J-S81008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
STEPHEN HURD
Appellant No. 908 EDA 2016
Appeal from the Judgment of Sentence January 17, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0208691-2005 MC-51-CR-0018430-2012 MC-51-CR-0024860-2012
BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED MARCH 21, 2017
Stephen Hurd appeals from his aggregate judgment of sentence of
forty-six and a half months to 107 months incarceration imposed after he
was found to be in violation of three probationary sentences. After review,
we vacate judgment of sentence at case number 208691 of 2005. We affirm
the remaining two sentences.
This matter involves three separate cases and multiple probation
violation proceedings spanning almost a decade. The first case, action
number 208691 of 2005, dates back to December 3, 2004, when Andrew
Cappo reported that his vehicle had been stolen during the workday. Later
that evening, Appellant was observed operating the vehicle. He was
* Former Justice specially assigned to the Superior Court. J-S81008-16
arrested and charged with four crimes, three of which were nolle prossed
pursuant to a negotiated plea agreement. Appellant pleaded guilty to the
remaining count of receipt of stolen property, graded as a felony of the third
degree. On May 12, 2005, the trial court1 accepted and imposed the
negotiated sentence of six to twenty-three months confinement followed by
one year of probation. On October 7, 2005, the trial court granted
Appellant’s petition for early parole.
While still on parole, Appellant committed another crime2 and, as a
result, was found to be in direct violation of the judge’s county parole. On
January 18, 2007, the court terminated parole, anticipatorily revoked
probation, and re-sentenced Appellant to thirty to sixty months of state
incarceration followed by two years probation. Since the trial court
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1 We note that the Honorable Genece Brinkley presided over the 2005 plea and all the violation hearings in these three cases. 2 The trial court’s Pa.R.A.P. 1925(a) opinion states that Appellant appeared before the Honorable William Furber, Jr. on October 13, 2006, and entered a guilty plea. Appellant’s docket indicates several aliases, including Stephen Crompton; the Court of Common Pleas Case Management System indicates that a Stephen Crompton pleaded guilty to receiving stolen property, graded as a felony of the third degree, on October 13, 2006 before Judge Furber in Montgomery County, with a sentence of nine to twenty-three months of incarceration followed by two years probation.
https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber= CP-46-CR-0003841-2006
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terminated parole, Appellant did not fully serve the first sentence imposed.
On July 1, 2009, Appellant was released on parole.
In February 2012, while serving the court’s probationary tail sentence,
a probation detainer was issued. On March 13, 2012, the court revoked
probation and imposed a new sentence of two years probation. On May 5,
2012, Appellant stole items valued at $92.00 from Toys “R” Us, and was
charged, at action number 18430 of 2012, with one count of retail theft,
graded as a misdemeanor of the second degree. On June 18, 2012, he took
items valued at $184.60 from Rite Aid, and was charged, at case number
24860 of 2012, with one count of retail theft, graded as a misdemeanor of
the first degree. These two cases were consolidated for a plea on October
12, 2012; Appellant received a concurrent period of two years of probation
at each case.
The aforementioned convictions resulted in yet another probation
violation before the court concerning the receipt of stolen property
conviction. On March 1, 2013, the trial court revoked probation and
imposed a new sentence of eleven and one-half to twenty-three months
incarceration. Appellant was ordered to serve the sentence at Hoffman
Hall.3 On October 29, 2013, his petition for early parole was granted.
3 Hoffman Hall is contracted by the Philadelphia Prison System and is designed for low to medium risk offenders with drug and alcohol dependency (Footnote Continued Next Page)
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Appellant was arrested on November 11, 2013 for trespassing at a
casino. The next day, Appellant failed to appear for a drug test. In
December, Appellant tested positive for PCP. The trespassing charge was
dropped, but Appellant failed to appear at a scheduled violation hearing
before another judge. A bench warrant was issued, which was cleared when
a police officer stopped Appellant on an unrelated matter.
On January 17, 2014, the trial court (hereinafter “VOP court”) held a
violation and re-sentencing hearing4 at all three cases. Appellant was found
in direct violation, and, as a result, parole was revoked on the receiving
stolen property charge. Appellant was properly ordered to serve the back
time in jail for the receipt of stolen property. Commonwealth v. Kalichak,
943 A.2d 285 (Pa.Super. 2008) (parole revocation does not involve
imposition of new sentence; court must recommit defendant to serve
balance of original sentence, with ability to again grant parole). With
respect to the retail theft cases, the VOP court revoked probation and
_______________________ (Footnote Continued)
issues. See http://www.cecintl.com/reentry/residential-reentry- locations/hoffman-hall/ 4 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (defendant accused of violating probation is entitled to two hearings: 1) a pre-revocation hearing to determine probable cause of a violation; and 2) a revocation hearing to establish violation and determine whether revocation is warranted).
The docket indicates that the Gagnon I hearing was held on January 10, 2014.
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elected to impose total confinement. Appellant received statutory maximum
terms of two and one-half to five years incarceration and one to two years
incarceration at the corresponding retail theft charges. All three sentences
were imposed consecutively.
Appellant filed a post-sentence motion for reconsideration, which was
denied. Appellant did not appeal; however, Appellant’s appellate rights were
reinstated nunc pro tunc. Appellant raises two issues for our review:
I. Was the aggregate sentence imposed by the trial court, which was 5 ½ to 7 years in state prison unjust, improper, manifestly unreasonable, and an abuse of discretion because the sentence imposed of total incarceration was contrary to the fundamental norms which underlie the sentencing process and was not necessary to vindicate the authority of the Court?
II. Was the sentence imposed by the trial court illegal because including the initial sentence of the court on the receiving stolen property offense of 11 1/2 to 23, plus 1 year probation including the subsequent VOP sentences the entire sentence imposed was longer than the maximum authorized allowable sentence of 7 years and because the probation had terminated prior to the appellant's violations and the trial court did not give the appellant credit for time served?
Appellant’s brief at 2.
Appellant’s first claim concerns the discretionary aspects of
sentencing. Preliminarily, we note that Appellant’s calculation of the total
sentence, of five and one-half to seven years confinement, is incorrect. A
sentence of five and one-half to seven years of incarceration would be
illegal. 42 Pa.C.S. § 9756(b)(1) (minimum sentence of total confinement
shall not exceed one-half of the maximum sentence). The actual aggregate
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term was forty-two months to eighty-four months of incarceration at the
retail theft charges, plus the remaining sentence on his county sentence of
eleven and one-half to twenty-three months. The minimum term of
confinement at the two retail theft counts was reduced to thirty-five months,
due to application of the Recidivism Risk Reduction Incentive. 61 Pa.C.S. §§
4501-4512.5
When reviewing a criminal sentence, we apply the following standard
of review.
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (citing
Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)).
However, the right to appeal the discretionary aspects of a sentence is not
absolute. We determine whether Appellant has invoked this Court’s
jurisdiction by examining the following four criteria:
(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly ____________________________________________
5 The remaining balance of the county sentence was not specified. Thus, the VOP court applied the calculation of the reduction to the forty-two to eighty-four months of incarceration at the two retail theft crimes.
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preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief [complies with] Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing
Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)).
The first three requirements have been met.
We also conclude that Appellant has satisfied the substantial question
requirement. As a prefatory matter, we note that Appellant does not clearly
delineate one or more substantial questions for our review. He alleges that
the trial court violated the “fundamental norms which underlie the
sentencing process . . . [which] were not necessary to vindicate the
authority of the Court[.]” Appellant’s brief at 3.
The general sentencing provisions mandate that the court select from
one or more of seven alternatives, including total confinement. 42 Pa.C.S. §
9721(a). In selecting one of these options, the court is required to consider
a sentence that “is consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” Id. However, §
9771 separately governs the trial court’s ability to impose total confinement
following revocation of probation; the court may do so only if it finds one of
three conditions has been met:
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(c) Limitation on sentence of total confinement.--The court shall not impose a sentence of total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.
42 Pa.C.S. § 9771(c). Thus, the § 9771(c) factors, standing alone, govern
only the VOP court’s ability to impose total confinement at all, and do not
speak to the length of confinement. We unequivocally held in
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc),
that a VOP court must follow § 9721(b) in tandem with § 9771. Thus, this
Court’s scope of review in appeals from revocation sentences encompasses
the discretionary aspects of the sentence. “Such issues should not escape
review merely because a defendant’s revocation sentence falls within the
statutory limits.” Id. at 1038.
Post-Cartrette, our Supreme Court decided Commonwealth v.
Pasture, 107 A.3d 21 (Pa. 2014), which reversed a decision from this Court
vacating a revocation sentence, holding that we erroneously applied certain
sentencing provisions, and, as a result, gave “insufficient deference to the
revocation court’s imposition of the sentence following the revocation of
[appellant]’s probation[.]” Id. at 22. Pasture noted that a trial court’s
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initial sentencing decision is afforded broad discretion, because the court
“sentences flesh-and-blood defendants and the nuances of sentencing
decisions are difficult to gauge from the cold transcript used upon appellate
review. Moreover, the sentencing court enjoys an institutional advantage to
appellate review, bringing to its decisions an expertise, experience, and
judgment that should not be lightly disturbed.” Id. at 27 (citing
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)). Pasture went
on to observe that this rationale applies with even more force in the
revocation context:
The sentencing court's institutional advantage is, perhaps, more pronounced in fashioning a sentence following the revocation of probation, which is qualitatively different than an initial sentencing proceeding. At initial sentencing, all of the rules and procedures designed to inform the court and to cabin its discretionary sentencing authority properly are involved and play a crucial role. However, it is a different matter when a defendant reappears before the court for sentencing proceedings following a violation of the mercy bestowed upon him in the form of a probationary sentence. For example, in such a case, contrary to when an initial sentence is imposed, the Sentencing Guidelines do not apply, and the revocation court is not cabined by Section 9721(b)'s requirement that “the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.”
Id. at 27. In Commonwealth v. Derry, 150 A.3d 987 (Pa.Super. 2016),
we rejected the Commonwealth’s argument that Pasture, as a matter of
law, dictated that no substantial question is presented for our review in VOP
cases:
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[T]he Commonwealth argues that our Supreme Court, in Commonwealth v. Pasture, 630 Pa. 440, 107 A.3d 21, 27 (2014), held that Section 9721(b) does not apply to a sentence imposed for a VOP and, therefore, that a sentence's inconsistency with Section 9721(b) factors does not present a substantial question for our review on the basis that a sentence is “inconsistent with a specific provision of the Sentencing Code.” Commonwealth's Brief, at 6–7; Moury, 992 A.2d at 170 (quoting from Sierra 752 A.2d at 912–13).
Id. at 992. We highlighted the foregoing passage from Pasture, and noted
that the Commonwealth’s interpretation contradicted Cartrette, supra. We
resolved the apparent discrepancy between Cartrette and Pasture by
observing that Pasture held a revocation court is not cabined by § 9721(b):
This discrepancy between this Court's unanimous en banc decision in Cartrette, and our Supreme Court's decision in Pasture, turns on the Supreme Court's use of the term, “cabined,” in the phrase, “the revocation court is not cabined by Section 9721(b)'s requirement that ‘the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.’ ” Pasture, 107 A.3d at 27 (emphasis added).
The Commonwealth would have us interpret ‘cabined’ in this context to mean, effectively, ‘need not consider at all.’ See Commonwealth's Brief, at 7 (“Plainly, the revocation court could not have violated a provision of the Sentencing Code that did not apply to [Appellant]'s case.”). This interpretation contradicts the more nuanced view expressed in Cartrette regarding the applicability of Section 9721(b) to VOP sentences:
While parts of § 9721(b) do not govern revocation proceedings, as our sentencing guidelines are not required to be consulted in such instances, see 204 Pa.Code. § 303.1(b), other provisions of that section do apply. For example, the sentencing court must “follow the general principle that the sentence
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imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). In addition, in all cases where the court “resentences an offender following revocation of probation, county intermediate punishment or State intermediate punishment or resentences following remand, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.” Id. Failure to comply with these provisions “shall be grounds for vacating the sentence or resentence and resentencing the defendant.” Id.
Cartrette, 83 A.3d at 1040–41 (emphasis added).
Id. at 993. Derry ultimately concluded that a “VOP sentencing court must
consider [the § 9721(b)] factors, but must also consider factors set forth in
Section 9771(c), which are unique to VOP sentences.” Id. at 995. Derry
accepted the claim that “the aggregate VOP sentence imposed by the court
was manifestly excessive and unreasonable” constituted a substantial
question. Id. at 995.
Herein, Appellant does not clearly distinguish the decision to impose
total confinement under § 9771(c) from the decision fixing the length of that
confinement. Appellant’s substantial question argument largely treats the
questions of whether the court erred in electing to impose total confinement
at all and the resulting length of confinement as one overarching issue.
The sentence imposed by the trial court was unjust, improper, manifestly unreasonable, and an abuse of discretion because the
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sentence imposed was contrary to the fundamental norms which underlie the sentencing process . . . when the reasons stated for total confinement were not necessary to vindicate the authority of the court. ....
The . . . sentence did not consider any of the factors required by 42 Pa.C.S. § 9721(b) and did not consider the defendant’s age, family history and rehabilitative needs.
Appellant’s brief at 3.
We find that Appellant has raised a substantial question for our review.
However, in light of the foregoing discussion of Pasture and Derry, we
address Appellant’s claim as comprising two distinct substantial questions.
The first is the asserted failure to consider, inter alia, the general principles
of § 9721(b) in electing to impose a sentence of total confinement under §
9771. We separately address the claim that the resulting length of
incarceration was manifestly excessive and unreasonable.
Having determined Appellant has properly invoked our jurisdiction, we
now turn to the substantive merits. First, we quickly dispose of Appellant’s
claim that the failure of the court to order a pre-sentence report requires
reversal. This argument was squarely rejected by Pasture. Consistent with
the institutional advantage rationale employed by Pasture, the Court held
that nothing requires the judge, who already had the benefit of a full record
and a pre-sentence report, to order another pre-sentence report. Id. at 28.
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Hence, we cannot find that the court’s failure to order a report is an abuse of
discretion.6
We also find that the trial court’s decision to impose total confinement
was not an abuse of discretion. The VOP court noted that Appellant’s
inability to treat his drug and alcohol problems while on probation, combined
with his multiple technical violations and the failed treatment at Hoffman
Hall, factored heavily in its decision to impose total confinement:
THE COURT: Well, see, my involvement with [Appellant] dates back to 2005. I’ve been giving him numerous opportunities to try to get himself together since 2005. It’s now 2014. And I just sent him to Hoffman Hall. If Hoffman Hall doesn’t turn a person around, in my view, then there’s nothing that the county can do for them.
N.T., 1/17/14, at 21. Therefore, the trial court clearly found that “probation
has proven to have been an ineffective vehicle to accomplish rehabilitation
and not sufficient to deter against future antisocial conduct.”
Commonwealth v. Infante, 888 A.2d 783, 791 (Pa. 2005) (citation
omitted). Hence, the court clearly considered Appellant’s need for
rehabilitation, as weighed against the past rehabilitative failures and the
court’s need to vindicate its own authority, in electing to impose total
confinement. As a result, we cannot question the judge’s weighing of the §
6 The record does not indicate whether the court ordered or considered a pre-sentence report, and Appellant did not object or ask the court to order a new one. Commonwealth v. Pasture, 107 A.3d 21, 28, n.6.
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9721(b) factors as balanced against the § 9771(c) considerations, and find
no abuse of discretion.
Next, we address the separate question of whether the length of the
sentence is excessive. Appellant avers that the imposition of consecutive
state sentences is unreasonable and not necessary to vindicate the authority
of the court. For the following reasons, we do not agree.
First, we note that there is a clear distinction between a claim
attacking the length of one of the two individual sentences, i.e., the fact that
the statutory maximum penalty was imposed at each retail theft count, and
the resulting aggregate length when the sentences are imposed
consecutively. See Commonwealth v. Coulverson, 34 A.3d 135, 143
(Pa.Super. 2011) (substantial question raised where statutory maximum was
imposed); Derry, supra (finding challenge that aggregate VOP sentence
was manifestly excessive and unreasonable raises a substantial question).
That Appellant appears to raise two different types of claims is not an
impediment to our review, as we ultimately conclude Appellant is not
entitled to relief in any event.
Generally speaking, when reviewing a claim that the length of a
sentence is manifestly excessive, our starting point is the length of a
sentence starts with the applicable sentencing guidelines. “[O]n appeal, a
defendant ‘must provide a separate statement specifying where the sentence
falls in the sentencing guidelines[.]’” Commonwealth v. Naranjo, 53 A.3d
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66, 72 (Pa.Super. 2012) (citation omitted). However, the sentencing
guidelines do not apply to sentences imposed following a revocation of
probation. 204 Pa.Code § 303.1(b). Thus, we are confined by the statutory
mandates of 42 Pa.C.S. § 9721(b). As we explained in Commonwealth v.
Williams, 69 A.3d 735 (Pa.Super. 2013), a case finding a manifestly
excessive revocation sentence:
[B]ecause sentencing guidelines do not apply to sentences imposed following a revocation of probation, in this case we look solely to the provisions of 42 Pa.C.S. § 9721(b). Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super.2001). Section 9721(b) provides in pertinent part as follows:
[T]he court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.
42 Pa.C.S. § 9721(b).
Id. at 741.
After careful review of the record, we cannot find that the VOP court
abused its discretion under the Pasture court’s pronouncements and the
high degree of deference owed to the VOP court. As we explained supra, the
trial court clearly considered these 9721(b) principles; it simply weighed
them in tandem with the 9771(c) requirements, in particular, the need for
the VOP court to vindicate its authority. The VOP court, after imposing
sentence, stated the following:
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For the record, the defendant is requesting, at the bar of the court, that defense counsel file motions for reconsideration and appeal. And for the record, this sentence is absolutely necessary to vindicate the authority of the [c]ourt.
This defendant has repeatedly disregarded the probation officer’s requests to him, repeatedly disregarded this [c]ourt’s order, has not paid a dime towards the $3,000, and has never reported in the fashion that he’s reported to, and I incorporate what the probation officer indicated today, that he never – when he was supposed to come, he didn’t come. When he was supposed to pay, he didn’t pay. And he showed up and gave a positive urine and walked away from other urines.
Those have been the same activities that he’s engaged in for the entire course of my sentence since 2005. This sentence is absolutely necessary to vindicate the authority of this [c]ourt.
N.T.,1/17/14, at 26-27.
We cannot deem that decision an abuse of discretion. We do not
doubt that the imposition of consecutive, statutory maximum sentences for
two minor retail theft crimes could constitute an unreasonable sentence.
Appellant received the most severe sentence possible, and the instant
violations—missing probation violations, failure to appear at hearings, and
testing positive for PCP—are technical in nature. Yet the severity of the
particular violations cannot be considered in isolation. The instant sentence
represents the culmination of almost a decade of appearances before the
VOP court, and four prior violations. Appellant was still serving a
probationary sentence from the 2004 sentence in 2013, when the trial court
imposed a county sentence and ordered Appellant to serve the sentence at
Hoffman Hall. The VOP court granted two petitions for early parole,
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extended mercy to Appellant when pleading guilty to the retail thefts, and
drew on almost a decade’s worth of experience with this offender. We are
loath to question the trial court’s judgment that this sentence, while harsh,
was necessary to vindicate its authority. The record adequately
demonstrates that the court relied on Appellant’s whole history while on
probation, and determined that the sentence was necessary to vindicate its
authority in spite of the § 9721(b) factors.
Finally, we note that Pasture, supra arguably suggests that the VOP
court’s decision regarding the length of sentence is subject to an even higher
deferential standard of review than applies to the initial sentencing:
In point of fact, where the revocation sentence was adequately considered and sufficiently explained on the record by the revocation judge, in light of the judge's experience with the defendant and awareness of the circumstances of the probation violation, under the appropriate deferential standard of review, the sentence, if within the statutory bounds, is peculiarly within the judge's discretion.
Id. at 28-29. Pasture inserted peculiarly as a modifier to “within the
judge’s discretion,” which suggests that we review a revocation sentence
with greater deference than the initial sentencing decision. 7 Derry, supra
also suggested that Pasture may require a higher degree of deference. “As
the Pasture Court suggested, review of the discretionary aspects of a VOP ____________________________________________
7 That same phrase is used, for example, in reviewing the award of counsel fees, which applies a plain error standard. Estate of McClatchy, 424 A.2d 1227, 1230 (Pa. 1981).
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court’s sentence with regard to Section 9721(b) factors may, as a practical
matter, dictate a greater degree of deference from a reviewing court[.]” Id
at 995, n.2. While we do not read Pasture as abandoning the abuse of
discretion standard, we are mindful that Pasture directs this Court to
consider the institutional advantage of the VOP court, an advantage that is
surely more pronounced due to the court’s long history with Appellant.
We now address Appellant’s second claim, which avers that his
probationary sentence for receipt of stolen property expired prior to the
instant revocation proceeding, or, in the alternative, that the VOP court
failed to apply time credit, meaning he will serve more than the statutory
maximum of seven years. We address both arguments together.
The original sentence was six to twenty-three months, effective May
12, 2005, with no time credit. The certified record reveals that the trial
court granted a petition for early parole on October 7, 2005. Therefore,
Appellant served 148 days of that sentence in the county facility. Appellant
was not re-incarcerated on this receipt of stolen property charge until
January 18, 2007, when the court terminated parole, anticipatorily revoked
probation, and re-sentenced Appellant to thirty to sixty months of
incarceration, effective the same day, followed by two years probation.
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This sentence was illegal.8 The total sentence imposed was the
statutory maximum for the receipt of stolen property charge; however, the
VOP court did not apply any time credit. Order, 1/18/2007, at 1 (“This
sentence shall commence on January 18, 2007.”). At minimum, Appellant
was entitled to the 148 days he served in the county facility, plus any time
served on parole that would constitute the equivalent of time in jail. See
Commonwealth v. Frye, 853 A.2d 1062 (Pa.Super. 2004) (concluding that
defendant was entitled to credit for period of time on house arrest under
electronic monitoring while on parole, as such time was “equivalent of time
spent in the county jail.”).
Next, we note that the Rule 1925(a) opinion states that Appellant was
paroled from this state sentence on July 1, 2009. No further action occurred
until February of 2012, when a probation detainer was lodged. We note
that, by its terms, Appellant’s sentence of thirty to sixty months, which was
imposed on January 18, 2007 with no time credit, meant that his
probationary tail commenced on January 18, 2012. In other words, his state
sentence expired no later than January 18, 2012, and Appellant was serving
only the probationary tail sentence in February of 2012 when the detainer
was issued. ____________________________________________
8 We note that we are not revisiting the legality of this sentence, but rather the legality of the subsequent revocation of the probationary tail and corresponding parole revocation.
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The VOP court subsequently revoked that probationary tail and
imposed a new sentence of eleven and one-half to twenty-three months of
incarceration, which was re-imposed on January 17, 2014. Kalichak,
supra. For the foregoing reasons, this sentence was similarly illegal, as it
failed to account for the required time credit. Thus, the instant January 17,
2014 parole revocation sentence is illegal.
We are cognizant of the fact that this maximum term of twenty-three
months of incarceration, when added to the five year sentence Appellant
successfully served, would indeed fall short of seven years. However, that
calculation ignores the fact that Appellant served at least 148 days that
should have been applied towards the initial state sentence. Hence, the
instant sentence of eleven and one-half to twenty-three months exceeded
the statutory maximum sentence and is illegal. As we explained in
Commonwealth v. Crump, 995 A.2d 1280, 1283–84 (Pa.Super. 2010):
When determining the lawful maximum allowable on a split sentence, the time originally imposed cannot exceed the statutory maximum. Thus, where the maximum is ten years, a defendant cannot receive a term of incarceration of three to six years followed by five years probation. However, in a situation where probation is revoked on a split sentence, as in the case sub judice, a defendant is not entitled to credit for time spent on probation. Nor is a defendant automatically granted credit for time served while incarcerated on the original sentence unless the court imposes a new sentence that would result in the defendant serving time in prison in excess of the statutory maximum.
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Id. at 1283-84 (citations omitted, emphasis added). Accordingly, we must
vacate the sentence and remand for proceedings consistent with this
memorandum. We reject Appellant’s alternative challenge that he was no
longer serving a probationary sentence, as the procedural history set forth
above demonstrates that Appellant never completed his probationary
sentence.
Judgment of sentence at case number 208691 of 2005 is vacated and
remanded. Judgment of sentence at the remaining case numbers is
affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/21/2017
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