Com. v. Hill, S.

• Court: Superior Court of Pennsylvania
• Decided: October 31, 2018
• Docket: 422 MDA 2018
• Status: Unpublished

Opinion

J-S52032-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SYEEN HILL : : Appellant : No. 422 MDA 2018

Appeal from the Judgment of Sentence February 14, 2018 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005746-2015

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STRASSBURGER*, J.

CONCURRING/DISSENTING MEMORANDUM BY McLAUGHLIN, J.:

FILED OCTOBER 31, 2018

I agree with the learned majority that the sentence imposed for the

conviction for person not to possess a firearm was illegal and that we must

vacate the sentence. However, I would remand for resentencing.

As a rule, where the appellate court’s disposition of an appeal upsets

the trial court’s original sentencing scheme, remanding for a new sentencing

proceeding is the proper course. See Commonwealth v. Ali, ___ A.3d ___,

2596 EDA 2017, 2018 WL 4870924, at *1 (Pa.Super. Oct. 9, 2018). We have

found no need to remand where we could be certain that the vacating of one

sentence did not alter the overall sentencing scheme. See, e.g., In the

Interest of P.S., 158 A.3d 643, 652-53 (remand unnecessary where

sentence on vacated conviction was no further penalty); Commonwealth v.

Thur, 906 A.2d 552, 570 (Pa.Super. 2006) (no remand needed where

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S52032-18

convictions should have merged for sentencing purposes, and the merged

sentence, 72 hours to six months in jail, was concurrent with longer sentence

of nine to 25 years in prison).

Indeed, “if [the] trial court errs in its sentence on one count in multi-

count case, then all sentences for all counts will be vacated so [the] court can

restructure its entire sentencing scheme.” See Commonwealth v. Williams,

871 A.2d 254, 266 (Pa.Super. 2005) (citing Commonwealth v. Bartrug, 732

A.2d 1287, 1289 (Pa.Super. 1999), and Commonwealth v. Vanderlin, 580

A.2d 820, 831 (Pa.Super. 1990)).

Here, Hill was found guilty of multiple counts and the sentence imposed

on only one of the counts was illegal. If we do not remand, and another court

reverses or vacates the convictions or sentences on the other counts, Hill will

have no remaining sentence to serve. That is plainly counter to the trial court’s

decision not to impose a sentence of “guilt without further penalty” on the

person not to possess a firearm conviction. See 42 Pa.C.S. § 9721(a)(2).

Rather, the court obviously intended him to serve a significant sentence on

that charge. Under these circumstances, I cannot say that the vacating of the

illegal sentence does not upset the trial court’s sentencing scheme, and I

believe remand is necessary.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/31/2018

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