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HomeMy WebLinkAboutCP-21-CR-1376/1611-1993COMMONWEALTH ISAAC NEWTON YOUNG, JR., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CHARGES: (A) INDECENT EXPOSURE (Six Counts) : No. 93-1376 CRIMINAL TERM COMMONWEALTH ISAAC NEWTON YOUNG, JR., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CHARGES: (B) OPEN LEWDNESS (Three Counts) : No. 93-1611 CRIMINAL TERM IN RE: DEFENDANT'S MOTION TO MODIFY SENTENCE NUNC PRO TUNC BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., February 6, 2004. For disposition in this criminal case is Defendant's motion to modify sentence nunc pro tunc. The motion arises out of Defendant's discovery that the court's attempt to make the sentences concurrent in the above-captioned cases, as recommended by the Commonwealth as part of Defendant's plea bargain, has proven ineffectual. A hearing on Defendant's motion was held on October 8, 2003, and December 31, 2003. Based upon the evidence presented at the hearing, Defendant's motion will be granted to the extent that his sentence at No. 93-1376 Criminal Term will be changed by one day. STATEMENT OF FACTS Defendant is Isaac Newton Young, Jr.,1 a 73-year-old2 inmate at the Camp Hill State Correctional Institution in Cumberland County, Pennsylvania.3 He has been at a state prison since December of 19944 serving back time for a parole violation arising out of his indecent exposure and open lewdness offenses in the above-captioned cases.5 According to the state parole board, four years remain on his back time.6 On August 30, 1994, Defendant entered pleas of guilty to six counts of indecent exposure, all misdemeanors of the second degree, at No. 1376 Criminal Term 1993, and three counts of open lewdness, at No. 1611 Criminal Term, 1993, all misdemeanors of the third degree.7 Commonwealth recommended that the concurrently with each other,a In accordance with the Commonwealth's As part of the negotiated pleas, the sentences for all of the offenses run recommendation, the court sentenced Defendant to concurrent terms of imprisonment (of not less than eight months nor more than twenty-four months on the indecent exposure counts and not less than three months nor more than twelve months on the open lewdness counts).9 Regrettably, since the former were state sentences and the latter were (of N.T. 4, Hearing (October 8, 2003). N.T. 12, Hearing (October 8, 2003). N.T. 4, Hearing (October 8, 2003). N.T. 10, Hearing (October 8, 2003). N.T. 10, Hearing (October 8, 2003). N.T. 9, Hearing (October 8, 2003). Order of Court, August 30, 1994. N.T. 2, Guilty Plea Colloquy, August 30, 1994. Order of Court, December 13, 1994. The sentencing order read as follows: AND NOW, this 13th day of December, 1994, the Defendant, Isaac Newton Young, Jr., now appearing in court for sentence with his court- appointed counsel, Darrell C. Delthefs, Esquire, and having previously 2 necessity, given the grading) county sentences, the concurrency upon which Defendant's pleas were predicated has been frustrated, l0 Specifically, where a state parolee is subject to a new sentence, and is revoked on the original state sentence, the new sentence is to precede his or her back time if the new sentence is a county sentence and is to follow his or her back time if the new sentence is a state sentence. See Act of August 6, 1941, P.L. 861, §21.1, as amended, 61 P.S. 331.21a. It is apparent that the anomaly created by this rule in Defendant's case, resulting in consecutive sentences in the above- captioned cases where concurrent sentences were recommended and imposed, was not contemplated by either counsel or the court at the time of sentencing. ~ ~ entered pleas of guilty to three counts of Open Lewdness, all misdemeanors of the third degree, and six counts of Indecent Exposure, all misdemeanors of the second degree, and the Court being in receipt of a presentence investigation report upon which it relies, the sentence of the Court is as follows: At No. 1376 Criminal 1993 (6 counts of Indecent Exposure), the Defendant is sentenced to pay the costs of prosecution and undergo imprisonment in a state correctional institution for a period of not less than eight months nor more than twenty-four months on each count, with the sentence on each count to run concurrent with the sentence on the other counts. At No. 1611 Criminal 1993 (3 counts of Open Lewdness), Defendant is sentenced to pay thc costs of prosecution and undergo imprisonment in thc Cumberland County Prison for a period of not less that three months nor more than twelve months, with thc sentences imposed on these counts to run concurrently with each other. It is recommended that thc Defendant be offered thc opportunity to participate in a sexual offenders' program and that he successfully complete thc program. Thc sentences imposed herein at No. 1376 Criminal 1993 and No. 1611 Criminal 1993 shall run concurrently with each other. Thc Cumberland County Sheriff is directed to transport thc Defendant to thc appropriate state correctional institution. N.T. 10-12, Hearing (October 8, 2003). See, e.g., N.T. 18, Hearing, December 31, 2003 (testimony of Defendant's counsel that he perceived no basis upon which motion for modification of sentence could reasonably be based). 3 DISCUSSION Although generally a sentencing court will not retain jurisdiction to correct a sentence beyond thirty days after its entry, "where [a] mistake is patent and obvious, the court has the power to correct it even though the 30-day appeal period has expired." Commomvea/th v. Walters, 2002 PA Super. 408, ¶7, 814 A.2d 253, 256 (2002). It is also well-established that where a showing of fraud or another circumstance "so grave or compelling as to constitute extraordinary causes justifying intervention by the court, then a court may open or vacate its order after the 30-day period has expired. In the present case, involving a 73-year-old inmate, the mistaken assumption of the sentencing order that concurrent sentences for the misdemeanor offenses pled to were being imposed in accordance with the Commonwealth's recommendation and the predicate of Defendant's plea can be corrected by a modification of the sentences for indecent exposure by one day. The court is of the view that the unique circumstances of the case present a situation, under the principle recited above, in which the sentence should be corrected. For the foregoing reasons, the following order is entered: ORDER OF COURT AND NOW, this 6th day of February, 2004, upon consideration of Defendant's motion to modify sentence nunc pro tunc, following a hearing held on October 8, 2003, and December 31, 2003, and for the reasons stated in the accompanying opinion, the last sentence of the sentencing order of court dated December 13, 1994, is deleted and the second paragraph of the order is amended to read as follows: At No. 1376 Criminal 1993 (6 counts of Indecent Exposure), the Defendant is sentenced to pay the costs of prosecution and undergo imprisonment in the Cumberland County Prison for a period of not less than eight months nor 4 more than twenty-four months less one day on each count, with the sentence on each count to run concurrent with the sentence on the other counts. BY THE COURT, Geoffrey S. Mclnroy, Esq. Assistant District Attorney Isaac Newton Young, Jr., AY-1837 P.O. Box 200 Camp Hill, PA 17001-0200 Defendant, Pro Se s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 5 6 COMMONWEALTH Vo ISAAC NEWTON YOUNG, JR., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CHARGES: (A) INDECENT EXPOSURE (Six Counts) : No. 93-1376 CRIMINAL TERM COMMONWEALTH Vo ISAAC NEWTON YOUNG, JR., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CHARGES: (B) OPEN LEWDNESS (Three Counts) : No. 93-1611 CRIMINAL TERM IN RE: DEFENDANT'S MOTION TO MODIFY SENTENCE NUNC PRO TUNC BEFORE OLER, J. ORDER OF COURT AND NOW, this 6th day of February, 2004, upon consideration of Defendant's motion to modify sentence nunc pro tunc, following a hearing held on October 8, 2003, and December 31, 2003, and for the reasons stated in the accompanying opinion, the last sentence of the sentencing order of court dated December 13, 1994, is deleted and the second paragraph of the order is amended to read as follows: At No. 1376 Criminal 1993 (6 counts of Indecent Exposure), the Defendant is sentenced to pay the costs of prosecution and undergo imprisonment in the Cumberland County Prison for a period of not less than eight months nor more than twenty-four months less one day on each count, with the sentence on each count to run concurrent with the sentence on the other counts. 8 Geoffrey S. Mclnroy, Esq. Assistant District Attorney Isaac Newton Young, Jr., AY-1837 P.O. Box 200 Camp Hill, PA 17001-0200 Defendant, Pro Se BY THE COURT, J. Wesley Oler, Jr., J.