J-S94036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.
WALTER MARTIN HEINBACH
Appellant No. 1145 MDA 2016
Appeal from the Judgment of Sentence April 27, 2016 in the Court of Common Pleas of Wyoming County Criminal Division at No(s): CP-66-CR-0000479-2013
BEFORE: LAZARUS, RANSOM, AND FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 04, 2017
Appellant, Walter Martin Heinbach, appeals from the judgment of
sentence entered in the Wyoming County Court of Common Pleas after the
trial court purported to revoke his state intermediate punishment (“SIP”).
Appellant claims he is entitled to discharge because the trial court erred in
failing to hold a revocation hearing, the court’s new sentence violated double
jeopardy, and the court improperly calculated credit for time served. We
vacate the judgment of sentence and remand for further proceedings.
A summary of the facts underlying Appellant’s conviction is
unnecessary to this appeal. Appellant pleaded guilty to possession of a
prohibited offensive weapon and driving under the influence on April 4,
* Former Justice specially assigned to the Superior Court. J-S94036-16
2014. On October 3, 2014, the trial court sentenced him to serve twenty-
four months’ SIP, with 189 days’ credit for time served.
On April 13, 2016, the SIP program administrator authored a letter
informing Appellant that he was “expelled due to [his] Lack of Meaningful
Participation in the program.” Letter, Terri A. Sommers to Appellant,
4/13/16. The administrator stated Appellant “returned to substance use
several times while in SIP” and most recently failed a breathalyzer test on
March 19, 2016. Id. The administrator informed the trial court of
Appellant’s expulsion and requested resentencing before Appellant’s
maximum release date of April 29, 2016. Letter, Terri A. Somers to
President Judge Russell Shurtleff, 4/13/16.
On April 27, 2016, the trial court convened a hearing at which counsel
for the Commonwealth and Appellant were present. Appellant participated
by videoconferencing. The court stated that it was notified of Appellant’s
expulsion and that a presentence investigation report was completed. The
court heard arguments on sentencing, as well as a statement by Appellant.
The court sentenced Appellant to an aggregate nineteen to sixty-six months’
imprisonment with 403 days’ credit for time served. This timely appeal
followed.
Appellant presents the three questions for review, which we have
reordered as follows:
Did the [trial] court’s failure to hold a revocation hearing, in accordance with 42 Pa.C.S.[ ] § 9774(b) constitute an
-2- J-S94036-16
error of law such that it deprived [Appellant] of due process of law?
Upon resentencing [Appellant], did the [trial] court’s failure to vacate the original sentence implicate the protections against double jeopardy such that the resentencing orders are void ab initio?
Did the [trial] court commit an error of law when it failed to properly calculate [Appellant’s] time served credit?
Appellant’s Brief at vii.
Appellant first argues that the trial court erred in failing to conduct a
revocation hearing. The Commonwealth agrees. Our review reveals that
relief is due.
Section 9774 of the Judicial Codes provides:
(a) General rule.—The court may at any time terminate a sentence of State intermediate punishment pursuant to 61 Pa.C.S. Ch. 41 (relating to State intermediate punishment).
(b) Revocation.—The court shall revoke a sentence of State intermediate punishment if after a hearing it determines that the participant was expelled from or failed to complete the program.
(c) Proceedings upon revocation.—Upon revocation of a State intermediate punishment sentence, the sentencing alternatives available to the court shall be the same as the alternatives available at the time of initial sentencing. The attorney for the Commonwealth must file notice, at any time prior to resentencing, of the Commonwealth’s intention to proceed under an applicable provision.
42 Pa.C.S. § 9774. Additionally, Pennsylvania Rule of Criminal Procedure
708 provides, in relevant part:
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Whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been:
(1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and
(2) a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole.
Pa.R.Crim.P. 708(B).
This Court has recognized that “expulsion and revocation are separate
and distinct by statute.” Commonwealth v. Kuykendall, 2 A.3d 559, 562
(Pa. Super. 2010) (citation omitted). The Pennsylvania Department of
Corrections is vested with the authority to expel a defendant from a SIP
program. Id. However, it is for a court to revoke the underlying sentence.
Id. In the context of probation, the failure to hold a revocation hearing
requires the vacation of the new sentence and a remand so that a hearing
may be held. Commonwealth v. Harrison, 398 A.2d 1057, 1059 (Pa.
Super. 1979).
Instantly, the trial court proceeded immediately to resentencing
without conducting a revocation hearing or entering a “finding of record that
the defendant violated a condition of . . . intermediate punishment.” See
Pa.R.Crim.P. 708(b). Therefore, we must vacate the new sentence and
remand for a hearing. See Harrison, 398 A.2d at 1059.
Appellant, in his next two arguments, challenges the legality of his
sentence under double jeopardy principles and the failure to award credit for
-4- J-S94036-16
time served. See Kuykendall, 2 A.3d at 563; Commonwealth v.
Heredia, 97 A.3d 392, 395 (Pa. Super. 2014). He claims that because the
trial court did not revoke or vacate the prior SIP sentence, the instant
sentencing order constitutes a second punishment for the same offense and
must be stricken. Appellant’s Brief at 4-5. He further contends that because
the prior SIP sentence expired on April 29, 2015, he is now entitled to
discharge. Id. at 5-6. Appellant also claims the trial court did not explain
the discrepancy between the 189 days’ credit, relating back to April 29,
2014, awarded at the initial sentencing proceeding, and the 403 days’ credit,
relating back to August 27, 2015. Id. at 6. We conclude that these issues
are either meritless or moot.
In Kuykendall, this Court observed:
Once the sentencing court determined that Appellant had not successfully completed the SIP program, by law it was required to revoke the SIP sentence. 42 Pa.C.S. § 9774(b). Additionally, much like a probation revocation, the court had the same sentencing alternatives available to it as it had at the time of the original sentence. 42 Pa.C.S. § 9774(c). We have consistently held that a revocation of probation does not violate double jeopardy.
Kuykendall, 2 A.3d at 564 (some citations omitted). The “SIP sentence
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J-S94036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.
WALTER MARTIN HEINBACH
Appellant No. 1145 MDA 2016
Appeal from the Judgment of Sentence April 27, 2016 in the Court of Common Pleas of Wyoming County Criminal Division at No(s): CP-66-CR-0000479-2013
BEFORE: LAZARUS, RANSOM, AND FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 04, 2017
Appellant, Walter Martin Heinbach, appeals from the judgment of
sentence entered in the Wyoming County Court of Common Pleas after the
trial court purported to revoke his state intermediate punishment (“SIP”).
Appellant claims he is entitled to discharge because the trial court erred in
failing to hold a revocation hearing, the court’s new sentence violated double
jeopardy, and the court improperly calculated credit for time served. We
vacate the judgment of sentence and remand for further proceedings.
A summary of the facts underlying Appellant’s conviction is
unnecessary to this appeal. Appellant pleaded guilty to possession of a
prohibited offensive weapon and driving under the influence on April 4,
* Former Justice specially assigned to the Superior Court. J-S94036-16
2014. On October 3, 2014, the trial court sentenced him to serve twenty-
four months’ SIP, with 189 days’ credit for time served.
On April 13, 2016, the SIP program administrator authored a letter
informing Appellant that he was “expelled due to [his] Lack of Meaningful
Participation in the program.” Letter, Terri A. Sommers to Appellant,
4/13/16. The administrator stated Appellant “returned to substance use
several times while in SIP” and most recently failed a breathalyzer test on
March 19, 2016. Id. The administrator informed the trial court of
Appellant’s expulsion and requested resentencing before Appellant’s
maximum release date of April 29, 2016. Letter, Terri A. Somers to
President Judge Russell Shurtleff, 4/13/16.
On April 27, 2016, the trial court convened a hearing at which counsel
for the Commonwealth and Appellant were present. Appellant participated
by videoconferencing. The court stated that it was notified of Appellant’s
expulsion and that a presentence investigation report was completed. The
court heard arguments on sentencing, as well as a statement by Appellant.
The court sentenced Appellant to an aggregate nineteen to sixty-six months’
imprisonment with 403 days’ credit for time served. This timely appeal
followed.
Appellant presents the three questions for review, which we have
reordered as follows:
Did the [trial] court’s failure to hold a revocation hearing, in accordance with 42 Pa.C.S.[ ] § 9774(b) constitute an
-2- J-S94036-16
error of law such that it deprived [Appellant] of due process of law?
Upon resentencing [Appellant], did the [trial] court’s failure to vacate the original sentence implicate the protections against double jeopardy such that the resentencing orders are void ab initio?
Did the [trial] court commit an error of law when it failed to properly calculate [Appellant’s] time served credit?
Appellant’s Brief at vii.
Appellant first argues that the trial court erred in failing to conduct a
revocation hearing. The Commonwealth agrees. Our review reveals that
relief is due.
Section 9774 of the Judicial Codes provides:
(a) General rule.—The court may at any time terminate a sentence of State intermediate punishment pursuant to 61 Pa.C.S. Ch. 41 (relating to State intermediate punishment).
(b) Revocation.—The court shall revoke a sentence of State intermediate punishment if after a hearing it determines that the participant was expelled from or failed to complete the program.
(c) Proceedings upon revocation.—Upon revocation of a State intermediate punishment sentence, the sentencing alternatives available to the court shall be the same as the alternatives available at the time of initial sentencing. The attorney for the Commonwealth must file notice, at any time prior to resentencing, of the Commonwealth’s intention to proceed under an applicable provision.
42 Pa.C.S. § 9774. Additionally, Pennsylvania Rule of Criminal Procedure
708 provides, in relevant part:
-3- J-S94036-16
Whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been:
(1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and
(2) a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole.
Pa.R.Crim.P. 708(B).
This Court has recognized that “expulsion and revocation are separate
and distinct by statute.” Commonwealth v. Kuykendall, 2 A.3d 559, 562
(Pa. Super. 2010) (citation omitted). The Pennsylvania Department of
Corrections is vested with the authority to expel a defendant from a SIP
program. Id. However, it is for a court to revoke the underlying sentence.
Id. In the context of probation, the failure to hold a revocation hearing
requires the vacation of the new sentence and a remand so that a hearing
may be held. Commonwealth v. Harrison, 398 A.2d 1057, 1059 (Pa.
Super. 1979).
Instantly, the trial court proceeded immediately to resentencing
without conducting a revocation hearing or entering a “finding of record that
the defendant violated a condition of . . . intermediate punishment.” See
Pa.R.Crim.P. 708(b). Therefore, we must vacate the new sentence and
remand for a hearing. See Harrison, 398 A.2d at 1059.
Appellant, in his next two arguments, challenges the legality of his
sentence under double jeopardy principles and the failure to award credit for
-4- J-S94036-16
time served. See Kuykendall, 2 A.3d at 563; Commonwealth v.
Heredia, 97 A.3d 392, 395 (Pa. Super. 2014). He claims that because the
trial court did not revoke or vacate the prior SIP sentence, the instant
sentencing order constitutes a second punishment for the same offense and
must be stricken. Appellant’s Brief at 4-5. He further contends that because
the prior SIP sentence expired on April 29, 2015, he is now entitled to
discharge. Id. at 5-6. Appellant also claims the trial court did not explain
the discrepancy between the 189 days’ credit, relating back to April 29,
2014, awarded at the initial sentencing proceeding, and the 403 days’ credit,
relating back to August 27, 2015. Id. at 6. We conclude that these issues
are either meritless or moot.
In Kuykendall, this Court observed:
Once the sentencing court determined that Appellant had not successfully completed the SIP program, by law it was required to revoke the SIP sentence. 42 Pa.C.S. § 9774(b). Additionally, much like a probation revocation, the court had the same sentencing alternatives available to it as it had at the time of the original sentence. 42 Pa.C.S. § 9774(c). We have consistently held that a revocation of probation does not violate double jeopardy.
Kuykendall, 2 A.3d at 564 (some citations omitted). The “SIP sentence
requires successful completion of the program through a systematic
satisfaction of all phases of the SIP program.” Id. at 563. “Revocation of
SIP and the subsequent re-sentencing does not implicate double jeopardy
since the ‘revocation is not a second punishment for the original conviction,
-5- J-S94036-16
but rather is an integral element of the original conditional sentence[.]’” Id.
at 564 (citations omitted).
Thus, a new sentence imposed following the revocation of Appellant’s
SIP sentence would not violate double jeopardy. See id. at 564. As to
Appellant’s further contention that he is entitled to discharge because his
maximum sentence on the SIP charge expired, we reiterate a SIP sentence
requires successful completion of the SIP program. See id. at 563.
Because Appellant has not successfully completed the program, we disagree
with his proposed remedy of discharge. See id.
As to Appellant’s contention that the trial court erred in awarding 403
days’ credit for time served,1 we conclude that this issue is moot in light of
our decision to vacate and remand for a revocation hearing.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/4/2017
1 We note that Appellant, in his Pa.R.A.P. 1925(b) statement asserted he was entitled to twenty-seven-and-one-half months’ credit.
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