Com. v. Rominger, K. ( 2017 )

J-S22012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KARL ERNST ROMINGER,
Appellant No. 1710 MDA 2016
Appeal from the Judgment of Sentence August 17, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000884-2015
BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 11, 2017
Appellant, Karl Ernst Rominger, appeals from the judgment of
sentence entered on August 17, 2016, in the Cumberland County Court of
Common Pleas. After careful review, we are constrained to vacate the
judgment of sentence and remand for resentencing.
The relevant facts and procedural history of this matter are straight
forward. On February 20, 2015, Appellant was arrested and charged with
numerous crimes involving theft, dealing in proceeds of unlawful activities,
and misapplication of entrusted property. Additional similar crimes were
subsequently charged. On May 12, 2016, the information was amended to
include eighteen charges of misapplication of entrusted property. Appellant
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S22012-17
then entered an open guilty plea to one count of theft by deception 1 graded
as a felony of the first degree at count seven, and eighteen charges of
misapplication of entrusted property2 graded as second-degree
misdemeanors at count ten. N.T., Guilty Plea, 5/12/16, at 2-3. The
remaining counts were dismissed. Id. at 3.
On August 17, 2016, the trial court imposed sentences of
incarceration, concurrent probation, fines, and restitution.3 The specifics of
these sentences will be discussed in detail below. Post-sentence motions
were filed and denied, and this timely appeal followed. Both Appellant and
the trial court have complied with Pa.R.A.P. 1925.
In this appeal, Appellant presents the following issues for our
consideration:
A. Whether Appellant’s sentence was illegal because the court,
as it explained in denying the post-sentence motion, imposed
sentences of probation on the count 10 convictions (18 offenses)
while aggregating the intended incarceration on each separate
count conviction into a single sentence on count 7 (1 offense) in
order to permit the probationary sentences and retain local
supervision of such sentence for the collection of restitution,
which it may not do?
____________________________________________
1
18 Pa.C.S. § 3922(a).
2
18 Pa.C.S. § 4113(a).
3
The amount of restitution was set at $767,337.05 at the guilty plea
colloquy. N.T., 5/12/16, at 9. However, in the sentencing order, the
amount of restitution totaled $788,418.95. Order, 8/17/16, at unnumbered
2. On remand this amount will need to be settled.
-2-
J-S22012-17
B. Whether Appellant’s sentence is manifestly excessive, too
harsh a punishment and unconstitutional because, according to
the clerk of courts’ docket sheets, the sentence of 5.5 to 18
years’ incarceration for theft was close to thrice the outer end of
the applicable aggravated range under the guidelines, and the
court ignored significant factors of mitigation?
C. Whether Appellant’s sentence is manifestly excessive, too
harsh a punishment and unconstitutional because, according to
the court’s order denying the post-sentence motion, the theft
sentence of 12 months’ imprisonment - which was outside the
guidelines - was run consecutively to 18 consecutive 3-month
aggravated range minimum sentences for misappropriation of
funds, thereby resulting in a clearly unreasonable application of
the sentencing guidelines?
Appellant’s Brief at 8 (full capitalization omitted).
In Appellant’s first issue, he alleges that the sentence imposed by the
trial court was illegal. “[A] claim that implicates the fundamental legal
authority of the court to impose a particular sentence constitutes a challenge
to the legality of the sentence. If no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to correction.”
Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013) (citation
omitted). Moreover, “[i]ssues relating to the legality of sentence are
questions of law, and thus, our standard of review is de novo and our scope
of review is plenary.” Id.
The sentence imposed by the trial court is as follows:
In light of the information contained in that background,
the Court will sentence in the standard guideline -- I’m sorry --
will sentence in the guideline range. In order to accomplish the
Court’s goal of having local supervision over [Appellant] to
ensure payment of restitution, the Court will impose all
sentences of incarceration in aggregated form on the sentence
-3-
J-S22012-17
imposed on Count 7; however, the total minimum of the
sentence imposed on Count 7 is an aggregate number for each
of the nineteen charges for which [Appellant] has been convicted
taking into account the sentencing guidelines.
In essence on each of the eighteen counts, [Appellant] will
be sentenced to not less than 3 months nor more than 12
months; however, as indicated, that sentence will be aggregated
on Count 7. Accordingly, the sentence of the Court on Count 7 is
the [Appellant] shall serve no less than 66 months nor more
than 18 years in confinement at the State Correctional
Institution designated by the State Department of Corrections.
The Cumberland County Sheriff is directed to take
[Appellant] into custody forthwith and transport him to the State
Correctional Institution at Camp Hill for purposes of classification
and effectuation of this sentence.
The sentence of the Court on Count 10 is on each count
[Appellant] is sentenced to 12 months probation. On each count
the sentence shall run consecutive to each other for a total
supervision on Count 10 of eighteen years. That sentence shall
run concurrent to the sentence imposed on Count 7.
As a condition of [Appellant’s] sentence, he is directed to
pay restitution consistent with the presentence investigation. …
N.T., 8/17/16, at 29-30. In the order denying Appellant’s post-sentence
motions, the trial court expounded upon its rationale for the sentences it
imposed:
[Appellant’s] sentences were structured to account for the
seriousness of [Appellant’s] conduct while permitting continued
Court supervision of [Appellant] for purposes of monitoring the
payment of restitution. This was accomplished by imposing
sentences of probation on the Count 10 convictions while
aggregating the intended incarceration on each separate count
conviction into a single sentence on Count 7 in order to permit
the probationary sentences. As such, [Appellant’s] Count 7
sentence is technically outside the guidelines, however, in
application, it is the total of a standard guideline sentence of 12
months for Count 7 and 18 consecutive 3-month aggravated
-4-
J-S22012-17
range minimum sentences for each of the 18 separate
convictions in Count 10 (18 x 3 months + 12 months = 66
months). The sentences were structured in this manner to
permit local supervision for a sufficient time for the collection of
restitution as imposing a sentence of no less than 3 months nor
more than 12 months on each of the 18 convictions at Count 10
would aggregate under statutory law into a state supervised
sentence. See 42 Pa.C.S.A. § 9762 (aggregate maximum
sentences of two years or more shall be committed to the
Department of Corrections except in limited circumstances). …
Order, 9/23/16, at 1.
As noted above, the trial court sentenced Appellant to eighteen
separate consecutive sentences of three to twelve months of incarceration
for the misapplication of entrusted property charges, and it subdivided the
single theft conviction into eighteen separate consecutive sentences of
twelve months of probation to run concurrently with the sentences for
misapplication of entrusted property. This sentence results in a fifty-four
month to eighteen-year term of incarceration, to be served concurrently with
eighteen separate consecutive twelve-month terms of county probation.
However, the trial court states that the sentence results in a sentence of
sixty-six months to eighteen years and explains its calculation as follows:
“Twelve months + eighteen x three months equals 66 months.” Trial Court
Opinion, 12/2/16, at 5, n.5. After review, we conclude that the trial court
lacked the authority to impose these sentences.
Despite the trial court’s arithmetic explanation, we cannot uncover
where the additional twelve-month prison term was imposed. The only
sentences of total confinement are the eighteen sentences of three months
-5-
J-S22012-17
to twelve months for misapplication of entrusted funds.4 N.T., Sentencing,
8/17/16, at 30; Sentencing Order, 8/17/16, at unnumbered 1-3. Moreover,
even if we assume that the twelve-month sentence was imposed for the one
count of theft by deception, there was no authority for the trial court to
order a flat, twelve-month sentence of incarceration in the case at bar. See
Commonwealth v. Mitchell, 986 A.2d 1241, 1244 (Pa. Super. 2009)
(stating that flat sentences are generally illegal); 42 Pa.C.S. § 9756.
Finally, we are also constrained to conclude that there is no authority
allowing the trial court to direct that county (or state) probation is to be
served at the same time as a state sentence of incarceration. We are
cognizant that sentences may be ordered to be served consecutively or
concurrently:
(a) General rule.--In determining the sentence to be imposed
the court shall, except as provided in subsection (a.1), consider
and select one or more of the following alternatives, and may
impose them consecutively or concurrently:
(1) An order of probation.
____________________________________________
4
Additionally, there is a discrepancy in the trial court opinion as to which
sentences are for which crimes. The record reflects that theft was graded as
a first-degree felony, and misapplication of entrusted funds was graded as a
second-degree misdemeanor. Information, 6/23/15; N.T., Guilty Plea
(amendment to information), 5/12/16, at 2. At sentencing, the trial court
imposed incarceration for the theft graded as a first-degree felony and
probation for the misapplication of entrusted funds graded as a second-
degree misdemeanor. N.T., Sentencing, 8/17/16, at 30; Sentencing Order,
8/17/16, at unnumbered 1-3. However, in its opinion, the trial court stated
that it imposed probation for the felony and incarceration for the
misdemeanors. Trial Court Opinion, 12/2/16, at 5.
-6-
J-S22012-17
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6) County intermediate punishment.
(7) State intermediate punishment.
42 Pa.C.S. § 9721(a). In Commonwealth v. Pierce, 441 A.2d 1218, 1219
(Pa. 1982), our Supreme Court held that 18 Pa.C.S. § 1321(a), the
precursor to 42 Pa.C.S. § 9721, empowered a sentencing court to impose
the sentencing alternatives consecutively or concurrently. However, in
Pierce, the appellant’s probation was consecutive to incarceration, and
Pierce does not specifically address the situation in the case at bar where
county probation was ordered to be served concurrently with a state prison
sentence. Conversely, Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa.
Super. 2011),5 confronted this issue directly and stated: “Moreover, we find
____________________________________________
5
The Commonwealth attempts to distinguish Allshouse by claiming that it
dealt with a situation where the defendant was attempting to obtain a
windfall by having time spent incarcerated count toward a concurrent
sentence of probation. The Commonwealth’s Brief at 15. The
Commonwealth’s argument is misplaced. Indeed, Appellant’s subjective
intent or desire to have time spent incarcerated count toward a probationary
sentence is not presently at issue. Rather, we are concerned with the more
prefatory question answered in Allshouse, where this Court held that
defendants cannot serve a term of probation and state incarceration
simultaneously.
(Footnote Continued Next Page)
-7-
J-S22012-17
no support in the Pennsylvania statutes that the General Assembly intended
to permit defendants to serve a term of probation and a term of state
incarceration simultaneously.”6
In conclusion, the sentence that the trial court imposed contains a
computation error and/or a portion of the sentence that is not clearly
explained in the record. More importantly, because there was no authority
for the trial court to impose the sentence in its current form pursuant to
Allshouse, it is illegal, and it must be corrected. Clarke, 70 A.3d at 1284.7
For these reasons, we vacate Appellant’s sentence and remand for
resentencing in accordance with this memorandum.8
_______________________
(Footnote Continued)
6
Allshouse does not cite 42 Pa.C.S. § 9721(a); however, it specifically
addresses the issue at hand, and we are bound by prior panel decisions of
the Superior Court. Commonwealth v. Prout, 814 A.2d 693, 695 n.2 (Pa.
Super. 2002).
7
The trial court’s citation to Commonwealth v. Mitchell, 955 A.2d 433
(Pa. Super. 2008), Trial Court Opinion, 12/2/16, at 9, is of little import
because that case discussed probationary “tails,” which are terms of
probation following incarceration, violations of probation, and the
supervisory responsibilities of the courts of common pleas versus the
Pennsylvania Board of Probation and Parole. Here, we do not reach the
issue of supervision, as we are faced with the preliminary question
concerning the legality of the sentence imposed.
8
In light of our disposition and order remanding this matter for
resentencing, we do not reach Appellant’s remaining issues challenging the
discretionary aspects of the sentences imposed. However, we point out that
there is no specific authority permitting the trial court to parcel out eighteen
separate sentences for the single theft conviction. Yet, Appellant has not
directed our attention to any authority making this portion of Appellant’s
(Footnote Continued Next Page)
-8-
J-S22012-17
Vacate and remand for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2017
_______________________
(Footnote Continued)
sentence illegal. We conclude that this issue may be better addressed in a
challenge to the discretionary aspects of Appellant’s sentence should the trial
court impose this aberrant disposition upon resentencing, and we would then
expect the trial court to explain and defend its actions.
-9-