Com. v. Danzey, B. ( 2014 )

J-A31004-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BOUNEAKE DARNELL DANZEY,
Appellant No. 2188 MDA 2013
Appeal from the Judgment of Sentence November 8, 2013
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003142-2009
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 18, 2014
Bouneake Darnell Danzey appeals from the judgment of sentence of
three to six years incarceration imposed by the trial court after it revoked his
probation. Finding that the trial court sentenced Appellant illegally, we
vacate his judgment of sentence and remand for resentencing.
Appellant entered a negotiated guilty plea to failure to register as a
sex offender on March 9, 2010. The guilty plea colloquy indicated that
Appellant was pleading guilty to a felony of the third-degree and that his
maximum sentence could be seven years incarceration. The criminal
complaint similarly outlined that Appellant’s criminal violation was a felony of
the third-degree. In addition, the criminal docket sheet in this matter sets
forth Appellant’s violation as a third-degree felony. A Pennsylvania Board of
Probation and Parole form, relating to supervision history, also indicated that
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the failure to register charge was a third-degree felony. However, the court,
following the guilty plea and sentence, completed a Pennsylvania Sentencing
Guideline form in which it set forth for the first time that the offense was a
second-degree felony.1
Despite the criminal complaint and the negotiated guilty plea being
premised on a third-degree felony, the Commonwealth sought, and the trial
court imposed, a sentence of two to four years incarceration, plus a
consecutive five-year probationary term. Appellant did not appeal and
subsequently served his maximum sentence prior to being released from
incarceration. On August 23, 2013, the court revoked Appellant’s probation.
Thereafter, on November 8, 2013, the court resentenced Appellant to three
to six years incarceration, with credit for time served of five months.
Appellant filed a timely post-sentence motion on November 18, 2013, which
the trial court denied. This timely appeal ensued.2
____________________________________________
1
The criminal information did not include a grading for the offense.
Apparently, the Commonwealth could have charged Appellant with a second-
degree felony because he was previously convicted of aggravated indecent
assault, which, at the time of Appellant’s conviction for that offense,
required lifetime reporting. Under the then-applicable version of 18 Pa.C.S.
§ 4915, a person subject to lifetime registration was guilty of a second-
degree felony for failing to register. Section 4915 has since been replaced
by § 4915.1. Nonetheless, Appellant was charged with and entered his plea
based on a felony three grading.
2
A probation revocation defendant has thirty days to appeal from the
revocation sentence. Unlike an appeal from an original judgment of
sentence, the filing of a post-sentence motion does not toll the appeal period
(Footnote Continued Next Page)
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The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Appellant complied,
and the trial court authored its opinion. The matter is now ready for our
review. Appellant’s sole issue on appeal is: “[w]hether Appellant’s
revocation sentence is illegal where it exceeds the maximum penalty allowed
by law?” Appellant’s brief at 4.
A sentence that exceeds the lawful maximum is illegal.
Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005). Legality of sentence
questions present questions of law for which our standard of review is de
novo. Commonwealth v. Raven, 97 A.3d 1244, 1248 (Pa.Super. 2014).
Our scope of review is plenary. Id. Here, Appellant argues, and the
Commonwealth concedes, that his sentence is illegal. Appellant highlights
that he pled guilty to a third-degree felony and the maximum sentence for
such an offense is seven years. 18 Pa.C.S. § 1103(3). Since he previously
served four years after entry of the guilty plea, he maintains that the
maximum sentence he could serve for his probation revocation is three
years. Appellant is correct that his total period of incarceration cannot
exceed seven years for a third-degree felony charge. See Commonwealth
v. Crump, 995 A.2d 1280 (Pa.Super. 2010).
_______________________
(Footnote Continued)
for revocation sentences. Pa.R.Crim.P. 708(E). Appellant filed his appeal on
December 6, 2013.
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The trial court maintains, based on the aforementioned sentencing
guideline form, that Appellant pled guilty to a second-degree felony.
However, the guilty plea colloquy and the criminal complaint indicate that
Appellant entered his plea based on the charge being graded as a third-
degree felony. Thus, Appellant’s three-to-six-year sentence is illegal.
Judgment of sentence vacated. Case remand for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2014
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