious and patent error in the original 

order it entered on March 21, 2013. The pertinent provision as to credit for 

time served is as follows: 

(1) Credit against the maximum term and any minimum term 

shall be given to the defendant for all time spent in custody as a 

result of the criminal charge for which a prison sentence is 

imposed or as a result of the conduct on which such a charge is 

based. Credit shall include credit for time spent in custody prior 
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to trial, during trial, pending sentence, and pending the 

resolution of an appeal. 

. . . . 

(4) If the defendant is arrested on one charge and later 

prosecuted on another charge growing out of an act or acts that 

occurred prior to his arrest, credit against the maximum term 

and any minimum term of any sentence resulting from such

prosecution shall be given for all time spent in custody under 

the former charge that has not been credited against another 

sentence. 

42 Pa.C.S. § 9760. 

Section 9760(4) has been interpreted so as to bar “a defendant from 

receiving credit against more than one sentence for the same time served.” 

Commonwealth v. Merigris, 681 A.2d 194, 195 (Pa.Super. 1996). Thus, 

where a defendant received credit for time served with respect to a prior 

sentence, he cannot receive credit for the same time in jail as to a 

subsequently imposed sentence. Commonwealth v. Hollawell, 604 A.2d 

723 (Pa.Super. 1992). 

Herein, the court was correcting a patent error on October 9, 2013 if 

there was a mistake when Appellant was originally sentenced and he was 

given credit for time served when he already had been accorded credit for 

that time against a previously-imposed sentence. This action constituted a 

violation of § 9760(4). In Hollawell, supra, we ruled specifically that 

where there is a challenge to the amount of credit for time served given as 

to a sentence, it is considered a question of law and the trial court 

possesses the inherent power to correct a sentence if incorrect credit for 
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time served was awarded. Thus, § 5505 did not prevent the trial court from 

examining whether proper credit for time served was given despite the fact 

that the March 21, 2013 sentence had been appealed. Id.; Holmes, 

supra; cf. Commonwealth v. Rohrer, 719 A.2d 1078 (Pa.Super. 1998) 

(where imposition of restitution was not mandatory, failure of court to 

impose restitution did not render sentence illegal and sentence could not be 

amended more than thirty days after its entry to impose restitution due to 

§ 5505). 

However, Appellant also maintains that he was denied his right to be 

present and be heard on October 9, 2013, when the revised sentencing 

order was entered. The Commonwealth is in agreement that Appellant 

should have been present when the sentence was corrected. Section 5505 

expressly states that the court, “upon notice to the parties,” may modify its 

previous orders. We interpreted the predecessor statute to § 5505 in 

Commonwealth v. Reed, 386 A.2d 41 (Pa.Super. 1978). Therein, the 

trial court imposed a sentence in excess of the legal maximum and fifteen 

months later, without notice to either party, amended the order to reflect 

the proper maximum sentence. 

We recognized in Reed that the trial court could perform that action, 

but concluded it could do so only after notification to the parties. We 

reversed the sentence and stated, “A court is empowered to modify a 

sentence . . . only if it notifies the defendant and the district attorney of its 

intention to do so. In the instant case, the modification was accomplished 
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without regard to the clear requirement of the proviso, and, therefore, is 

without effect.” Id. at 42. Both parties herein agree that there was no

advance notice of the proposed alteration so that Appellant could ensure 

that he received the proper amount of credit for time served. 

The case law unquestionably gives the trial court the authority to 

correct a sentence that improperly accorded credit for time served when 

none was due. However, the current record fails to substantiate in what 

respect the March 21, 2013 sentence was erroneous. Appellant has the 

right to have the proper facts adduced as to whether he received all credit 

for time served to which he was legally entitled. We thus reverse the 

judgment of sentence and remand for further proceedings. 

 Judgment of sentence reversed. Case remanded. Jurisdiction 

relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/8/2014