Opinion
J.A21011/15 No. 87 EDA 2014
07-24-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. KEVIN JACKSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 6, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0008089-2010
BEFORE: ALLEN, MUNDY, and FITZGERALD, JJ. JUDGMENT ORDER BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Kevin Jackson, appeals from the judgment of sentence entered on December 6, 2013 in the Philadelphia County Court of Common Pleas. Appellant contends his violation of probation sentence was illegal and the court lacked jurisdiction to correct the illegal sentence. We vacate and remand for resentencing.
We adopt the procedural history set forth in the trial court opinion. See Trial Ct. Op., 1/28/15, at 1-2. Appellant raises the following issue for our review: "Did not the trial court err by attempting to correct an illegal sentence more than 30 days after the imposition of sentence and after an appeal was filed in violation of 42 Pa.C.S.[ ] § 5505 and Pa.R.A.P. 1701(b)(3), as it lacked jurisdiction to do so? Appellant's Brief at 2.
Section 5505 provides:
Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.42 Pa.C.S. § 5505.
Rule 1701(b)(3) provides:
(3) Grant reconsideration of the order which is the subject of the appeal or petition, if:
(i) an application for reconsideration of the order is filed in the trial court or other government unit within the time provided or prescribed by law; and
(ii) an order expressly granting reconsideration of such prior order is filed in the trial court or other government unit within the time prescribed by these rules for the filing of a notice of appeal or petition for review of a quasijudicial order with respect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration.
Pa.R.A.P. 1703(b)(3).
A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal or petition for review of a quasijudicial order theretofore or thereafter filed or docketed with respect to the prior order. . . .
Instantly, the notice of appeal was filed on January 6, 2014. On January 17th, the court granted Appellant's motion to modify sentence. The court corrected the sentence from three years to two years of reporting probation. Order, 1/17/14. The trial court amended the sentence on May 28, 2014, "to run consecutive to MC-51-CR-0034788-2013." Amended Sentence, 5/28/14.
Pursuant to Rule 1701(a), "after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter." Pa.R.A.P. 1701(a); see also 42 Pa.C.S. § 5505; Commonwealth v. Martz , 926 A.2d 514, 525 (Pa. Super. 2007) (holding trial court without jurisdiction to amend sentence after notice of appeal filed, unless mistake is patent or obvious, e.g., correction of credit for time served). Instantly, we find the trial court lacked jurisdiction to modify the December 6th sentence. See 42 Pa.C.S. § 5505; Pa.R.A.P. 1701(a); Martz , 926 A.2d at 525.
Accordingly, we remand for resentencing.
We note that the Commonwealth does not oppose resentencing. Commonwealth's Brief at 5.
Sentence vacated. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
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