Com. v. Fuscellaro, M. ( 2018 )

J-S07006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MICHAEL FUSCELLARO,
Appellant No. 999 EDA 2015
Appeal from the Judgment of Sentence Entered March 10, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0710551-2006
BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 11, 2018
Appellant, Michael Fuscellaro, appeals from the March 10, 2015
judgment of sentence of 11½ to 23 months’ incarceration, followed by 4 years’
probation, imposed after the trial court revoked a term of probation Appellant
was serving for a robbery conviction. Appellant claims that his sentence for
robbery is illegal because it exceeds the statutory maximum term for that
offense. After careful review, we affirm.
The facts of Appellant’s case are not necessary to our disposition of his
appeal. We only note that on September 13, 2010, Appellant entered an open
nolo contendere plea to robbery, graded as a second-degree felony, and other
related offenses. That same day, the trial court sentenced him to 2½ to 5
years’ incarceration, followed by four years’ probation, for his robbery
conviction. However, on September 17, 2010, the trial court vacated that
J-S07006-18
sentence and resentenced Appellant to a term of 2 to 4 years’ incarceration,
with a consecutive term of 5 years’ probation. Due to procedural complexities
that we need not discuss herein, this Court did not affirm Appellant’s judgment
of sentence until November 20, 2013. Commonwealth v. Fuscellaro, 91
A.3d 1290 (Pa. Super. 2013) (unpublished memorandum). Appellant did not
petition for allowance of appeal with our Supreme Court.
On March 13, 2013, while Appellant’s direct appeal was pending, the
trial court found that he had violated the conditions of his probation.
Consequently, the court revoked Appellant’s probationary sentence, and
resentenced him to a term of 1½ to 4 years’ incarceration, followed by 2 years’
probation. Appellant did not file a timely direct appeal.
However, on November 22, 2013, Appellant filed a pro se petition under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 941-9546, alleging, inter
alia, that his robbery sentence was illegal. On March 10, 2015, the PCRA court
issued an order denying in part, and granting in part, Appellant’s PCRA
petition. In regard to granting Appellant relief, the court reinstated his post-
sentence motion and direct appeal rights from the March 13, 2013 revocation
sentence. That same day, Appellant filed a nunc pro tunc motion for
reconsideration of his March 13, 2013 sentence. The court granted that
motion and resentenced Appellant to 11½ to 23 months’ incarceration,
followed by 4 years’ of probation, for his robbery conviction.
-2-
J-S07006-18
Appellant filed a timely notice of appeal with this Court.1 He raises one
issue for our review:
1. Did the court issue an illegal sentence for robbery when the
combined custodial portion of the original sentence (two and
one[-]half to five years[’] incarceration) and [the] split
sentence for violation of probation (11½ to 23 months[’]
incarceration plus four years[’] probation) exceeded the
maximum permissible sentence for a [second]-degree felony?
Appellant’s Brief at 2.
Essentially, Appellant complains that his current, split-sentence, added
to his prior custodial sentence, exceeds the statutory maximum permissible
for his robbery conviction. Appellant acknowledges that,
[w]hen determining whether two split sentences exceed the
statutory maximum, a defendant is to be given credit for [the]
custodial portion of the original sentence. If the custodial portion
of the original sentence exceeds the statutory maximum when
combined with the custodial and probationary portion of the
violation of probation sentence, the sentence is illegal.
Commonwealth v. Crump, 995 A.2d 1280 (Pa. Super. 2010).
Appellant’s Brief at 6-7. In arguing that his sentence is illegal under Crump,
Appellant states that the maximum, custodial portion of his original sentence
was five years’ incarceration. Id. at 7. He then adds that term to his current,
split-sentence of 11½ to 23 months’ incarceration and four years’ probation,
____________________________________________
1 Although Appellant is clearly challenging the legality of the court’s March 10,
2015 sentence, he filed this appeal from the PCRA court’s order denying in
part, and granting in part, his PCRA petition, rather than from the sentencing
order issued that same day. Because this was obviously an oversight by
Appellant, we treat this appeal as stemming from his March 10, 2015
judgment of sentence.
-3-
J-S07006-18
contending that “the combined total” exceeds the 10-year statutory maximum
term for robbery as a second-degree felony. Id.
Appellant’s argument is meritless. He wholly ignores that his original
sentence of 2½ to 5 years’ incarceration for robbery was vacated just a few
days after it was imposed, and he was resentenced to 2 to 4 years’
incarceration. See Reconsideration of Sentence Order, 9/17/10, at 1. Adding
that 4-year, maximum term of incarceration to Appellant’s current, split-
sentence of 11½ to 23 months’ incarceration and four years’ probation,
demonstrates that his total sentence is just under the 10-year, statutory
maximum for his robbery conviction. Accordingly, Appellant’s sentence is not
illegal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/18
-4-