Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Philadelphia County, February Term, 1974, No. 1793.
Jules Epstein, Assistant Public Defender, Philadelphia, for appellant.
Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, President Judge, and Cavanaugh, Brosky, Rowley, Wieand, McEwen, Del Sole, Beck and Tamilia, JJ. Brosky, J., filed a concurring opinion. Wieand, J., filed a concurring opinion in which Cavanaugh, J., joins. McEwen, J., filed a concurring opinion. Spaeth, Former President Judge, did not participate in the final decision of this case.
[ 350 Pa. Super. Page 508]
OPINION ANNOUNCING JUDGMENT OF THE COURT
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,*fn1 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
[ 350 Pa. Super. Page 509]
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:
[ 350 Pa. Super. Page 510]
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.*fn2 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
[ 350 Pa. Super. Page 511]
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.
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 ...