Com. v. Gunter, C.

Opinion

J-A06025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLARENCE LEE GUNTER : : Appellant : No. 1039 WDA 2021

Appeal from the Judgment of Sentence Entered August 3, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000288-2010

BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*

JUDGMENT ORDER BY SULLIVAN, J.: FILED: MARCH 18, 2022

Clarence Lee Gunter (“Gunter”) appeals from the judgment of sentence

imposed following an anticipatory probation revocation. We vacate the

judgment of sentence and remand for further proceedings.

In August 2010, Gunter pleaded guilty to, among other things, sexual

assault and felony criminal trespass.1 The trial court immediately sentenced

him to five to ten years of imprisonment for sexual assault followed by seven

years of probation for criminal trespass. In September 2019, Gunter

committed a robbery for which he was subsequently convicted. At the time

of the robbery, Gunter was still serving his five-to-ten-year sentence for

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 3124.1, 3503(a)(1)(i). J-A06025-22

sexual assault and had not yet begun serving his probationary sentence for

criminal trespass.2 In August 2021, as a result of the robbery conviction, the

trial court conducted a violation of probation (“VOP”) hearing relating to

Gunter’s 2010 conviction. The VOP court revoked his probation for criminal

trespass and resentenced him to ten to twenty months of incarceration

followed by three years of probation.

Approximately two weeks after the VOP court resentenced Gunter, this

Court entered its en banc decision in Commonwealth v. Simmons, 262 A.3d

512 (Pa. Super. 2021).3 In Simmons, this Court held that a VOP court may

not revoke probation when a defendant commits a new crime after sentencing

but before a probationary period has begun. See id. at 524-25, 527 (holding

that a sentence imposed following an anticipatory probation revocation is an

illegal sentence). In so ruling, this Court overruled prior precedent permitting

anticipatory probation revocations. See, e.g., Commonwealth v.

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

2 Gunter’s sentence for sexual assault was imposed on August 26, 2010; however, he received credit for time served from December 16, 2009, to August 26, 2010. Thus, Gunter’s parole did not expire until December 16, 2019.

3 We note that our Supreme Court will be reviewing this Court’s decision in Simmons in relation to its grant of allowance of appeal in Commonwealth v. Rosario, No. 298 WAL 2021, No. 299 WAL 2021, No. 300 WAL 2021 (Pa. Jan. 25, 2022). Nevertheless, the Simmons decision is binding until our Supreme Court rules on the issue. See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).

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Gunter argues, pursuant to Simmons, that his VOP sentence is illegal.

At the time he committed the robbery in September 2019, he was still serving

his five-to-ten-year sentence for sexual assault and had not yet begun to

serve his probationary sentence for criminal trespass. See Simmons, 262

A.2d at 515 n.3 (holding that challenges to illegal sentences cannot be waived

and may be raised for the first time on appeal).

In light of Simmons, both parties agree that the VOP sentence imposed

following the anticipatory revocation of Gunter’s probationary sentence was

illegal, and that the case should be remanded for resentencing.4

Based on our review, we agree that the VOP court anticipatorily revoked

Gunter’s probation and imposed an illegal sentence. Thus, we vacate the

judgment of sentence and remand to the VOP court to resentence Gunter

consistent with Simmons and this decision.

Judgment of sentence vacated. Case remanded for further proceedings

consistent with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/18/2022

4The trial court recognizes that this is an illegal sentence in light of Simmons. See Trial Court Opinion, 10/13/21, at 2-3.

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