Com. v. Reyes, J.

J-S16015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE MANUEL REYES :
:
Appellant : No. 1843 MDA 2018
Appeal from the Judgment of Sentence Entered October 24, 2018
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002973-2018
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED JULY 03, 2019
Jose Manuel Reyes appeals from the amended judgment of sentence
imposed October 24, 2018, in the Berks County Court of Common Pleas. On
October 9, 2018, a jury convicted Reyes of firearms not to be carried without
a license.1 The trial court sentenced Reyes to a term of three years and six
months to seven years’ incarceration. On appeal, Reyes challenges the
legality of his sentence. For the reasons below, we affirm the judgment of
sentence.
The underlying facts are not pertinent to this appeal; therefore, we need
not recite them herein. As noted above, a jury convicted Reyes of the firearms
____________________________________________
1 See 18 Pa.C.S. § 6106(a)(1).
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offense.2 On October 15, 2018, the court sentenced Reyes to a period of not
less than three years and six months nor more than seven years of
incarceration to be effective at the expiration of the order imposed on an
unrelated matter at Criminal Docket No. 684-2015, Count 2, Part 2 (“Docket
No. 684-2015”). On October 23, 2018, Reyes filed post-sentence motions,
seeking modification of his sentence and motion for judgment of acquittal
challenging the sufficiency and weight of the evidence. On October 24, 2018,
the court granted the modification of sentence to correctly reflect the credit
for time served and denied the motion for judgment of acquittal. This appeal
followed.3
In his sole issue on appeal, Reyes argues his sentence is illegal because
the effective date of the sentence in the present matter was to be imposed
consecutively to a sentence that had not yet been imposed at Docket No. 684-
2015. See Reyes’ Brief at 10.
By way of background, with respect to Docket No. 684-2015, Reyes was
convicted of retail theft and receiving stolen property. See N.T., 10/15/2018,
at 5. He was sentenced to 11½ to 23 months’ incarceration, followed by three
____________________________________________
2 The jury found him not guilty of possession of drug paraphernalia. See 35
P.S. § 780-113(a)(32).
3 On November 8, 2018, the trial court ordered Reyes to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Reyes filed a concise statement on November 21, 2018. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on November 27, 2018.
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years probation. Reyes was then paroled, which expired on November 20,
2017. Thereafter, at the time of sentencing in the present matter, he was
serving the probation portion of his sentence. A detainer for a probation
violation had been entered at Docket No. 684-2015, but a Gagnon II4 hearing
had not been scheduled.5
Relying on Commonwealth v. Holz, 397 A.2d 407 (Pa. 1979), Reyes
states:
Here, the sentencing court correctly avers that there was a
judgment of sentence already imposed at [Docket No. 684-2015]
since [] Reyes was currently on probation at that docket. Under
the trial court’s description of the sentence it imposed, the
sentence was valid because it was made consecutive to a sentence
of probation that had been previously imposed. Even if it was the
intent of the court to sentence [] Reyes consecutively to a
previously imposed sentence of probation, the sentence is
violative of Pa.R.Crim.P. 705(A) because the date at which the
sentence is to commence is indefinite, the date was not stated on
the record as required by R[ule] 705(A), and such a sentence
ignores the fact (which the court was made aware of) that [] Reyes
was subject to re-sentencing as a result of the probation violation
____________________________________________
4 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
5 Reyes avers:
On November 2, 2018, the Gagnon II hearing was held in the
docket at which [] Reyes’ post-verdict sentence was to be made
consecutive, CP-06-CR-684-2015, for a violation of probation due
to the new arrest and conviction. The Gagnon II hearing was in
front of a different judge, the Honorable Judge Benjamin Nevius.
After hearing, [] Reyes received a sentence of six (6) to twenty-
four (24) months in a State Correctional Facility, effective the
same day, with credit for eighteen (18) days served.
Reyes’ Brief at 7 (footnote omitted).
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detainer lodged against him for a new arrest and subsequent
conviction (the conviction underlying this docket).
The record evinces that the sentencing court was aware of,
and intended to fashion its sentence around, the future Gagnon
II sentence rather than the previously-imposed probationary
sentence.
…
While [] Reyes disputes that it was the intent of the court to
sentence consecutively to the previously imposed probation rather
than the future Gagnon II result, the sentence remains illegal
under the sentencing court’s formulation because to run a
sentence of imprisonment consecutive to one of probation creates
a myriad of issues on its own. Whether the sentence was intended
to be consecutive to a previous sentence of probation or to a
future sentence yet to be imposed, the issues culminate in an
untenable situation for the future sentencing judge at the Gagnon
II hearing.
Based on Holz and on the plain reading of Pa.R.Crim.P. 705, read
in conjunction with 42 Pa.C.S. § 9757, there is no authority for a
sentencing court to impose a sentence consecutive to a sentence
yet to be determined or consecutively to a term of probation for
which the defendant is presently subject to violation procedures.
The Gagnon II hearing was unscheduled at the time of the
October 15, 2018 sentencing. It was later held on November 2,
2018 in front of a different judge. At the time [] Reyes’ sentencing
was imposed on October 15, 2018, it was unknown to all parties
what the result of the Gagnon II hearing would be (or whether it
would ultimately be held). Therefore, [] Reyes received an
indefinite sentence.
…
Under the trial court’s interpretation of the sentence here,
at the moment of sentencing on October 15, 2018, [] Reyes was
sentenced to a term of imprisonment consecutive to a term of
probation. At this point, his credit for time served would cease
tolling until the unscheduled Gagnon II would be held. While
overwhelmingly unlikely, it was nevertheless possible that []
Reyes’ detainer would be lifted and the Gagnon II hearing
cancelled. In that event, [] Reyes would have no longer received
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credit for time served after his October 15, 2018 sentencing date;
and his sentence would have been in flux because it would be a
term of state imprisonment to be served consecutive to a term of
probation. (To fulfill all of the active sentencing orders, the absurd
result would be that [] Reyes would have to be released to serve
out his probation before reporting for State Confinement).
Likewise, if the Gagnon II hearing was delayed for unforeseen
reasons, [] Reyes would face further uncertainty as to the ultimate
outcome of his sentence here because of the consecutive nature
of the sentence.
Reyes’ Brief at 12-16 (citations and footnotes omitted).
With respect to a legality of sentencing argument, our standard of
review is de novo and our scope of review is plenary. Commonwealth v.
Aikens, 139 A.3d 244, 245 (Pa. Super. 2014). “If no statutory authorization
exists for a particular sentence, that sentence is illegal and subject to
correction.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014).
“When imposing a sentence to imprisonment, the judge shall state the
date the sentence is to commence. “ Pa.R.Crim.P. 705(A). “When more than
one sentence is imposed at the same time on a defendant, or when a sentence
is imposed on a defendant who is sentenced for another offense, the judge
shall state whether the sentences shall run concurrently or consecutively.”
Pa.R.Crim.P. 705(B).
In Holz, supra, a jury convicted the defendant of numerous offenses
related to an incident involving the rape and robbery of a couple at gun-point
in Montgomery County. Holz, 397 A.2d at 407. The court sentenced the
defendant to two concurrent ten-to-20 year sentences and two concurrent
two-and-one-half to five year sentences. Id. at 407-408. These sentences
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were to run consecutively to a probation violation sentence, which the
defendant was then serving, and consecutively to a sentence in an unrelated
homicide case in Philadelphia County, for which the defendant had been
convicted but not yet sentenced. Id. A panel of this Court affirmed the
judgment of sentence. Id. The defendant then filed a petition for allowance
of appeal, which the Pennsylvania Supreme Court granted. The issue was
whether “the trial court erred when it sentenced him to serve a term of
imprisonment to run consecutively with a judgment of sentence which had not
yet been imposed” in the unrelated homicide case. Id. at 408.
The Supreme Court interpreted the predecessor to Rule 705,
Pa.R.Crim.P. 1406 (former), to bar a court from ordering a sentence run
consecutively to a sentence that had not yet been imposed. Id. The Court
stated: “If there is no prior sentence, there is nothing for the instant sentence
to run concurrent with or consecutive to.” Id. The Supreme Court modified
the judgment of sentence and struck “from it that portion ordering [the
defendant’s] sentence to run consecutive to the sentence yet to be imposed
in Philadelphia County.” Id.
Here, the trial court found the following:
[U]nlike in Holz, [Reyes] was sentenced to three years of
probation at Docket No. 684-2015, which warrants that a
judgment of sentence was imposed. Also, this Court made clear
that the sentence shall run consecutively as evidenced by this
Court’s sentencing order and the transcript from [Reyes’]
sentencing hearing. Whether or not [Reyes] is subject to
resentencing at Docket No. 684-2015 Count 2, Part 2, in the future
does not change the fact this Court’s sentence was to run
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consecutively with a previously imposed sentence. As this Court’s
sentence is warranted by Pa.R.Crim.P. Rule 705(B), this Court did
not impose an illegal sentence.
Trial Court Opinion, 11/27/2018, at unnumbered 2 (citation omitted).
We agree with the trial court’s conclusion and find Reyes’ argument on
Holz is misplaced. The Holz Court held that a court could not order a
sentence to run consecutively to a sentence that had not yet been imposed.
Here, there was a judgment of sentence with respect to the case at Docket
No. 684-2015 – he received a term of incarceration and a consecutive term of
probation. While Reyes was at a juncture in his judgment of sentence at
Docket No. 684-2015 where he faced the imposition of a re-sentence on the
probation portion of his sentence because he violated the terms of his
probation due to the conviction at issue, there was still a judgment of sentence
that had already been imposed. As such, the consecutive sentence imposed
in the present matter to the sentence at Docket No. 684-2015 is congruent to
the decision in Holz. While Reyes would like this Court to analyze otherwise,
he has not presented any authority that precludes a court from imposing a
consecutive sentence to a re-sentence on the probation portion of a judgment
of sentence. Moreover, his hypotheticals regarding the outcome of that re-
sentencing proceeding do not persuade us. Accordingly, we conclude the trial
court did not impose an illegal sentence and Reyes’ argument fails.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/2019
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