Commonwealth v. Tann

79 A.3d 1130, 2013 Pa. Super. 269, 2013 WL 5517581, 2013 Pa. Super. LEXIS 2706
CourtSuperior Court of Pennsylvania
DecidedOctober 7, 2013
StatusPublished
Cited by32 cases

This text of 79 A.3d 1130 (Commonwealth v. Tann) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Tann, 79 A.3d 1130, 2013 Pa. Super. 269, 2013 WL 5517581, 2013 Pa. Super. LEXIS 2706 (Pa. Ct. App. 2013).

Opinion

OPINION BY

STRASSBURGER, J.:

Shawn Tann (Appellant) appeals from the judgment of sentence of 5’/2 to 11 years of imprisonment following revocation of his probation. We affirm.

The trial court summarized the history of the case as follows.

On January 26, 2004, [Appellant] entered into a negotiated guilty plea to [possession [w]ith [i]ntent [t]o [d]eliver (PWID) heroin and crack cocaine, 35 P.S. § 780-113(a)(30). He was sentenced pursuant to the guilty plea [agreement] to lVh to 23 months [of] incarceration (and to attend a drug treatment program) followed by 24 months [of] reporting probation....
At a [violation of probation (VOP) ] hearing on April 8, 2005, [Appellant] pled guilty to prostitution. [Appellant] also testified at the VOP hearing that he did not complete his previously ordered drug program. After the hearing, he was sentenced to 4 to 12 months [of] incarceration for prostitution with immediate parole, and 6 to 12 months [of] incarceration for his PWID VOP (he was ordered to complete the Options Program and [the trial] court authorized work release during the last 3 months of the sentence) followed by 36 months [of] probation (24 months reporting and 12 months non-reporting).
On March 21, 2007, a second VOP [hearing] was held, after which, [the trial] court found [Appellant] in violation of his probation ([Appellant] absconded/never reported to probation, never paid costs and fines, and incurred new arrests). The [trial] court then sentenced [Appellant] to 21 to 48 months [of] state incarceration followed by 36 months [of] reporting probation for his PWID VOP, as well as, 12 months [of] reporting probation for his prostitution VOP.... [Appellant] filed an appeal [from] his VOP sentence on April 19, 2007; the appeal was later “discontin[1132]*1132ued” by the Superior Court on September 19, 2007.
On November 21, 2011, [the trial] court revoked [Appellant’s] probation for technical violations and ordered a PSI. [The trial] court noted in its file ... that the Sentencing Guidelines did not reflect . a Delaware PWID conviction on July 21, 1999, in New Castle County. Therefore, when [Appellant] originally pled guilty to PWID ... in 2008, his sentencing status should have been that of a drug recidivist.
After a VOP sentencing hearing on March 6, 2012, [the trial] court sentenced [Appellant] to 66 to 132 months [of] incarceration for his PWID VOP; his prostitution sentence had expired.

Trial Court Opinion, 7/12/2012, at 1-3 (citations omitted).

Appellant filed a timely notice of appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.1 Appellant states one question for our review: “[d]id not the lower court impose an illegal sentence of to 11 years following [Appellant's revocation of probation when the maximum penalty that the court could impose was ten years [of] confinement?” Appellant’s Brief at 3.

We consider Appellant’s challenge to his sentence pursuant to the following standard.

Our review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. Also, upon sentencing following a revocation of probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence.

Commonwealth v. Simmons, 56 A.3d 1280, 1286-1287 (Pa.Super.2012) (quoting Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa.Super.2006)).

Because Appellant had been convicted of a PWID offense in 1999, the maximum sentence the trial court could have imposed originally was 20 years of imprisonment and a fine of up to $200,000. See 35 P.S. § 780-115 (providing for second or subsequent offenders a sentence and fine of twice the amount otherwise authorized). Appellant does not dispute this fact. However, because no one other than Appellant was aware of his prior conviction, the plea colloquy indicated that the maximum penalty he faced was 10 years’ incarceration and up to $100,000 in fines. Appellant argues that this error is binding on the trial court, and prohibits the VOP court from sentencing him to more than the maximum provided in the plea colloquy. See Appellant’s Brief at 10-11.

The trial court rejected Appellant’s argument, relying upon Commonwealth v. Wallace, 582 Pa. 234, 870 A.2d 838 (2005), and Commonwealth v. Raphael, 879 A.2d 1264 (Pa.Super.2005). In Wallace, our Supreme Court, noting that the trial court upon the revocation of probation possesses all of the sentencing alternatives it had at the time of the initial sentencing, held “the court is similarly free to impose any sentence permitted under the Sentencing Code and is not restricted by the bounds of a negotiated plea agreement between a defendant and a prosecutor.” Wallace, 870 A.2d at 843. See also Raphael, supra (same); Commonwealth v. Parsons, 969 A.2d 1259, 1270 n. 6 (Pa.Super.2009) {en banc) (“At re-sentencing following revocation of parole/probation, the court is no [1133]*1133longer bound by the terms of the original plea bargain; so breached, the sentencing aspect of the original plea bargain is no longer binding on the court, which then has the full panoply of sentencing options available upon re-sentencing following revocation.”). Based upon these cases, the trial court determined that it was not bound by the sentencing information disclosed in the plea colloquy, but was bound only by the statutory maximum of 20 years.

Appellant argues that the more instructive precedent is our Supreme Court’s decision in Commonwealth v. Mazzetti, 615 Pa. 555, 44 A.3d 58 (2012). In that case, the Commonwealth, in reaching a plea agreement with Mazzetti, waived application of a mandatory minimum sentence and, accordingly, did not provide the requisite notice of intent to seek it and did not present evidence of the applicability of it at sentencing. Upon revocation of Mazzet-ti’s probation, however, the Commonwealth sought to invoke that mandatory minimum at resentencing. Our Supreme Court held that the Commonwealth could not do so. Because the Commonwealth failed to comply with the statutory prerequisites for applying the mandatory minimum at Mazzetti’s original sentencing, the trial court did not have that option available to it at the original sentencing. Therefore, “[s]ince the court did not have the option to apply the mandatory minimum at [Mazzetti’s] initial sentencing, the Commonwealth couid not compel its imposition at resentencing.” Id. at 65. Relying on Mazzetti, Appellant argues that because the Commonwealth did not ask the trial court to sentence him as a recidivist under section 780-115 at the initial sentencing, that enhancement was unavailable to the trial court at resentencing.

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Cite This Page — Counsel Stack

Bluebook (online)
79 A.3d 1130, 2013 Pa. Super. 269, 2013 WL 5517581, 2013 Pa. Super. LEXIS 2706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-tann-pasuperct-2013.