Com. v. Grebb, M.

J-A27020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW BRIAN GREBB
Appellant No. 3330 EDA 2015
Appeal from the Judgment of Sentence March 18, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000764-2007
BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 13, 2016
Matthew Brian Grebb appeals nunc pro tunc1 from the judgment of
sentence, entered in the Court of Common Pleas of Monroe County, after his
probation was revoked and he was re-sentenced in two cases to consecutive
sentences of two to four years’ incarceration. After careful review, we
affirm.
In 2007, Grebb was charged in eleven cases with multiple counts of
arson in connection with numerous fires being set in fields, private homes,
and a business over a four-year span in Monroe County. On November 16,
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*
Former Justice specially assigned to the Superior Court.
1
Grebb’s appeal rights were reinstated after he filed a successful Post
Conviction Relief Act (PCRA) petition alleging counsel was ineffective for
failing to preserve the parole revocation/jurisdiction issue in a timely appeal.
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2007, Grebb pled guilty to one count each of arson in four separate cases.
He was sentenced on February 19, 2008, to two consecutive terms of
incarceration of 2½-5 years, less one day (756-CR & 758-CR); 5 years of
probation (759-CR) to run concurrent to 765 and 758 CR; and five years of
probation (764-CR) to run consecutive to the sentences imposed in each of
the other cases.
In September 2013, when Grebb was serving the first of his two
probation terms on 759-CR, he was arrested and charged with Driving Under
the Influence (DUI) and related offenses (“DUI case”). The Commonwealth
filed petitions alleging that Grebb violated probation in each case, 759-CR
and 764-CR. After a hearing, Grebb’s probation in both cases was revoked
and resentencing was deferred until sentencing in the DUI case. On March
18, 2014, Grebb was resentenced on both probation cases to consecutive
standard-range sentences of 2-4 years’ incarceration. Grebb filed a motion
for reconsideration which was denied by the trial court on March 31, 2014.
Grebb filed an untimely appeal that was quashed by our Court. See
Commonwealth v. Grebb, 1350 EDA 2014 (filed Aug. 4, 2014).
On March 13, 2015, Grebb filed a PCRA petition alleging
ineffectiveness of counsel for failing to preserve his issues on appeal. The
court granted Grebb’s petition and reinstated his direct appeal rights. This
timely appeal follows in which Grebb raises the following issues for our
consideration:
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(1) Does the Judicial Code divest a trial court of jurisdiction to
further sentence a defendant where more than 30 days
have passed from the original sentencing order and no
explicit statutory authority exists rekindling trial court
jurisdiction?
(2) In the absence of rekindled jurisdiction, does statutory and
constitutional double jeopardy bar a trial court from further
sentencing a defendant who has already been sentenced in
the same case more than five years before?
Grebb claims that, pursuant to 42 Pa.C.S. § 5505,2 a trial court has
only 30 days to modify a sentencing order and that because Grebb’s
probation revocation sentence was imposed beyond this time limit, the trial
court was divested of jurisdiction to sentence him. We disagree.
While section 5505 does set a 30-day jurisdictional limit for trial courts
to modify sentences, in the instant case the trial court was not “modifying”
Grebb’s sentence. Rather, it was imposing a new sentence or resentencing
Grebb on his original probationary sentence when it revoked his probation
and imposed the current sentence. See 42 Pa.C.S. § 9771 (b) (“The court
may revoke an order of probation upon proof of the violation of specified
conditions of the probation. Upon revocation the sentencing alternatives to
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2
See 42 Pa.C.S. § 5505 (Modification of orders):
Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or
allowed.
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the court shall be the same as were available at the time of initial
sentencing[.]”) (emphasis added); Commonwealth v. Holmes, 933 A.2d
57, 59 n.5 (Pa. 2004) (“A court faced with a violation of probation may
impose a new sentence so long as it is within the sentencing alternatives
available at the time of the original sentence.”) (emphasis added).
Therefore, section 5505 is not applicable; the court had jurisdiction to re-
sentence Grebb upon revocation of his probation.
In addition, we note that in Commonwealth v. Ware, 737 A.2d 251(Pa. Super. 1999), our Court reiterated a well-established principle regarding
revocation of probation:
If, at any time before a defendant has completed the maximum
period of probation, or before he has begun service of his
probation, he should commit offenses of such nature as to
demonstrate to the court that he is unworthy of probation and
that the granting of the same would not be in subservience to
the ends of justice and the best interests of the public, or a
defendant, the court can revoke or change the order of
probation. A defendant on probation has no contract with the
court. He is still a person convicted of crime, and the expressed
intent of the Court to have him under probation beginning at a
future time does not “change his position from the possession of
a privilege to the enjoyment of a right.”
Id. at 253-54 (emphasis in original) (citations omitted). This Court has also
stated that:
[A term of probation] may and should be construed for
revocation purposes as including the term beginning at the time
probation is granted. Otherwise, having been granted probation
a defendant could commit criminal acts with impunity - as far as
revocation of probation is concerned - until he commenced
actual service of the probationary period.
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Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980)
(citing Wright v. United States, 315 A.2d 839, 941-42 (D.C. App. 1974)).
See Commonwealth v. Allshouse, 33 A.3d 31 (Pa. Super. 2011).
Therefore, under Wendowski and Allshouse, the court properly
resentenced Grebb on 759-CR and 764-CR despite the fact that he had only
begun serving one of his two probationary sentences at the time he
committed his violation.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2016
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