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[U] Commonwealth v. Freeman

Superior Court of Pennsylvania

February 4, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
MARCEL JAMAR FREEMAN Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence May 3, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003224-2011

BEFORE: PANELLA, J., OLSON, J., and MUSMANNO, J.

JUDGMENT ORDER

PANELLA, J.

Appellant, Marcel Jamar Freeman, appeals from the judgment of sentence entered May 3, 2012, by the Honorable Randal B. Todd, Court of Common Pleas of Allegheny County. We affirm.

On February 2, 2012, Freeman entered an open guilty plea to Person not to Possess a Firearm[1] and Carrying a Firearm Without a License.[2] At sentencing, the trial court sentenced Freeman to two to four years' imprisonment for Person not to Possess a Firearm. At Count 2, Carrying a Firearm Without a License, the court sentenced Freeman to three years' probation. Although the trial court stated that the term was to be served concurrent to Count 1, the written sentencing order indicates that the probation is to be served consecutively. The trial court denied Freeman's Motion for Reconsideration of Sentence on May 15, 2012. This timely appeal followed.

On appeal, Freeman raises the following issues for our review:
I. Whether the sentence imposed on Count 2—Firearms Not to be Carried Without a License, as reflected in the written Judgment of Sentence, is illegal because, during the oral imposition of sentence, Judge Todd clearly imposed a "concurrent period of three years probation" on Count 2— Firearms Not to be Carried Without a License, the written Judgment of Sentence reflects that this sentence is to run consecutively to the period of incarceration imposed on Count 1—Person Not to Possess Firearms, and this is not a patent or obvious error subject to inherent correction by the trial court?
II. Whether the modification of the orally imposed sentence on Count 2—Firearms Not to be Carried Without a License is invalid and illegal because reconsideration of a sentence can only take place after proper notice and opportunity to be heard is given to all parties, Mr. Freeman was not given proper notice and an opportunity to be heard on the matter, and under these circumstances, modification of a sentence that increases the punishment constitutes a violation of double jeopardy?

Appellant's Brief at 4.

Freeman argues that the discrepancy between the sentence imposed orally by the trial court with that stated in the written sentencing order renders the sentence illegal and constituted a violation of double jeopardy. We disagree. It is well-settled that the signed sentencing order takes precedence over oral statements of the sentencing court. Commonwealth v. Kubiac, 550 A.2d 219, 229 (Pa.Super. 1988), appeal denied, 522 Pa. 611, 563 A.2d 496 (1989).

"[O]ral statements made by the judge in passing sentence, but not incorporated in the written judgment signed by him, are no part of the judgment of sentence." In addition, an "initial oral pronouncement of sentence ... [is] not a 'sentence imposed' for purposes of double jeopardy." A violation of the double jeopardy clause occurs if the sentence is increased after the defendant has begun serving it.

Commonwealth v. Unger, 462 A.2d 259, 260 (Pa.Super. 1983) (internal citations omitted).

Here, the trial court orally sentenced Freeman to serve three years of probation on Count 2 concurrent to the sentence imposed on Count 1. The written order of sentence, signed by the trial court, states that the probationary sentence is to be served consecutive to the term of incarceration imposed at Count 1. No modification of sentence occurred because only the written judgment of sentence was actually "imposed, " and accordingly, the sentence did not place Freeman in double jeopardy.

Judgment of sentence affirmed.

Jurisdiction relinquished.

Judgment Entered.


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