Com. v. Adams

• Decision Date: 31 January 1986
• Citation: 350 Pa.Super. 506,504 A.2d 1264
• Parties: COMMONWEALTH of Pennsylvania v. Barry ADAMS, Appellant. 1973 Phila. 1982
• Court: Pennsylvania Superior Court

Page 1264

504 A.2d 1264

350 Pa.Super. 506

COMMONWEALTH of Pennsylvania v. Barry ADAMS, Appellant.

1973 Phila. 1982

Superior Court of Pennsylvania.

Argued April 24, 1985.

Filed Jan. 31, 1986.

Jules Epstein, Asst. Public Defender, Philadelphia, for appellant.

Ann C. Lebowitz, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before SPAETH, President Judge, and CAVANAUGH, BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, BECK and TAMILIA, JJ.

OPINION ANNOUNCING JUDGMENT OF THE COURT

ROWLEY, Judge:

This is an appeal from a judgment of sentence of ten to twenty years imprisonment imposed following revocation of a prior sentence of ten years probation for robbery. Appellant argues that the trial court improperly corrected a clerical error it had committed in recording the sentence of probation on the wrong bill of indictment. He also argues that his original sentences for aggravated assault and robbery, ¹ imposed in 1975, merged and that, since he had already served the aggravated assault sentence, the trial court was precluded, in 1982, from revoking his probation and imposing a prison sentence on the robbery charge. Argument before an en banc panel of this Court was granted to consider these issues as well as the Commonwealth's claim that appellant has waived the second argument. We find that the judgment of sentence of ten to twenty years was properly imposed and accordingly we affirm.

Following entry of pleas of guilty, appellant was sentenced, on March 4, 1975, as follows:

Bill of Indictment 1792 Feb. 1974: aggravated assault: 11 1/2 to 23 months imprisonment, credit for time served since January 15, 1974;

Bill of Indictment 1793 Feb. 1974: robbery: 5 years probation to run concurrently with Bill # 1792.

On February 17, 1978, following a revocation of probation hearing, the trial court made an order revoking appellant's sentence of five years probation for robbery and imposing a sentence of ten years probation. The order, however, was not recorded on Bill 1793, the robbery bill, but instead was contained on a form signed by the trial court entitled "Supplement to Indictment No. 74 Feb. 1792," which was the aggravated assault bill. Appellant's sentence on Bill 1792, however, had expired at least a year earlier. Also on February 17, 1978, however, a second document entitled "Certification of Probation" was executed stating that the probation imposed on Bill 1793 (the robbery bill) was revoked and a new ten year sentence of probation was imposed. Thus, there were two conflicting records of the trial court's order. No one questioned the Order, and appellant was again released on probation.

On June 10, 1982, appellant appeared before the trial court at a second probation violation hearing. This time the trial court entered an order revoking the ten year probation. At the same time, the court imposed a sentence of ten to twenty years in prison. This order and sentence were recorded on a form signed by the trial court entitled "Supplement to Indictment No. 74 Feb. 1793", the Robbery bill. It is this order from which appellant has appealed.

Appellant argues that the trial court had no power to revoke his probation in 1982 and sentence him to prison. His first argument is based solely upon an examination of the bills of indictment as they appear in the record, and may be stated as follows:

The trial court purported to sentence him to prison on Bill 1793 (Robbery). However, by the time the court did so, on June 10, 1982, the sentence on Bill 1793 had expired; as appears on the face of Bill 1793, the sentence was five years probation, imposed March 4, 1975. It is true that the trial court was under the impression that the sentence on Bill 1793 had not expired; it thought that by its order of February 17, 1978, appellant had been sentenced to ten years probation on Bill 1793, and that he was still serving that probation. However, as has been noted, the order of February 17, 1978, had been entered not on Bill 1793 but on a supplement to Bill 1792, and when it was entered, the sentence on Bill 1792 had expired. The order of February 17, 1978, could therefore have no effect on the sentence of five years probation imposed on Bill 1793. Appellant concluded that because the sentence on Bill 1793, as imposed March 4, 1975, had expired by the time of the probation revocation hearing on June 10, 1982, and because the sentence on Bill 1792 had also expired, the court had no authority to sentence him on June 10, 1982 and he should be discharged.

The trial court rejected appellant's argument. The court found that the entry of the order of February 17, 1978, on Bill 1792 was a clerical error. The court identified several factors in support of this finding. First, the court noted that it could not have meant to revoke probation on Bill 1792 because appellant had completed his sentence on that bill; hence it could only have meant to revoke probation on Bill 1793. Second, the court stated that the court stenographer had correctly reported the sentence. ² Finally, the court noted that at the same time that the sentence was erroneously recorded on Bill 1792, the clerk filled out a certificate of probation certifying that the court had revoked probation on Bill 1793. Having found a clerical error, the court concluded that "[c]lerical errors may be corrected at any time by the trial court to conform to the facts." Slip op. of trial court at 5.

I.

a.

There are indeed cases permitting correction of a clerical error regarding a sentence. Commonwealth v. Liscinsky, 195 Pa.Super. 183, 171 A.2d 560 (1961); Commonwealth v. Meyer, 169 Pa.Super. 40, 82 A.2d 298 (1951). However, this Court has held that where a discrepancy exists between the sentence as recorded on the bill of indictment and the sentence as pronounced orally by the court, the sentence as recorded controls. See, e.g., Commonwealth ex rel. Middleton v. Banmiller, 195 Pa.Super. 45, 169 A.2d 343 (1961). In Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971) and Commonwealth v. Thomas, 219 Pa.Super. 22, 280 A.2d 651 (1971), the Pennsylvania Supreme Court and this Court applied this principle in cases similar to the present case.

In both Allen and Thomas, the sentencing court erroneously transposed two sentences on the bills of indictments. However, the Supreme Court in Allen and the Superior Court in Thomas, following Allen, refused to allow the trial courts, more than a year after the original sentence was imposed, to correct the errors. The decisions in these two cases rested, in part, on an interpretation of the United States Supreme Court's decision in Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873) that once a defendant had commenced serving the sentence, the trial court could not increase the sentence without violating the Double Jeopardy Clause.

In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the United States Supreme Court rejected such a broad interpretation of the Double Jeopardy Clause. In DiFrancesco, the Court held that a statute that permitted the government, after the defendant had been sentenced as a "dangerous special offender", to seek an increase in sentence on appeal did not violate the Double Jeopardy Clause. The Court discussed Lange and said that Lange does not hold that a trial court may not increase sentence if the defendant has begun to serve his sentence. Rather, Lange is limited to its facts and holds only that where a statute authorizes a sentence of fine or imprisonment, and one of these two alternatives has been imposed, the court cannot then resentence the defendant to the other alternative.

Although our Supreme Court has not had an occasion to re-evaluate its decision in Allen in light of DiFrancesco, this Court in Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983), has accepted a less expansive interpretation of the Double Jeopardy Clause. In Ford, the defendant was convicted and sentenced on charges of, inter alia, attempted murder, criminal conspiracy, and possession of an instrument of crime. The defendant also was convicted of aggravated assault and recklessly endangering another person, but he was not sentenced on those offenses because the trial court found that they merged with the offense of attempted murder. On appeal, this Court held that in sentencing the defendant for attempted murder, criminal conspiracy, and possession of an instrument of crime, the trial court had violated 18 Pa.C.S. § 906, because it had sentenced appellant to three inchoate offenses arising out of the commission of one ultimate crime. On remand, the trial court was instructed to sentence the defendant only on one of the three offenses. The Court also instructed the trial court that, if it chose not to sentence the defendant for attempted murder, it could resentence him for aggravated assault and recklessly endangering another person, even though it originally had not imposed sentences on those two offenses. Id. at 300, 461 A.2d at 1290. The Court reasoned that as long as the new aggregate sentence was not longer than the original sentence, the Double Jeopardy Clause would not be violated and the trial court would merely be substituting new sentences for the vacated sentence for attempted murder. Id. at 301, 461 A.2d at 1290.

Even prior to DiFrancesco, this Court had interpreted the Double Jeopardy Clause as we did in Ford. In Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977), the trial court found the defendant guilty of two counts of theft by unlawful disposition and two counts of theft by receiving stolen property. It sentenced the defendant only on the former two counts, however, because it concluded that the offenses merged. On appeal, this Court held that there was no merger. It was also determined that the evidence was insufficient to support the convictions for unlawful disposition, but sufficient for receiving stolen property, and remanded for resentencing...