Commonwealth v. Concordia

• Decision Date: 23 July 2014
• Citation: 2014 PA Super 155,97 A.3d 366
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Mario Dustin CONCORDIA, Appellee.
• Court: Pennsylvania Superior Court

97 A.3d 366

2014 PA Super 155

COMMONWEALTH of Pennsylvania, Appellant

v.Mario Dustin CONCORDIA, Appellee.

Superior Court of Pennsylvania.

Submitted June 9, 2014.

Filed July 23, 2014.

Alisa R. Hobart, Assistant District Attorney, Reading, for Commonwealth, appellant.

Amy J. Shaffer, Public Defender, Reading, for appellee.

BEFORE: BENDER, P.J.E., BOWES, and PANELLA, JJ.

OPINION BY BOWES, J.:

The Commonwealth appeals the order terminating the probationary aspect of Mario Dustin Concordia's county intermediate punishment sentence of ninety days incarceration and five years probation. We vacate the order and remand for additionalproceedings consistent with this decision.

On March 4, 2010, Appellee pled guilty to driving under the influence of alcohol, his second offense. In addition, Appellee refused blood testing. Accordingly, Appellee's offense was a misdemeanor of the first degree. At the time of Appellee's plea, such a plea could result in a five-year sentence. See75 Pa.C.S. § 3803(b)(4); 18 Pa.C.S. § 106(b)(6). The court sentenced Appellee that same date to a county intermediate punishment sentence, which included ninety days in the Berks County Correctional Facility, with credit for eighty-seven days in an inpatient treatment facility. The court also imposed five years probation as part of the intermediate punishment sentence.

Subsequently, on June 28, 2013, this Court decided Commonwealth v. Musau, 69 A.3d 754 (Pa.Super.2013). Although Musau was decided after Appellant's plea and sentence, because it involved a first-time question of statutory interpretation, it is not a new rule of law, and generally would apply retroactively. Fiore v. White, 562 Pa. 634, 757 A.2d 842, 848 (2000) (“when we have not yet answered a specific question about the meaning of a statute, our initial interpretation does not announce a new rule of law.”); ¹Commonwealth v. Infante, 63 A.3d 358 (Pa.Super.2013).

In Musau, a panel of this Court concluded that a defendant convicted of a second-time DUI under 75 Pa.C.S. § 3802(a)(1), and who refused the breath test could only be sentenced to a maximum of six months imprisonment. Here, Appellee refused breath/blood testing and was convicted of a second-time DUI pursuant to § 3802(a)(1), and the court sentenced him to the aforementioned county intermediate punishment sentence. The five-year probationary portion of the sentence plainly exceeds the statutory maximum of six months that the Musau Court held applied to convictions like Appellee's. The Musau Court reached its result by finding a conflict between 75 Pa.C.S. § 3803(a)(1) and § 3803(b)(4). The first provision states:

(a) Basic offenses.—Notwithstanding the provisions of subsection (b):

(1) An individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) and has no more than one prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment of not more than six months and to pay a fine under section 3804 (relating to penalties).

75 Pa.C.S. § 3803(a)(1). In contrast, § 3803(b)(4) provides, “(4) An individual who violates section 3802(a)(1) where the individual refused testing of blood or breath, or who violates section 3802(c) or (d) and who has one or more prior offenses commits a misdemeanor of the first degree.” 75 Pa.C.S. § 3803(b)(4).

Musau argued that the use of the term “notwithstanding” meant “nevertheless” or “in spite of” and reasoned that a plain language reading of § 3803(a)(1) trumped § 3803(b)(4). The Commonwealth countered that basic rules of statutory construction set forth that a statute is to be construed to give effect to all of its provisions and that the legislature is not presumed to intend language to be mere surplusage. The panel in Musau found in favor of Musau.² Thus, Musau declares sentences exceeding six months incarceration for the very offense that Appellee pled guilty to be illegal.

Accordingly, Appellee filed a counseled motion to correct his illegal sentence on September 17, 2013, arguing that Musau entitled him to relief. The court conducted a brief hearing on September 27, 2013. Therein, the court indicated that the adult probation office had an early termination form and informed counsel, “[m]ake sure you've done everything he was supposed to do, okay, I'll terminate him early.” N.T., 9/27/13, at 3. Thereafter, on October 16, 2013, Appellee submitted an amended motion to correct illegal sentence, indicating that he had completed the requirements of his county intermediate punishment program. The court terminated Appellee's county intermediate sentence on October 18, 2013. This timely Commonwealth appeal ensued.

The court directed the Commonwealth to file and serve a Pa.R.A.P. 1925(a) concise statement of errors complained of on appeal. The Commonwealth complied, claiming that the court was without jurisdiction to terminate Appellant's probation under 42 Pa.C.S. § 5505, and arguing that Musau was incorrectly decided. The court authored a brief Pa.R.A.P. 1925(a) statement explaining its reasons for the entry of its order, setting forth that Appellant's sentence was illegal. The Commonwealth now raises two issues on appeal.

A. Did the trial court lack jurisdiction to modify the DUI intermediate punishment order over three years after it was imposed?

B. Additionally, did the trial court err in finding that the sentence imposed was illegal in light of the decision in Commonwealth v. Musau, as that case was incorrectly decided?

Commonwealth's brief at 4.

The Commonwealth's initial position is twofold, although it did not raise its latter argument before the trial court. First, the Commonwealth contends that pursuant to 42 Pa.C.S. § 5505,³ the court could not modify its order beyond thirty days after its entry. Second, the Commonwealth argues that Appellee's motion should have been treated as an untimely PCRA petition since it challenged the legality of his sentence. In this latter respect, it points out that Appellee had one year from the finalization of his sentence to file a timely PCRA petition.

Appellee's sentence became final for purposes of the PCRA statute thirty days after the entry of his sentence since he did not file a direct appeal. 42 Pa.C.S. § 9545(b)(3); Commonwealth v. Pollard, 911 A.2d 1005 (Pa.Super.2006). As the thirtieth day fell on Saturday, April 3, 2010, Appellee had until April 5, 2010, to file an appeal. Under the PCRA, Appellee then had one year from that date to file a timely petition. 42 Pa.C.S. § 9545(b)(3). Thus, to timely file a PCRA petition, Appellee had until April 5, 2011. Appellee filed the instant motion on September 17, 2013. Hence, if the motion is considered a PCRA petition, it is untimely. Moreover, because the timeliness of a PCRA petition is jurisdictional, the issue cannot be waived by the Commonwealth, despite its failure to address this issue before the lower court. Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa.Super.2012) ( “Even where neither party nor the PCRA court have addressed the matter, ‘it is well-settled that we may raise it sua sponte since a question of timeliness implicates the jurisdiction of our Court.’ ”).

Appellee counters that under 42 Pa.C.S. § 9773(a), a trial court “may at any time terminate a sentence of county intermediate punishment or increase or decrease the conditions of a sentence pursuant to section 9763.” 42 Pa.C.S. § 9773(a). He continues that, under Musau, supra, his sentence exceeded the statutory maximum and was illegal. Appellee maintains that a sentence that is illegal from its inception is always subject to correction and that a trial court retains inherent authority to correct obvious and patent mistakes.

We begin by noting that, “[s]ubject matter jurisdiction relates to the competency of a court to hear and decide the type of controversy presented.” Commonwealth v. Bethea, 574 Pa. 100, 828 A.2d 1066, 1074 (2003). In In re Melograne, 571 Pa. 490, 812 A.2d 1164 (2002), our Supreme Court discussed the distinction between subject matter jurisdiction and the power of a court, opining:

jurisdiction relates solely to the competency of the particular court or administrative body to determine controversies of the general class to which the case then presented for its consideration belongs. Power, on the other hand, means the ability of a decision-making body to order or effect a certain result.

Id. at 1167.

Generally, 42 Pa.C.S. § 5505 precludes the entry of an order modifying a final order more than thirty days after its entry. Our Supreme Court has interpreted § 5505 as jurisdictional, and not related to the power of the court to act. See Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57, 65 (2007). Only in rare circumstances can a court act outside this period. In this respect, our Supreme Court has held that a court retains inherent jurisdiction to correct obvious and patent errors in its orders. See Holmes, supra.

At the same time, the Holmes Court explained, “we note that it is the obviousness of the illegality, rather than the illegality itself, that triggers the court's inherent power. Not all illegal sentences will be amenable to correction as patent errors.” Id. at 67 (emphasis added). The Court in Holmes continued, “the cases at bar are not cases where a court reconsidered the application of its sentencing discretion or its interpretation of a nuanced or ambiguous statutory provision.” Id. (emphasis added). This case does not involve an obvious and patent error since the legality of sentence issue was not apparent from the record at the time of sentencing, but is based on a subsequent interpretation of nuanced statutory provisions. Of course, this Court has also stated that fraud and extraordinary circumstances may warrant a trial court's action outside the normal thirty-day paradigm. Commonwealth v. Walters, 814 A.2d 253 (Pa.Super.2002).

In Walters, the Commonwealth appealed a court's decision to allow the...