Com. v. Stewart, D. ( 2021 )

J-S12021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK STEWART :
:
Appellant : No. 3394 EDA 2019
Appeal from the Judgment of Sentence Entered October 21, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007388-2016
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED JULY 20, 2021
Appellant Derrick Stewart appeals from the judgment of sentence
entered following the revocation of his 2018 sentence.1 On appeal, Appellant
challenges the legality and the discretionary aspects of his new sentence.
After review, we vacate the judgment of sentence and remand for further
proceedings consistent with this memorandum.
The trial court summarized the relevant facts and procedural history in
this matter as follows:
In January 2018, Appellant pleaded guilty to two counts of
second-degree felony robbery, one count of retail theft, and one
count of possessing an instrument of crime (PIC).[fn1] Notes of
Testimony (N.T.), 10/21/2019, at 4. During one of the robberies,
Appellant threatened to stab an individual with a hypodermic
needle. Id. at 8. After his plea, [the trial court] sentenced
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1 As set forth in more detail below, although the trial court stated that it
revoked Appellant’s probation, the record does not reflect that Appellant was
serving a term of probation at that time of the hearing.
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Appellant to eleven-and-one-half to twenty-three months of
incarceration for the robberies, followed by two years of reporting
probation for retail theft and five years of reporting probation for
PIC. Id. at 4. The [trial c]ourt ordered the sentences of
incarceration to run concurrently, and the sentences of probation
to run concurrent to each other but consecutively to the
incarceration. Before his release from custody, Appellant failed to
cooperate with a Forensic Intensive Recovery (FIR) evaluation.
Id.
[fn1] 18 Pa.C.S. § 3701, 18 Pa.C.S. § 3929, 18 Pa.C.S. § 907,
respectively.
On June 21, 2018, Appellant was released from custody but did
not subsequently communicate with his probation officer. Id. at
5. Over the next few months, the Philadelphia Probation
Department repeatedly attempted to contact Appellant, but he did
not respond. Id. As a result, on September 25, 2018, wanted
cards were issued for Appellant’s arrest. Id. at 6. On December
2, 2018, Appellant was arrested on new charges. Id. at 5.
On October 21, 2019, this [c]ourt conducted a Gagnon II[2]
hearing. The [c]ourt determined that Appellant was in violation
of his probation and initially declared a sentence of one-and-one-
half to three years of incarceration plus two years of probation.
While informing Appellant of his post-sentence rights, plea counsel
asked Appellant if he understood the sentence, and Appellant
responded, “You bet. That’s it[?]”[3] Following this interaction,
but before counsel finished advising Appellant of his rights, the
[c]ourt imposed the final sentence of two to four years of
incarceration plus one year of probation [on the robbery counts].
Id. at 11.
On November 8, 2019, Appellant filed a post-sentence motion for
reconsideration of the sentence. Twelve days later, Appellant filed
a [timely] notice of appeal.
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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3 In its opinion, the trial court inserted a bracketed question mark after
Appellant’s statement “that’s it.” Trial Ct. Supp. Op., 12/21/20, at 2. The
notes of testimony reveal that the punctuation mark was a period, and the
expression read: “You bet. That’s it.” N.T., 10/21/19, at 11.
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Trial Ct. Supp. Op., 12/21/20, at 1-2.
On November 21, 2019, the trial court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
on or before December 12, 2019. On December 12, 2019, Appellant filed a
timely Pa.R.A.P. 1925(b) statement, and on August 5, 2020, the trial court
filed its Pa.R.A.P. 1925(a) opinion.
Appellant filed a petition to vacate the appellate briefing schedule on
October 21, 2020, and he asked this Court to remand the record to the trial
court for the filing of a supplemental Pa.R.A.P. 1925(b) statement and
supplemental Pa.R.A.P. 1925(a) opinion. In the petition, counsel for Appellant
included the proposed supplemental Pa.R.A.P. 1925(b) statement and
emphasized that the additional issue was a challenge to the legality of the
revocation sentence. On November 10, 2020, this Court granted Appellant’s
petition, remanded the record to the trial court, deemed the supplemental
Pa.R.A.P. 1925(b) statement filed as of October 21, 2020, and directed the
trial court to file supplemental Pa.R.A.P. 1925(a) opinion addressing
Appellant’s supplemental Pa.R.A.P. 1925(b) statement. The trial court filed
its supplemental opinion on December 21, 2020.
On December 22, 2020, this Court issued a new briefing schedule, and
Appellant filed a timely brief on January 29, 2021. This Court granted the
Commonwealth’s motion for an extension of time, and the Commonwealth
filed a timely responsive brief on March 15, 2021.
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On appeal, Appellant raises the following issues, which we have
reordered, as follows:
1. Did not the [trial] court impose illegal sentences where, after
finding that Appellant violated the terms of his supervision, the
court imposed revocation sentences of 2 to 4 years of
incarceration for two robbery charges, but where Appellant was
originally sentenced for those two robbery charges to
sentences of 11½ to 23 months of incarceration with no terms
of probation?
2. Was not the [trial] court’s reconsideration[4] of Appellant’s
aggregate sentence improper in that the change of sentence
(where 1½ to 3 years’ incarceration plus 2 years’ probation was
changed to 2 to 4 years’ incarceration plus one year of
probation) was arbitrary and based upon improper factors?
Appellant’s Brief at 4.
In his first issue, Appellant contends that when the trial court found
Appellant in violation of the terms of his supervision, he was serving two
concurrent sentences of eleven and one-half to twenty-three months of
incarceration on the robbery convictions. However, there was no term of
probation on those counts, and therefore, when Appellant was released from
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4 For clarity, we note that the trial court did not formally “reconsider”
Appellant’s revocation sentence based on a post-sentence motion for
reconsideration or modification of sentence pursuant to Pa.R.Crim.P. 708.
Rather, as noted in the trial court’s recitation of the facts, the court imposed
a sentence orally from the bench, and Appellant said “that’s it.” Trial Ct. Supp.
Op., 12/21/20, at 2 (quoting N.T., 10/21/19, at 11). It was at this point in
the proceedings that the trial court “reconsidered” the sentence of one and
one-half to three years of incarceration followed by two years of probation,
and it “readvised” Appellant that the sentence was instead two to four years
of incarceration followed by two years of probation. N.T., 10/21/19, at 11.
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custody on June 21, 2018, he was on parole rather than probation.5 Appellant
contests that upon the revocation of parole, the trial court was limited to
imposing a sentence of only the remainder of Appellant’s original sentence.
Therefore, when the trial court imposed new sentences at each robbery
conviction, those sentences were illegal. Appellant’s Brief at 22-23.
Similarly, the Commonwealth agrees that the trial court’s sentence was
illegal. Commonwealth’s Brief at 5. The Commonwealth concludes that
remanding for resentencing is appropriate. Id.We review Appellant’s challenge to the legality of his sentence bearing
in mind the following principles:
Unlike a probation revocation, a parole revocation does not
involve the imposition of a new sentence. Indeed, there is no
authority for a parole-revocation court to impose a new penalty.
Rather, the only option for a court that decides to revoke parole
is to recommit the defendant to serve the already-imposed,
original sentence. At some point thereafter, the defendant may
again be paroled.
Therefore, the purposes of a court’s parole-revocation hearing—
the revocation court’s tasks—are to determine whether the
parolee violated parole and, if so, whether parole remains a viable
means of rehabilitating the defendant and deterring future
antisocial conduct, or whether revocation, and thus
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5 Appellant also asserts that at the time of the revocation and resentencing
proceedings, it is possible that he had completed his maximum term of
incarceration on the robbery counts and was possibly serving the probationary
term on the retail theft and PIC convictions. Appellant’s Brief at 7. The
Commonwealth agrees that the record is unclear on these points. The
Commonwealth’s Brief at 5. We conclude that we are unable to discern the
answer to these questions based on the record before us. In light of our
disposition, a determination regarding whether Appellant completed his
sentences for robbery and whether Appellant began serving his probationary
sentences for retail theft and PIC will need to be determined upon remand.
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recommitment, are in order. The Commonwealth must prove the
violation by a preponderance of the evidence and, once it does so,
the decision to revoke parole is a matter for the court’s discretion.
In the exercise of that discretion, a conviction for a new crime is
a legally sufficient basis to revoke parole.
Following parole revocation and recommitment, the proper issue
on appeal is whether the revocation court erred, as a matter of
law, in deciding to revoke parole and, therefore, to recommit the
defendant to confinement. Accordingly, an appeal of a parole
revocation is not an appeal of the discretionary aspects of
sentence.
Commonwealth v. Kalichak, 943 A.2d 285, 290-291 (Pa. Super. 2008)
(citations and footnote omitted).
Initially, we note that Appellant has not challenged the trial court’s
finding that he was in violation of the terms of supervision or in revoking
supervision. Rather, Appellant argues only that the trial court entered an
illegal sentence because it lacked the authority to impose new sentences on
the robbery convictions where Appellant was not serving a term of probation.
Appellant’s Brief at 22-24. Accordingly, on the robbery counts, Appellant
claims that the trial court could only impose a sentence consisting of the
remainder of his original sentences. Id. at 23. We agree.
Appellant, the Commonwealth, and the trial court all agree that
Appellant was not serving terms of probation on the robbery counts. See
Appellant’s Brief at 22-24; Commonwealth’s Brief at 5; Trial Ct. Supp. Op.,
12/21/20, at 5. Therefore, the only supervision that the trial court could
revoke was parole, and the only legal sentence the trial court could impose
was limited to the unserved portion of Appellant’s original sentence.
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Kalichak, 943 A.2d at 290. Because the trial court imposed new sentences
on the robbery counts, we agree that the sentences are illegal as the trial
court was without the authority to enter them. See Commonwealth v.
Ware, 737 A.2d 251, 253 (Pa. Super. 1999) (upon the revocation of parole,
the trial court has no authority for imposing a new sentence with a minimum
and maximum) (citing Commonwealth v. Mitchell, 632 A.2d 934, 936 (Pa.
Super. 1993)); see also Commonwealth v. Archer, 722 A.2d 203, 209 (Pa.
Super. 1998) (en banc) (when a court lacks the authority to impose a
sentence, the sentence is illegal). When there is no statutory authority for a
sentence, the sentence is illegal and subject to correction. Commonwealth
v. Syno, 791 A.2d 363, 365 (Pa. Super. 2002).
Accordingly, we vacate the judgment of sentence entered on October
21, 2019, in its entirety, and we remand for resentencing.6 See
Commonwealth v. Greenlee, 212 A.3d 1038, 1047 (Pa. Super. 2019)
(providing that sentencing error in multi-count case generally requires all
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6 We have noted that the trial court acknowledged that it imposed an illegal
sentence, however the trial court averred that remand is not necessary
because this Court has the authority to fashion Appellant’s sentence. Trial Ct.
Supp. Op., 12/21/20, at 5-6. Under the instant circumstances however, we
decline to impose sentence due to the herein described ambiguities in the
record which require the trial court’s consideration that may impact
Appellant’s resentencing. As the Commonwealth notes, it is unclear from the
record how much time Appellant has already served on the original sentences
for robbery, and it is possible that Appellant has served the maximum term of
incarceration. Commonwealth’s Brief at 5. Due to these uncertainties, we
conclude that it is necessary to vacate in the sentence entirely and remand
for resentencing.
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sentences for all counts to be vacated so the trial court can restructure entire
sentencing scheme).
For the reasons set forth above, we vacate the judgment of sentence
entered on October 21, 2019, in its entirety, and we remand for
resentencing.7, 8 In light of our disposition of Appellant’s first issue, we do not
reach Appellant’s second issue challenging the discretionary aspects of the
sentence.
Judgment of sentence vacated. Case and record remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2021
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7 As noted above, Appellant has not challenged the trial court’s conclusion that
Appellant violated the terms of his supervision, and we leave that finding
undisturbed.
8 The trial court judge in this matter has requested that resentencing should
occur before another jurist. Trial Ct. Supp. Op. 12/21/20, at 6, n.2.
Accordingly, upon remand, the trial court may determine whether it will recuse
and afford counsel the opportunity to respond at the appropriate hearing.
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