Com. v. Boyce, J.

J-S59042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSEPH BOYCE
Appellant No. 2510 EDA 2016
Appeal from the Judgment of Sentence July 5, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007486-2014,
CP-51-CR-1004931-2001
BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 12, 2017
Appellant, Joseph Boyce, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following the
revocation of his probation in two cases. Appellant claims that the sentence
imposed in one of the cases, CR-1004931-2011, is illegal because a prior
revocation sentence in that case exceeded the maximum permissible
sentence for the underlying offense. We vacate the judgment of sentence
and remand this case for further proceedings.
The trial court set forth the procedural history of this appeal as
follows:
* Former Justice specially assigned to the Superior Court.
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In 2001, [Appellant] was charged with Burglary,
Criminal Mischief, Attempted Theft Unlawful Taking,
Criminal Trespass, and Criminal Conspiracy on case CP-51-
CR-1004931-2001. On August 1, 2002, Judge Denis
Cohen accepted a negotiated guilty plea to Burglary as a
felony of the second degree and sentenced Appellant to
five years probation. The remaining charges were nolle
prossed.
On September 8, 2004, Appellant was found in violation
of his probation by Judge Cohen. His probation was
revoked and he was sentenced to a new period of five
years probation. On February 28, 2005, Appellant was
again found in violation of probation and was sentenced to
11½-23 months of incarceration followed by five years
probation. On October 10, 2010 Appellant violated his
probation for a third time. His probation was revoked, and
he was sentenced to ten years probation. On June 18,
2012, Appellant was found in violation of his probation
once again by Judge Cohen and he was sentenced to 11½
-23 months of incarceration followed by eight years
probation. On October 9, 2014, this Court accepted a
negotiated guilty plea to Theft as a felony of the third
degree on case CP-51-CR-0007486-2014. Appellant was
sentenced to 6-23 months incarceration followed by two
years probation. This Court also assumed supervision of
case CP-51-CR-1004931-2001 due to Judge Cohen
transferring to the Civil Trial Division. The Court found
Appellant to be in direct violation of his Probation but
allowed him to continue his probation with the added
requirement that Appellant attend drug treatment.
On July 5, 2016, this Court found Appellant to be in
violation of his probation on cases CP-51-CR-1004931-
2001 and CP-51-CR-0007486-2014. Appellant was
sentenced to 2 ½-5 years incarceration followed by three
years probation on CP-51-CR-1004931-2001 and 2½-5
years incarceration on case CP-51-CR-0007486-2014 to
run concurrent to each other.
Appellant filed a Motion for Reconsideration of the
violation of probation sentences. The Court denied the
motion on July 22, 2016. Appellant filed a timely Notice of
Appeal to the Superior Court on August 4, 2016.
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Trial Ct. Op. at 1-2, 2/16/17, at 1-2.
Appellant presents the following question involved in this appeal:
Did not the [trial] court, on July 5, 2016, impose an illegal
sentence on Docket No. CP-51-1004931-2001 charging
Appellant with second degree felony burglary, where the
sentence on which Appellant’s probation was revoked was
illegal as was the sentence before that, since on October
14, 2010, the [trial] court imposed a sentence of 10 years’
reporting probation after a revocation which, when added
to the period of incarceration Appellant had already
served, surpassed the maximum sentence permitted by
law, as did the revocation of sentence of 11 1/2 to 23
months followed by 8 years’ reporting probation imposed
on June 18, 2012, and thus, because the original
sentences were illegal, Appellant cannot be found in
violation of an illegal sentence, making his current
sentence also illegal?
Appellant’s Brief at 3.
Preliminarily, we note there is no dispute that that prior revocation
sentences imposed on October 14, 2010 and July 18, 2012 in this matter
were illegal, because they exceeded the lawful maximum sentences
applicable at those times. Appellant relies on Commonwealth v.
Milhomme, 35 A.3d 1219 (Pa. Super. 2011), and asserts that he is entitled
to have the instant sentence vacated. The trial court, however, concluded
that because Appellant had only served 1,747 days in custody on the
offense, the present sentence was proper. The Commonwealth relies in part
on Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013), and
contends that Milhomme should not apply because Appellant failed to
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challenge the prior illegal sentences in a timely manner. For the reasons
that follow, we conclude that Appellant is entitled to resentencing.
It is well settled that a claim of an illegal sentence is non-waivable and
subject to correction. Milhomme, 35 A.3d at 1221. However, a challenge
to the legality of a sentence is cognizable under the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, and is subject to the PCRA’s
timeliness requirements. See Infante, 63 A.3d at 365. Thus, “a collateral
claim regarding the legality of a sentence can be lost for failure to raise it in
a timely manner under the PCRA.” Id. (citation omitted).
In Milhomme, the trial court initially sentenced the defendant on July
25, 2007, and ordered him to serve two years’ probation on the condition
that he serve four month’s incarceration in county jail. Milhomme, 35 A.3d
at 1220. He was subsequently found in violation of his probation and
resentenced in June and July 2008, as well as January 2010. Id. On
October 2, 2010, the trial court found that the defendant violated his
probation again and resentenced him to two to four years’ imprisonment.
Id. at 1220-1221.
The defendant took an appeal arguing that the October 2, 2010
sentence was illegal because the original, July 25, 2007 sentence was illegal.
Id. at 1221. The Milhomme Court agreed that the July 25, 2007 sentence
was illegal because it contained an impermissible flat sentence of four
months’ incarceration. Id. (discussing 42 Pa.C.S. § 9756). The Court then
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relied on Commonwealth v. Everett, 419 A.2d 793 (Pa. Super. 1980) (per
curiam),1 and concluded that “because the original sentence was illegal . . .
the recent probation revocation sentence is also illegal . . . .” Id. at 1222.
Therefore, the Milhomme Court vacated both the initial July 25, 2007
sentence, as well as the August 2, 2010 sentence under appeal, and
remanded for resentencing. Id.
In Infante, the defendant was charged with two counts of driving
under the influence (“DUI”) based on separate incidents. Infante, 63 A.3d
at 360. On April 13, 2009, he pleaded guilty to both charges, which were
regarded as a first and second offense under 75 Pa.C.S. §§ 3804(c) and
3806. Id. at 360-61, 363. He was sentenced to three days’ to six months’
incarceration for the first offense, and ninety days’ to twelve month’s
incarceration and two years’ concurrent probation for the second offense.
Id. at 361. The defendant did not take a direct appeal. Six months after
the imposition of sentence, the Pennsylvania Supreme Court concluded that
section 3804(c) was a recidivist sentencing provision that required a
conviction on the first offense to occur before the defendant committed a
second offense. Id. at 361, 364 (discussing Commonwealth v. Haag, 981
A.2d 902, 907 (Pa. 2009)). The defendant subsequently violated his
probation and was resentenced on December 19, 2011, to six months’ to
twenty-three months’ and fifteen days’ imprisonment. Id. at 362.
1 Everett was decided before the PCRA time limitations were enacted.
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The defendant appealed asserting that his original sentence was illegal
under Haag and therefore the revocation sentence was illegal. The Infante
Court agreed that the original sentence was illegal because it treated the
defendant’s second DUI charge as a second offense. Id. at 367. The Court,
however, concluded that the defendant waived his right to challenge the
legality of the original sentence because he did not take a direct appeal or
file a timely PCRA petition. Id. However, the Court also found that the
revocation sentence was illegal as it exceeded the maximum permissible
sentence for a first DUI offense and remanded for resentencing. Id. at 368.
In finding waiver of the defendant’s challenge to the legality of the
original sentence, the Infante Court distinguished Milhomme. Specifically,
the Infante Court noted that Milhomme determined that the original
sentence was illegal based on the law in existence at the time of sentencing
rather than a new decision issued after the imposition of sentence. Id. at
367 n.4. The Infante Court further called into question Milhomme’s
reliance on Everett to invalidate a defendant’s original sentence in light of
the PCRA time bar. Id.
We note that Milhomme and Infante were both decisions issued by
three-judge panels of this Court. Although Infante called into question
Milhomme’s reasoning, it is well settled that a three-judge panel may not
overrule a prior decision of another three-judge panel. Commonwealth v.
Hill, 705 A.2d 911, 912 (Pa. Super. 1998).
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Following our review, we conclude that Milhomme remains binding on
this panel and constrains us to find the instant sentence illegal because it
was imposed based on two prior illegal revocation sentences. Unlike
Infante, the illegality of the prior sentences was not a product of
intervening case law. The facts that the present case involves several
revocation sentences, as opposed to an original sentence, or a probationary
sentence do not meaningfully distinguish Milhomme. Therefore, we vacate
the present sentence, as well as the October 10, 2010 sentence and remand
for resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
PJE Bender joins the Memorandum.
Judge Ott Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2017
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