Com. v. Walsh, B. ( 2023 )


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  • 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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                        :
    :
    :
    -2-
    J-A22025-22
    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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    J-A22025-22
    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.
    -9-
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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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