J-S17035-15 

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*Former Justice specially assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

JAMIE ALLEN PAINTER 

 Appellant No. 1481 WDA 2014 

Appeal from the Order August 20, 2014 

In the Court of Common Pleas of Clarion County 

Criminal Division at No(s): CP-16-CR-0000349-2012 

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.* 

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 08, 2015 

 Appellant, Jamie Allen Painter, appeals from the order entered in the 

Clarion County Court of Common Pleas, modifying his judgment of sentence. 

We vacate the order modifying the judgment of sentence and reinstate the 

original sentence imposed on June 12, 2014. 

 The relevant facts and procedural history of this appeal are as follows. 

On August 22, 2012, Appellant pled guilty to delivery of a controlled 

substance and terroristic threats. In exchange, the Commonwealth agreed 

to the imposition of consecutive, standard-range sentences. The 

Commonwealth also agreed to dismiss additional charges. Following an oral 

colloquy, the court accepted Appellant’s pleas, ordered a pre-sentence 

investigation report, and scheduled the matter for sentencing. On October 
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10, 2012, the court sentenced Appellant to nine (9) months to two (2) years 

less one (1) day imprisonment for the delivery conviction. For the terroristic 

threats conviction, the court sentenced Appellant to a consecutive term of 

two (2) years’ probation. The sentences conformed to the plea agreement, 

and the court provided credit for time served of eighty-one (81) days. 

Appellant did not file post-sentence motions or a notice of appeal. 

 On June 28, 2013, the court granted parole. Appellant subsequently 

violated the terms of his parole. The court conducted a revocation hearing 

on January 23, 2014. Following the hearing, the court revoked parole and 

ordered Appellant to serve fifty-eight (58) days of backtime on the delivery 

conviction. The court also provided credit for time served of fifty-eight (58) 

days and returned Appellant to parole. The court did not modify the 

probationary sentence for Appellant’s terroristic threats conviction. 

 Appellant subsequently violated the terms of his probation. The court 

conducted a revocation hearing on April 24, 2014, Appellant admitted to the 

violations, and the court revoked probation. On June 12, 2014, the court resentenced Appellant to five (5) months to two (2) years less one (1) day 

imprisonment, followed by two (2) years’ probation for the terroristic threats 

conviction. The court provided credit for time served of seventy-five (75) 

days, and it granted automatic parole at the expiration of the minimum 

sentence “unless objected to by the Commonwealth.” (Order, dated 

6/12/14, at 1). Appellant did not file post-sentence motions or a notice of 
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appeal. 

 On August 13, 2014, the Commonwealth filed an objection to the 

court’s grant of automatic parole. The court conducted a hearing on August 

20, 2014. After the hearing, the court entered the following order: 

After [a] hearing, the [c]ourt ORDERED that provided 

[Appellant] continues good behavior in the Clarion County 

Prison, the [c]ourt directs that [Appellant] shall be eligible 

and receive parole at the expiration of his minimum

sentence subject to the normal terms and conditions

imposed by the Clarion County Adult Probation Department 

which, in this case, shall include drug and alcohol

treatment. 

* * * 

(Order, dated 8/20/14, at 1). 

Appellant filed a motion to reconsider on August 22, 2014, arguing 

that the court modified the sentencing order by making drug treatment a 

parole condition. Appellant claimed the court lacked jurisdiction to act, 

because the modification occurred more than thirty (30) days after the 

imposition of sentence. The court denied Appellant’s motion to reconsider 

on August 27, 2014. The court insisted it did not actually “amend” the 

sentencing order; rather, it entered “an Order granting parole status and 

setting forth conditions of parole.” (Order, filed 8/27/14, at 1). 

Appellant timely filed a notice of appeal on September 9, 2014. On 

September 15, 2014, 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 filed a Rule 1925(b) statement on October 3, 2014. 
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 Appellant raises one issue for our review: 

DID THE TRIAL COURT ERR IN AMENDING [APPELLANT’S] 

SENTENCE AFTER THIRTY DAYS HAD PASSED TO INCLUDE 

CONDITIONS THAT HE BE SUBJECT TO “NORMAL TERMS 

AND CONDITIONS” OF [PAROLE] WHICH INCLUDED 

COURT ORDERED TREATMENT? 

(Appellant’s Brief at 4). 

 Appellant contends the court revoked probation and imposed a new 

sentence of total confinement on June 12, 2014. Appellant asserts there 

was no patent or obvious error in the June 12, 2014 sentencing order. 

Appellant complains the court amended the sentencing order on August 20, 

2014, to include drug treatment as a parole condition. Pursuant to 42 

Pa.C.S.A. § 5505, Appellant insists the court lacked jurisdiction to amend the 

sentencing order after thirty days had passed. Appellant concludes the court 

erroneously amended the sentencing order. We agree. 

“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. 

Thus, absent an appeal, the trial court retains power to modify or rescind 

any order within thirty days after its entry. Commonwealth v. Sheppard, 

539 A.2d 1333 (Pa.Super. 1988). Generally, after the thirty-day period 

expires, the court lacks jurisdiction to modify an order. Commonwealth v. 

Glunt, 61 A.3d 228 (Pa.Super. 2012). 
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Where a patent or obvious error exists, however, the court may 

exercise its inherent power to correct the error despite the absence of 

traditional jurisdiction. Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 

57 (2007). Significantly, “[t]his exception to the general rule of Section 

5505 cannot expand to swallow the rule.” Id. at 617, 933 A.2d at 66. See 

also Commonwealth v. Robinson, 33 A.3d 89, 92 (Pa.Super. 2011), 

appeal denied, 615 Pa. 776, 42 A.3d 292 (2012) (defining “patent” as “a fact 

apparent from a review of the record without resort to third-party 

information”). The omission of a parole condition from a sentencing order is 

not a patent error per se. Commonwealth v. Cooper, 482 A.2d 1014, 

1021 (Pa.Super. 1984). 

“When an offender is sentenced to a maximum term of imprisonment 

of less than two years, the common pleas court retains authority to grant 

and revoke parole....” Commonwealth v. Tilghman, 652 A.2d 390, 391 

(Pa.Super. 1995), affirmed, 543 Pa. 578, 673 A.2d 898 (1996) (quoting 

Commonwealth v. McDermott, 547 A.2d 1236, 1239 (Pa.Super. 1988)). 

See also 42 Pa.C.S.A. § 9775 (reiterating sentencing court shall grant 

parole from term of imprisonment for less than maximum period of two 

years, and parole shall be without supervision by state parole board). 

Additionally, 42 Pa.C.S.A. § 9776 sets forth procedures for a trial court to 

follow before granting parole: 

§ 9776. Judicial power to release inmates 
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(a) General rule.―Except as otherwise provided 

under this chapter or if the Pennsylvania Board of 

Probation and Parole has exclusive parole jurisdiction, a 

court of this Commonwealth or other court of record

having jurisdiction may, after due hearing, release on 

parole an inmate in the county correctional institution of 

that judicial district. 

(b) Petition required.―No inmate may be paroled 

under this section except on petition verified by the oath of 

the inmate or by the inmate’s representative and 

presented and filed in the court in which the inmate was 

convicted. 

(c) Hearing.―On presentation of the petition, the 

court shall fix a day for the hearing. A copy of the petition 

shall be served on the district attorney and prosecutor in 

the case at least ten days before the day fixed for the 

hearing. Proof of service on the district attorney and the 

prosecutor shall be produced at the hearing. 

(d) Order.―After the hearing, the court shall make 

such order as it may deem just and proper. In case the 

court paroles the inmate, it shall place the inmate in the 

charge of and under the supervision of a designated

probation officer. 

* * * 

42 Pa.C.S.A. § 9776(a)-(d). 

 Instantly, Appellant violated his probation on his terroristic threats 

sentence, and the court revoked probation. On June 12, 2014, the court resentenced Appellant to five months to two years less one day imprisonment, 

followed by two years’ probation. The sentencing order also granted 

automatic parole at the expiration of the minimum sentence, unless the 

Commonwealth objected. The sentencing order did not include any other 
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parole conditions. Following entry of the sentencing order, Appellant did not 

file post-sentence motions or a notice of appeal. 

The Commonwealth filed an objection to automatic parole on August 

13, 2014. As a post-sentence motion, the Commonwealth’s filing was 

untimely. See Pa.R.Crim.P. 720(A)(1) (explaining party shall file written 

post-sentence motion no later than 10 days after imposition of sentence). 

Because the Commonwealth filed its motion beyond the thirty-day period in 

which the court could have modified the sentencing order per Section 5505, 

the court lacked jurisdiction to entertain the Commonwealth’s motion. See

42 Pa.C.S.A. § 5505; Glunt, supra; Sheppard, supra. Further, the record 

does not reveal a patent or obvious error to trigger the court’s limited 

judicial power under the narrow exception to Section 5505.1 See Holmes, 

supra; Robinson, supra. 

In the August 27, 2014 order denying Appellant’s motion to 

reconsider, the trial court cited two cases to support its contention that a 

court can impose parole conditions “long after the sentence order.” (Order, 

filed 8/27/14, at 1). This Court has reviewed the relevant case law, and we 

agree with Appellant’s assertion that the cases cited by the trial court “dealt 

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1

 On June 12, 2014, the court announced Appellant’s new sentence at the 

conclusion of the hearing in open court. The court did not announce its 

intention to grant automatic parole at the expiration of the minimum 

sentence, and it did not mention any parole conditions. (See N.T. Hearing, 

6/12/14, at 27-29.) 
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primarily with the substance of the [parole] condition rather than the actual 

imposition and timing of those conditions.” (Appellant’s Brief at 10) 

(emphasis in original). We recognize the court could have imposed parole 

conditions after sentencing if it had adhered to the procedures set forth in 

Section 9776, requiring a separate parole petition, hearing, and order. See 

42 Pa.C.S.A. § 9776(a)-(c). See also Presley v. Pennsylvania Bd. of 

Probation and Parole, 748 A.2d 791, 794 n.3 (Pa.Cmwlth. 2000) 

(recognizing inconsistencies in statewide practices for courts’ implementation 

of prior version of Section 9776; noting some counties’ trial courts had 

issued general administrative orders stating defendants sentenced to 

minimum term of imprisonment shall be paroled immediately upon serving 

minimum sentence, unless Commonwealth filed petition objecting to 

defendant’s release on parole). Here, the language in the sentencing order 

effectively bypassed the Section 9776 procedures by combining a parole 

determination with a sentencing order. 

Under these circumstances, the court lacked jurisdiction to modify the 

sentencing order after thirty days. See Cooper, supra (holding 

amendment of sentence to require participation in drug program as condition 

of parole was unlawful, because court amended sentence more than thirty 

days after sentencing; although trial court has inherent power to correct 

obvious and patent mistakes, even after term of court has expired, omission 

of drug therapy as parole condition did not constitute obvious or patent 
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mistake). See also Commonwealth ex rel. Powell v. Rosenberry, 645 

A.2d 1328 (Pa.Super. 1994) (explaining trial court lacked jurisdiction to 

extend defendant’s parole, even though defendant petitioned for extension 

of parole to have opportunity to pay fines; court did not act within thirty 

days of original sentencing order). Accordingly, we vacate the August 20, 

2014 order modifying Appellant’s sentence and reinstate the sentence 

imposed on June 12, 2014. 

Order vacated; June 12, 2014 judgment of sentence reinstated. 

Judge Shogan joins this memorandum. 

Justice Fitzgerald concurs in the result. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/8/2015