Com. v. Buchanan, M.

J-S36012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ERIC BUCHANAN :
:
Appellant : No. 108 WDA 2022
Appeal from the Judgment of Sentence Entered December 16, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0008686-2018
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: JANUARY 27, 2023
Appellant, Michael Eric Buchanan, appeals from the judgment of
sentence imposed on December 16, 2021 in the Court of Common Pleas of
Allegheny County following revocation of his probation. Appellant contends
that the trial court imposed an illegal sentence. Following review, we affirm.
The instant appeal is one of three unconsolidated appeals filed by
Appellant after he was sentenced on three unrelated dockets. Those
sentences were imposed at the conclusion of the December 16, 2021 hearing
during which Appellant’s probation was revoked on those three dockets as well
as a fourth docket that is not the subject of an appeal. Prior to the revocation
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S36012-22
hearing, Appellant was sentenced in federal court to a term of 150 months’
incarceration for a conviction stemming from two armed robberies.
The sentence imposed in the instant matter related to Appellant’s
December 2018 convictions for endangering the welfare of children, recklessly
endangering another person, and possession of a controlled substance.
Appellant initially received a sentence of nine to 18 months in prison for those
convictions, followed by three years’ probation.
As a consequence of the federal armed robbery charges, Appellant’s
probation was revoked. He does not challenge the revocation or the trial
court’s authority to impose a sentence of total confinement. Rather, he
challenges the legality of the sentence imposed. With respect to the instant
matter, that sentence called for imprisonment of not less than five months nor
more than ten months in prison, consecutive to the sentence imposed in the
remaining two cases before us on appeal.1-2
____________________________________________
1 See Nos. 107 and 109 WDA 2022.
2 This Court has recognized that:
Upon revoking probation, a sentencing court may choose from any
of the sentencing options that existed at the time of the original
sentencing, including incarceration. 42 Pa.C.S. § 9771(b).
However, the imposition of total confinement upon revocation
requires a finding that either “(1) the defendant has been
convicted of another crime; or (2) the conduct of the defendant
indicates that it is likely that he will commit another crime if he is
not imprisoned, or (3) such a sentence is essential to vindicate
the authority of the court.” 42 Pa.C.S. § 9771(c).
(Footnote Continued Next Page)
-2-
J-S36012-22
To understand Appellant’s argument regarding his sentence, it is
necessary to mention the two other sentences imposed on December 16,
2021. One of those stemmed from February 2017 convictions for retail theft
and simple assault. For those convictions, Appellant initially received a
sentence of 11½ to 23 months in prison, followed by three years’ probation.
Upon revocation of Appellant’s probation at the December 16, 2021 hearing,
the trial court imposed a term of imprisonment of not less than six months
nor more than twelve months in prison, consecutive to Appellant’s federal
sentence.3
The remaining sentence imposed on December 16, 2021, related to a
second February 2017 docket on which Appellant was convicted of robbery,
simple assault, fleeing or attempting to elude a police officer, retail theft,
resisting arrest, and driving under the influence. The sentence imposed
initially called for 11½ months to 23 months in prison, followed by five years’
probation. Upon revocation of Appellant’s probation at the December 16,
2021 hearing, the trial court imposed a term of imprisonment of not less than
____________________________________________
Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (footnote
omitted). As noted, Appellant was convicted of armed robbery in federal
court. Although the trial court addressed subsections (2) and (3) at the
revocation hearing, see N.T., 12/16/21, at 5-7, there is no question the court
was authorized to sentence Appellant to total confinement under subsection
(1).
3 See No. 107 WDA 2022.
-3-
J-S36012-22
11½ months nor more than 23 months in prison, to be served prior to
Appellant’s federal sentence.4
Appellant filed a separate notice of appeal from each judgment of
sentence. In each appeal, Appellant asks this Court to consider the same
question:
Did the court below impose on Appellant Michael Eric Buchanan
three illegal consecutive sentences of 11½-to-23 months of
confinement, 6-to-12 months of confinement, and 5-to-10 months
of confinement, with those three sentences being illegal because
the court refused to comply with Pa.C.S. § 9757’s aggregation
requirement for all three (and is not the proper remedy for these
illegal sentences being an order from this Court bringing them into
compliance with § 9757 by ordering them aggregated into a single
sentence of 22½-to-45 months of confinement)?
Appellant’s Brief at 4.5
We first consider whether Appellant preserved this issue for our review.
In his brief, Appellant conceded that probation counsel did not assert an
____________________________________________
4 See No. 109 WDA 2022. As will be discussed in greater detail in the
disposition of the appeal filed at that docket, this Court accepts the appeal at
No. 109 WDA 2022 as timely filed.
5 Section 9757 (Consecutive sentences of total confinement for multiple
offenses) provides, in its entirety:
Whenever the court determines that a sentence should be served
consecutively to one being then imposed by the court, or to one
previously imposed, the court shall indicate the minimum
sentence to be served for the total of all offenses with respect to
which sentence is imposed. Such minimum sentence shall not
exceed one-half of the maximum sentence imposed.
42 Pa.C.S.A. § 9757.
-4-
J-S36012-22
objection based on Section 9757 during the probation violation hearing, nor
did counsel list a Section 9757 objection in his post-hearing motion.
Appellant’s Brief at 29-30. Rather, in both instances, counsel argued only that
the sentences were unduly harsh. Subsequently, appellate counsel did not
include the Section 9757 issue in the Rule 1925(b) statement filed with the
trial court. Id. at 30.
In Commonwealth v. Thorne, 276 A.3d 1192 (Pa. 2022), our
Supreme Court noted:
Generally speaking, issues not properly raised and preserved
before the trial court “are waived and cannot be raised for the first
time on appeal.” Pa. R.A.P. 302(a); see also [Commonwealth
v. Hill, 238 A.3d 399, 407 (Pa. 2020)] (noting that issues
not raised in lower court are waived and cannot thereafter be
raised for first time on appeal); Commonwealth v. Barnes, 637
Pa. 493, 151 A.3d 121, 124 (2016) (“[A]n appellant waives any
claim that is not properly raised in the first instance before the
trial court and preserved at every stage of his appeal.”). A
challenge that implicates the legality of an appellant’s sentence,
however, is an exception to this issue preservation
requirement. See, e.g., Hill, 238 A.3d at 407; Barnes, 151 A.3d
at 124. “Stated succinctly, an appellate court can address an
appellant’s challenge to the legality of the sentence even if that
issue was not preserved in the trial court; indeed, an appellate
court may even raise and address such an issue sua sponte.” Hill,
238 A.3d at 407.
Id. at 1196 (bracket omitted).
Appellant argues that his issue is not waived because he is challenging
the legality of his sentence. The Commonwealth counters that Appellant has
waived his issue on appeal because his Section 9757 argument does not raise
an issue of legality of sentence.
-5-
J-S36012-22
In Commonwealth v. Starr, 234 A.3d 755 (Pa. Super. 2020), appeal
denied, 243 A.3d 724 (Pa. 2020), this Court reiterated that “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.” Id. at 759 (quoting Commonwealth v.
Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010)). Further,
[a]n appellant wishing to appeal the discretionary aspects of a
probation-revocation sentence has no absolute right to do so but,
rather, must petition this Court for permission to do
so.” Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.
Super. 2008). Before this Court can address such a discretionary
challenge, an appellant must invoke this Court’s jurisdiction by
establishing that (1) the appeal was timely filed; (2) the challenge
was properly preserved by objecting during the revocation
sentencing or in a post-sentence motion; (3) his or her brief
includes a concise statement of the reasons relied upon for
allowance of appeal of the discretionary aspects of the sentence
pursuant to Pa.R.A.P. 2119(f); and (4) the concise statement
raises a substantial question that the sentence is inappropriate
under the Sentencing Code. Commonwealth v. Swope, 123
A.3d 333, [337] (Pa. Super. 2015).
Id.Appellant has not argued that he is appealing the discretionary aspects
of his sentence. Rather, his appeal is based solely on legality of sentence.
Therefore, unless he has presented a valid legality of sentence claim, he
cannot be entitled to relief.
In Commonwealth v. Prinkey, 277 A.3d 554 (Pa. 2022), our Supreme
Court recently reexamined the distinction between legality of sentence and
-6-
J-S36012-22
discretionary aspects of sentence claims, albeit in the context of a claim for
post-conviction relief. In Prinkey, the Court noted:
Differentiation between the two types of sentencing claims has, at
times, proved challenging for this Court. See Commonwealth
v. Spruill, 622 Pa. 299, 80 A.3d 453, 460 (2013) (“This Court's
experience with claims allegedly implicating sentencing legality
has not always been smooth.”). In a series of decisions over the
past several years, however, we have made strides towards clarity
with respect to the standards for assessing whether a challenge
implicates the discretionary aspects of a sentence on the one hand
or the legality of a sentence on the other.
Id. at 560.
After surveying various decisions from 2011 forward, the Court first
indicated that its 2016 decision in Barnes, supra, was the Court’s seminal
decision on the distinction between legality and discretionary aspects
challenges, and then proceeded to identify four broad categories that fall
within Barnes’ definition of an illegal sentencing challenge. Id. at 561-64.
The Court explained:
In each [category], the inquiry is whether, assuming the
appellant’s claim prevails, the result would be that the trial court
lacked authority to impose the sentence at issue. If so, then the
appellant’s challenge implicates the legality of his sentence.
Conversely, if the challenge is not to the existence of certain
authority but to the exercise of that authority, then the challenge
goes to the discretionary aspects of a sentence, not to its legality.
Id. at 563-64 (footnotes omitted).
Here, the trial court imposed a sentence of not less than five months
nor more than ten months in prison. There is no question that the court had
the authority to impose a sentence of total confinement. See n. 1, supra
-7-
J-S36012-22
(quoting 42 Pa.C.S.A. § 9771(c)). Appellant does not challenge the trial
court’s authority to impose that sentence. Rather, Appellant contends the trial
court committed legal error when it “refused to aggregate [his] sentences as
§ 9757 requires.” Appellant’s Brief at 19. To the extent this suggests the
court was asked to aggregate the sentences, no such request was made. The
aggregation issue was first raised in this appeal.
In Moss v. SCI-Mahanoy Superintendent, 194 A.3d 1130 (Pa.
Cmwlth. 2018), the Commonwealth Court discussed Section 9757, stating:
Section 9757 of the Sentencing Code states that courts “shall
indicate the minimum sentence to be served” for all offenses
imposed. 42 Pa.C.S. § 9757 (emphasis added). Moss argues that
the aforementioned language requires the sentencing judge to
indicate the total minimum sentence to be served, and the
sentencing judge’s failure to do so renders the sentence
void. See Moss Br. at 11-12.
In Gillespie v. Department of Corrections, 106 Pa. Cmwlth.
500, 527 A.2d 1061 (1987), this Court examined Section 9757 of
the Sentencing Code and explained:
Our reading of the statute and interpretive case law compels
us to conclude that once the sentencing court imposes a
consecutive sentence, aggregation with other consecutive
sentences is automatic and mandatory under [Section 9757
of the Sentencing Code].
In Commonwealth v. Green, 312 Pa. Super. 265, 458
A.2d 951 (1983), the Superior Court held that the ‘plain
meaning’ rule of Section 1903 of the Statutory Construction
Act of 1972, 1 Pa.C.S. § 1903, applied to [Section 9757 of
the Sentencing Code]. Section 9757 [of the Sentencing
Code] provides that where consecutive sentences are
imposed, the sentencing court ‘shall indicate the minimum
sentence to be served for the total of all offenses.’ The
General Assembly’s use of the terms ‘shall,’ ‘total,’ and ‘all’
as pertaining to the minimum term clearly state an intention
-8-
J-S36012-22
that the prisoner serve the aggregate of all the minimum
terms imposed under the various consecutive sentences.
The term ‘shall’ rather than ‘may’ imports the mandatory,
rather than discretionary, nature of the statute. While [the
sentencing judge] did not indicate a total minimum
term at the time of sentencing, that failure is not a
fatal flaw since, by operation of Section 9757 [of the
Sentencing Code], we find that [the prisoner’s]
consecutive sentences of five to ten years and three
to six months by necessary implication provided for
an aggregated sentence of five years, three months
to ten years, six months. The discretion of the
sentencing judge is preserved in that the sentencing judge
has the discretion to impose either consecutive or
concurrent sentences.
Gillespie, 527 A.2d at 1065 (bold emphasis added; citations
omitted).
In the instant matter, Moss’ First Sentence imposed a term of 42
to 240 months of imprisonment. His Second Sentence imposed a
term of 15 to 120 months in prison. As in Gillespie, although the
sentencing judge
did not indicate a total minimum term at the time of
sentencing, that failure is not a fatal flaw since, by operation
of Section 9757 [of the Sentencing Code,] we find that
[Moss’] consecutive sentences of [42 months to 240
months] and [15 months to 120 months] by necessary
implication provided for an aggregated sentence of [57
months].
Id. at 1065. As explained in Gillespie, pursuant to Section 9757
of the Sentencing Code, the aggregation is automatic “once the
sentencing court imposes a consecutive sentence[.]” Gillespie,
527 A.2d at 1065. The sentencing judge’s failure to explicitly
declare an aggregated minimum, where the General Assembly’s
intent was that “the prisoner serve the aggregate of all the
minimum terms imposed under the various consecutive
sentences[,]” is not legal error. Gillespie, 527 A.2d at 1065.
Accordingly, Moss was not deprived of any liberty interest
resulting from the sentencing court’s failure to state an
aggregated minimum sentence and his argument is without
support.
-9-
J-S36012-22
Id. at 1140-41.6
As stated at the outset, the sentence imposed in the instant action was
a term of imprisonment of not less than five months and not more than ten
months. Had the trial court “indicate[d] the minimum sentence to be served
for the total of all offenses” in accordance with Section 9757, the court would
have indicated that the five-to-ten month sentence was aggregated with the
first and third sentences of six to 12 months and 11½ to 23 months,
respectively, for an aggregated sentence of 22½ to 45 months. That sentence
complies with Section 9757’s mandate that the minimum sentence shall not
exceed half of the maximum. Therefore, the sentence imposed was not an
illegal sentence. As the Commonwealth Court recognized in Gillespie and
restated in Moss, aggregation is automatic and “the sentencing judge’s failure
to explicitly declare an aggregated minimum . . . is not legal error.” Moss,
194 A.3d at 1041 (citing Gillespie, 527 A.2d at 1065). While Appellant claims
the trial court entered an illegal order by failing to state the aggregated
minimum, his legality of sentence claim is a claim devoid of merit. Appellant
is not entitled to relief.7
____________________________________________
6“Although the decisions of the Commonwealth Court are not binding on this
Court, we may look to them for their persuasive value.” Commonwealth v.
Brown, 240 A.3d 970, 973 n.3 (Pa. Super. 2020) (citation omitted).
7Moreover, as the Commonwealth notes, cases examining Section 9757, e.g.,
Moss and Gillespie, supra, suggest that a trial court’s failure to aggregate a
(Footnote Continued Next Page)
- 10 -
J-S36012-22
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2023
____________________________________________
defendant’s sentences does not render the sentence illegal “because it is not
the trial court’s ultimate responsibility to aggregate and implement
[Appellant’s] sentences. Instead, it appears from these cases that the
custodian of the defendant ensures for the proper aggregation and
computation of all the defendant’s sentences under Section 9757.”
Commonwealth Brief at 33.
- 11 -
J-S36012-22
- 12 -