Com. v. Gunter, C. ( 2022 )

J-A06025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLARENCE LEE GUNTER :
:
Appellant : No. 1039 WDA 2021
Appeal from the Judgment of Sentence Entered August 3, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000288-2010
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
JUDGMENT ORDER BY SULLIVAN, J.: FILED: MARCH 18, 2022
Clarence Lee Gunter (“Gunter”) appeals from the judgment of sentence
imposed following an anticipatory probation revocation. We vacate the
judgment of sentence and remand for further proceedings.
In August 2010, Gunter pleaded guilty to, among other things, sexual
assault and felony criminal trespass.1 The trial court immediately sentenced
him to five to ten years of imprisonment for sexual assault followed by seven
years of probation for criminal trespass. In September 2019, Gunter
committed a robbery for which he was subsequently convicted. At the time
of the robbery, Gunter was still serving his five-to-ten-year sentence for
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 3124.1, 3503(a)(1)(i).
J-A06025-22
sexual assault and had not yet begun serving his probationary sentence for
criminal trespass.2 In August 2021, as a result of the robbery conviction, the
trial court conducted a violation of probation (“VOP”) hearing relating to
Gunter’s 2010 conviction. The VOP court revoked his probation for criminal
trespass and resentenced him to ten to twenty months of incarceration
followed by three years of probation.
Approximately two weeks after the VOP court resentenced Gunter, this
Court entered its en banc decision in Commonwealth v. Simmons, 262 A.3d
512 (Pa. Super. 2021).3 In Simmons, this Court held that a VOP court may
not revoke probation when a defendant commits a new crime after sentencing
but before a probationary period has begun. See id. at 524-25, 527 (holding
that a sentence imposed following an anticipatory probation revocation is an
illegal sentence). In so ruling, this Court overruled prior precedent permitting
anticipatory probation revocations. See, e.g., Commonwealth v.
Wendowski, 420 A.2d 628 (Pa. Super. 1980).
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2 Gunter’s sentence for sexual assault was imposed on August 26, 2010;
however, he received credit for time served from December 16, 2009, to
August 26, 2010. Thus, Gunter’s parole did not expire until December 16,
2019.
3 We note that our Supreme Court will be reviewing this Court’s decision in
Simmons in relation to its grant of allowance of appeal in Commonwealth
v. Rosario, No. 298 WAL 2021, No. 299 WAL 2021, No. 300 WAL 2021 (Pa.
Jan. 25, 2022). Nevertheless, the Simmons decision is binding until our
Supreme Court rules on the issue. See Commonwealth v. Pepe, 897 A.2d
463, 465 (Pa. Super. 2006).
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Gunter argues, pursuant to Simmons, that his VOP sentence is illegal.
At the time he committed the robbery in September 2019, he was still serving
his five-to-ten-year sentence for sexual assault and had not yet begun to
serve his probationary sentence for criminal trespass. See Simmons, 262
A.2d at 515 n.3 (holding that challenges to illegal sentences cannot be waived
and may be raised for the first time on appeal).
In light of Simmons, both parties agree that the VOP sentence imposed
following the anticipatory revocation of Gunter’s probationary sentence was
illegal, and that the case should be remanded for resentencing.4
Based on our review, we agree that the VOP court anticipatorily revoked
Gunter’s probation and imposed an illegal sentence. Thus, we vacate the
judgment of sentence and remand to the VOP court to resentence Gunter
consistent with Simmons and this decision.
Judgment of sentence vacated. Case remanded for further proceedings
consistent with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2022
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4The trial court recognizes that this is an illegal sentence in light of Simmons.
See Trial Court Opinion, 10/13/21, at 2-3.
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