J-A28034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DOUGLAS MARSHALL
Appellant No. 2702 EDA 2013
Appeal from the Judgment of Sentence June 14, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001935-1999
BEFORE: GANTMAN, P.J., PANELLA, J., and WECHT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 24, 2014
Appellant, Douglas Marshall, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following
revocation of his probation. We vacate and remand.
The trial court opinion sets forth the relevant facts and procedural
history of this case as follows:
This case stems from an incident that occurred on June 18,
1999, at 1:46 p.m., when two Chester Police Officers,
Stanfield and Lee, responded to the area of Front and
Norris Streets in Chester, Pennsylvania, in response to a
complaint of illegal dumping. Upon arrival, the two
Officers observed a man, who identified himself as
Appellant, operating a white Ford pick-up. The two
Officers observed tree limbs, brush, and other debris in the
bed of the pick-up.
After being advised through police radio that the vehicle
was stolen and…Appellant’s license was suspended, Officer
Lee went to the passenger-side door while Officer Stanfield
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went to the driver’s-side door. Also on the scene were
three other officers, Studzinski, Michael, and De la Cruz,
who were at the location as back-up. Officer Stanfield
opened the driver’s-side door, while Officer Lee opened the
passenger-side door and asked…Appellant to exit the
vehicle. Instead of complying with the Officer’s requests,
…Appellant reached down to put on his boot, started the
truck, put it in reverse, and accelerated the vehicle at a
high rate of speed.
Both Officers Stanfield and Lee were struck by the vehicle’s
open doors. The truck ran over Officer Stanfield while
dragging Officer Lee for approximately 50 yards. Officer
Lee became dislodged from the vehicle as it struck an
electrical pole, resulting in an explosion. The two injured
Officers were in the street lying in the path of the pick-up.
Officers [Studzinski], Michael, and De la Cruz were facing
Appellant’s vehicle, ordered him to stop, but he ignored
the order and drove at the Officers. Then, Officers
[Studzinski] and De la Cruz began to shoot at the pick-up
truck.
A bystander, who was observing the incident, attempted to
use his truck to block the pick-up from escaping but the
pick-up was able to get around the blocking vehicle. The
pick-up finally collided with Officer Pompilli’s vehicle, who
was responding to an assist officer call. Both vehicles
were disabled and…Appellant was arrested at the scene.
Officer Stanfield was admitted to the hospital in critical
condition and Officer Lee was admitted in guarded
condition. [Officers] De la Cruz and Pompilli were treated
and released.
* * *
…Appellant was charged with six counts of “Aggravated
Assault.” Thereafter, on May 17, 2000, …Appellant
entered an open guilty plea to…Aggravated Assault, six
Counts. On June 27, 2000, the Trial Judge
sentenced…Appellant on each of the Six Counts as follows:
* * *
forty-eight (48) to ninety-six …(96) months SCI for
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Counts 1, 2, and 4 to run concurrent with sixty-six
(66) to one hundred thirty-two (132) months SCI for
Counts 3, 5, and 6. All sentences (counts) run
concurrent to one another. Additionally, …Appellant
was sentenced on each count to 5 years of probation
to run concurrent with each other and consecutive to
the incarceration.
In 2012, …Appellant was convicted of a new case in
Philadelphia, Pennsylvania with facts strikingly similar to
the [original] case. The facts in the Philadelphia case are
as follows: on January [21], 2012, the Philadelphia police
set up surveillance near 28 North Bodine for narcotics
activity. The police observed the occupants of a Burgundy
Chevy engage in a drug transaction and tried to stop the
car. …Appellant was the driver of the vehicle. …Appellant
ignored the police efforts to stop the vehicle. As
Appellant’s vehicle sped off, it hit numerous parked cars,
and drove toward police and pedestrians on the street.
There were shots fired from the vehicle and the police
returned fire. …Appellant fled from the police, hid from
police, but eventually turned himself into the FBI once they
found his location in a hotel room.
This subsequent conviction was a violation of …Appellant’s
parole. On June 14, 2013, after a Gagnon II hearing, the
Trial Judge resentenced…Appellant on each of the Six
Counts as follows:
4 to 10 years SCI. All counts were to run concurrent
to each other but consecutive to the new
Philadelphia conviction. Also, …Appellant’s probation
was revoked.
On July 11, 2013, …Appellant filed a timely pro se Notice of
Appeal. On July 17, 2013, the trial court entered a
Scheduling Order relative to the appeal. On August 2,
2013, counsel for…Appellant, …of the Delaware County
Public Defender’s Office, filed a “Petition for Extension of
Time to File Statement of Errors Complained of on Appeal.”
On November 18, 2013, [counsel] filed a conflict petition
alleging a conflict of interest that appeared in Appellant’s
pro se [Pa.R.A.P. 1925(b)] statement. This necessitated
the appointment of new counsel. On December 26, 2013,
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the Trial Judge entered an Order appointing [new] counsel
for…Appellant. On January 17, 2014, a Motion to Extend
the Time to File a Statement of Errors Complained of on
Appeal was filed and later granted. On January 21, 2014,
the undersigned was assigned this case. On March 11,
2014, [new counsel] filed a “[Rule] 1925(b) Statement on
Appeal.”
(Trial Court Opinion, filed April 25, 2014, at 1-4) (internal footnotes and
citations to record omitted).
Appellant raises the following issue for our review:
DID THE…COURT ERR IN SENTENCING APPELLANT TO
FOUR (4) TO TEN (10) YEARS AFTER FINDING APPELLANT
VIOLATED HIS PROBATION WHEN THE ORIGINAL
SENTENCE CONTAINED A SENTENCE OF FIVE AND A HALF
(5½) TO ELEVEN (11) YEARS FOR THE CRIME OF
AGGRAVATED ASSAULT MAKING THE MAXIMUM
SENTENCE TWENTY-ONE YEARS OR ONE YEAR OVER THE
STATUTORY MAXIMUM.
(Appellant’s Brief at 5).
Appellant argues his revocation sentence of four (4) to ten (10) years’
imprisonment is illegal because it exceeds the maximum sentence for
aggravated assault when combined with Appellant’s original sentence of five
and one-half (5½) to eleven (11) years’ imprisonment. Appellant claims the
maximum sentence for aggravated assault, a first degree felony, is twenty
(20) years’ imprisonment. Appellant alleges his aggregate maximum
sentence is now twenty-one (21) years’ imprisonment, which is one (1) year
over the statutory maximum for aggravated assault. Appellant concludes
this Court should vacate his revocation sentence and remand for a new
sentencing hearing. For the following reasons, we vacate and remand.
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When reviewing the outcome of a probation revocation proceeding, our
scope of review includes the validity of the proceeding, the legality of the
sentence imposed, and when properly preserved, the discretionary aspects
of sentencing. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super.
2013) (en banc). “In general, the imposition of sentence following the
revocation of probation is vested within the sound discretion of the trial
court, which, absent an abuse of that discretion, will not be disturbed on
appeal.” Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).
A sentence should not be disturbed where it is evident the court was aware
of the appropriate sentencing considerations and weighed them in a
meaningful fashion. Commonwealth v. Fish, 752 A.2d 921, 923
(Pa.Super. 2000).
The Sentencing Guidelines do not apply to sentences imposed
following revocation of probation. Commonwealth v. Ferguson, 893 A.2d
735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196
(2006). “[U]pon sentencing following a revocation of probation, the trial
court is limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence.” Commonwealth v.
Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a
defendant to total confinement after revoking probation if the defendant was
convicted of another crime, the defendant’s conduct indicates that it is likely
that he will commit another crime if he is not imprisoned, or such a sentence
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is essential to vindicate the court’s authority. Commonwealth v. Crump,
995 A.2d 1280 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475
(2010).
Credit for time served is governed by statute in relevant part as
follows:
§ 9760. Credit for time served
After reviewing the information submitted under section
9737 (relating to report of outstanding charges and
sentences) the court shall give credit as follows:
(1) Credit against the maximum term and any minimum
term shall be given to the defendant for all time spent in
custody as a result of the criminal charge for which a
prison sentence is imposed or as a result of the conduct on
which such a charge is based. Credit shall include credit
for time spent in custody prior to trial, during trial, pending
sentence, and pending the resolution of an appeal.
42 Pa.C.S.A. § 9760(1).
[A] defendant shall be given credit for any days spent in
custody prior to the imposition of sentence, but only if
such commitment is on the offense for which sentence is
imposed. In the context of sentencing after probation
revocation, the court must give due consideration to the
time the defendant has spent serving probation, but the
court is not required to credit the defendant with
any time spent on probation. Likewise, the defendant
is not automatically granted credit for time served
while incarcerated on the original sentence unless
the court imposes a new sentence that would result
in the defendant serving time in excess of the
statutory maximum.
Commonwealth v. Infante, 63 A.3d 358, 367 (Pa.Super. 2013) (emphasis
added) (internal citations and quotation marks omitted). Thus, in
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sentencing upon revocation of probation, the court must consider the time
the defendant has already spent imprisoned if “the failure to award credit for
the original time spent imprisoned would result in the defendant serving
more time incarcerated than the lawful maximum.” Crump, supra at 1285.
“As long as the new sentence imposed does not exceed the statutory
maximum when factoring in the incarcerated time already served, the
sentence is not illegal.” Id. (citing Commonwealth v. Williams, 662 A.2d
658 (Pa.Super. 1995)).
Instantly, the record suggests Appellant did not serve the entire
eleven-year maximum in prison on his original sentence. Instead, the
record suggests Appellant was paroled and re-committed on several
occasions. Thus, the record is unclear as to how much time Appellant
actually served in prison on his original sentence of five and one-half to
eleven years. If Appellant served more than ten years’ imprisonment on his
original sentence, then his probation revocation sentence of four to ten
years’ imprisonment is illegal as it causes Appellant’s aggregate sentence for
aggravated assault to exceed the statutory maximum of twenty years. See
Infante, supra; Crump, supra. If Appellant served less than ten years in
prison on his original sentence, then his new sentence is legal. See id.
Therefore, on remand the trial court must determine exactly how much time
Appellant has already served in prison on his original sentence and then
assess whether that time plus the revocation sentence would exceed the
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statutory maximum. In resolving this problem, however, the court is not
required to give Appellant any credit for time served on parole or probation.
Accordingly, we vacate the judgment of sentence in this case and remand
for re-sentencing.
Judgment of sentence vacated; case remanded. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2014
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