Com. v. Howard, T. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE HOWARD
Appellant No. 88 WDA 2016
Appeal from the Judgment of Sentence December 9, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005895-2014
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 31, 2017
Appellant, Terrence Howard, appeals from the judgment of sentence
entered on December 9, 2015. We vacate Appellant’s judgment of sentence
and remand for resentencing.
On January 6, 2015, Appellant pleaded guilty to one count of unlawful
contact with a minor, graded as a felony of the third degree.1 That same
day, the trial court sentenced Appellant to serve a term of 11 ½ to 23
months in jail, followed by a term of five years of probation. N.T. Guilty Plea
and Sentencing, 1/6/15, at 2 and 4-5.
On December 9, 2015, Appellant appeared before the trial court for a
probation revocation hearing. That day, the trial court found Appellant in
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1
18 Pa.C.S.A. § 6318(a)(1).
* Retired Senior Judge assigned to the Superior Court.
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violation of his probation. The trial court then revoked Appellant’s probation
and resentenced Appellant to serve a term of three to six years in prison,
followed by five years of probation, for the unlawful contact with a minor
conviction. N.T. Probation Revocation Hearing, 12/9/15, at 10. The trial
court did not credit Appellant with time served for his original sentence. Id.
Appellant filed a timely notice of appeal from his judgment of sentence
and now raises three claims on appeal:
[1.] Whether the revocation sentence imposed by the trial
court . . . is illegal in that it exceeds the maximum sentence
allowable by law?
[2.] Whether the revocation sentence imposed by the trial
court . . . is manifestly excessive, unreasonable, and an
abuse of discretion where the trial court failed to consider
the personal history, character[,] and rehabilitative needs of
[Appellant] as required by 42 Pa.C.S.A. § 9721(b)?
[3.] Whether the trial court considered, focused on and/or
discussed impermissible factors and/or information not of
record prior to sentencing [Appellant]?
Appellant’s Brief at 7.
Appellant first claims that his sentence is illegal, as it exceeds the
statutory maximum term of incarceration. Id. The Commonwealth
concedes that Appellant’s sentence is, in fact, illegal. Commonwealth’s Brief
at 7-8. We agree with Appellant and the Commonwealth. We thus vacate
Appellant’s judgment of sentence and remand for resentencing.
Our Supreme Court has held that “the scope of review in an appeal
following a sentence imposed after probation revocation is limited to the
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validity of the revocation proceedings and the legality of the sentence
imposed following revocation.” Commonwealth v. Infante, 888 A.2d 783,
790 (Pa. 2005). We note that “challenges to an illegal sentence can never
be waived and may be raised sua sponte by this Court.” Commonwealth
v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013) (internal quotations and
citations omitted). “Issues relating to the legality of a sentence are
reviewed de novo, and our scope of review is plenary.” Commonwealth v.
McKown, 79 A.3d 678, 691 (Pa. Super. 2013). Moreover, “[i]f no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction.” Commonwealth v. Leverette, 911 A.2d 998, 1001-
1002 (Pa. Super. 2006).
When a defendant receives a split sentence, the cumulative amount of
incarceration and probation may not exceed the statutory maximum. See
42 Pa.C.S.A. § 9754(a) (“[i]n imposing an order of probation the court shall
specify . . . the length of any term during which the defendant is to be
supervised, which term may not exceed the maximum term for which the
defendant could be confined”); see also 42 Pa.C.S.A. § 9756. For example,
“where the maximum [sentence] is ten years, a defendant cannot receive a
term of incarceration of three to six years followed by five years [of]
probation” – the cumulative potential sentence of six years’ incarceration
plus five years’ probation would be in excess of the statutory maximum term
of ten years. Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super.
2010).
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In the case at bar, Appellant was convicted of one count of unlawful
contact with a minor, graded as a felony of the third degree. The statutory
maximum penalty for a third-degree felony is seven years’ imprisonment.
18 Pa.C.S.A. § 1103(3). Appellant’s sentence of three to six years in prison,
followed by five years of probation, for the one count of unlawful contact
with a minor, thus exceeds the statutory maximum penalty for the crime
and is illegal. See 42 Pa.C.S.A. § 9754(a); Crump, 995 A.2d at 1284. We
therefore vacate Appellant’s judgment of sentence and remand for
resentencing.2
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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2
Given our disposition, Appellant’s remaining discretionary aspects of
sentencing claims are moot.
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