Com. v. Howard, T.

• Court: Superior Court of Pennsylvania
• Decided: January 31, 2017
• Docket: 88 WDA 2016
• Status: Unpublished

Opinion

J-S03007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TERRENCE HOWARD

Appellant No. 88 WDA 2016

Appeal from the Judgment of Sentence December 9, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005895-2014

BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED JANUARY 31, 2017

Appellant, Terrence Howard, appeals from the judgment of sentence

entered on December 9, 2015. We vacate Appellant’s judgment of sentence

and remand for resentencing.

On January 6, 2015, Appellant pleaded guilty to one count of unlawful

contact with a minor, graded as a felony of the third degree.1 That same

day, the trial court sentenced Appellant to serve a term of 11 ½ to 23

months in jail, followed by a term of five years of probation. N.T. Guilty Plea

and Sentencing, 1/6/15, at 2 and 4-5.

On December 9, 2015, Appellant appeared before the trial court for a

probation revocation hearing. That day, the trial court found Appellant in

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1 18 Pa.C.S.A. § 6318(a)(1).

* Retired Senior Judge assigned to the Superior Court. J-S03007-17

violation of his probation. The trial court then revoked Appellant’s probation

and resentenced Appellant to serve a term of three to six years in prison,

followed by five years of probation, for the unlawful contact with a minor

conviction. N.T. Probation Revocation Hearing, 12/9/15, at 10. The trial

court did not credit Appellant with time served for his original sentence. Id.

Appellant filed a timely notice of appeal from his judgment of sentence

and now raises three claims on appeal:

[1.] Whether the revocation sentence imposed by the trial court . . . is illegal in that it exceeds the maximum sentence allowable by law?

[2.] Whether the revocation sentence imposed by the trial court . . . is manifestly excessive, unreasonable, and an abuse of discretion where the trial court failed to consider the personal history, character[,] and rehabilitative needs of [Appellant] as required by 42 Pa.C.S.A. § 9721(b)?

[3.] Whether the trial court considered, focused on and/or discussed impermissible factors and/or information not of record prior to sentencing [Appellant]?

Appellant’s Brief at 7.

Appellant first claims that his sentence is illegal, as it exceeds the

statutory maximum term of incarceration. Id. The Commonwealth

concedes that Appellant’s sentence is, in fact, illegal. Commonwealth’s Brief

at 7-8. We agree with Appellant and the Commonwealth. We thus vacate

Appellant’s judgment of sentence and remand for resentencing.

Our Supreme Court has held that “the scope of review in an appeal

following a sentence imposed after probation revocation is limited to the

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validity of the revocation proceedings and the legality of the sentence

imposed following revocation.” Commonwealth v. Infante, 888 A.2d 783,

790 (Pa. 2005). We note that “challenges to an illegal sentence can never

be waived and may be raised sua sponte by this Court.” Commonwealth

v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013) (internal quotations and

citations omitted). “Issues relating to the legality of a sentence are

reviewed de novo, and our scope of review is plenary.” Commonwealth v.

McKown, 79 A.3d 678, 691 (Pa. Super. 2013). Moreover, “[i]f no statutory

authorization exists for a particular sentence, that sentence is illegal and

subject to correction.” Commonwealth v. Leverette, 911 A.2d 998, 1001-

1002 (Pa. Super. 2006).

When a defendant receives a split sentence, the cumulative amount of

incarceration and probation may not exceed the statutory maximum. See

42 Pa.C.S.A. § 9754(a) (“[i]n imposing an order of probation the court shall

specify . . . the length of any term during which the defendant is to be

supervised, which term may not exceed the maximum term for which the

defendant could be confined”); see also 42 Pa.C.S.A. § 9756. For example,

“where the maximum [sentence] is ten years, a defendant cannot receive a

term of incarceration of three to six years followed by five years [of]

probation” – the cumulative potential sentence of six years’ incarceration

plus five years’ probation would be in excess of the statutory maximum term

of ten years. Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super.

2010).

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In the case at bar, Appellant was convicted of one count of unlawful

contact with a minor, graded as a felony of the third degree. The statutory

maximum penalty for a third-degree felony is seven years’ imprisonment.

18 Pa.C.S.A. § 1103(3). Appellant’s sentence of three to six years in prison,

followed by five years of probation, for the one count of unlawful contact

with a minor, thus exceeds the statutory maximum penalty for the crime

and is illegal. See 42 Pa.C.S.A. § 9754(a); Crump, 995 A.2d at 1284. We

therefore vacate Appellant’s judgment of sentence and remand for

resentencing.2

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/31/2017

2 Given our disposition, Appellant’s remaining discretionary aspects of sentencing claims are moot.

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