Com. v. Thomas, M.

• Court: Superior Court of Pennsylvania
• Decided: May 2, 2025
• Docket: 1133 EDA 2024
• Status: Unpublished

Opinion

J-S08020-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MONTE THOMAS : : Appellant : No. 1133 EDA 2024

Appeal from the Judgment of Sentence Entered March 28, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007933-2022

BEFORE: DUBOW, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.: FILED MAY 2, 2025

Monte Thomas appeals from the judgment of sentence entered after he

was convicted of attempted murder and related crimes. 1 He challenges the

discretionary aspects of his sentence. We deny Thomas’ appeal, but we sua

sponte vacate his judgment of sentence and remand for resentencing.

Police charged Thomas on September 2, 2022, alleging that he shot the

victim over a drug debt. The case proceeded to trial, and a jury found Thomas

guilty of all six offenses on November 30, 2023. On March 28, 2024, the trial

court sentenced Thomas to 8 to 16 years of confinement followed by 5 years

of probation. Thomas moved for reconsideration, which the trial court denied.

____________________________________________

1 18 Pa.C.S. §§ 901(a) (criminal attempt), 2702(a)(1) (aggravated assault),

6105(a)(1) (possession of firearm prohibited), 6106(a)(1) (firearms not to be carried without a license), 6108 (carrying firearms in public in Philadelphia), and 907(a) (possessing instruments of crime). J-S08020-25

Thomas timely appealed. Thomas and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925. On appeal, Thomas maintains

several challenges to the discretionary aspects of his sentence.

This Court has discretion whether to grant review of the discretionary

aspects of a sentence. 42 Pa.C.S. § 9781(b). We may allow an appeal “where

it appears that there is a substantial question that the sentence imposed is

not appropriate under” the Sentencing Code. Id. Before granting an appeal

for an issue of sentencing discretion, we determine if the appellant has

satisfied four requirements:

(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, 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.

Commonwealth v. Glawinski, 310 A.3d 321, 325 (Pa. Super. 2024)

(quoting Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)).

Rule 2119(f) requires an appellant who challenges the discretionary

aspects of a sentence to “set forth in a separate section of the brief a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). Importantly, if a

defendant does not include a Rule 2119(f) statement in his brief, and the

Commonwealth objects to this failure, then this Court may not review the

merits of the defendant’s claim. Commonwealth v. Lively, 231 A.3d 1003,

-2- J-S08020-25

1011 (Pa. Super. 2020) (citing Commonwealth v. Karns, 50 A.3d 158, 166

(Pa. Super. 2012)).

Here, because Thomas has not included a Rule 2119(f) statement in his

brief, and the Commonwealth objected, we do not reach the merits of Thomas’

challenges to the discretionary aspects of his sentence. Id. Thomas presents

no other issues on appeal.

However, an appellate court may address the legality of a criminal

sentence sua sponte. Commonwealth v. Armolt, 294 A.3d 364, 376 (Pa.

2023) (citations omitted). We do so here. Initially, the trial court did not

order reentry supervision, which is required for an aggregate minimum

sentence of confinement of four years or more. 61 Pa.C.S.A. § 6137.2(a). As

the addition of the mandatory 12-month period of reentry supervision may

upset the trial court’s sentencing scheme, we will vacate Thomas’ sentence

and remand for resentencing. See Commonwealth v. Thur, 906 A.2d 552,

569 (Pa. Super. 2006).

Furthermore, the total length of Thomas’ split sentence exceeds the

statutory maximum of five of his six offenses. “[O]n 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 [of] probation.” Commonwealth v.

Crump, 995 A.2d 1280, 1283–84 (Pa. Super. 2010).

Thomas’ sentence order includes identical terms at each of his six

offenses: 8 to 16 years of confinement followed by 5 years of probation. Thus,

-3- J-S08020-25

Thomas’ total sentence is 21 years. This is a legal sentence for Thomas’

attempted murder conviction because the jury found that he caused serious

bodily injury. See 18 Pa.C.S. § 1102(c). However, it exceeds the statutory

maximum for Thomas’ other five convictions, graded as felonies of the first

degree (20 years), a felony of the third degree (seven years) and

misdemeanors of the first degree (five years). 18 Pa.C.S. §§ 1103(1), (3),

1104(1).

We therefore vacate Thomas’ judgment of sentence and remand for

resentencing. On remand, the trial court should order reentry supervision

consistent with 61 Pa.C.S.A. § 6137.2(a) and should impose sentences that

do not exceed the statutory maximum for each offense. 2

Judgment of sentence vacated. Remanded for resentencing.

Jurisdiction relinquished.

Date: 5/2/2025 ____________________________________________

2 It appears from the record that trial court and the parties focused on Thomas’

aggregate term, which the written sentence order merely repeats at each count. Our order does not prevent the imposition of concurrent sentences or sentences of guilt without further penalty, nor does it preclude a determination of whether any counts merge for sentencing purposes.

-4-