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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOSHUA SCOTT SCHAUER,
Appellant No. 722 MDA 2015
Appeal from the Judgment of Sentence March 18, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000761-2012
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E. *
CONCURRING MEMORANDUM BY SHOGAN, J.: FILED JULY 28, 2016
Upon review of the certified record, I join in the Majority’s decision to
vacate the judgment of sentence and remand for resentencing. However, I
write separately to express my concern regarding the trial court’s failure to
follow the express dictates of Pa.R.Crim.P. 704.
As the Majority correctly notes, on February 24, 2015, a panel of this
Court vacated Appellant’s initial judgment of sentence due to the imposition
of an illegal mandatory minimum sentence and remanded the case for
resentencing. Commonwealth v. Schauer, 2019 MDA 2013, 120 A.3d 390
(Pa. Super. filed February 24, 2015). Upon remand, the trial court held a
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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brief resentencing hearing on March 18, 2015, and resentenced Appellant to
an aggregate term of incarceration of time served to ten years.
Pa.R.Crim.P. 704 sets forth the appropriate procedures to be followed
at the time of sentencing. Specifically, Rule 704(C) provides as follows:
(C) Sentencing Proceeding.
(1) At the time of sentencing, the judge shall afford the
defendant the opportunity to make a statement in his or her
behalf and shall afford counsel for both parties the opportunity
to present information and argument relative to sentencing.
(2) The judge shall state on the record the reasons for the
sentence imposed.
(3) The judge shall determine on the record that the defendant
has been advised of the following:
(a) of the right to file a post-sentence motion
and to appeal, of the time within which the
defendant must exercise those rights, and of
the right to assistance of counsel in the
preparation of the motion and appeal;
(b) of the rights,
(i) if the defendant is indigent, to
proceed in forma pauperis and to
proceed with appointed counsel as
provided in Rule 122, or,
(ii) if represented by retained counsel, to
proceed with retained counsel unless the
court has granted leave for counsel to
withdraw pursuant to Rule 120(B);
(c) of the time limits within which post-sentence
motions must be decided;
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(d) that issues raised before or during trial shall be
deemed preserved for appeal whether or not the
defendant elects to file a post-sentence motion; and
(e) of the defendant’s qualified right to bail under
Rule 521(B).
Pa.R.Crim.P. 704(C) (emphases added). In addition, the comment
accompanying Pa.R.Crim.P. 704 states the following, in relevant part:
The judge should explain to the defendant, as clearly as
possible, the timing requirements for making and deciding a
post-sentence motion under Rule 720. The judge should also
explain that the defendant may choose whether to file a post-
sentence motion and appeal after the decision on the motion, or
to pursue an appeal without first filing a post-sentence motion.
Paragraph (C)(3) requires the judge to ensure the
defendant is advised of his or her rights concerning post-
sentence motions and appeal, and the right to proceed with
counsel.
The rule permits the use of a written colloquy that is read,
completed, signed by the defendant, and made part of the
record of the sentencing proceeding. This written colloquy must
be supplemented by an on-the-record oral examination to
determine that the defendant has been advised of the applicable
rights enumerated in paragraph (C)(3) and that the defendant
has signed the form.
Pa.R.Crim.P. 704 cmt. (citation omitted).
As this Court has long stated, “[w]hen a judgment has been vacated it
is entirely destroyed and the rights of the parties are left as though no
judgment has been entered.” Commonwealth v. Anderson, 603 A.2d
1060, 1063 (Pa. Super. 1992) (citations and internal quotations omitted).
After a judgment is vacated, a defendant is basically being “sentenced
anew.” Id. “Such a de novo sentencing resuscitates the duties of the
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sentencing court and the rights of the defendant….” Id. Consequently, the
requirements of Pa.R.Crim.P. 704 are resuscitated after a judgment of
sentence is vacated.
Instantly, my review of the record reflects that the trial judge did offer
Appellant the opportunity to make a statement in his own behalf, as required
under Pa.R.Crim.P. 704(C)(1). N.T., 3/18/15, at 4. However, the trial judge
failed to state on the record the reasons for the sentence imposed as
required under Pa.R.Crim.P. 704(C)(2). Moreover, the trial judge failed to
determine on the record whether Appellant was advised of his post-sentence
and appellate rights as required under Pa.R.Crim.P. 704(C)(3). Indeed, the
trial judge’s only comments at the time of the sentencing were as follows:
All right. This was remanded on an issue of a mandatory.
I read the Case Law pretty carefully, and the decision of the
Court found no merit to the other claims. They basically just
said, okay, the two year mandatory is not permissible.
***
So what I’m going to do is just a technical resentencing.
It’s the same thing only we’ll just do time served and he’s
immediately released on parole. All the other conditions will
remain the same as they would have previously been imposed.
N.T., 3/18/15, at 4-5. At that point, the resentencing proceedings ended.
Hence, I am compelled to conclude that the trial judge failed to
implement the requirements of Pa.R.Crim.P. 704. Specifically, the trial
judge did not state on the record the reasons for the sentence imposed as
necessitated under Pa.R.Crim.P. 704(C)(2). Also, the trial court did not
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apprise Appellant of his post-sentence and appellate rights pursuant to
Pa.R.Crim.P. 704(C)(3). These duties imposed upon the trial court were
resuscitated after this Court vacated the previous judgment of sentence and
remanded for resentencing. Anderson, 603 A.2d at 1063. For these
reasons, I agree with the Majority that we must vacate the judgment of
sentence and remand for further proceedings, which include full and
complete compliance with the dictates of Pa.R.Crim.P. 704.
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Com. v. Schauer, J.
Combined Opinion