Commonwealth v. Borrin

• Citation: 80 A.3d 1219
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Jeffrey Michael BORRIN, Appellee.
• Decision Date: 30 October 2013
• Court: United States State Supreme Court of Pennsylvania

80 A.3d 1219

COMMONWEALTH of Pennsylvania, Appellant

v.Jeffrey Michael BORRIN, Appellee.

Supreme Court of Pennsylvania.

Argued Nov. 30, 2011.

Resubmitted Aug. 13, 2013.

Decided Oct. 30, 2013.

Frank P. Barletta, Esq., Hazleton, Jacqueline M. Carroll, Esq., West Chester, Luzerne County District Attorney's Office, for Commonwealth of Pennsylvania.

Nandakumar Palissery, Esq., Palissery Law Offices, for Jeffrey Michael Borrin.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice TODD.

In this case on appeal by allowance, the trial court issued two orders imposing sentence upon Appellee, Jeffrey Michael Borrin; the first, on May 18, 2006, and the second, three years later, on June 12, 2009. On appeal, the Superior Court held that the trial court did not have the inherent power to issue the latter order. For the reasons that follow, we affirm.

In the early afternoon hours of July 24, 2005, in connection with a charity event, several persons were riding motorcycles southbound on Route 309 in Wilkes–Barre, Pennsylvania. At that same time, Appellee was driving his vehicle on Route 309 in the opposite direction. His child was in the back seat of the car. As the motorcycles approached, Appellee crossed the double yellow line and drove directly into them. One person, William Delaney, was killed, and four others, Linda Delaney, Paul Huber, Mark Hozlock, and Michael Jacobs, were seriously injured. A blood test to which Appellee submitted upon his arrest showed he had .76 nanograms of morphine in his system.

As a result, Appellee was charged in a criminal information with the following offenses: Count 1, homicide by vehicle while driving under the influence; Count 2, homicide by vehicle; Counts 3, 4, 5, 6, aggravated assault by vehicle while driving under the influence; Counts 7, 8, 9, 10, 11, accidents involving death or personal injury while not properly licensed; Count 12, endangering the welfare of children; Counts 13, 14, driving while under the influence of alcohol or a controlled substance; Counts 15, 16, recklessly endangering another person; Count 17, driving while operating privilege is suspended/revoked; Count 18, driving while operating privilege is suspended/revoked, driving under the influence related; Count 19, driving on the right side of the roadways; and Count 20, reckless driving.¹ On March 20, 2006, Appellee entered an open guilty plea to all 20 counts in the information in the Court of Common Pleas of Luzerne County, before the Honorable Chester B. Muroski.

On May 18, 2006, following a hearing, Appellee was sentenced. In open court, the trial court pronounced Appellee's sentence as follows:

THE COURT: ... Count 1 with the mergers, 36 to 72 months. [Count 3] Aggravated assault, the one with Mrs. Linda Delaney, 16 to 32 months consecutive.

The one aggravated assault, Count 4, with Paul Huber, 12 to 24 months consecutive.

Count 5, involving Mark Hozlock, 12 to 24 months consecutive.

Count 6, involving Michael Jacobs, aggravated assault, 12 to 24 months consecutive.

[Count 7] Accidents involving death or severe injury involving William Delaney, 16 to 32 months consecutive.

[Counts] Eight, nine, ten and 11, they will all be probation, consecutive to each other, one year on each. That's eight, nine, ten and 11.

[Count 12] Endangering the welfare of a child, your own son, sir, three to six months consecutive.²

Counts 15 and 16, six months consecutive. Count 16, six months probation consecutive.

There are summaries [Counts 17, 18, 19, 20] involving fines. We'll impose the standard range on the fines, plus one [Count 18] carries a mandatory 60 days. That will be consecutive.

* * *

THE COURT: [Appellee] gets [258 days] credit for time served.

N.T., 5/18/06, 17–18.

On that same day, Appellee's sentence was reduced to writing. The trial court's May 18, 2006 sentencing order states:

Sentence on [Case No.] 3032–05

IMAGE

IMAGE

Summary Offenses:

IMAGE

Trial Court Order, 5/18/06.^3,4

Neither party filed a motion to modify sentence in the trial court and no appeal was filed from the May 18, 2006 order. On June 9, 2006, Appellee was committed to the custody of the Department of Corrections (“DOC”) to commence serving his jail sentence.

Over two years later, in October 2008, the trial court was asked by the DOC to comment on Appellee's application for participation in a pre-release program. Responding in a letter, the trial court informed the DOC that the District Attorney's Office of Luzerne County had determined that Appellee was ineligible for participation in such a program “ at this stage of his sentence.” Letter of 11/17/08 (emphasis original). The trial court further informed the DOC that a review of the transcript from Appellee's sentencing hearing, which was enclosed for the DOC's consideration, “demonstrates beyond all doubt that the intent of this court was to impose consecutive sentences.” Id. (emphasis original). ⁵ The trial court also offered that the “disposition sheet” ⁶ “is incorrect in that it states several counts are to run consecutive to Count 1 and, therefore, could be construed to mean that all counts subsequent to Count 1 were concurrent with each other. Clearly that was not the intent of this court.” Id.

On May 26, 2009, the Commonwealth filed a Petition to Clarify Sentence (“Petition”). In the Petition, the Commonwealth alleged that it and the DOC understood Appellee's sentence differently: while the Commonwealth calculated Appellee's aggregate term of imprisonment to be 93 to 186 months, the DOC calculated it to be 52 to 104 months. Petition at ¶¶ 4, 8. The Commonwealth further averred that the DOC's calculation of Appellee's sentence was incorrect, and requested a hearing on the matter.

The trial court held a hearing on the Commonwealth's Petition on June 12, 2009. After reviewing the contents of the letter it sent to the DOC on November 17, 2008, the trial court stated: “I can certainly tell you what I intended to do; ... and I placed it in this correspondence, that it's consecutive, one after another and not concurrent. Each count is consecutive to each other and not concurrent with each other.” N.T., 6/12/09, at 10.

Accordingly, in an order dated June 12, 2009, over Appellee's objections, the court granted the Commonwealth's Petition and restated Appellee's sentence. In relevant part, as compared to the May 18, 2006 order, the June 12, 2009 order deleted the phrase “cons. [to] ct. 1” from the sentences of incarceration for Counts 3, 4, 5, 6, 7, 12 15, 16, and 18, and the phrase “cons. to each other and ct. 1” from the sentences of probation for Counts 8, 9, 10, and 11, and stated each of these sentences as consecutive to every non-merged, preceding Count. The June 12, 2009 order provided:

AND NOW, this 12[th] day of [June], 2009, the District Attorney of Luzerne County's Petition to Clarify Sentence is hereby GRANTED. Defendant is sentenced as follows:

a. Count One Homicide by Vehicle while DUI ? 36 to 72 months;

b. Count Two Homicide by Vehicle ? merges with Count One;

c. Count Three Aggravated Assault by Vehicle While DUI ? 16–32 months consecutive to Count One;

d. Count Four Aggravated Assault by Vehicle While DUI ? 12–24 months consecutive to Counts One and Three;

e. Count Five Aggravated Assault by Vehicle While DUI ? 12–24 months consecutive to Counts One, Three and Four;

f. Count Six Aggravated Assault by Vehicle While DUI ? 12–24 months consecutive to Counts One, Three, Four and Five;

g. Count Seven Accidents Involving Death/Injury While not Properly Licensed ? 16–32 months consecutive to Counts One, Three, Four, Five and Six;

h. Count Eight Accidents Involving Death/Injury While not Properly Licensed ? 12 months probation Consecutive to Counts One, Three, Four, Five, Six and Seven;

i. Count Nine Accidents Involving Death/Injury While not Properly Licensed ? 12 months probation Consecutive to Counts One, Three, Four, Five, Six, Seven and Eight;

j. Count Ten Accidents Involving Death/Injury While not Properly Licensed ? 12 months probation Consecutive to Counts One, Three, Four, Five, Six, Seven, Eight and Nine;

k. Count Eleven Accidents Involving Death/Injury While not Properly Licensed ? 12 months probation Consecutive to Counts One, Three, Four, Five, Six, Seven, Eight, Nine and Ten;

l. Count Twelve Endangering the Welfare of Children ? 3–6 months consecutive to Counts One, Three, Four, Five, Six, Seven, Eight, Nine, Ten and Eleven;

m. Count Thirteen DUI ? Merges with Count One;

n. Count Fourteen DUI ? Merges with Count One;

o. Count Fifteen Recklessly Endangering Another Person ? 6 months probation consecutive to Counts One, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven and Twelve;

p. Count Sixteen Recklessly Endangering Another Person ? 6 Months probation consecutive to Counts One, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven and Twelve, concurrent to Count Fifteen.

q. Count Seventeen: Driving While Operating Privilege is Suspended/Revoked 75 Pa.C.S.A. [§ ]1543a ? $200 fine;

r. Count Eighteen: Driving While Operating Privilege is Suspended/Revoked DUI Related 75 Pa.C.S.A. [§ ]1543b1 ? 60 days incarceration consecutive to Counts One, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve and Sixteen, and a $500 fine;

s. Count Nineteen: Driving on the right side of Roadways 75 Pa.C.S.A. [§ ] 3301 a ? $25 fine; and

t. Count Twenty: Reckless Driving 75 Pa.C.S.A. [§ ]3736a ? $200 fine.

Trial Court Order, 6/12/09.⁷

Appellee appealed the June 12, 2009 order to the Superior Court, contending it impermissibly modified the May 18, 2006 order, and increased his sentence in violation of double jeopardy principles. Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa.Super.2011) ( en banc ). The Commonwealth countered that the trial court neither modified nor increased Appellee's sentence by issuing the June 12, 2009 order, but merely clarified the terms of the sentence it imposed on Appellee o...