Com. v. Boreman, D.

J-S62011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DILLON MICHAEL BOREMAN
Appellant No. 1469 MDA 2015
Appeal from the Judgment of Sentence July 28, 2015
In the Court of Common Pleas of Perry County
Criminal Division at No(s): CP-50-CR-0000044-2013
CP-50-CR-0000045-2013
CP-50-CR-0000046-2013
CP-50-CR-0000444-2012
CP-50-CR-0000445-2012
CP-50-CR-0000446-2012
CP-50-CR-0000447-2012
CP-50-CR-0000448-2012
CP-50-CR-0000449-2012
CP-50-CR-0000450-2012
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 29, 2016
Dillon Michael Boreman (“Appellant”) appeals from the judgment of
sentence entered in the Perry County Court of Common Pleas following the
revocation of his State Intermediate Punishment (“SIP”) sentence. We
affirm.
The trial court set forth the relevant facts and procedural history of
this appeal as follows:
On May 13, 2013, Appellant entered guilty pleas on…ten
(10) docket numbers.1 On that date, Appellant entered a
guilty plea in:
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a) CR-444-2012, to one count of burglary, a felony
of the second degree, in violation of [18 Pa.C.S. §]
3502(a)(4), agreement with the Commonwealth is
that [Appellant] serve a two month minimum
sentence;
b) CR-445-2012, to one count of burglary, a felony
of the second degree, in violation of [18 Pa.C.S. §]
3502(a)(4), agreement with the Commonwealth is
that [Appellant] serve a two month minimum
sentence;
c) CR-446-2012, to one count of burglary, a felony
of the second degree, in violation of [18 Pa.C.S. §]
3502(a)(4), agreement with the Commonwealth is
that [Appellant] serve a two month minimum
sentence;
d) CR-447-2012, to one count of theft, a
misdemeanor of the first degree, in violation of [18
Pa.C.S. §] 3921(a), agreement with the
Commonwealth is that [Appellant] serve a term of
probation;
e) CR-448-2012, to one count of possession of a
firearm, a felony of the second degree, in violation of
[18 Pa.C.S. §] 6105(a)(1), the court ordered a
presentence investigation report;
f) CR-448-2012, to one count of theft by unlawful
taking, a misdemeanor of the second degree, in
violation of [18 Pa.C.S. §] 3921(a), agreement with
the Commonwealth is that [Appellant] serve a
probationary sentence;
g) CR-449-2012, to two counts of burglary, felonies
of the second degree, in violation of [18 Pa.C.S. §]
3502(a)(4); agreement with the Commonwealth is
that [Appellant] serve a two month minimum
sentence on each count-there is no agreement as to
concurrency;
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h) CR-450-2012, to one count of burglary, a felony
of the second degree, in violation of [18 Pa.C.S. §]
3502(a)(4), agreement with the Commonwealth is
that [Appellant] serve a two month minimum
sentence;
i) CR-044-2013, to one count of theft, a
misdemeanor of the second degree, in violation of
[18 Pa.C.S. §] 3921(a); agreement with the
Commonwealth is that [Appellant] will serve a
probationary sentence;
j) CR-045-2013, to one count of burglary, a felony of
the second degree, in violation of [18 Pa.C.S. §]
3502(a)(4), agreement with the Commonwealth is
that [Appellant] will serve a two month minimum
sentence; and
k) CR-046-2013, to one count of theft, a felony of
the third degree, in violation of [18 Pa.C.S. §]
3502(a)(4), agreement with the Commonwealth is
that [Appellant] serve a two month minimum
sentence.
1
The agreement between the Commonwealth
and [Appellant] was that the [sentences of
incarceration] run consecutive to each other.
On October 3, 2013, the Appellant appeared for sentencing
on all ten (10) docket numbers. On this date, the [c]ourt
sentenced Appellant to the [SIP] Program for a total of two
(2) years on each of the charges, with all sentences
running concurrent to each other.2
2
Appellant would have completed his two year SIP
sentence on October 3, 2015.
On May 18, 2015, the court received a letter from the
Department of Corrections, expelling Appellant from the
SIP Program on February 13, 2015 for a lack of meaningful
participation, evidenced by multiple relapse[s] and
behavioral infractions. As a result, the court held an SIP
revocation/resentencing hearing on July 28, 2015. On that
date, Appellant was resentenced to a total of forty-six (46)
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to one-hundred-eight (108) months[’] incarceration in a
State Correctional Institution (“SCI”). The court’s order
states that “the [sentences of incarceration] are below the
standard range due to agreement with the
Commonwealth.” Appellant received credit from
September 20, 2012 through April 14, 2014 (572 days),
and February 13, 2015 through July 28, 2015 (166 days),
totaling 738 days of credit (or 2 years and 8 days).
Appellant filed an appeal with the Superior Court and by
order dated August 31, 2015, this court directed that he
file a concise statement of matters complained on appeal.
On February 8, 2016, Appellant filed his statement.
Trial Court Pa.R.A.P. 1925(a) Opinion, filed February 29, 2016 at A-1-3
(unnecessary capitalization omitted).
Appellant raises the following issues for our review:
1. WHETHER THE SENTENCING COURT HAD
JURISDICTION AND/OR AUTHORITY AND/OR ABUSED ITS
DISCRETION BY SENTENCING APPELLANT TO FORTY-SIX
(46) TO ONE HUNDRED EIGHT (108) MONTHS[’]
INCARCERATION WHEN APPELLANT’S ORIGINAL
SENTENCE ON OCTOBER 13, 201[3] PROVIDED FOR A
“TOTAL PERIOD OF TWO YEARS IN THE STATE
INTERMEDIATE PUNISHMENT PROGRAM” AND WHEN
APPELLANT WAS RESENTENCED ON JULY 28, 2015, HE
HAD SERVED TWO YEARS AND EIGHT DAYS, A PERIOD OF
TIME IN EXCESS OF TWO YEARS?
2. WHETHER THE SENTENCING COURT ABUSED ITS
DISCRETION BY RESENTENCING [APPELLANT] TO FORTY-
SIX (46) TO ONE HUNDRED EIGHT (108) MONTHS[’]
INCARCERATION ON JULY 28, 2015, WHEN HIS ORIGINAL
SENTENCES WERE BASED ON AN AGREEMENT WITH THE
COMMONWEALTH WITH A SPECIFIC SENTENCING
STRUCTURE (SEE MAY 13, 2013 ORDER), AND WHEN
APPLIED AT HIS RESENTENCING, THE ONLY CHARGE FOR
WHICH HE WOULD NOT HAVE COMPLETED HIS MAXIMUM
SENTENCE WITH HIS CREDIT DUE AT RE-SENTENCING ON
JULY 28, 2015 IS, POTENTIALLY, THE CHARGE FOR
VIOLATING TITLE 18 § 6105(A)(1), A SECOND DEGREE
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FELONY FOR ONE COUNT POSSESSION OF A FIREARM IN
CP-50-CR-0000448-2012 WHICH WOULD HAVE RESULTED
IN A [THIRTY] (30) TO SIXTY (60) MONTH PERIOD OF
INCARCERATION WITH SEVEN HUNDRED THIRTY-EIGHT
(738) DAYS CREDIT AGAINST THIS SENTENCE?
3. WHETHER THE SENTENCING COURT ABUSED ITS
DISCRETION IN SENTENCING APPELLANT TO FORTY-SIX
(46) TO ONE-HUNDRED EIGHT (108) MONTHS[’]
INCARCERATION ON JULY 28, 2015 WHEN PURSUANT TO
THE PLEA AGREEMENT ENTERED INTO ON MAY 13, 2013
WITH THE COMMONWEALTH PROVIDED FOR AN AGREED
UPON MINIMUM INCARCERATIVE SENTENCE OF 16
MONTHS AND AT THE TIME OF APPELLANT’S
RESENTENCING HE HAD SERVED TWO (2) YEARS AND
EIGHT (8) DAYS?
Appellant’s Brief at 20-21.
“Generally, in reviewing an appeal from a judgment of sentence
imposed after the revocation of probation, this Court’s scope of review
includes the validity of the hearing, the legality of the final sentence, and if
properly raised, the discretionary aspects of the appellant’s sentence.”
Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa.Super.2010) (citing
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa.Super.2006)). “[I]n
evaluating the revocation of [an] SIP sentence, we ordinarily… apply that
[same] scope of review.” Id.Appellant’s combined issues challenge both the legality and the
discretionary aspects of his sentence. For purposes of disposition, we will
first discuss his combined issues as they relate to the legality of his
sentence.
“A challenge to the legality of a sentence...may be
entertained as long as the reviewing court has
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jurisdiction.” Commonwealth v. Borovichka, 18 A.3d
1242, 1254 (Pa.Super.2011) (citation omitted). It is also
well-established that “[i]f 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) (citation omitted). “An
illegal sentence must be vacated.” Id. “Issues relating to
the legality of a sentence are questions of law[.] ... Our
standard of review over such questions is de novo and our
scope of review is plenary.” Commonwealth v. Akbar, 91
A.3d 227, 238 (Pa.Super.2014) (citations omitted).
Commonwealth v. Wolfe, 106 A.3d 800, 801–02 (Pa.Super.2014), aff'd,
No. 68 MAP 2015, 2016 WL 3388530 (Pa. June 20, 2016).
In his first issue, Appellant argues that, because the original October
3, 2013 sentencing order provided that he was to serve a total period of two
years’ intermediate punishment and because he had already served over two
years’ when he was re-sentenced, the court lacked authority to re-sentence
him to anything other than time served. We disagree.
Appellant’s October 3, 2013 sentencing order provided that Appellant
serve two years in the SIP program. Appellant could have completed his
sentence on October 3, 2015, however, upon being apprised that Appellant
violated the terms of the SIP program, the court scheduled and conducted a
revocation hearing, after which Appellant’s participation in the SIP program
was revoked on July 28, 2015. Thus, Appellant’s first issue is devoid of
merit.
In his second and third issues, Appellant argues the court violated the
terms of his negotiated plea agreement when it re-sentenced him. He
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claims the agreement provided that his minimum sentence would be sixteen
months, and that he had already served this time at sentencing. He
concludes he should have been re-sentenced to time served with an
additional period of probation. Alternately, he argues that because he had
already served the sixteen-month minimum on his theft and robbery
convictions, the court should have only sentenced him for his possession of a
firearm conviction. Again, we disagree.
The relevant statute provides:
§ 9774. Revocation of State intermediate
punishment sentence
(a) General rule.--The court may at any time terminate a
sentence of State intermediate punishment pursuant to 61
Pa.C.S. Ch. 41 (relating to State intermediate
punishment).
(b) Revocation.--The court shall revoke a sentence of
State intermediate punishment if after a hearing it
determines that the participant was expelled from or failed
to complete the program.
(c) Proceedings upon revocation.--Upon revocation of
a State intermediate punishment sentence, the sentencing
alternatives available to the court shall be the same as the
alternatives available at the time of initial sentencing. The
attorney for the Commonwealth must file notice, at any
time prior to resentencing, of the Commonwealth’s
intention to proceed under an applicable provision of law
requiring a mandatory minimum sentence.
42 Pa.C.S. § 9774. Accordingly, if a court revokes a defendant’s SIP
sentence, it must re-sentence him. Commonwealth v. Kuykendall, 2 A.3d
559, 562 (Pa.Super.2010). Further:
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As it is well established that the sentencing alternatives
available to a court at the time of initial sentencing are all
of the alternatives statutorily available under the
Sentencing Code, these authorities make clear that at any
revocation of probation hearing, the court is similarly free
to impose any sentence permitted under the Sentencing
Code and is not restricted by the bounds of a negotiated
plea agreement between a defendant and prosecutor.
Commonwealth v. Wallace, 870 A.2d 838, 843 (Pa.2005) (footnotes
omitted).
Here, the court revoked Appellant’s SIP sentence and re-sentenced
him to an aggregate 46-108 months’ incarceration. Specifically, the court
sentenced Appellant to consecutive periods of incarceration of 2-6 months
for each of his burglary and theft convictions on Docket Nos. 444, 445, 446,
449, 450, 45 and 46, plus a consecutive period of incarceration of 30 to 60
months for his possession of a firearm conviction. The court then gave
Appellant credit for time served. The court was not required to adhere to
the plea agreement upon re-sentencing Appellant,1 and it was not required
to give him credit for time he spent in the SIP program before it revoked his
SIP sentence.2
____________________________________________
1
Although the court was not required to adhere to the plea agreement, it
imposed a sentence within the boundaries of the agreement.
2
See Commonwealth v. Kuykendall, 2 A.3d 559, 565 (Pa.Super.2010)
(“In exchange for admittance into SIP, the defendant surrenders his
statutory right to credit for time served while housed in a county correctional
institution or non-Pennsylvania state correctional facility. Revocation and re-
(Footnote Continued Next Page)
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To the extent Appellant’s issues challenge the discretionary aspects of
his sentence, we observe that challenges to the discretionary aspects of
sentencing do not entitle a petitioner to review as of right. Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can
address such a discretionary challenge, an appellant must invoke this Court’s
jurisdiction by satisfying the following four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id.Although Appellant filed a timely notice of appeal and included a
Pa.R.A.P. 2119(f) statement in his brief, he failed to object at sentencing or
otherwise preserve his issue in a timely post-sentence motion. Thus,
Appellant has failed to invoke this Court’s jurisdiction for his discretionary
aspects of sentencing claims. See id.; see also Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa.Super.2013) (holding Appellant waived
challenge to discretionary aspects of sentence following revocation of SIP
_______________________
(Footnote Continued)
sentencing do not constitute a second punishment, but provide a necessary
incentive to the defendant to complete the program.”).
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sentence by failing to object at sentencing or preserve issue in post-
sentence motion).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2016
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