J-S79043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT RYGALSKI, :
:
Appellant : No. 166 EDA 2016
Appeal from the Judgment of Sentence July 8, 2013
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-1003751-2004
BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 19, 2017
Robert Rygalski (“Rygalski”) appeals from the judgment of sentence
entered following the revocation of probation. We vacate Rygalski’s
judgment of sentence and remand for further proceedings.
In its Opinion, the trial court summarized the relevant history
underlying the instant appeal, which we adopt as though fully restated
herein. See Trial Court Opinion, 2/23/16, at 1-2.
Rygalski presents the following claims for our review:
I. Was the sentence imposed by the trial court, which was 2½
to five years in state prison[,] unjust, improper, manifestly
unreasonable, and an abuse of discretion because the process []
did not take into consideration [Rygalski’s] age, family history
and rehabilitative needs?
II. Was the sentence imposed by the trial court illegal because
the trial court did not order that [Rygalski] be given credit for
time served?
Brief for Appellant at 2.
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Rygalski first challenges the discretionary aspects of his sentence. “A
challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal, as the right to pursue such a claim is not
absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004) (citation omitted). An appellant challenging the discretionary aspects
of his sentence must invoke this Court’s jurisdiction by satisfying a four-part
test to determine
(1) whether the appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether the appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Rygalski filed a timely Notice of Appeal and preserved his issue
in a post-sentence Motion. Rygalski also included a Rule 2119(f) Statement
in his brief. Accordingly, we will review Rygalski’s Rule 2119(f) Statement to
determine whether he has raised a substantial question.
Rygalski claims that the trial court abused its discretion by imposing a
sentence of 2½ to 5 years in prison, “which was the maximum allowable
sentence for a first[-]degree misdemeanor in a 53[-]year[-]old individual
who told the court he was sorry for what happened.” Brief for Appellant at
3. Rygalski asserts that the trial court based its sentence only on the crime
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itself, not taking into consideration his age, family history and rehabilitative
needs. Id. According to Rygalski, the trial court did not consider a pre-
sentence investigation, or that Rygalski had served three years of probation
prior to this violation. Id. Rygalski relies on an error in the trial court’s
Opinion, which states that that Rygalski was on probation for aggravated
assault (a felony), when he was actually on probation for possessing an
instrument of crime (a first-degree misdemeanor). Id. (citing Trial Court
Opinion, 2/23/15, at 5). Rygalski additionally asserts that the trial court
failed to take into consideration the factors set forth at 42 Pa.C.S.A. § 9771,
and that his sentence is manifestly excessive. Brief for Appellant at 3.
As this Court has explained, “[a]n appellant making an excessiveness
claim raises a substantial question when he sufficiently articulates the
manner in which the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code[,] or a particular
fundamental norm underlying the sentencing process.” Commonwealth v.
Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (internal citations omitted).
However, “prior decisions from this Court involving whether a
substantial question has been raised by claims that the
sentencing court ‘failed to consider’ or ‘failed to adequately
consider’ sentencing factors has been less than a model of clarity
and consistency.” Commonwealth v. Seagraves, 103 A.3d
839, 842 (Pa. Super. 2014) (citation omitted). In
Commonwealth v. Dodge, [77 A.3d 1263 (Pa. 2013),] [the
Pennsylvania Supreme] Court determined [that] an appellant’s
claim that the sentencing court “disregarded rehabilitation and
the nature and circumstances of the offense in handing down its
sentence” presented a substantial question. Dodge, 77 A.3d at
1273.
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This Court has also held that “an excessive sentence claim—in
conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.”
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014), appeal denied, 105 A.3d 736 (Pa. 2014) (quoting
Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super.
2005)). Additionally:
In determining whether a substantial question exists, this
Court does not examine the merits of whether the
sentence is actually excessive. Rather, we look to
whether the appellant has forwarded a plausible
argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable. Concomitantly,
the substantial question determination does not require
the [C]ourt to decide the merits of whether the sentence
is clearly unreasonable.
Dodge, supra, at 1270 (internal citations omitted).
Commonwealth v. Swope, 123 A.3d 333, 339-40 (Pa. Super. 2015).
Based on our review of the foregoing precedents, we conclude that
Rygalski’s challenge to his sentence as unduly excessive, together with his
claim that the court failed to consider certain factors upon fashioning its
sentence, presents a substantial question. Thus, we grant his Petition for
allowance of appeal.
In its Opinion, the trial court addressed the merits of Rygalski’s
challenge to the discretionary aspects of his sentence, and concluded that it
lacks merit. See Trial Court Opinion, 2/23/16, at 2-5 (addressing the
discretionary aspects of Rygalski’s sentence, and the challenge to his
sentence upon revocation of probation). We agree with the sound reasoning
of the trial court, and discern no abuse of discretion in this regard. See id.
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Accordingly, we affirm on the basis of the trial court’s Opinion with regard to
this claim. See id.
Rygalski next claims his sentence is illegal because the trial court
failed to give him credit for time served. Brief for Appellant at 10. Rygalski
claims that he should have been given credit from June 8, 2013. Id.
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1030, 1033-34 (Pa. Super. 2013)
(en banc).
A challenge to a trial court’s failure to award credit for time served in
custody implicates the legality of the sentence and therefore, is appealable
as of right. Commonwealth v. Clark, 885 A.2d 1030, 1032 (Pa. Super.
2005). “[T]he determination as to whether the trial court imposed an illegal
sentence is a question of law; our standard of review in cases dealing with
questions of law is plenary.” Commonwealth v. Williams, 868 A.2d 529,
532 (Pa. Super. 2005).
In its Opinion, the trial court deemed Rygalski’s claim waived, based
upon his failure to lodge an objection at sentencing. Trial Court Opinion,
2/23/16, at 6. In deeming the claim waived, the trial court relied upon the
Pennsylvania Supreme Court’s decision in McCray v. Pa. Dep’t of Corr.,
872 A.2d 1127 (Pa. 2005). In McCray, the inmate sought relief by means
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of a petition for review, in the original jurisdiction of the Commonwealth
Court, claiming that the Department of Corrections (“the Department”) had
failed to credit him for time served. Id. at 1129. In rejecting the inmate’s
claim, the Supreme Court explained that “[t]he Department is an executive
branch agency that is charged with faithfully implementing sentences
imposed by the courts. As part of the executive branch, the Department
lacks the power to adjudicate the legality of a sentence or to add or delete
sentencing conditions.”1 Id. at 1133.
Here, Rygalski challenged the legality of his sentence, in the court with
jurisdiction to adjudicate the legality of his sentence. Further, this Court has
long held that a challenge to the legality of a sentence “is nonwaivable and
may be considered sua sponte by our Court.” Commonwealth v.
Williams, 662 A.2d 658, 659 (Pa. Super. 1995). As such, we will address
Rygalski’s claim.
Credit for time served is governed by the Sentencing Code, which
provides, 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
The Supreme Court ultimately concluded that the Department did not have
a duty to credit the inmate for the time previously served, because the
probation revocation judge did not order credit for time served, “and the
Department is without authority to alter sentencing conditions.” McCray,
872 A.2d at 1133.
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(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).
Here, the Commonwealth concedes that the certified record is deficient
for determining whether Rygalski is entitled to credit for time served. Brief
for the Commonwealth at 13. As this claim implicates the legality of
Rygalski’s sentence, we deem it necessary to vacate the judgment of
sentence and remand for further proceedings. On remand, the trial court is
directed to ascertain whether Rygalski is entitled to credit for time served,2
and if so, to resentence Rygalski accordingly. If Rygalski is not entitled to
credit for time served, the trial court is directed to resentence Rygalski to
the sentence previously imposed.
Judgment of sentence vacated. Case remanded with instructions.
Superior Court jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
2
If necessary, the trial court may conduct an evidentiary hearing regarding
this issue.
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