Commonwealth of Pennsylvania v. Rohrer11/9/1998
Appellant, William Rohrer, Jr., appeals from the March 16, 1998 Order of the Lancaster County Court of Common Pleas which modified his 6 to 23 month sentence by imposing restitution. For the reasons set forth below, we reverse.
Appellant was arrested after he drove a stolen vehicle over an embankment to avoid pursuing police, and then attempted to flee on foot. When apprehended, Appellant smelled of alcohol and failed field sobriety tests; he refused submission to breathalyzer analysis. On November 11, 1997, he entered an open plea to driving under the influence , receiving stolen property, fleeing and eluding the police, and various summary offenses. On the same day, Appellant was sentenced to three concurrent terms of 6 to 23 months imprisonment in addition to a $300 fine and other costs. The issue of restitution was not raised by any party at the time of sentencing. Appellant's sentence was amended three days later on November 14, 1997 to include a provision which allowed Appellant to be paroled without petition on the condition that all fines and costs are paid prior to his release.
Three and a half months later, on February 27, 1998, the Commonwealth filed a Motion to Amend Sentence, requesting that the court amend Appellant's sentence to include an order of restitution in the amount of $2455.60; this amount reflects an estimate of the damage sustained by the victim's vehicle when Appellant drove it over the embankment. Appellant responded, arguing that the motion was untimely, and, therefore, the court was without jurisdiction to amend his sentence. We agree.
According to Rule of Criminal Procedure 1410, " written post-sentence motion to reconsider sentence must be filed no later than ten days after imposition of sentence . . . . `The failure to do so waives any complaint concerning sentence that does not involve the lawfulness of the sentence itself.'" Commonwealth v. Magnum, 654 A.2d 1146, 1148 (Pa. Super. 1995)(quoting Commonwealth v. Koziel, 432 A.2d 1031 (Pa. Super. 1981)).
Notwithstanding the procedures outlined in Rule 1410, a court may, sua sponte, modify or rescind a prior order pursuant to section 5505 of the Judicial Code:
"Except as otherwise provided or proscribed 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.A. § 5505.
Once this 30-day period has expired, however, the trial court is without jurisdiction to alter or modify its order. Commonwealth v. Smith, 678 A.2d 1206, 1208 (Pa. Super. 1996). We note, however, that the time constraint imposed by section 5505 does not affect the inherent powers of the court to modify a sentence in order to "amend records, to correct mistakes of court officers or counsel's inadvertancies, or to supply defects or omissions in the record. . . ." Commonwealth v. Quinlan, 639 A.2d 1235, 1239 (Pa. Super. 1994). Therefore, where the mistake is patent and obvious, the court has the power to correct it even though the 30-day appeal period has expired. Commonwealth v. Wesley, 688 A.2d 201, 203 (Pa. Super. 1997).
In the instant matter, the Commonwealth claims that pursuant to Crimes Code section 1106(c), restitution is mandatory in cases such as this involving property damage. Therefore, it is argued, the court's failure to impose restitution at the time of sentencing rendered Appellant's sentence illegal; this is so despite the Commonwealth's failure to request an order of restitution at the sentencing hearing. The Commonwealth contends, however, that the court through its March 16, 1997 modifi
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