Com. v. Maldonado, R. ( 2018 )

J-A25012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REMIRO MALDONADO, :
:
Appellant : No. 2490 EDA 2017
Appeal from the Judgment of Sentence April 18, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003033-2016
BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 31, 2018
Appellant Remiro Maldonado seeks review of the Judgment of Sentence
imposed after a jury convicted him of, inter alia, Murder of the First Degree
and Conspiracy to Commit Murder of the First Degree.1 He challenges the
legality of the life sentence that the court imposed for his Conspiracy
conviction. After careful review, we amend the sentence imposed for the
Conspiracy to Commit Murder conviction.2
The trial court has set forth the underlying facts in its Pa.R.A.P. 1925(a)
Opinion and we need not repeat them for purposes of this appeal. See Trial
Ct. Op., filed 4/18/18, at 3-7. Briefly, on October 21, 2015, Appellant and
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1 18 Pa.C.S. §§ 2502(a) and 903(a)(1), respectively.
2 See Commonwealth v. Alicea, 449 A.2d 1381, 1385 n.9 (Pa. 1982)
(finding remand unnecessary to amend sentence because “the record clearly
indicates what the sentence would have been absent error.”).
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two other individuals shot and killed Daquan Medina during a drug transaction
in Philadelphia. A jury convicted Appellant of Murder of the First Degree,
Conspiracy to Commit Murder of the First Degree, Robbery, and various
firearms offenses. On April 18, 2017, the court sentenced Appellant to, inter
alia, life imprisonment without the possibility of parole for the Murder and a
concurrent term of life imprisonment for the Conspiracy to Commit Murder
conviction.3
Appellant filed a post-trial Motion, which the court denied on August 1,
2017. Appellant timely appealed to this Court. Appellant filed a Pa.R.A.P.
1925(b) Statement raising five issues, to which the trial court responded with
a Pa.R.A.P. 1925(a) Opinion.
In his Brief, Appellant raises just one issue for our review:
Is the sentence of life imprisonment imposed on the Conspiracy
to Commit Murder conviction illegal and must it be vacated?
Appellant’s Brief at 3.4
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3 The court sentenced Appellant for his other convictions to concurrent terms
of incarceration as follows: (1) Robbery - Inflict Serious Bodily Harm, 18
Pa.C.S. § 3701(a)(1)(i), ten to twenty years; (2) Firearms Not to be Carried
Without a License, 18 Pa.C.S. § 6106(a)(1), three years, six months to seven
years; (3) Carrying a Firearm in Public in Philadelphia, 18 Pa.C.S. § 6108, two
years, six months to five years; (4) Possession of an Instrument of Crime, 18
Pa.C.S. § 907(a), two years, six months to five years; and (5) Conspiracy to
Commit Robbery – Infliction of Serious Bodily Harm, 18 Pa.C.S. § 903, ten to
twenty years.
4Appellant did not raise this issue in his post-sentence Motion or his Pa.R.A.P.
1925(b) Statement. However, “[a] challenge to the legality of the sentence
may be raised as a matter of right, is non-waivable, and may be entertained
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J-A25012-18
Appellant contends that, pursuant to 18 Pa.C.S. § 1102(c), the court
illegally imposed a life term for his Conspiracy to Commit Murder of the First
Degree conviction.
Our standard of review over challenges to the legality of sentence is de
novo and our scope of review is plenary. Commonwealth v. Aikens, 139
A.3d 244, 245 (Pa. Super. 2014). “If no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to correction.”
Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014).
Section 1102(c) provides, in relevant part, that “a person who has been
convicted of . . . conspiracy to commit murder, . . . where serious bodily injury
results[,] may be sentenced to a term of imprisonment which shall be fixed
by the court at not more than 40 years.” 18 Pa.C.S. § 1102(c).
We agree with Appellant that the court improperly sentenced him to a
life sentence for the Conspiracy to Commit Murder conviction. Pursuant to 18
Pa.C.S. § 1102(c), a court may impose a sentence of up to forty years only
for such a conspiracy offense. Accordingly, the sentence imposed on
Appellant’s Conspiracy to Commit Murder conviction is illegal and cannot
stand.
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so long as the reviewing court has jurisdiction.” Commonwealth v.
Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (en banc). We, thus,
review Appellant’s challenge to the legality of his sentence.
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Rather than remand for resentencing, this Court will amend the
sentence imposed for the conviction of Conspiracy to Commit Murder to the
statutory maximum concurrent term of forty years’ incarceration. See
Commonwealth v. Eberts, 422 A.2d 1154, 1156 (Pa. Super. 1980) (per
curiam) (holding that if correction of sentence is required, the reviewing court
may remand for resentencing or amend the sentence directly);
Commonwealth v. Downer, 53 A.2d 897, 901 (Pa. Super. 1947) (per
curiam) (holding that “[w]here a sentence is illegal because greater than the
maximum allowed by statute, this Court, without remanding the case or
remitting the record to the court below, may reduce the sentence to the
maximum.” (citations omitted)). Amending the Judgment of Sentence for the
Conspiracy conviction to the statutory maximum does not upset the
sentencing scheme as the court ordered all sentences to run concurrently with
the mandatory sentence of life without parole imposed for Appellant’s Murder
conviction. See Commonwealth v. Thur, 906 A.2d 552, 570 (Pa. Super.
2006) (finding no need for remand because vacating sentence did not disturb
sentencing scheme where that sentence was concurrent with other terms and
did not change the aggregate length of incarceration).
Accordingly, we amend the sentence of life imprisonment imposed for
Conspiracy to Commit Murder to a concurrent term of forty years’
incarceration as allowed by 18 Pa.C.S. § 1102(c). Judgment of Sentence
affirmed in all other respects.
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J-A25012-18
Convictions affirmed. Judgment of Sentence amended in part and
affirmed in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/18
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