Com. v. Pennington, W.

J-S28024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM PENNINGTON :
:
Appellant : No. 1740 EDA 2020
Appeal from the Judgment of Sentence Entered January 22, 2016
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-51-CR-0006653-2012
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
CONCURRING AND DISSENTING STATEMENT BY BOWES, J.:
Filed: November 18, 2021
In this appeal, Appellant challenges the legality of his 2016 sentence. I
fully agree with my learned colleagues that the 2016 sentence is illegal and
must be vacated. See, e.g., Commonwealth v. Whatley, 221 A.3d 651,
653 (Pa.Super. 2019) (“An illegal sentence must be vacated.” (cleaned up));
Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa.Super. 2011)
(“A challenge to the legality of a sentence . . . may be entertained as long as
the reviewing court has jurisdiction.”).
However, I see no need for this court to reach further back and order
the trial court to modify the 2012 sentencing order. Our Supreme Court has
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S28024-21
warned that the general rule provided by 42 Pa.C.S. § 5505 that trial courts
may not modify their orders after thirty days must not be swallowed by the
exception related to correction of patent errors, explaining that “[n]ot all
illegal sentences will be amenable to correction as patent errors.”
Commonwealth v. Holmes, 933 A.2d 57, 66-67. Here, both Appellant and
the trial court ask us to vacate the illegal 2016 sentence over which there is
undisputed jurisdiction, but neither Appellant nor the trial court suggests that
disturbing the 2012 sentencing order is necessary to vindicate Appellant’s
rights.
Accordingly, I would vacate Appellant’s January 22, 2016 judgment of
sentence and leave it at that. To the extent that the Majority goes beyond
the scope of the relief requested, I respectfully dissent.
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