Com. v. Grebb, M.

• Court: Superior Court of Pennsylvania
• Decided: December 13, 2016
• Docket: 3330 EDA 2015
• Status: Unpublished

Opinion

J-A27020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MATTHEW BRIAN GREBB

Appellant No. 3330 EDA 2015

Appeal from the Judgment of Sentence March 18, 2014 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000764-2007

BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 13, 2016

Matthew Brian Grebb appeals nunc pro tunc1 from the judgment of

sentence, entered in the Court of Common Pleas of Monroe County, after his

probation was revoked and he was re-sentenced in two cases to consecutive

sentences of two to four years’ incarceration. After careful review, we

affirm.

In 2007, Grebb was charged in eleven cases with multiple counts of

arson in connection with numerous fires being set in fields, private homes,

and a business over a four-year span in Monroe County. On November 16,

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* Former Justice specially assigned to the Superior Court. 1 Grebb’s appeal rights were reinstated after he filed a successful Post Conviction Relief Act (PCRA) petition alleging counsel was ineffective for failing to preserve the parole revocation/jurisdiction issue in a timely appeal. J-A27020-16

2007, Grebb pled guilty to one count each of arson in four separate cases.

He was sentenced on February 19, 2008, to two consecutive terms of

incarceration of 2½-5 years, less one day (756-CR & 758-CR); 5 years of

probation (759-CR) to run concurrent to 765 and 758 CR; and five years of

probation (764-CR) to run consecutive to the sentences imposed in each of

the other cases.

In September 2013, when Grebb was serving the first of his two

probation terms on 759-CR, he was arrested and charged with Driving Under

the Influence (DUI) and related offenses (“DUI case”). The Commonwealth

filed petitions alleging that Grebb violated probation in each case, 759-CR

and 764-CR. After a hearing, Grebb’s probation in both cases was revoked

and resentencing was deferred until sentencing in the DUI case. On March

18, 2014, Grebb was resentenced on both probation cases to consecutive

standard-range sentences of 2-4 years’ incarceration. Grebb filed a motion

for reconsideration which was denied by the trial court on March 31, 2014.

Grebb filed an untimely appeal that was quashed by our Court. See

Commonwealth v. Grebb, 1350 EDA 2014 (filed Aug. 4, 2014).

On March 13, 2015, Grebb filed a PCRA petition alleging

ineffectiveness of counsel for failing to preserve his issues on appeal. The

court granted Grebb’s petition and reinstated his direct appeal rights. This

timely appeal follows in which Grebb raises the following issues for our

consideration:

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(1) Does the Judicial Code divest a trial court of jurisdiction to further sentence a defendant where more than 30 days have passed from the original sentencing order and no explicit statutory authority exists rekindling trial court jurisdiction?

(2) In the absence of rekindled jurisdiction, does statutory and constitutional double jeopardy bar a trial court from further sentencing a defendant who has already been sentenced in the same case more than five years before?

Grebb claims that, pursuant to 42 Pa.C.S. § 5505,2 a trial court has

only 30 days to modify a sentencing order and that because Grebb’s

probation revocation sentence was imposed beyond this time limit, the trial

court was divested of jurisdiction to sentence him. We disagree.

While section 5505 does set a 30-day jurisdictional limit for trial courts

to modify sentences, in the instant case the trial court was not “modifying”

Grebb’s sentence. Rather, it was imposing a new sentence or resentencing

Grebb on his original probationary sentence when it revoked his probation

and imposed the current sentence. See 42 Pa.C.S. § 9771 (b) (“The court

may revoke an order of probation upon proof of the violation of specified

conditions of the probation. Upon revocation the sentencing alternatives to ____________________________________________

2 See 42 Pa.C.S. § 5505 (Modification of orders):

Except as otherwise provided or prescribed 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.

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the court shall be the same as were available at the time of initial

sentencing[.]”) (emphasis added); Commonwealth v. Holmes, 933 A.2d

57, 59 n.5 (Pa. 2004) (“A court faced with a violation of probation may

impose a new sentence so long as it is within the sentencing alternatives

available at the time of the original sentence.”) (emphasis added).

Therefore, section 5505 is not applicable; the court had jurisdiction to re-

sentence Grebb upon revocation of his probation.

In addition, we note that in Commonwealth v. Ware, 737 A.2d 251

(Pa. Super. 1999), our Court reiterated a well-established principle regarding

revocation of probation:

If, at any time before a defendant has completed the maximum period of probation, or before he has begun service of his probation, he should commit offenses of such nature as to demonstrate to the court that he is unworthy of probation and that the granting of the same would not be in subservience to the ends of justice and the best interests of the public, or a defendant, the court can revoke or change the order of probation. A defendant on probation has no contract with the court. He is still a person convicted of crime, and the expressed intent of the Court to have him under probation beginning at a future time does not “change his position from the possession of a privilege to the enjoyment of a right.”

Id. at 253-54 (emphasis in original) (citations omitted). This Court has also

stated that:

[A term of probation] may and should be construed for revocation purposes as including the term beginning at the time probation is granted. Otherwise, having been granted probation a defendant could commit criminal acts with impunity - as far as revocation of probation is concerned - until he commenced actual service of the probationary period.

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Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980)

(citing Wright v. United States, 315 A.2d 839, 941-42 (D.C. App. 1974)).

See Commonwealth v. Allshouse, 33 A.3d 31 (Pa. Super. 2011).

Therefore, under Wendowski and Allshouse, the court properly

resentenced Grebb on 759-CR and 764-CR despite the fact that he had only

begun serving one of his two probationary sentences at the time he

committed his violation.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/13/2016

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