Commonwealth v. Finley ( 2016 )

J-S17026-16
2016 PA Super 78COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ROBERT JAMES FINLEY,
Appellee No. 1174 WDA 2015
Appeal from the Order July 14, 2015
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0001949-2013
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
OPINION BY SHOGAN, J.: FILED APRIL 5, 2016
Appellant, the Commonwealth of Pennsylvania (“the
Commonwealth”),1 appeals from the order entered on July 14, 2015, that
granted Appellee, Robert James Finley, early parole. After careful review,
we reverse the order and remand for further proceedings consistent with this
Opinion.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
On January 25, 2016, Attorney William T. Fullerton filed a motion to
withdraw his appearance as counsel for the Commonwealth due to his
separation from the Butler County District Attorney’s Office. In that same
motion, Assistant District Attorney Mark A. Lope moved to enter his
appearance on behalf of the Commonwealth in this matter. The motion is
granted. Attorney Fullerton is hereby permitted to withdraw, and Attorney
Lope’s appearance is entered on behalf of the Commonwealth.
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The record reveals that at 3:14 a.m., on August 3, 2013, Sergeant
Timothy Clark of the Butler Township Police Department responded to the
report of an unconscious person sitting behind the wheel of a gray vehicle in
a McDonald’s parking lot. Affidavit of Probable Cause, 10/18/13, at 1.
When Sergeant Clark, who was assisted by Officer Tedeski of the Butler City
Police Department, arrived at the scene, they approached the gray vehicle
and saw an individual unconscious in the driver’s seat. Id. Officer Tedeski
noticed an empty bottle of Smirnoff Ice on the floor of the suspect’s car. Id.Sergeant Clark knocked on the driver’s window and woke the driver. Id.Sergeant Clark asked the driver to open the window and asked him if he had
been drinking. Id. The driver, who had glassy, bloodshot eyes, opened the
window, but he denied consuming alcohol. Id. Sergeant Clark then directed
the driver to exit the vehicle. Id. Rather than alight from the car, the driver
closed the window and revved the engine. Id. Sergeant Clark grabbed the
driver’s door handle, but the driver shifted the car into gear and fled. Id.Sergeant Adam of the Butler City Police responded as back-up, and pursued
the fleeing vehicle. Id. During this pursuit, Sergeant Adam had the lights
and siren on his police vehicle activated. Id. Despite the pursuit, the police
officers lost sight of the gray car. Id. at 2. However, during his
investigation, Sergeant Clark learned that the vehicle was registered to
Samantha Sekura from West Mifflin, Pennsylvania. Id. After discussions
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with the West Mifflin Police Department, Sergeant Clark determined that
Appellee was the driver of the gray vehicle. Id.
Appellee was subsequently arrested and charged with recklessly
endangering another person (“REAP”) and numerous violations of the
Pennsylvania Motor Vehicle Code. On September 12, 2014, Appellee
entered guilty pleas to one count each of fleeing/attempting to elude police,2
REAP,3 habitual offender,4 driving while operating privileges were
suspended-DUI related,5 and reckless driving.6 On October 29, 2014, the
trial court sentenced Appellee to a term of ninety to 180 days of
incarceration followed by twenty-four months of probation for
fleeing/attempting to elude police, six to twelve months of incarceration for
REAP, thirty to sixty days of incarceration for habitual offenders, a flat
sentence of ninety days for driving while operating privileges were
suspended-DUI related,7 and a fine for reckless driving. The trial court
____________________________________________
2
75 Pa.C.S. § 3733(a).
3
18 Pa.C.S. § 2705.
4
75 Pa.C.S. § 6503.1.
5
75 Pa.C.S. § 1543(b)(1).
6
75 Pa.C.S. § 3736.
7
The flat sentence of ninety days is an exception to the minimum and
maximum sentencing requirements set forth in 42 Pa.C.S. § 9756. See
Commonwealth v. Klingensmith, 650 A.2d 444 (Pa. Super. 1994)
(Footnote Continued Next Page)
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ordered the sentences to be served consecutively. Thus, as for the felony
and the misdemeanor offenses, the trial court imposed an aggregate
sentence of ten to twenty months of incarceration. As for the summary
offense of driving while operating privileges were suspended-DUI related,
the trial court imposed a consecutive term of ninety days of incarceration.
Therefore, the aggregate sentence was thirteen to twenty months of
incarceration. The trial court deferred commitment until November 23,
2014. However, because of a credit for time served of two days, the
effective date of commitment was November 21, 2014. Post-sentence
motions were filed and denied; Appellee did not file a direct appeal.
On June 26, 2015, Appellee filed a motion for early parole. Following a
hearing, which was held on July 13, 2015, the trial court granted Appellee
early parole in an order filed on July 14, 2015. On July 28, 2015, the
Commonwealth filed a timely appeal.
On August 12, 2015, the trial court directed the Commonwealth to file
a statement of errors complained of on appeal within twenty-one days
pursuant to Pa.R.A.P. 1925(b). The Commonwealth complied, and on
September 18, 2015, the trial court filed its Pa.R.A.P. 1925(a) opinion.8
_______________________
(Footnote Continued)
(discussing the relationship between 42 Pa.C.S. § 9756 and 75 Pa.C.S.
§ 1543(b)).
8
We conclude that this Court has jurisdiction in this matter. See 42
Pa.C.S. § 9781(a) (stating that the defendant or the Commonwealth may
(Footnote Continued Next Page)
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On appeal, the Commonwealth presents one question for this Court’s
consideration:
Whether the court of common pleas committed an error of law
by granting a motion for early parole without legal authority?
Commonwealth’s Brief at 7 (full capitalization omitted).
We recognize that “[w]hen an offender is sentenced to a maximum
term of imprisonment of less than two years, the common pleas court
retains authority to grant and revoke parole[.]” Commonwealth v.
Hanson, 856 A.2d 1254, 1258 (Pa. Super. 2004) (citation omitted).
Additionally, when the defendant is eligible for parole, the trial court’s
decision to grant parole is a discretionary act, and it is subject to appellate
review under an abuse of discretion standard. Commonwealth v.
Romolini, 557 A.2d 1073, 1077 (Pa. Super. 1989).
However, in the case at bar, we are not faced with a challenge to an
order granting early parole to an eligible defendant. Rather, the issue in
the instant case concerns the authority of the trial court to grant early parole
to a defendant prior to that defendant completing his minimum sentence,
i.e, an ineligible defendant. This determination requires an examination
of the requirements for sentences of total confinement and parole eligibility
_______________________
(Footnote Continued)
appeal as of right the legality of a sentence); and see Commonwealth v.
Hall, 652 A.2d 858 (Pa. Super. 1995) (reversing an order granting parole
and addressing a Commonwealth appeal from a trial court’s illegal grant of
parole) and Commonwealth v. Jamison, 652 A.2d 862 (Pa. Super. 1995)
(same).
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set forth in 42 Pa.C.S. § 9756. Therefore, our examination of this issue is
one of statutory interpretation, which is a question of law. Accordingly, as
with all questions of law, our scope of review is plenary and our standard of
review is de novo. Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa.
Super. 2011).
The Pennsylvania Sentencing Code provides, in relevant part, as
follows:
Sentence of total confinement
(a) General rule.--In imposing a sentence of total confinement
the court shall at the time of sentencing specify any maximum
period up to the limit authorized by law and whether the
sentence shall commence in a correctional or other appropriate
institution.
(b) Minimum sentence.--
(1) The court shall impose a minimum sentence of
confinement which shall not exceed one-half of the
maximum sentence imposed.
(2) The minimum sentence imposed under this
section may not be reduced through parole
prior to the expiration of the minimum
sentence unless otherwise authorized by this
section or other law.
(3) Except where the maximum sentence imposed is
two years or more, and except where a mandatory
minimum sentence of imprisonment or total
confinement is required by law, the court shall, at
the time of sentencing, state whether or not
the defendant is eligible to participate in a
reentry plan at any time prior to the expiration
of the minimum sentence or at the expiration of
a specified portion of the minimum sentence.
For maximum sentences of less than two years as
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defined under section 9762(f) (relating to sentencing
proceeding; place of confinement), a court may
parole a defendant prior to the expiration of
the minimum sentence only if the defendant
was made eligible to participate in a reentry
plan at the time of sentencing. The court shall
provide at least ten days’ written notice and an
opportunity to be heard, pursuant to section 9776
(relating to judicial power to release inmates), to the
prosecuting attorney before granting parole pursuant
to this subsection. The reentry plan eligibility shall
be considered a part of the sentence and subject to
the requirements relating to the entry, recording and
reporting of sentences.
42 Pa.C.S. § 9756(a) and (b) (emphases added).
As noted above, when the trial court imposed sentence, Appellee was
not eligible for parole on the felony and misdemeanor convictions until his
minimum sentence expired on September 21, 2015. If paroled on that date,
Appellee would then have to serve his flat ninety-day sentence on the
summary offense conviction. Nothing in the record or in the sentencing
order provided that Appellee was eligible for an early reentry program that
would allow for parole prior to Appellee serving his minimum sentence. Yet,
when the trial court granted Appellee parole on July 14, 2015, Appellee had
served less than nine months.
Appellee contends that the trial court did not err in granting early
parole. Appellee’s Brief at 11. He avers that “he was essentially made
eligible for reentry when the [s]entencing order specifically state[d] that the
county will retain parole jurisdiction.” Id. We disagree. As discussed, in
order to be eligible for early parole, the trial court is required to make an
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early reentry determination on the record at the time of sentencing. 42
Pa.C.S. § 9756(b)(3). A trial court’s imposition of a county sentence and
retention of parole authority does not satisfy section 9756(b)(3) and make a
defendant eligible for parole prior to the expiration of his minimum sentence.
Accordingly, due to the fact that the trial court had not made Appellee
eligible for early parole at the time of sentencing, and because Appellee had
not served his minimum sentence, Appellee was not parole eligible.
Therefore, the trial court was without authority to grant Appellee’s motion
for early parole.9 42 Pa.C.S. § 9756(b). For these reasons, the July 14,
2015 order that granted Appellee early parole is reversed, and we remand
this case for further proceedings consistent with this decision.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
P.J. Gantman joins the Opinion.
Justice Fitzgerald concurs in the result.
____________________________________________
9
The trial court conceded that it erred in granting Appellee early parole,
and it requested this matter be remanded in order for that error to be
corrected. Trial Court Opinion, 9/18/15, at 1.
-8-
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2016
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