Com. v. Hashim, R. ( 2018 )

J-S82029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD HASHIM :
:
Appellant : No. 442 EDA 2018
Appeal from the PCRA Order January 29, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007401-2012
BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 28, 2018
Appellant, Richard Hashim, appeals pro se from the January 29, 2018
order dismissing his first petition filed pursuant to the Post-Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In the Fall of 2006 or 2007, Appellant laid on top of his niece, who was
seven or eight years old, and rubbed his penis up and down her buttocks. On
November 7, 2012, Appellant pled guilty to one count of indecent assault of a
victim less than 13 years old.1 On April 11, 2013, the trial court sentenced
Appellant to five years’ probation. One of the conditions of Appellant’s
probation was that he could not have contact with minors without permission
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118 Pa.C.S.A. § 3126(a)(7). Appellant also pled guilty to offenses charged in
other criminal informations. We limit our discussion to the facts and
procedural history related to the indecent assault conviction at issue in this
appeal.
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* Retired Senior Judge assigned to the Superior Court.
J-S82029-18
from his probation officer. Notwithstanding this condition of probation, on two
occasions Appellant had contact with a minor without permission from his
probation officer.
On August 2, 2016, the trial court held a Gagnon I2 hearing. On
September 28, 2016, the trial court held a Gagnon II hearing. At the
conclusion of that hearing, the trial court found Appellant violated the terms
of his probation, revoked that probation, and resentenced Appellant to one to
three years’ imprisonment.3 Appellant filed a post-sentence motion and the
trial court denied that motion.
On August 7, 2017, Appellant filed a pro se PCRA petition. Counsel was
appointed but withdrew after Appellant demanded to proceed pro se.4 On
January 2, 2018, the PCRA court issued notice of its intent to dismiss the
petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On January
29, 2018, the PCRA court dismissed the petition. This timely appeal followed.5
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2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3In its opinion, the trial court states that it sentenced Appellant to three years’
imprisonment with no minimum. Trial Court Opinion, 2/9/18, at 3. This would
be an illegal sentence. See 42 Pa.C.S.A. § 9756(a)(1). However, upon review
of the certified record, the sentencing order entered on January 29, 2018
provides that Appellant was sentenced to one to three years’ imprisonment.
4The trial court held two hearings pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998) at which Appellant knowingly, intelligently, and
voluntarily waived his right to counsel.
5The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal.
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Appellant presents one issue for our review:
Whether the PCRA [court] erred in denying Appellant’s PCRA
[p]etition where he asserted that he received an illegal sentence
from revocation of his special probation term of five years[?]
Appellant’s Brief at 2.
We review the legality of a sentence de novo and our scope of review is
plenary. Commonwealth v. Crissman, 195 A.3d 588, 590-591 (Pa. Super.
2018) (citation omitted). Appellant argues that he received an illegal sentence
because it exceeded the sentence set forth in his negotiated plea agreement.
This Court has explained that “at any revocation of probation hearing, the
court is [] free to impose any sentence permitted under the Sentencing Code
and is not restricted by the bounds of a negotiated plea agreement
between a defendant and prosecutor.” Commonwealth v. Infante, 63
A.3d 358, 365 (Pa. Super. 2013) (emphasis added; citation omitted). Thus,
the trial court was not required to sentence Appellant consistent with the
negotiated plea agreement.
Appellant’s indecent assault conviction was graded as a first-degree
misdemeanor.6 Hence, the maximum sentence was five years’ imprisonment.
See 18 Pa.C.S.A. § 1104(1). The trial court sentenced Appellant to a
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6A conviction under 18 Pa.C.S.A. § 3126(a)(7) can be graded as a first-degree
misdemeanor or a third-degree felony. 18 Pa.C.S.A. § 3126(b)(3). In this
case, Appellant’s conviction was graded as a first-degree misdemeanor.
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maximum term of three years’ imprisonment,7 i.e., less than the statutory
maximum of five years’ imprisonment. Moreover, Appellant was not entitled
to credit for the time he spent on probation. See Commonwealth v. Crump,
995 A.2d 1280, 1284 (Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa.
2010). The PCRA court, therefore, correctly dismissed Appellant’s PCRA
petition because Appellant’s sentence was legal.8
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/18
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7 Contrary to Appellant’s argument, the trial court did not sentence Appellant
to one to three years’ imprisonment followed by three years’ probation. The
trial court did not impose a probationary tail after resentencing Appellant
following the probation revocation.
8 To the extent that Appellant challenges the discretionary aspects of his
sentence that issue is waived. See Pa.R.A.P. 2116(a). Moreover, a
discretionary aspects claim is not cognizable under the PCRA.
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