Commonwealth v. Kremer

• Decision Date: 20 March 2019
• Docket Number: No. 1720 WDA 2017,1720 WDA 2017
• Citation: 206 A.3d 543
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Brian KREMER, Appellant
• Court: Pennsylvania Superior Court

206 A.3d 543

COMMONWEALTH of Pennsylvania, Appellee

v.Brian KREMER, Appellant

No. 1720 WDA 2017

Superior Court of Pennsylvania.

Argued February 19, 2019

Filed March 20, 2019

Marco S. Attisano, Pittsburgh, for appellant.

Keaton Carr, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY GANTMAN, P.J.E.:

Appellant, Brian Kremer, appeals from the order entered in the Allegheny County Court of Common Pleas, which purported to "correct" Appellant's original January 26, 1995 judgment of sentence, to clarify the court's intent to run Appellant's sentences consecutively to each other and to any other sentence Appellant had been serving at that time. For the following reasons, we reverse and remand for reinstatement of the original judgment of sentence, as it appears in the January 26, 1995 signed, written sentencing order and interpreted by the Department of Corrections ("DOC").

The relevant facts and procedural history of this case are as follows. On November 29, 1994, Appellant entered an open guilty plea to multiple counts of various sex offenses related to sexual abuse of his stepdaughter. Appellant proceeded to sentencing on January 26, 1995. At the sentencing hearing, the court orally stated as follows:

[Appellant], at Criminal Complaint 9407293, at Count 2, involuntary deviate sexual intercourse, I place the costs on Allegheny County, and I order you to serve a term of incarceration of not less than eight years nor more than twenty years consecutive or following any other sentence that you may now be serving .

At count 3, rape, I order you to serve a term of not less than six years nor more than twenty years consecutive or following any other sentence you may now be serving .

At Count 4, aggravated indecent assault, I order you to serve a term of not less than five years nor more than ten years consecutive or following any other sentence you may now be serving .

At Count 7, involuntary deviate sexual intercourse, I order you to serve a term of not less than six nor more than twenty years consecutive or following any other sentence .

My sentence is not less than 25 years nor more than 70 years consecutive to any sentence you are now serving.

(N.T. Sentencing, 1/26/95, at 11-12) (emphasis added).

The signed, written sentencing order entered that same day provided: at Count 2: 8 to 20 years' imprisonment "[c]onsecutive to any other sentence the defendant is now serving "; at Count 3: 6 to 20 years' imprisonment "[c]onsecutive to any other sentence the defendant is now serving "; at Count 4: 5 to 10 years' imprisonment "[c]onsecutive to any other sentence the defendant is now serving "; at Count 7: 6 to 20 years' imprisonment "[c]onsecutive to any other sentence the defendant is now serving "; all other counts—NFP (no further penalty). (Signed/Written Sentencing Order, 1/26/95, at 1-2) (emphasis added). The signed, written sentencing order did not include any stated aggregate term of imprisonment. (See id. ) At the time of sentencing in this case, Appellant was already serving sentences at two unrelated docket numbers. The DOC received the signed, written sentencing order and interpreted it to allow Appellant to be released from prison in 2011.

On October 26, 2016, Appellant filed a pro se "Motion of Supplemental Relief in Aid of Writ of Execution and Writ of Habeas Corpus Relief," challenging his sex offender registration requirements, which were not in effect when Appellant committed his offenses or entered his guilty plea back in 1995. The court treated Appellant's filing as a petition under the Post Conviction Relief Act ("PCRA") at 42 Pa.C.S.A. §§ 9541 - 9546, appointed counsel, and directed counsel to file an amended PCRA petition. Counsel filed an amended petition on April 3, 2017, titled: "Amended Writ of Habeas Corpus and Petition to Enforce Plea Agreement," challenging Appellant's registration requirements under the Sexual Offender Registration and Notification Act ("SORNA").

While preparing its response to Appellant's petition, the Commonwealth claimed it just discovered that the DOC "misinterpreted" the January 26, 1995 sentencing order, calculated the sentences concurrently, instead of consecutively, and erroneously allowed Appellant to be released on parole in 2011. Consequently, the Commonwealth filed a "Motion to Enforce Sentencing Order," claiming the sentencing court had unambiguously declared its sentencing intentions at the sentencing hearing and due to a "misinterpretation" of the court's sentencing order, Appellant was mistakenly ordered to serve only 8 to 20 years' imprisonment, consecutive to the sentences he was already serving at other unrelated dockets on January 26, 1995. The Commonwealth asked the court to issue an order enforcing its original oral sentence as the court had intended in order to "correct" Appellant's sentence structure as a "clerical error." (See Commonwealth's Motion to Enforce Sentencing Order, filed 9/29/17, at 4-5.)

By order of October 3, 2017, the court effectively granted the Commonwealth's motion and entered a "corrected" sentencing order that stated:

AND NOW, this 3rd day of October, 2017, upon consideration of the Commonwealth's Motion to Enforce Sentencing Order, it is hereby ORDERED, ADJUDGED, and DECREED that the defendant's sentence structure should be amended so that it complies with this [c]ourt's original order of sentence, as follows:

2. IDSI–Forcible Compulsion: 8–20 years of incarceration

3. Rape: 6–20 years of incarceration

4. Aggravated Indecent Assault: 5–10 years of incarceration

7. IDSI–Forcible Compulsion: 6–20 years of incarceration.

These sentences shall run consecutively to each other, for a total sentence of 25 to 70 years of incarceration, and consecutive to the sentences that the defendant was already serving at the time of sentencing at CP-02-CR-0004058-1993 and CP-02-CR-0010079-1993. No further penalty is ordered at the remaining counts.

(Order of Court, filed October 3, 2017). The court proposed this order was to "clarify" the court's original intent in 1995, to sentence Appellant to consecutive sentences at Counts 2, 3, 4, and 7, for an aggregate sentence of 25 to 70 years of incarceration, to also run consecutive to the sentences Appellant was already serving at unrelated dockets on January 26, 1995.

Following entry of this amended sentencing order, Appellant timely filed post-sentence motions on October 13, 2017, challenging the court's jurisdiction to amend the original sentencing order as well as the exercise of the court's discretion in the resentencing. The court denied Appellant's post-sentence motions on October 17, 2017. Appellant timely filed a notice of appeal on November 15, 2017. On November 17, 2017, 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 complied.

Appellant raises three issues for our review:

DID THE TRIAL COURT LACK JURISDICTION TO MODIFY APPELLANT'S SENTENCE 22 YEARS AFTER THE ORIGINAL SENTENCE WAS IMPOSED?

DID THE TRIAL COURT ACT VINDICTIVELY IN MODIFYING APPELLANT'S SENTENCE ORDER ONLY AFTER APPELLANT HAD FILED A PETITION FOR WRIT OF HABEAS CORPUS SEEKING TO BE RELIEVED FROM SORNA REGISTRATION REQUIREMENTS AFTER THE TRIAL COURT HAD HAD PREVIOUS OPPORTUNITIES TO REVIEW THE ORIGINAL SENTENCE ORDER?

DID THE TRIAL COURT VIOLATE APPELLANT'S FEDERAL AND STATE DUE PROCESS RIGHTS, AND DOUBLE JEOPARDY RIGHTS, BY MODIFYING HIS ORIGINAL SENTENCING ORDER IN A MANNER THAT INCREASED HIS PERIOD OF INCARCERATION 22 YEARS AFTER THE ORIGINAL SENTENCE WENT INTO EFFECT AND ALMOST 5 YEARS AFTER APPELLANT HAD BEEN PAROLED ON THE ORIGINAL SENTENCE?

(Appellant's Brief at 4).

Appellant initially argues the court's oral sentence on January 26, 1995, was ambiguous in that the court imposed the sentences at Count 2, 3, and 4 "consecutive or following any other sentence that you may now be serving" but used different language at Count 7, stating the length of sentence at that count was "consecutive or following any other sentence." Appellant insists the court's oral sentence relative to Counts 2, 3, and 4 can be interpreted to mean the sentences on those counts were to be served concurrently but consecutive to the sentences Appellant was already serving on other unrelated docket numbers. Appellant submits the language used to impose sentence at Count 7 can be interpreted to mean that sentence was to be served consecutive to the sentences Appellant was serving at the other docket numbers or consecutive to the sentences imposed at Counts 2, 3, and 4 in this case. Appellant also highlights the court's general statement at the conclusion of the oral sentencing, indicating an aggregate sentence of 25 to 70 years actually conflicts with the court's specific sentences at each count, which created internal confusion about the court's intended sentence in this case.

Unlike the court's oral sentence, however, Appellant insists the signed, written sentencing order makes clear the sentences at Counts 2, 3, 4, and 7 were to run consecutive only to the sentences Appellant was already serving on the other docket numbers but concurrent in this case. Appellant stresses that former Pennsylvania Rule of Criminal Procedure 1406, in effect at the time of the original 1995 sentence, provided a presumption of concurrent sentences unless the judge expressly stated otherwise. Appellant maintains the oral sentencing was subject to more than one interpretation, internally inconsistent, and ambiguous. Given the passage of two decades during which the DOC's interpretation of the sentence went unchallenged, Appellant suggests the signed, written sentencing order should prevail; and the court lacked authority to modify the signed, written sentencing order as a "clear clerical error." Appellant concludes we should reverse the court's October 3, 2017 order and restore his original signed, written sentencing order to control the...