Commonwealth v. Van Fossen

749 A.2d 510, 2000 Pa. Super. 82, 2000 Pa. Super. LEXIS 291

Opinion

DEL SOLE, J.:

¶ 1 Following her guilty plea Appellant received the following sentences:

1. Aggravated Assault, 72 months to 120 months

2. Criminal Conspiracy, 72 months to 120 months consecutive to the Aggravated Assault sentence.

3. Burglary, 48 months to 120 months, concurrent to the Criminal Conspiracy sentence.

¶ 2 Appellant raises one issue on appeal, namely that the sentences for Aggravated Assault and Criminal Conspiracy are illegal since the minimum sentence is greater than one-half the maximum. We agree.

¶ 3 Contrary to the position of the Commonwealth, that this is a discretionary sentencing issue, 42 Pa.C.S.A. § 9756(b) mandates that:

(b) Minimum sentence. — The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.

This provision of the sentencing code is mandatory and it is not within the trial court’s discretion to impose a minimum sentence that is greater than one-half the maximum. Therefore, we vacate the sentence and remand for resentencing.

¶ 4 Judgment of sentence vacate. Case remanded. Jurisdiction relinquished.