Com. v. Walsh, B.

• Court: Superior Court of Pennsylvania
• Decided: January 19, 2023
• Docket: 463 WDA 2021
• Status: Unpublished

Opinion

J-A22025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN MICHAEL WALSH : : Appellant : No. 463 WDA 2021

Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008180-2010

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN WALSH : : Appellant : No. 464 WDA 2021

Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002515-2012

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN WALSH : : Appellant : No. 465 WDA 2021

Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015422-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA J-A22025-22

: v. : : : BRIAN WALSH : : Appellant : No. 466 WDA 2021

Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015428-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN MICHAEL WALSH : : Appellant : No. 467 WDA 2021

Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003316-2010

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN WALSH : : Appellant : No. 468 WDA 2021

Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002622-2012

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : :

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BRIAN WALSH : : Appellant : No. 469 WDA 2021

Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003439-2012

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN WALSH : : Appellant : No. 470 WDA 2021

Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003604-2012

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN M. WALSH : : Appellant : No. 471 WDA 2021

Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000223-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN MICHAEL WALSH : : Appellant : No. 472 WDA 2021

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Appeal from the Judgment of Sentence Entered September 19, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000937-2015

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED: JANUARY 19, 2023

In this consolidated appeal, Appellant, Brian Michael Walsh, appeals

nunc pro tunc from the judgment of sentence entered on September 19, 2018,

in the Court of Common Pleas of Allegheny County. After careful review, we

vacate in part and affirm in part.

This appeal presents a complex procedural history, which we untangle

as follows. Between February 25, 2010, and June 12, 2015, Appellant pleaded

guilty to 26 offenses across 10 underlying trial court dockets. As of March

2018, Appellant was serving probationary sentences on each docket.

On March 13, 2018, Appellant pleaded guilty to Escape. As a result, on

September 17, 2018, the court held a violation of probation (“VOP”) hearing.

The court found that Appellant had violated his probation at each of the above

dockets. Aided by a pre-sentence investigation (“PSI”) report, the court

imposed an aggregate term of 7½ to 15 years’ incarceration.

On the same day, the court recognized illegalities in several of the

sentences it imposed.1 On September 19, 2018, the court convened a second ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See Stipulation, 12/8/22, at 3-4 (stipulating that neither party filed a motion for reconsideration of sentence and the trial judge’s secretary, on September (Footnote Continued Next Page)

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sentencing hearing to address the illegalities. After hearing from Appellant,

his counsel, and the Adult Probation Department, and after reviewing the PSI

report, the court vacated Appellant’s September 17, 2018 sentence and

resentenced him to an aggregate term of 11½ to 23 years’ incarceration.

On October 1, 2018, Appellant timely filed a motion to reconsider the

September 19, 2018 sentence, challenging the court’s exercise of sentencing

discretion. The court did not act on Appellant’s motion within 30 days and, as

a result, it was denied by operation of law.2 Nonetheless, on December 3,

2018, 45 days after its jurisdiction expired, the VOP court held a hearing where

it granted Appellant’s motion and amended his incarceration sentence.

On March 4, 2019, the VOP court held another sentencing hearing to

correct an alleged illegality in Appellant’s December 3, 2018 amended

sentence.3 This hearing occurred 136 days after the VOP court was divested

____________________________________________

17, 2018, informed the Adult Probation Department that the sentence contained illegalities). We observe that because the trial court convened this sentencing hearing sua sponte, its imposition of an increased sentence was not a product of judicial vindictiveness. Cf. Commonwealth v. Rocco, 544 A.2d 496, 498 (Pa. Super. 1988) (recognizing that judicial vindictiveness exists “where the accused is treated more harshly because [the accused] successfully exercised a lawful right”).

2 As discussed at length infra, a VOP court has a 30-day jurisdictional period to address a motion to reconsider sentence. See Pa.R.Crim.P. 708(E).

3The context of the March 4, 2019 hearing makes clear that it was prompted by a motion by Appellant. See N.T. Hearing, 3/4/19, at 2 (“[Appellant’s counsel:] first, thank you for granting our motion to allow us back here.”). Unfortunately, no such motion appears in the certified records or on the certified dockets.

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of jurisdiction. The court vacated a portion of Appellant’s sentence and

imposed a new, consecutive term of incarceration.

As a result of the above, Appellant is currently serving an aggregate

term of 11 years and 9 months to 23½ years of incarceration, comprised of a

term of 3½ to 7 years’ incarceration imposed on December 3, 2018, and a

consecutive term of 8 years and 3 months to 16½ years’ incarceration

imposed on March 4, 2019.4

Appellant filed an untimely direct appeal to this Court, which he

subsequently discontinued. On November 12, 2020, represented by new

counsel, Appellant filed a Post Conviction Relief Act (PCRA) Petition requesting

reinstatement of his appellate rights nunc pro tunc. On March 11, 2021, the

PCRA court granted Appellant’s request and reinstated his appellate rights.

Appellant filed a timely nunc pro tunc Notice of Appeal from the

September 19, 2018 judgment of sentence,5 and complied with Pa.R.A.P.

4 Additionally, several probationary sentences imposed by the VOP court on September 19, 2018, remain active. Appellant is to serve these probationary sentences consecutive to his incarceration sentences, and concurrent to probationary sentences imposed on March 4, 2019.

5 As discussed infra, the court’s December 3, 2018, and March 4, 2019 sentences are legal nullities and, thus, we conclude that Appellant’s appeal from the September 19, 2018 judgment of sentence is properly before us. See Commonwealth v. Klein, 795 A.2d 424, 431 (Pa. Super. 2002) (recognizing that an illegal sentence is a legal nullity). Cf. Commonwealth v. Green, 265 A.3d 798, 801 (Pa. Super. 2021) (quashing appeal from a trial court ordered entered after expiration of jurisdictional time limits, reasoning that “[b]ecause the court’s order is a legal nullity, this [a]ppeal is also a legal nullity”).

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1925(b). The trial judge overseeing the above proceedings retired without

issuing a Pa.R.A.P. 1925(a) opinion.6

Appellant has raised the following issues for our review:

1. Under 42 Pa.C.S. § 5505, did the trial court lack jurisdiction when it attempted to modify its revocation sentence on December [3], 2018 and March 4, 2019?

2. Did the trial court abuse its discretion when imposing the harsher revocation sentence two days after the first revocation sentence, and there’s no of-record “statement of the reason or reasons for the sentence imposed” as required under 42 Pa.C.S. § 9721(b)?

Appellant’s Br. at 4.

A.

In his first issue, Appellant challenges the trial court’s jurisdiction to

enter its December 3, 2018, and March 4, 2019 judgments of sentence. Id.

at 16-20. Appellant argues that the trial court lacked jurisdiction to enter these

judgments, rendering them illegal. Id. We agree.

Jurisdiction relates to a court’s power to hear and decide a controversy.

Commonwealth v. Gross, 101 A.3d 28, 32 (Pa. 2014). To enter a sentencing

order with legal effect, the court must have jurisdiction. See Commonwealth

v. Santone, 757 A.2d 963, 966 (Pa. Super. 2000) (“Where there is no

jurisdiction, there is no authority to pronounce judgment.”). A sentence

imposed by a court without jurisdiction is illegal. Commonwealth v. Tobin, ____________________________________________

6 Unfortunately, after his retirement and during the pendency of this appeal, the trial judge overseeing the above proceedings passed away. Since the issues raised on appeal present legal, and not factual, issues, we have chosen to decide this appeal without the benefit of a Pa.R.A.P. 1925(a) Opinion.

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89 A.3d 663, 668 (Pa. Super. 2014). It is axiomatic that “[a]n illegal sentence

must be vacated.” Commonwealth v. Martinez, 141 A.3d 485, 487 (Pa.

Super. 2016) (citing Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa.

Super. 2010) (en banc)). When reviewing the legality of a sentence, our

standard of review is de novo and our scope of review is plenary. Id.

The instant controversy relates to the VOP court’s jurisdiction to amend

its September 19, 2018 VOP sentence.7 After a VOP court imposes sentence,

the defendant has 10 days to file a motion to modify sentence. Pa.R.Crim.P.

708(E). The filing of a motion will not toll the 30-day appeal period. Id.

Therefore, “[a]ny appeal must be filed within the 30-day appeal period unless

the sentencing judge within 30 days grants reconsideration or vacates the

sentence.” Id. at cmt. Crucially, “[a]fter the 30 days have passed, the trial

court is divested of jurisdiction to rule on the motion to reconsider sentence.”

Commonwealth v. Swope, 123 A.3d 333, 337 n.16 (Pa. Super. 2015). See

Commonwealth v. Coleman, 721 A.2d 798, 799 n.2 (Pa. Super. 1998)

(recognizing a “30-day jurisdictional period” to address motion).

In the instant case, the VOP court entered its VOP sentence on

September 19, 2018. Appellant timely filed a motion to modify sentence. The

court had until October 19, 2018, 30 days from its entry of the September 19,

2018 sentence, to either grant reconsideration or vacate Appellant’s sentence.

7Appellant does not challenge the VOP court’s authority under 42 Pa.C.S. § 5505 to amend its September 17, 2018 sentence two days later by issuing the September 19, 2018 sentence.

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The VOP court did not act on Appellant’s motion to modify sentence

within its 30-day jurisdictional period. Instead, on December 3, 2018, the

court held a hearing and entered its modified sentence. The court entered the

modified sentence 45 days after it lost jurisdiction to rule on Appellant’s

motion and, as a result, the modified sentence is illegal.

The court then, on March 4, 2019, held another hearing where it vacated

portions of Appellant’s sentence and imposed a new sentence. This hearing

occurred 136 days after the court lost jurisdiction and, thus, the March 4, 2019

sentence is likewise illegal. Since the December 3, 2018 and March 4, 2019

sentences are illegal, we vacate them and reinstate Appellant’s September 19,

2018 judgment of sentence.8

B.

Appellant’s second issue challenges the VOP court’s exercise of

sentencing discretion in imposing the September 19, 2018 judgment of

sentence. Appellant’s Br. at 19-24. “An appellant wishing to appeal the

discretionary aspects of a probation-revocation sentence has no absolute right

to do so but, rather, must petition this Court for permission to do so.”

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008).

To invoke this Court’s jurisdiction over such a discretionary challenge,

the Appellant must (1) have timely filed a notice of appeal; (2) have preserved ____________________________________________

8 In Commonwealth v. Gordon, 477 A.2d 1342, 1346 (Pa. Super. 1984), in a similarly convoluted case, this Court vacated an untimely amended judgment of sentence and “reinstate[d] the original sentence[.]” We draw guidance from Gordon in our disposition of this issue.

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the issue at sentencing or in a motion to reconsider and modify sentence; (3)

include in his brief a concise statement of the reasons relied upon for

allowance of appeal as required by Pa.R.A.P. 2119(f); and (4) within the

concise statement, raise a substantial question that the sentence is

inappropriate under the Sentencing Code. Commonwealth v. Starr, 234

A.3d 755, 759 (Pa. Super. 2020).

Appellant timely filed the instant appeal nunc pro tunc, preserved his

sentencing claim in a post-sentence motion, and has included in his brief a

Rule 2119(f) Statement. In his Rule 2119(f) Statement, Appellant contends

that the VOP court imposed an “excessive sentence” without satisfying the

requirement that it “make as 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.” Appellant’s Br. at 13 (citing 42 Pa.C.S. § 9721(b)). This raises a

substantial question for our review. Commonwealth v. Brown, 741 A.2d

726, 735 (Pa. Super. 1999) (en banc) (finding substantial question where

court failed to place its reasons on the record for imposing an allegedly

excessive sentence).

We proceed to review Appellant’s discretionary challenge mindful that

sentencing is vested in the sound discretion of the sentencing judge.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013). We will only

disturb a sentence on appeal if we determine that the sentencing court

committed a manifest abuse of discretion. Id. To establish a manifest abuse

of discretion, the appellant must prove, by reference to the record, “that the

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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. Shugars, 895 A.2d 1270, 1275

(Pa. Super. 2006) (citation omitted).

In every case where the court resentences an offender following

revocation of probation, “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.” 42 Pa.C.S. § 9721(b). “The sentencing

judge can satisfy the requirement that reasons for imposing sentence be

placed on the record by indicating that he or she has been informed by the

PSI[,] thus properly considering and weighing all relevant factors.”

Commonwealth v. Miller, 275 A.3d 530, 535 (Pa. Super. 2022) (citation

omitted). “[W]here the revocation sentence was adequately considered and

sufficiently explained on the record by the revocation judge, . . . the [VOP]

sentence, if within the statutory bounds, is [particularly] within the judge’s

discretion.” Commonwealth v. Pasture, 107 A.3d 21, 28-29 (Pa. 2014).

In the instant case, before imposing sentence on September 19, 2018,

the VOP court heard from Appellant, his counsel, and the Adult Probation

Department, and reviewed the PSI report. N.T. Hr’g, 9/19/18, at 2-4. The

court then imposed consecutive terms of incarceration of 5 to 10 years for

Burglary, 3½ to 7 years for one count of Access Device Fraud, and 3 to 6 years

for another count of Access Device Fraud. See 18 Pa.C.S. §§ 3502(c)(2),

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4106(a)(1)(i). These sentences are within the statutory bounds set by our

legislature. See 18 Pa.C.S. § 1103(2), (3).

By indicating that it had reviewed the PSI, the VOP court satisfied the

requirement that it place on the record a statement of the reasons for the

sentence imposed. The court then imposed sentences within the statutory

bounds. As dictated by our Supreme Court, the sentence is particularly within

the judge’s discretion, and we discern no abuse of that discretion. As a result,

we affirm.

C.

In conclusion, we vacate as illegal the December 3, 2018, and March 4,

2019 judgments of sentence. We reinstate and affirm the September 19, 2018

judgment of sentence.

December 3, 2018, and March 4, 2019 judgments of sentence vacated.

September 19, 2018 judgment of sentence reinstated and affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/19/2023

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