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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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, 201 3 judgment of

sentence that altered the amount of credit for time se rved that Appellant received against a sentence imposed on March 12, 2013. W e reverse the judgment of sentence and remand for a new sentencing h earing. On January 29, 2013, a jury found Appellant guilty of escape. The trial court outlined the evidence supporting this con viction:

The testimony indicates that Trooper [Richard] Kirby h ad knowledge of the defendant from a prior incident, in cluding, but not limited to a prior arrest of the defendant for B urglary in 2004. (N.T., 1/29/13, p. 78, 79). An arrest warrant for the defendant for a felony charge from Bucks County was is sued on or about June 15, 2011 and Trooper Kirby was aware o f the existence of the arrest warrant. With his prior famil iarity with the defendant, Trooper Kirby went to the vicinity of 835 MacDowell Street, Chester, Pennsylvania, which was belie ved to be the address for the defendant's girlfriend.J-S38025- 14

- 2 - Trooper Kirby indicated that he was in the area of MacDowell Street, and was aware of the issuance of the w arrant. "And at the time I knew there was a warrant for his a rrest 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 observ ed the defendant from 40 to 50 feet away. He parked hi s vehicle and then crept alongside the parked vehicles until he w as close upon the defendant (within 20 to 25 feet). Trooper Kirby then approached the defendant, with his ASP Baton fully ex tended and yelled several times that he was state police, that the defendant was under arrest and for the defendant to g et on the ground. (N.T., 1/29/2013, p. 17-18). At that poin t in time, the defendant froze and stared at the Trooper. For a br ief period of time, the two men stared at each other and based upon the posture of the defendant, Trooper Kirby pulled his ha nd 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 de layed in his attempt to enter the residence. (N.T., 1/29/2013, p. 20-21). When Trooper Kirby and the other officers were able t o effectuate entry into the residence, the defendant was not inside. The defendant was eventually arrested on or a bout 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, th e 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 judgmentJ-S38025- 14

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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 appe al in June 2013. The trial court apparently was informed by the Pennsyl vania 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 acti on number 6364- 2011. On October 9, 2013, the trial court herein app ears to have altered its March 21, 2013 sentence to eliminate certain credit for time served by Appellant. That sentencing order does not appear in t he 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 ind icate that credit for time served that was awarded on March 21, 2013, was eliminat ed 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 proprie ty 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) op inion that it signed the order). A notice of appeal was processed on November 6, 2013. Appellant presents one issue with two subparts:J-S38025- 14

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I) Whether the amended sentence imposed on October 9, 2 013 is illegal since the court lacked jurisdiction to vacate th e original sentence imposed in this matter on March 21, 2013, and w here the amended sentence was imposed without Mr. Burbage, o r his attorney being present and having the opportunity to be heard with regard to the substantive changes made to his origi nal sentence which involved stripping him of nearly ninetee n months of credit time. Appellant’s brief at 7. For the reasons that follow, we conclude that the cou rt had jurisdiction to amend the sentence despite the pendency of the prior appeal. However, we agree that Appellant should have been p resent when the sentence was amended so that Appellant had the opportun ity to verify the correct amount of time served to be credited against t he sentence herein. Appellant’s first position is that the trial court lacked jurisdiction to amend its March 21, 2013 sentencing order in October und er 42 Pa.C.S. § 5505 (“Except as other wise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order w ithin 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 pl enary 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, t hat section “was never intended to eliminate the inherent power of a court to correct obvious andJ-S38025- 14

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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 ap peal 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 re

committed to serve the balance of the sentence from which he had been paroled, the defendant was given a new term of impri sonment. The imposition of a new sentence when a defendant’s parole is revoked is patently and obviously erroneous in that a court is leg ally authorized only to

re -commit a defendant to serve the unexpired term of hi s original sentence when it is revoking parole. Holmes, supra at 58, n.5 (citation and quotation marks omitted) (“The power of the court afte r 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-commi tted Holmes to serve the remainder of the term of incarceration origi nally 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 patentJ-S38025- 14

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and obvious error. It upheld the second sentencing orde r, which correctly reflected that, since Holmes’ parole was revoked, he h ad 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 w as found to be in violation of a probationary sentence that was supposedl y imposed on specified offenses, and he was sentenced to a term of incar ceration. The problem was that probationary terms were never impose d on the convictions in question, and Whitfield was not serving a probationary term. Instead, concurrent terms of incarceration, which Whitfiel d 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 defen dant appealed. During the pendency of the appeal, the trial court con cluded that its sentence was indeed illegal and vacated it. Whitfield withdrew his appeal,

and the Commonwealth contested the trial court’s autho rity 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 agree d. It opined: The trial courts in both cases before us clearly lacked jurisdiction, absent the exercise of the rarely used powe r of the courts to correct patent errors. While the causes of the two trialJ-S38025- 14

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courts' lack of jurisdiction are undeniably distinct, n onetheless, both are encompassed under the language of Section 550 5. . . . Despite the different causes of the divestiture of juris diction, both cases fall within the limited class of cases amenab le to the exercise by a trial court of the inherent power to cor rect patent errors despite the absence of traditional jurisdiction. As we have in the past, we hold today that the limits of jurisdi ction 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 o f numerous offenses. At Borrin’s 2006 sentencing, the trial court intended t o impose ten sentences all consecutive to each other. The transcript, however, was ambiguous as to that point. In the sentencing order sig ned by the court after sentencing, nine of the offenses were made consecut ive to the first sentence imposed but they were made concurrent to each ot her. Spec ifically, the sentencing order indicated defendant’s sent ence 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 i n 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 incar ceration and

co ncluded 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 courtJ-S38025- 14

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did not have the authority to correct the sentencing or der after three years since it did not contain a patent error, and our Supre me Court agreed.

The Borrin Court rejected the Commonwealth’s contention that the 2009 order merely clarified the terms of the 2006 ord er. It outlined that the 2006 order provided that nine offenses were consecut ive to the sentence imposed on the first offense but that they wer e 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 o f § 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 remed ied after the thirtyday period are those that are patent and obvious. It concluded that the 2006 order was not patently and obviously erroneous sin ce it was unclear from the sentencing transcript whether all ten sentence s were imposed consecutively to each other or merely the first one. In the present case, we conclude that, in issuing its Octo ber 9, 2013 order, the court was correcting an obvious and patent er ror in the original order it entered on March 21, 2013. The pertinent p rovision as to credit for

tim e 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 cha rge is based. Credit shall include credit for time spent in cust ody priorJ-S38025- 14

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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 lat er prosecuted on another charge growing out of an act or a cts 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 an other sentence. 42 Pa.C.S. § 9760. Section 9760(4) has been interpreted so as to bar “a def endant 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 j ail 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 Octob er 9, 2013 if there was a mistake when Appellant was originally sente nced and he was given credit for time served when he already had been accorded credit for that time against a previously-imposed sentence. This act ion 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 incorre ct credit forJ-S38025- 14

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time served was awarded. Thus, § 5505 did not preven t the trial court from examining whether proper credit for time served was gi ven 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, f ailure of court to impose restitution did not render sentence illegal and sentence could not be amended more than thirty days after its entry to impo se restitution due to § 5505). However, Appellant also maintains that he was denied h is right to be present and be heard on October 9, 2013, when the rev ised sentencing order was entered. The Commonwealth is in agreement t hat Appellant should have been present when the sentence was corrected. Section 5505 expressly states that the court, “upon notice to the parti es,” 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 max imum 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 t o the parties. We reversed the sentence and stated, “A court is empowered to modify a sentence . . . only if it notifies the defendant and t he district attorney of its intention to do so. In the instant case, the modifica tion was accomplishedJ-S38025- 14

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without regard to the clear requirement of the provi so, and, therefore, is

without effect.” Id . at 42. Both parties herein agree that there was no advance notice of the proposed alteration so that Appel lant could ensure that he received the proper amount of credit for tim e served. The case law unquestionably gives the trial court the a uthority to correct a sentence that improperly accorded credit for tim e served when none was due. However, the current record fails to subs tantiate in what respect the March 21, 2013 sentence was erroneous. Appell ant 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 proceedin gs. Judgment of sentence reversed. Case remanded. Jurisdi ction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/8/2014