J-S43030-20
2021 PA Super 44
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ROBERT LOUIS WENZEL
Appellant No. 417 WDA 2020
Appeal from the Judgment of Sentence Entered November 1, 2019
In the Court of Common Pleas of Warren County
Criminal Division at No.: CP-62-CR-0000550-2018
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
DISSENTING OPINION BY STABILE, J.: FILED: MARCH 17, 2021
I respectfully dissent. In my view, we need not reach the merits of this
appeal, since the appeal should be quashed for want of jurisdiction.
Briefly, as the Majority notes, following a jury conviction for resisting
arrest, on November 1, 2019, the trial court sentenced (“Original Judgment
of Sentence”) Appellant to intermediate punishment for a period of two years
less one day, with a restrictive portion of four months’ incarceration in Warren
County Prison, with credit for time served of 119 days, followed by one month
of house arrest. The trial court cautioned Appellant to file post-sentence
motions within 10 days of sentencing. See N.T. Sentencing, 11/1/19, at 4-5.
Appellant filed his post-sentence motion on Tuesday, November 12, 2019.1
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1The 10th day fell on Monday, November 11, 2019, which was Veterans Day.
See 1 Pa. C.S.A. § 1908 (excluding weekend days and legal holidays from the
J-S43030-20
On November 19, 2019, during the pendency of the post-sentence
motion, the trial court on its own amended (“First Amendment”) the Original
Judgment of Sentence.2 It removed the 119 days’ credit for time served.3
Appellant did not file any post-sentence motions or appeal from the First
Amendment.
On December 11, 2019, the trial court once again amended (“Second
Amendment”) the Original Judgment of Sentence. In so doing, the court
clarified that Appellant needed to spend only 90 days of the four-month
restrictive portion at Warren County Prison and that house arrest would be
enforced via electronic monitoring. Appellant, again, did not file any post-
sentence motion or appeal from the Second Amendment.
On February 14, 2020, following an evidentiary hearing, the trial court
denied the post-sentence motion filed from the Original Judgment of
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computation of the time period for a filing when the last day of the time period
falls on a weekend or legal holiday).
2 My review of the sentencing transcript reveals that the Commonwealth
challenged Appellant’s entitlement to 119 days’ credit for time served. N.T.
Sentencing, 11/1/19, at 15-17. The court, however, advised the parties that
“[Appellant] is given credit for time served. . . . In the event that, that
proves to be inaccurate or incorrect, the [c]ourt will adjust that. But I’m giving
him the credit today for that[.]” Id. at 24 (emphasis added). The Majority
simply fails to acknowledge this exchange in arriving at its conclusion that
there was a breakdown in the operation of the court.
3 The trial court did not commit any errors, as it amended the Original
Judgment of Sentence within 30 days of sentencing before any appeal was
taken. See 42 Pa.C.S.A. § 5505 (“a court upon notice to the parties may
modify or rescind any order within 30 days after its entry . . . if no appeal
from such an order has been taken or allowed.”).
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Sentence. On March 10, 2020, Appellant filed the instant appeal from the
Original Judgment of Sentence after the trial court denied his post-sentence
motion arising out of and relating to the same. In my opinion, Appellant’s
appeal is untimely; we therefore lack jurisdiction to entertain this appeal. We
may raise questions about our jurisdiction on our own motion. See
Commonwealth v. Andre, 17 A.3d 951, 958 (Pa. Super. 2011).
It is well-settled that, in criminal cases, an appeal properly lies from the
judgment of sentence. See generally Commonwealth v. Shamberger,
788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc), appeal denied,
800 A.2d
932 (Pa. 2002). Instantly, as noted earlier, the trial court, on November 19,
2019, amended the Original Judgment of Sentence following Appellant’s filing
of a post-sentence motion and before any appeal was taken. In doing so, the
trial court sua sponte removed the 119 days’ credit for time served. The effect
of this amendment is clear. Under the circumstances of this case, where the
Original Judgment of Sentence called for only four months’ incarceration in
Warren County Prison, the removal of 119 days’ credit was significant and not
done merely to correct a patent error or mistake in the record. See 42
Pa.C.S.A. § 5505; see also Commonwealth v. Stevens,4 No. 3442 EDA
2019,
2020 WL 6130155, at *1 n.1, unpublished memorandum, (Pa. Super.
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4 The factual differences between this case and Stevens are of little
significance. There, the trial court included credit for time served by amending
the judgment of sentence. Here, the trial court removed 119 days’ credit
through the First Amendment.
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filed October 19, 2020) (because the trial court amended the judgment of
sentence within 30 days of its entry when no appeal was taken, the appeal at
issue properly lay from the amended judgment by which the court added credit
for time served).5 As illustrated, infra, an amended order that merely corrects
a patent or obvious error in the record does not reestablish the time in which
an appeal from the judgment of sentence must be taken and may be done by
the court at any time. On the other hand, an amended order that does not
merely correct a patent or obvious error in the record constitutes a new
judgment of sentence. Stevens. The trial court must act within 30 days of
its initial order to amend the judgment of sentence while the trial court still
has jurisdiction, see 42 Pa.C.S.A. § 5505. If an appeal is to be taken from
the amended judgment of sentence, it must be filed within 30 days of the
amended judgment. An appeal taken from the original judgment of sentence
will not suffice to preserve appeal rights from the amended judgment of
sentence.
In Commonwealth v. Klein, 781 A.2d 1133 (Pa. 2001), the Supreme
Court reversed an order of this Court quashing the defendant’s appeal as
untimely filed. Klein,
781 A.2d at 1136. Two days after the defendant was
sentenced on June 23, 1999, to time-served to one year in prison, the trial
court learned that there was an error in the defendant’s record concerning the
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5 Under Rule 126(b), non-precedential decisions, referring to unpublished
memorandum decisions of the Superior Court filed after May 1, 2019, may be
cited for their persuasive value. See Pa.R.A.P. 126(b).
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calculation of his credit for time-served. See id. at 1134. Accordingly, on
June 25, 1999, the trial court issued an order, sua sponte, directing the
defendant to reappear for sentencing on June 30, 1999; however, it did not
vacate its prior sentencing order. Before the resentencing hearing, on June
28, 1999, the defendant filed a notice of appeal from the June 23rd judgment
of sentence. Nevertheless, the resentencing hearing continued as scheduled,
and, on June 30, 1999, the trial court corrected the calculation of time-served
in the original sentencing order, but directed “[a]ll other aspects of the June
23rd order were to remain in effect.”
Id. (record citation omitted). A panel
of this Court quashed the defendant’s appeal, reasoning the court’s June 25th
order “implicitly vacated” the June 23rd sentencing order, and, therefore, the
defendant filed an appeal from the wrong order.
Id. However, the Supreme
Court disagreed, noting, “this court has never indicated that an order may
‘implicitly vacate’ an earlier order and Section 5505 does not provide for such
ambiguity.”
Id. at 1135. Nevertheless, while the defendant’s notice of appeal
divested the trial court of jurisdiction to modify its sentencing order after 30
days, the Supreme Court explained it was clear the trial court’s intent was to
sentence the defendant to serve one month in prison, and the miscalculation
of the time-served undermined that intent; accordingly, the Court held “under
the limited circumstances of this case, the [trial] court could take further
action in this matter since it was merely correcting a patent defect or mistake
in the record.”
Id.
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Commonwealth v. Callen, 198 A.3d 1149 (Pa. 2018), is yet another
example of when a trial court may act to correct a clerical error without
affecting the validity of its original judgment of sentence. There the trial court
confused the docket numbers—but not the offenses, counts, or victims—when
it orally pronounced the appellant’s sentence. The confusion caused an
erroneous transcription of the written sentencing order. Months after
sentencing, while the appeal was pending, the trial court amended the
sentencing order. On appeal, we agreed with the trial court’s course of action,
noting that the errors corrected were clerical in nature.
Here, there is no suggestion by Appellant that the trial court committed
any kind of clerical mistake requiring the sua sponte amendment of the
November 1, 2019 judgment of sentence. In fact, the First Amendment should
not have come as a surprise to Appellant. The trial court apprised him on the
record at sentencing that it might adjust time credit. By removing the 119
days’ credit via the First Amendment, which was entered within 30 days of the
entry of the Original Judgment of Sentence, the trial court effectively vacated
the Original Judgment of Sentence. Differently put, the trial court vacated the
Original Judgment of Sentence when it determined that Appellant no longer
was entitled to 119 days’ credit for time served. The change made did not
just correct a calculation error. The court’s determination reevaluated
Appellant’s entitlement to time served. As a result, Appellant needed to take
an appeal from the First Amendment, entered on November 19. He did not.
Instead, on March 10, 2020, Appellant took the instant appeal from the
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Original Judgment of Sentence. The appeal, however, was untimely, as it was
taken more than 30 days after the November 19, 2019 entry of the First
Amendment.6 See Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3).
Furthermore, I also respectfully disagree with the Majority to the extent
it premises our jurisdiction on a breakdown in the court processes and thereby
excuses Appellant’s untimely appeal. See Majority Op. at 8-9. It is well
settled that appellate courts generally cannot extend the time for filing an
appeal. See Pa.R.A.P. 105(b) (“An appellate court . . . may not enlarge the
time for filing a notice of appeal, a petition for allowance of appeal, a petition
for permission to appeal, a petition for review, or a petition for specialized
review.”). However, the official note to Rule 105 provides that Rule 105(b) is
“not intended to affect the power of a court to grant relief in the case of fraud
or breakdown in the processes of a court.” Pa.R.A.P. 105(b), note; see also
Commonwealth v. Patterson, 941 A.2d 493, 499 (Pa. Super. 2007)
(pointing out that despite the general rule that “an appellate court cannot
extend the time for filing an appeal,” this “does not affect the power of courts
to grant relief in the case of fraud or breakdown in the processes of the court”).
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6It is unclear whether the Second Amendment replaced the First Amendment
as the final, appeal order. Additionally, it unclear whether the Second
Amendment was issued pursuant to the court’s inherent powers to correct
patent and obvious errors. These questions, however, need not be resolved
at this juncture because Appellant did not appeal from the either the First
Amendment or the Second Amendment.
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Here, contrary to the Majority’s conclusion, no breakdown in the
processes of the court is alleged and one is not apparent from the face of
record. Thus, by finding there was a breakdown, the Majority sua sponte
grants Appellant nunc pro tunc relief, rendering timely his untimely appeal,
which was not taken until March 2020—months after the November 19, 2019
First Amendment. I do not believe this Court has the authority to sua sponte
grant nunc pro tunc relief, especially when the relief would, as here, result in
the enlargement of the time for filing an appeal. This conclusion would be
consistent with our prior decisions involving a trial court’s sua sponte
reinstatement of direct appeal rights nunc pro tunc. We previously have noted
that it is improper for a trial court to do so. Commonwealth v. Turner, 73
A.3d 1283, 1285 n.2 (Pa. Super. 2013); accord Commonwealth v.
McCollum,
2020 WL 7706810, unpublished memorandum, (Pa. Super. filed
December 29, 2020).
For these reasons, I dissent. I would quash this appeal for want of
jurisdiction.
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