Com. v. Carter, T.

J-A25028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TODD ELLIS CARTER, JR. :
:
Appellant : No. 455 WDA 2021
Appeal from the PCRA Order Entered March 5, 2021
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000383-2016
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: February 18, 2022
Appellant, Todd Ellis Carter, Jr., appeals from the order entered in the
Clarion County Court of Common Pleas, which denied his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”).1 For the following
reasons, we vacate a portion of Appellant’s sentence imposing certain “special
conditions.”
The relevant facts and procedural history of this case are as follows. On
December 19, 2017, a jury convicted Appellant of two counts of delivery of a
controlled substance, one count of possession of a controlled substance with
the intent to deliver, and two counts of criminal use of a communication
facility. The court sentenced Appellant on February 7, 2018, to an aggregate
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
J-A25028-21
term of 9 to 18 years’ imprisonment. The court’s sentence included “special
conditions” that Appellant shall not have any contact with any of the witnesses
in this case, and that Appellant shall submit to a drug and alcohol evaluation
and follow through with any recommended treatment. On October 28, 2019,
this Court affirmed the judgment of sentence. See Commonwealth v.
Carter, 222 A.3d 878 (Pa.Super. 2019) (unpublished memorandum).
On August 13, 2020, Appellant timely filed a pro se PCRA petition. The
court appointed counsel, who filed an amended PCRA petition on December 4,
2020. Appellant filed a counseled supplement to his amended PCRA petition
on March 4, 2021. In his petitions, Appellant raised claims of ineffective
assistance of counsel. Following a PCRA hearing, the court denied relief on
March 5, 2021. Appellant timely filed a notice of appeal on Monday, April 5,
2021. On April 8, 2021, the court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
filed his concise statement on April 30, 2021.
Appellant raises one issue on appeal:
Whether the [trial] court erred in imposing an illegal
sentence by issuing conditions of parole where no authority
existed for such issuance.
(Appellant’s Brief at 4).
On appeal, Appellant abandons the claims of ineffective assistance of
counsel that he raised before the PCRA court. Instead, for the first time on
appeal, Appellant now advances a claim that his sentence is illegal.
-2-
J-A25028-21
Specifically, Appellant argues that the trial court erred by imposing parole
conditions upon Appellant where no authority existed for the trial court to do
so. Appellant challenges the “special conditions” of his sentence that required
Appellant to 1) have no contact with any witnesses in the case; and 2) undergo
a drug and alcohol evaluation and follow through with any recommended
treatment. Appellant claims that because the court imposed a state sentence,
his eligibility for parole and all terms/conditions of parole are subject to the
exclusive jurisdiction of the Pennsylvania Board of Probation and Parole.
Appellant insists that when the trial court purports to impose conditions on
state parole, those conditions are merely advisory and carry no legal force.
Appellant concludes the court imposed an illegal sentence and this Court must
vacate the portion of his sentence imposing the challenged conditions or
vacate and remand for resentencing. We agree that relief is due.
“The scope and standard of review applied to determine the legality of
a sentence are well established. If no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to correction.”
Commonwealth v. Leverette, 911 A.2d 998, 1001 (Pa.Super. 2006). “An
illegal sentence must be vacated.” Id. Further, “[a] challenge to the legality
of a sentence may be raised as a matter of right, is not subject to waiver, and
may be entertained as long as the reviewing court has jurisdiction.”
Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa.Super. 2011).
“[W]here the maximum term of a defendant’s sentence is two or more
-3-
J-A25028-21
years, a trial court is without authority to set the terms of any parole.”
Commonwealth v. Alexander, 16 A.3d 1152, 1156 (Pa.Super. 2011) (en
banc) (vacating portion of sentence that imposed parole condition where
defendant’s maximum sentence was two years’ imprisonment). This Court
has explained:
In [Commonwealth v. Mears, 972 A.2d 1210 (Pa.Super.
2009)], we recognized expressly that “‘the Pennsylvania
Board of Probation and Parole has exclusive authority to
determine parole when the offender is sentenced to a
maximum term of imprisonment of two or more years[.]’
Therefore, any condition the sentencing court purported to
impose on Appellant’s state parole is advisory only.” See
[id. at 1211] (quoting Commonwealth v. Camps, 772
A.2d 70, 74 (Pa.Super.2001)). The conclusion we reached
in Mears is currently codified at 61 Pa.C.S.A. §§ 6132(a)
and 6134(b)(1), (2) [(effective October 13, 2009 to June
29, 2021)] (“A recommendation made by a judge under
paragraph (1) respecting the parole or terms of parole of a
person shall be advisory only. No order in respect to the
recommendation made or attempted to be made as a part
of a sentence shall be binding upon the board in performing
the duties and functions conferred on it by this chapter”).[2]
Accordingly, to the extent the trial court purported to
impose conditions of parole in its sentencing order, those
conditions and the order exceed the bounds of the court’s
authority and are subject to vacatur, which we hereby
direct.
Commonwealth v. Coulverson, 34 A.3d 135, 141-42 (Pa.Super. 2011)
(holding condition of sentence imposing “no contact” provision following
appellant’s release on parole (should such release be granted) exceeded trial
____________________________________________
2 The current version of the statute, effective June 30, 2021, contains almost
identical language at 61 Pa.C.S.A. § 6134(2).
-4-
J-A25028-21
court’s lawful authority).
Instantly, the court sentenced Appellant on February 7, 2018, to an
aggregate term of 9 to 18 years’ imprisonment. As “special conditions” of the
sentence, the court included terms that: 1) “[Appellant] shall not have any
contact with any of the witnesses in this case”; and 2) “[Appellant] shall
submit to a drug and alcohol assessment and comply with all treatment
recommendations.” (See Sentencing Order, 2/7/18, at 2 ¶4(a), (c)).
Nevertheless, because the court imposed a maximum term of imprisonment
greater than two years, the trial court lacked authority to impose parole
conditions, which are within the exclusive jurisdiction of the Board of Probation
and Parole.3 See Alexander, supra; Coulverson, supra. Notably, the
Commonwealth agrees that this Court should vacate the portion of Appellant’s
____________________________________________
3 We note that the trial court did not specify at the sentencing hearing or in
its sentencing order whether it intended for the special conditions to apply
during Appellant’s prison term, as a condition of parole, or both. (See
Sentencing Order, 2/7/18, at 1-2); (N.T. Sentencing Hearing, 2/7/18, at 24-
27). Even if the court intended to impose the challenged special conditions to
apply during Appellant’s prison term (and not as parole conditions), the trial
court similarly lacked authority to do so. See Commonwealth v. Cruz, 2078
& 2079 MDA 2019, 2020 WL 5362178 at *3 (Pa.Super. Sept. 8, 2020)
(unpublished memorandum) (stating: “Regarding the imposition of the No-
Contact Provision for the duration of [the appellant’s] prison term, the trial
court did not identify, nor can we…find any statutory or other legal authority,
to support the trial court’s imposition of the No-Contact Provision as a special
condition of [the appellant’s] prison sentence”; if no statutory authorization
exists for particular sentence, that sentence is illegal and subject to correction;
to extent court imposed No-Contact Provision as condition of future parole,
trial court exceeded its authority and we must vacate No-Contact Provision).
See also Pa.R.A.P. 126(b) (explaining that we may rely on unpublished
decisions from this Court filed after May 1, 2019 for persuasive value).
-5-
J-A25028-21
sentence imposing the challenged conditions.4 (See Commonwealth’s Brief at
6). Therefore, we agree with Appellant that the no contact and drug and
alcohol related conditions of his sentence are illegal, and we vacate only those
portions of his sentence. As our disposition does not disrupt the overall
sentencing scheme, we decline to remand for resentencing. See
Commonwealth v. Henderson, 938 A.2d 1063 (Pa.Super. 2007), appeal
denied, 598 Pa. 746, 954 A.2d 575 (2008) (holding that remand for
resentencing is not necessary when this Court vacates portion of judgment of
sentence and aggregate sentence remains identical). Accordingly, we vacate
the special conditions of Appellant’s sentence stated in the sentencing order
at ¶4(a) and (c).
Judgment of sentence vacated in part. Jurisdiction is relinquished.
____________________________________________
4 As Appellant raised a challenge to the legality of his sentence for the first
time on appeal, the PCRA court did not address this claim in its opinion.
Because Appellant presented his sentencing challenge in a timely filed PCRA
petition, there is no jurisdictional impediment to our review. See
Borovichka, supra.
-6-
J-A25028-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2022
-7-