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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LARRY KEITH GARLAND
Appellant No. 1325 WDA 2014
Appeal from the Judgment of Sentence March 3, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-009716-2013
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
JUDGMENT ORDER BY PANELLA, J. FILED OCTOBER 26, 2015
Appellant, Larry Keith Garland, appeals from the judgment of sentence
entered March 3, 2014, in the Court of Common Pleas of Allegheny County.
We vacate the judgment of sentence and remand for resentencing.
Garland entered a guilty plea to one count of carrying a firearm
without a license, 18 Pa.C.S.A. § 6016(a)(1), and the trial court imposed a
sentence of two to five years of imprisonment followed by five years of
probation. Garland filed a post-sentence motion, which was denied by
operation of law. This timely appeal followed.
Garland first challenges the legality of his sentence. He argues—and
the trial court agrees—that the sentence imposed for carrying a firearm
without a license exceeds the statutory maximum. See Appellant’s Brief at
5; Trial Court Opinion, 12/12/14 at 5. If a court “imposes a sentence outside
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of the legal parameters prescribed by the applicable statute, the sentence is
illegal and should be remanded for correction.” Commonwealth v.
Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (citation omitted).
Garland claims that his split sentence of two to five years’
imprisonment followed by a consecutive five years’ probation exceeds the
maximum sentence permissible for carrying a firearm without a license,
which is graded as a third-degree felony. See 18 Pa.C.S. § 6016(a)(1)
(grading offense as felony of the third degree). We agree.
“When determining the lawful maximum allowable on a split sentence,
the time originally imposed cannot exceed the statutory maximum.”
Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa. Super. 2010)
(citations omitted). See also 42 Pa.C.S.A. § 9754(a). “Thus, [for example,]
where the maximum is ten years, a defendant cannot receive a term of
incarceration of three to six years followed by five years’ probation.” Crump,
995 A.2d at 1284.
Here, the trial court’s sentence of two to five years of imprisonment
followed by five years’ probation exceeded the statutory maximum of seven
years. See 18 Pa.C.S.A. § 1103(3). This constitutes an illegal sentence,
which must be corrected. See Infante. We therefore vacate Garland’s
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judgment of sentence and remand for resentencing consistent with this
memorandum.1
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2015
____________________________________________
1
Our disposition of Garland’s first issue renders discussion of his second
issue moot. We advise on remand that while a pre-sentence investigation
(PSI) report may be requested at the discretion of the sentencing court, if a
PSI report is not ordered, the sentencing court must “place on the record the
reasons for dispensing with the pre-sentence investigation report … when
incarceration for one year or more is a possible disposition under the
applicable sentencing statutes.” Pa.R.Crim.P 702(A)(2)(a).
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