Com. v. Keating, C.

• Court: Superior Court of Pennsylvania
• Decided: January 10, 2023
• Docket: 1111 WDA 2021
• Status: Unpublished

Opinion

J-A25025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CARL JOHN KEATING : : Appellant : No. 1111 WDA 2021

Appeal from the Judgment of Sentence Entered August 10, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005024-2020

BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY NICHOLS, J.: FILED: JANUARY 10, 2023

Appellant Carl John Keating appeals from the judgment of sentence

imposed following an open guilty plea. Appellant challenges the legality, and

discretionary aspects of his sentence. Following our review, we vacate the

judgment of sentence and remand for resentencing.

As we write for the parties, we need not set forth a detailed recitation

of the factual history. Briefly, Appellant was arrested for an incident that

occurred on December 11, 2019. Thereafter, the Commonwealth filed an

information charging Appellant with homicide by vehicle while driving under

influence (DUI); homicide by vehicle; involuntary manslaughter; altered,

forged, or counterfeit documents and plates; two counts of recklessly

endangering another person (REAP); two counts of DUI; and seven summary J-A25025-22

violations of the Motor Vehicle Code.1 Appellant entered an open guilty plea

on May 12, 2021. The Commonwealth agreed to withdraw the charge of

homicide by vehicle while DUI, and Appellant pled guilty to the remaining

offenses. On August 10, 2021, the trial court sentenced Appellant to a term

of forty-five months to ninety months’ incarceration for homicide by vehicle;

two consecutive terms of twelve to twenty-four months’ incarceration for the

two counts of REAP; a concurrent term of one month and fifteen days to three

months’ incarceration, followed by six months’ probation for one count of DUI;

a consecutive term of five years’ probation for altered, forged, or counterfeit

documents or plates; and imposed a total of $656.00 in fines for the seven

summary offenses.2 Appellant’s aggregate sentence is 70½ to 141 months’

incarceration,3 followed by 5 years’ probation, plus the fines.

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175 Pa.C.S. §§ 3735(a), 3732(a), 18 Pa.C.S. § 2504(a), 75 Pa.C.S. § 7122(3), 18 Pa.C.S. § 2705, 75 Pa.C.S. §§ 3802(d)(1), 3802(d)(2), 3736(a), 3361, 3362(a)(3), 3309(1), 3367(b), 4703(e), and 4730(a)(2), respectively.

2 The trial court concluded that Appellant’s involuntary manslaughter conviction merged with his homicide by vehicle conviction, and that his second DUI conviction merged with his first DUI conviction for sentencing purposes. See Sentencing Order, 8/10/21, at 1.

3 The trial court granted Appellant ninety days’ credit for time served on the first DUI conviction and ordered that he be immediately paroled for that conviction. See Sentencing Order, 8/10/21, at 1, 3. The trial court did not include the DUI sentence in its calculation of Appellant’s aggregate sentence. See Trial Ct. Op., 1/27/22, at 2-3 (stating “[i]n total, [Appellant] was sentenced to an aggregate sentence of 69-138 months’ imprisonment and 5 years of probation (footnote omitted and emphasis added)).

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Appellant filed a timely post-sentence motion, which the trial court

denied on August 18, 2021. Appellant then filed a timely notice of appeal.

Both the trial court and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issues for our review:

1. Did the sentencing court impose an illegal sentence at count 2 of [forty-five] to [ninety] months of imprisonment, as it is longer than the maximum permissible sentence for a felony of the third-degree?

2. Was the aggregate sentence imposed manifestly excessive, unreasonable, contrary to the dictates of the Sentencing Code and an abuse of the sentencing court’s discretion? Specifically, did the sentencing court improperly focus upon the seriousness of the offense, as well as [Appellant] having successfully completed mental health court in the past, when imposing sentence? Despite the resolution of the first issue, and for this additional reason, should [Appellant’s] case be remanded for a new sentencing hearing?

Appellant’s Brief at 8.

Legality of Sentence

In his first issue, Appellant argues that the sentence imposed for his

homicide by vehicle conviction is illegal because it is greater than the lawful

maximum permitted for a third-degree felony conviction. Appellant’s Brief at

15. Specifically, Appellant claims that the trial court sentenced Appellant to a

maximum term of seven-and-one-half years’ imprisonment, which exceeded

the statutory maximum of seven years. Id.

The Commonwealth agrees that the trial court imposed an illegal

sentence for Appellant’s homicide by vehicle conviction. Commonwealth’s

Brief at 13. The Commonwealth contends that the sentence exceeds the

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statutory maximum sentence for a felony of the third degree, and requests

that this Court vacate Appellant’s judgment of sentence and remand for

resentencing. Id.

Because the legality of a sentence raises questions of law, our standard

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

Gibbs, 181 A.3d 1165, 1166 (Pa. Super. 2018). Challenges to the legality of

a sentence cannot be waived. Commonwealth v. Rivera, 238 A.3d 482,

503 (Pa. Super. 2020).

If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. Likewise, a sentence that exceeds the statutory maximum is illegal. If a court imposes a sentence outside of the legal parameters prescribed by the applicable statute, the sentence is illegal and should be remanded for correction.

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (citations

and quotation marks omitted).

Homicide by vehicle is graded as a felony of the third degree. 75 Pa.C.S.

§ 3732(a). The Crimes Code states that the maximum possible sentence for

a felony of the third degree is a term of imprisonment of “not more than seven

years.” 18 Pa.C.S. § 1103(3).

The trial court did not address this issue in its Rule 1925(a) opinion,

because Appellant raised it for the first time in his appellate brief.

Here, we agree with Appellant that his sentence is illegal and must be

vacated. See Gibbs, 181 A.3d at 1166. Our review of the record indicates

that the trial court sentenced Appellant to a maximum term of ninety months,

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i.e., seven-and-one-half years, of incarceration for homicide by vehicle. See

Sentencing Order, 8/10/21, at 1. This sentence is illegal because it exceeds

the statutory maximum for a felony of the third degree. See Infante, 63

A.3d at 363; 18 Pa.C.S. § 1103(3).

For these reasons, we conclude that Appellant’s sentence is illegal, and

we are constrained to vacate the judgment of sentence and remand for

resentencing.4 See Gibbs, 181 A.3d at 1166; Infante, 63 A.3d at 363; see

also Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (stating

that if this Court’s “disposition upsets the overall sentencing scheme of the

trial court, we must remand so that the court can restructure its sentence

plan” (citation omitted)).

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

4 In light of our disposition, we decline to address Appellant’s claim regarding the discretionary aspects of his sentence. See Commonwealth v. Barnes, 167 A.3d 110, 125 n.13 (Pa. Super. 2017) (en banc) (concluding that when this Court remands a matter for resentencing, the Court need not address the defendant’s challenge to the discretionary aspects of his sentence, and stating that “[w]hen a sentence is vacated and the case remanded for resentencing, the sentencing judge should start afresh” (citation omitted)).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/10/2023

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