Com. v. Pennington, W.

• Court: Superior Court of Pennsylvania
• Decided: November 18, 2021
• Docket: 1740 EDA 2020
• Status: Unpublished

Opinion

J-S28024-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILLIAM PENNINGTON : : Appellant : No. 1740 EDA 2020

Appeal from the Judgment of Sentence Entered January 22, 2016 In the Court of Common Pleas of Wayne County Criminal Division at No(s): CP-51-CR-0006653-2012

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*

CONCURRING AND DISSENTING STATEMENT BY BOWES, J.:

Filed: November 18, 2021

In this appeal, Appellant challenges the legality of his 2016 sentence. I

fully agree with my learned colleagues that the 2016 sentence is illegal and

must be vacated. See, e.g., Commonwealth v. Whatley, 221 A.3d 651,

653 (Pa.Super. 2019) (“An illegal sentence must be vacated.” (cleaned up));

Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa.Super. 2011)

(“A challenge to the legality of a sentence . . . may be entertained as long as

the reviewing court has jurisdiction.”).

However, I see no need for this court to reach further back and order

the trial court to modify the 2012 sentencing order. Our Supreme Court has

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* Retired Senior Judge assigned to the Superior Court. J-S28024-21

warned that the general rule provided by 42 Pa.C.S. § 5505 that trial courts

may not modify their orders after thirty days must not be swallowed by the

exception related to correction of patent errors, explaining that “[n]ot all

illegal sentences will be amenable to correction as patent errors.”

Commonwealth v. Holmes, 933 A.2d 57, 66-67. Here, both Appellant and

the trial court ask us to vacate the illegal 2016 sentence over which there is

undisputed jurisdiction, but neither Appellant nor the trial court suggests that

disturbing the 2012 sentencing order is necessary to vindicate Appellant’s

rights.

Accordingly, I would vacate Appellant’s January 22, 2016 judgment of

sentence and leave it at that. To the extent that the Majority goes beyond

the scope of the relief requested, I respectfully dissent.

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