Com. v. Harden, R.

• Court: Superior Court of Pennsylvania
• Decided: August 13, 2021
• Docket: 2147 EDA 2020
• Status: Unpublished

Opinion

J-S21034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : REGINALD HARDEN : : Appellant : No. 2147 EDA 2020

Appeal from the Judgment of Sentence Entered July 3, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009070-2008

BEFORE: BOWES, J., OLSON, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED AUGUST 13, 2021

Reginald Harden appeals nunc pro tunc from the judgment of sentence

imposed following probation revocation. On appeal, Harden challenges the

legality of his sentence, specifically contending that the sentencing court

imposed a new revocation sentence on a conviction for which he had already

served a full imprisonment term.1 While the sentencing court and the

Commonwealth agree that Harden has been illegally sentenced, Harden

disagrees with the legal effect of that determination and accordingly seeks his

immediate release. After thorough review, we disagree with Harden’s

suggestion that he is immune from either further sentencing or future

proceedings. As such, we vacate his sentence and remand for resentencing. ____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 The at-issue prior conviction and corresponding sentence contained no subsequent probation tail. J-S21034-21

In summary, following a non-jury trial, Harden was found guilty of

having violated three provisions of the Uniform Firearms Act. See 18 Pa.C.S.A.

§§ 6101-6128.2 For these offenses, Harden was sentenced to: (1) three and

one-half to seven years of incarceration for his Section 6105 violation; (2) a

subsequent five-year probation term for his Section 6106 violation; and (3)

no further penalty on the Section 6108 conviction. After sentencing and

without having filed a direct appeal, Harden completed his entire

imprisonment term.

While on probation, the court found that Harden “had absconded from

state supervised probation for four (4) years,” Trial Court Opinion, 1/15/21,

at 1 n.2, which was an inherent violation of his probation’s conditions.

Resultantly, the court revoked his probation and imposed a sentence of one

and one-half to three years of incarceration. However, the court erroneously

imposed a sentence at his fully served Section 6105 offense rather than his

Section 6106 violation, the conviction that carried the probation term. Harden

did not appeal from this revocation sentence.

Eventually, Harden filed a timely petition pursuant to the Post Conviction

Relief Act (“PCRA”), see 42 Pa.C.S.A. §§ 9541-9546, seeking restoration of

his direct appeal rights nunc pro tunc from his new sentence. Ultimately, PCRA

relief was granted, and Harden filed this timely appeal. To that end, the ____________________________________________

2 Harden was found guilty of possessing a firearm by a prohibited person, see

18 Pa.C.S.A. § 6105, carrying a firearm without a license, see 18 Pa.C.S.A. § 6106, and carrying a firearm on a public street or public property in Philadelphia, see 18 Pa.C.S.A. § 6108.

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relevant parties have complied with their respective dictates under Pa.R.A.P.

1925, and this case is ripe for disposition.

On appeal, Harden asserts that the sentencing court imposed an illegal

sentence by assigning a subsequent sentence to an offense with an already

fully completed term.3 In response, even though the sentencing court and the

Commonwealth facially agree with Harden’s proposition, their sought-after

resolution to his illegal sentence varies vastly from the relief Harden

specifically seeks. While the sentencing court and Commonwealth desire a

remand and resentencing, Harden believes the sentencing court’s error should

result in his release without any further proceedings.

As best can be gleaned from his brief, which is devoid of any case

authority, Harden avers that since the court did not have jurisdiction to impose

a further sentence for his Section 6105 conviction, his sentence should be

vacated. Correspondingly, “Harden should be released. There should not be a

new sentence on the other two convictions.” Appellant’s Brief, at 7-8.

A challenge to the legality of a sentence involves resolving the question

of whether a court has the fundamental legal authority to impose such a

sentence. See Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super.

2013). “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction. An illegal sentence must be

vacated.” Id. (citation omitted) (emphasis added). Simply put, if a court goes ____________________________________________

3 Harden does not challenge any aspect of the probation revocation hearings

or the court’s adjudication of him having violated his probation.

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beyond its authorization and imposes an illegal sentence, it “should be

remanded for correction.” Id. (citation omitted).

What Harden asks this Court to do is give him a “free pass” on his

undisputed probation violation and release him from any further proceedings

due to, what appears to be, either a misunderstanding or a clerical error from

the sentencing court. However, Harden does not contest that when his

probation was revoked, he could have been lawfully resentenced under his

Section 6106 conviction. After all, it was the Section 6106 conviction that

received the probationary sentence, and it was the only outstanding

component of the initial sentencing scheme.

Accordingly, while all parties agree that the sentencing court entered an

illegal sentence, that court maintains its “inherent power to rectify the error.”

Commonwealth v. Pastorkovic, 567 A.2d 1089, 1092 (Pa. Super. 1989).

Harden offers nothing to contradict the sentencing court’s power to resentence

him for the offense of carrying a firearm without a license. Therefore, this case

is to be remanded for the sentencing court to impose a new sentence under

Section 6106.4

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

____________________________________________

4 Given that Harden’s incarceration term on his Section 6105 offense had concluded and that he received no further penalty on his Section 6108 conviction, the sentencing court, upon remand, may only resentence him for the Section 6106 offense. See Commonwealth v. Williams, 997 A.2d 1205, 1210 (Pa. Super. 2010).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/13/2021

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