Com. v. Lomax, T.

• Court: Superior Court of Pennsylvania
• Decided: July 20, 2021
• Docket: 1384 EDA 2020
• Status: Unpublished

Opinion

J-S12014-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERENCE LOMAX : : Appellant : No. 1384 EDA 2020

Appeal from the Judgment of Sentence Entered November 18, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009948-2016

BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED JULY 20, 2021

Terence Lomax appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County. After careful review, we

vacate and remand for resentencing.

In February of 2017, Lomax entered a guilty plea to criminal trespass1

of an occupied structure after breaking into a woman’s home and hiding under

her bed. The Honorable Susan I. Schulman sentenced Lomax to four years of

reporting probation. On October 29, 2019, Lomax pled guilty in another

matter, to another count of criminal trespass, while still on probation for the

2017 conviction. In that case, he broke into an ex-girlfriend’s home and hid

under her daughter’s bed. The Honorable Robert P. Coleman sentenced

Lomax to three to sixteen months of imprisonment followed by two years of

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1 42 Pa.C.S.A. § 3503(a). J-S12014-21

probation. Judge Coleman allowed Lomax to serve the confinement portion

of his sentence on house arrest, which he began the same day, on October

29, 2019.

At a violation of probation (VOP) hearing on November 18, 2019, Judge

Shulman found Lomax in direct violation of his 2017 probationary sentence as

a result of this new conviction,2 and she revoked Lomax’s four-year probation

sentence from the 2017 conviction and sentenced him to a six-to-twelve-

month term of imprisonment. Judge Shulman ordered this sentence to be

served consecutively to Judge Coleman’s sentence, but specified that Lomax

would serve the new term of imprisonment prior to the remainder of his house

arrest sentence. In other words, Judge Schulman ordered an interruption to

Judge Coleman’s ongoing house arrest sentence for Lomax to serve the six-

to-twelve-month imprisonment term for his VOP. Lomax filed a motion for

reconsideration of his VOP sentence, which was denied. This appeal followed.

Lomax raises the following issue for our review: “Did not the lower court

err and abuse its discretion or impose an illegal sentence when it ordered that

a sentence be served prior to a sentence that had already been imposed by

another judge?” Appellant’s Brief, at 3.

The standard of review to determine the legality of a sentence depends

on the statutory authorization that exists for a particular sentence.

Commonwealth v. Kinney, 777 A.2d 492, 494 (Pa. Super. 2001). If no

2 42 Pa.C.S.A. § 9771(c)(1).

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

and must be vacated. Id. Our standard of review is plenary and is limited to

determining whether the trial court committed an error of law.

Commonwealth v. Bradley, 834 A.2d 1127, 1131 n.2 (Pa. 2003).

Lomax contends that there is no authority for a trial court to order that

a sentence be served prior to a sentence already imposed by another judge in

a separate case, thus making the sentence illegal. Appellant’s Brief, at 11.

We agree.

Following revocation of probation, a trial court is limited only by the

maximum sentence it could have originally imposed at the time of the

probationary sentence. See 42 Pa.C.S.A § 9771(b); see also

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). The

sentencing court has wide discretion in fashioning a sentence upon revocation

of probation as long as it follows the Sentencing Guidelines and stays within

the statutory maximum. See Commonwealth v. Charles, 488 A.2d 1126,

1130 (Pa. Super. 1985); see also Commonwealth v. Bowser, 783 A.2d

348, 350 (Pa. Super. 2001) (sentencing court has discretion to fashion

appropriate sentence if probation is violated); see also Commonwealth v.

Melius, 100 A.3d 682, 686 (Pa. Super. 2014) (citing 42 Pa.C.S.A. § 9771)

(“Upon revocation of probation a sentencing court possesses the same

sentencing alternatives that it had at the time of initial sentencing.”).

Specifically, the trial judge has discretion over whether a sentence should run

consecutively or concurrently with another sentence being imposed at the

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same time or to sentences already imposed. 42 Pa.C.S.A. § 9721(a) (“In

determining the sentence to be imposed the court shall consider and select

one or more of the following alternatives and may impose them consecutively

or concurrently.”).

While the trial court’s sentencing discretion is considerable, we find no

statutory authorization for a trial court to order that a sentence be served

prior to a sentence that has been imposed by another judge and which a

defendant has already begun serving.3 Accordingly, we vacate the judgment

of sentence and remand for resentencing.

Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/20/2021

3 The trial court indicated that it is not opposed to Lomax’s request to remand

for sentencing. See Trial Court Opinion, 9/8/20, at 3.

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