Com. v. Dearie, G.

• Court: Superior Court of Pennsylvania
• Decided: December 4, 2014
• Docket: 1110 EDA 2014
• Status: Unpublished

Opinion

J-S69045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

GERALD F. DEARIE

Appellant No. 1110 EDA 2014

Appeal from the Judgment of Sentence entered March 5, 2014 In the Court of Common Pleas of Delaware County Criminal Division at No: CP-23-CR-0005678-2009

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

JUDGMENT ORDER BY STABILE, J.: FILED DECEMBER 04, 2014

In 2009, Appellant, Gerald F. Dearie, was sentenced to 10 to 23

months in jail followed by 36 months of probation for robbery.1 After his jail

sentence expired, Appellant violated his probation. Even though he had

served his entire, original period of incarceration, the trial court recommitted

Appellant to serve back time for supposedly violating his parole.2 Appellant

argues, the Commonwealth agrees, and the trial court admits, that the

sentence is illegal. Therefore, we vacate and remand for resentencing.

____________________________________________

1 18 Pa.C.S.A. § 3701. 2 The trial court also revoked Appellant’s probation and imposed a new sentence of 12 to 36 months in prison. J-S69045-14

“If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.” Commonwealth v. Jurczak,

86 A.3d 265, 267 (Pa. Super. 2014). A court sitting as a parole authority

may only recommit the parole violator to serve the remainder of his

sentence, and cannot impose a new sentence. Commonwealth v.

Galletta, 864 A.2d 532, 538 (Pa. Super. 2004); see 42 Pa.C.S.A.

§ 9776(e). It follows that a court cannot recommit an offender to serve an

already-served sentence.

Here, Appellant’s violation occurred after his jail sentence expired. He

could not have violated parole from a sentence that he already served.

Recognizing its error, the trial court requests this Court to vacate Appellant’s

sentence. The Commonwealth joins in that request. The trial court also

asks that we remand for resentencing, averring that vacating the parole-

violation sentence will disturb its sentencing scheme. See, e.g.,

Commonwealth v. Serrano, 61 A.3d 279, 287-88 (Pa. Super. 2013)

(noting remand is required if partially vacating a sentence upsets the trial

court’s sentencing scheme). As the trial court’s request is unopposed, we

vacate and remand for resentencing.

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

-2- J-S69045-14

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/4/2014

-3-