Opinion
J-67-2013 No. 60 MAP 2011
10-30-2013
COMMONWEALTH OF PENNSYLVANIA, Appellant v. JEFFREY MICHAEL BORRIN, Appellee
[OAJC: Todd, J.]
Appeal from the order of Superior Court
entered 01-11-2011 at No. 1223 MDA 2009
which Reversed and Remanded the
judgment of sentence of the Luzerne
County Court of Common Pleas, Criminal
Division, entered 06-12-2009 at No.
CP-40-CR-0003032-2005
DISSENTING OPINION
MR. JUSTICE EAKIN
I must respectfully dissent. First, I find the dispositional memorandum prepared by the clerk after sentencing to be less than a "court order" such as trumps the unambiguous sentence pronounced in court. Secondly, even if it was a court order, I find the errors therein to be patent and correctable. Put another way, I find the sentence as announced to be unambiguous, as the trial judge clearly stated each relevant sentence was to run consecutively; therefore, the additions to the sentence made on an inter-office form comprised a patent error which the trial court was empowered to correct.
The law cited by my colleagues is not in dispute. The 30-day limit of 42 Pa.C.S. § 5505 does not affect the inherent powers of a court to amend records, correct mistakes or inadvertences of court officers or counsel, or to supplement defects or omissions in the record; to be a correctable clerical error, the error must be a patent and obvious mistake. When the trial court clearly and unambiguously states the sentence on the record, but the clerk of courts incorrectly completes the form, it is a clear clerical error subject to correction by the trial judge. Commonwealth v. Kubiac, 550 A.2d 219, 231 (Pa. Super. 1988) (correction permissible where sentencing court stated on record that sentence was 5 to 20 years, but written order erroneously stated 5 to 10 years). I acknowledge there is authority stating that if the judge's sentencing pronouncement is ambiguous, the written sentencing order controls, although I suggest the cases are properly limited to their facts. Commonwealth v. Isabell, 467 A.2d 1287, 1293 (Pa. 1983); see Commonwealth v. Johnson, 860 A.2d 146, 153 (Pa. Super. 2004) (holding correction impermissible where sentencing transcript was silent as to whether sentences were to run concurrently or consecutively and order stated sentences were to run concurrently).
My first concern is what is almost casually referred to as "the order" — the term "disposition sheet" is far more apt. What we are talking about is a handwritten multi-copy, multi-colored ("NCR paper") office form, apparently used by the clerk to advise various offices of court results. There is no indicium on the copy of the form given us that it was ever made part of the trial court docket. It appears to be a versatile, ubiquitous form, for it has boxes at the top to be checked for guilty pleas, sentencings, revocations or "other" matters. A clerk identified as "SMP" filled out the sheets (there are two pages) in mostly cursive penmanship, although block printing appears here and there. The clerk checked the box marked "sentencing," as well as blocks indicating "SCI" and "Defendant advised of Appeal Rights," although it does not note what advice was actually given. The clerk added, to appropriate pre-labeled boxes and lines, the name of the judge, the attorneys for defense and the Commonwealth, and the stenographer. Near the judge's name is a signature, presumptively added by the judge after the form was filled out by SMP. Among other information I do not enumerate herein, there appears toward the top of both sheets, written at an angle, the notation "Amended 5/19/06." There is no indication what amendment was made, by whom, or why.
The lead opinion avers "the order states that the sentences of incarceration for Counts 3, 4, 5, 6, 7, 12, 15, 16, and 18 are consecutive to Count 1, period." Opinion Announcing the Judgment of the Court Slip Op., at 13. This is not entirely accurate. What we actually have is the clerk's shorthand on a form. For example, as to count 3, the clerk wrote "ct 3 Aggravated assault by Vehicle while DUI," followed by a small arrow pointing to the right with "F2" printed over the arrow, and "16-32 mo. cons. ct. 1." The other above-mentioned counts are similarly fashioned. Counts 8-11, for which probation was ordered, are individually listed, followed by a brace, "}", which points to "Probation 1 yr cons. to each other * and ct 1." The asterisk apparently would have us go to the second page, where we find "60 days * incarcerations consec to ct 1 (on 1543b2)." Both the asterisk and "consec." appear distinctly above "60 days incarcerations," and the "s" in "incarcerations" has a line through it. A similar joinder by "}" is used by ct 15 and ct 16, again preceded by small arrows and "m2" above the arrows.
Frankly it is hard to interpret all of this with any great degree of confidence, but the interpretation of my colleagues is certainly reasonable. We may make this interpretation because we toil in this vineyard with regularity, but a lay person could no more read from this paper than read the Dead Sea scrolls. Certainly the judge did not speak in symbols, little arrows, asterisks, or "f2" or "m2," and he most certainly did not say "consec," much less "cons. ct 1." This form is undoubtedly useful, but it simply is not a transcription of the sentencing order and cannot realistically purport to be so.
This document, whatever its utility, is not a proper "court order" at all. It certainly is not a document that should supersede the order as pronounced in the courtroom. Whatever the precedential value of cases stating a written order may be given interpretive preference over an oral order, the written document must first be an actual order with some presumption of clarity and completeness. Compare the 2009 order, which is a true Order of Court, not an administrative form full of abbreviated argot. Signed by the judge or not, this was but a bureaucratic certificate containing no more than a well-meaning functionary's patois. Even if its pretense as an order were conceded, this form remains but a faulty memorialization of the actual sentence and does not trump the latter when determining what the order was.
One must suspect the experienced clerk, writing the sentence for "ct 3," added "cons. Ct 1" because at the point the judge announced count 3 was to be "consecutive," that was all there was to be consecutive to. However, repeating the same addition for the subsequent counts was not accurate, as there were multiple consecutive sentences then in existence — thus, the gratuitous reference to count 1 was manifestly erroneous.
There remains the question of ambiguity in what the court actually ordered. Was the pronouncement in court unambiguous such that the error in the transcription thereof is patent and correctable? Is what the judge said capable of multiple interpretations? Of course one could throw up one's hands and claim uncertainty, but a finding of ambiguity must be reasonable, not just theoretically possible. See, e.g., Trizechahn Gateway LLC v. Titus, 976 A.2d 474, 483 (Pa. 2009) (emphasis added) (quoting Insurance Adjustment Bureau, Inc. v. Allstate Insurance Company, 905 A.2d 462, 468-69 (Pa. 2006)) ("'A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.'"); Commonwealth v. Brown, 981 A.2d 893, 900 (Pa. 2009) (emphasis added) (citation omitted) (affirming finding 18 Pa.C.S. § 1106(c)(1)(ii)(C) is "ambiguous, as it could reasonably mean reimbursement directly to the victim or indirectly on the victim's behalf"); Office of the Governor v. Donahue, 59 A.3d 1165, 1168 (Pa. Cmwlth. 2013) (emphasis added) (citation omitted) ("'A statute is ambiguous ... if its language is subject to two or more reasonable interpretations.'"); Brosovic v. Nationwide Mutual Insurance Company, 841 A.2d 1071, 1073 (Pa. Super. 2004) (emphasis added) (citation omitted) ("'An ambiguity exists only when [an insurance] policy provision is reasonably susceptible of more than one meaning.'").
The word "consecutive" refers to starting or continuing after that which came before. Its synonyms include sequential, successive, ensuing, following, in turn, later, etc. It does not refer to only part of what has come before, or successive to some unstated portion of prior events. Saying nothing would mean each challenged sentence would run concurrently, as the defendant would have it, but the judge did not say nothing. By stating it was consecutive, the judge made clear his intention to the contrary. Saying consecutive means following that which came before, which necessarily included the sentences theretofore pronounced, and nothing less. Is it somehow possible to think the judge meant "consecutive but only to count one, and concurrent to all other counts"?
I cannot conclude the consecutive sentence for counts 4, 5, 6, and 7 somehow leap-frogged each other and count 3 so as to be consecutive to count one alone. The lead opinion, in my view, repeats the error of the clerk by establishing count 1 as some powerful base, and intuits that everything subsequent refers to it and it alone. If we can interpret the form's erroneous shorthand and claim we are sure of what it says, period, how do we turn around and say we are unable to determine what the judge meant in a single, clear, and simple word?
There is no magic in count 1, despite the miscalculation made by the clerk and repeated in the syllogism of my colleagues. In my view, the sentencing was not ambiguous. The trial judge methodically proceeded count by count and imposed a sentence of consecutive incarceration on each separate count — he followed each sentence with the word "consecutive," which refers to everything precedent, not just a portion of it selected in order to find ambiguity. The error on the form may have created a conflict, but the judge's order cannot be made retroactively ambiguous by the clerk.
The trial judge grouped the probationary sentences together, rather than stating each individually as he had done with the sentences of incarceration. This does not introduce notions of "negative implication" as my colleagues suggest, for he was referring to multiple counts at once, not speaking individually as he did with the counts at issue. That he logically stated those sentences were "consecutive to each other" was simply the product of treating them simultaneously rather than individually.
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I find no ambiguity in the sentence, and insofar as the gratuitous addition by the clerk on the form is somehow deemed to create one, it is a clear, patent, and obvious error which the trial judge was empowered to correct. Accordingly, I would reverse the Superior Court's decision, and respectfully dissent.
Mr. Chief Justice Castille and Mr. Justice Stevens join this dissenting opinion.