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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
REBECCA JO KELLY, :
:
Appellant : No. 609 WDA 2014
Appeal from the Judgment of Sentence April 7, 2014
In the Court of Common Pleas of Cambria County
Criminal Division No(s).: CP-11-SA-0000089-2013
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 17, 2015
Appellant, Rebecca Jo Kelly, appeals from the judgment of sentence of
thirty days’ imprisonment entered in the Cambria County Court of Common
Pleas after she pleaded guilty to driving under suspension,1 her sixth
violation.2 She claims the trial court failed to enforce an alleged term of her
plea agreement by denying her request for intermediate punishment and
ordering that she serve her sentence in a county facility. We conclude that
the trial court and the parties did not consider the legality of a “flat” thirty-
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 1543(a).
2
Because this was a “sixth or subsequent offense under section 1543(a),”
Section 6503(a.1) of the Vehicle Code applied. See 75 Pa.C.S. § 6503(a.1).
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day sentence, and under the circumstances of this appeal, vacate the
judgment of sentence and remand for resentencing.
The trial court set forth the procedural history of this case as follows:
On October 10, 2013, [Appellant] entered a guilty plea to
one count of Driving While Operating Privilege is
Suspended or Revoked.[ ] This was [Appellant’s] sixth
offense under section 1543. On April 7, 2014, [Appellant]
was sentenced to pay the costs of prosecution, pay a fine
of $1,000 and serve thirty (30) days incarceration. This
sentence was within the standard range taking into
consideration the mandatory sentences for a sixth or
subsequent offense. . . . [Appellant] filed a Motion for
Reconsideration and a hearing was held April 11, 2014 at
which time the Motion was denied. Kelly filed a timely
Notice of Appeal that same day and her sentence was
stayed pending the outcome of this appeal.
Trial Ct. Op., 6/5/14, at 1.
Generally,
[w]hen an appellant enters a guilty plea, she waives her
right to challenge on appeal all non-jurisdictional defects
except the legality of [her] sentence and the validity of
[her] plea. . . . The issue of whether a sentence is illegal
is a question of law; therefore, our task is to determine
whether the trial court erred as a matter of law and, in
doing so, our scope of review is plenary. Additionally, the
trial court’s application of a statute is a question of law
that compels plenary review to determine whether the
court committed an error of law. If no statutory
authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal
sentence must be vacated.
. . . Under certain circumstances, a defendant who enters
a guilty plea after the court communicates an incorrect
maximum sentence may be considered to have entered
her plea unknowingly and involuntarily. However, every
mistake in computing the possible maximum or advising
the defendant of the possible maximum will [not] amount
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to manifest injustice justifying the withdrawal of a guilty
plea; the mistake must be material to the defendant’s
decision to plead guilty.
Commonwealth v. Pantalion, 957 A.2d 1267, 1271-72 (Pa. Super. 2008)
(citations and punctuation omitted). In light of the foregoing, we sua sponte
consider the legality of the thirty-day sentence imposed on Appellant.
Section 6503(a.1) of the Vehicle Code states, “A person convicted of a
sixth or subsequent offense under section 1543(a) shall be sentenced to pay
a fine of not less than $1,000 and to imprisonment for not less than 30 days
but not more than six months.” 75 Pa.C.S. § 6503(a.1) Section 9576 of
Judicial Code states:
(a) General rule.—In imposing a sentence of total
confinement the court shall at the time of sentencing
specify any maximum period up to the limit authorized by
law and whether the sentence shall commence in a
correctional or other appropriate institution.
(b) Minimum sentence.—
(1) The court shall impose a minimum sentence of
confinement which shall not exceed one-half of the
maximum sentence imposed.
42 Pa.C.S. § 9576(a), (b)(1).
This Court has recently held that Section 6503(a.1) does not permit
the imposition of a flat sentence. Commonwealth v. Postie, ___ A.3d
___, ___, 2015 WL 660148 at *7-8 (Pa. Super. Feb. 15, 2015). Rather, the
trial court must state both a minimum and a maximum term of
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imprisonment, and the minimum term cannot be more than one-half the
maximum term. See 42 Pa.C.S. § 9756(a), (b)(1).
Thus, we are compelled to conclude the flat sentence of thirty days
was illegal. Accordingly, we vacate the sentence and remand for
resentencing. Furthermore, we are constrained to observe that the court
and the parties did not have the benefit of our decision in Postie.
Therefore, our remand order shall not preclude the parties from seeking
withdrawal of the guilty plea or engaging in further plea negotiations.3
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2015
3
In light of our conclusion that the sentence imposed was illegal, we decline
to reach the specific issue raised in this appeal, i.e. whether the flat thirty-
day sentence was intended to be a county sentence versus a sentence of
intermediate punishment.
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