Com. v. Hurd, S.

J-S81008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

STEPHEN HURD

Appellant No. 908 EDA 2016

Appeal from the Judgment of Sentence January 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0208691-2005
MC-51-CR-0018430-2012
MC-51-CR-0024860-2012

BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED MARCH 21, 2017

Stephen Hurd appeals from his aggregate judgment of sentence of

forty-six and a half months to 107 months incarceration imposed after he

was found to be in violation of three probationary sentences. After review,

we vacate judgment of sentence at case number 208691 of 2005. We affirm

the remaining two sentences.

This matter involves three separate cases and multiple probation

violation proceedings spanning almost a decade. The first case, action

number 208691 of 2005, dates back to December 3, 2004, when Andrew

Cappo reported that his vehicle had been stolen during the workday. Later

that evening, Appellant was observed operating the vehicle. He was

* Former Justice specially assigned to the Superior Court.
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arrested and charged with four crimes, three of which were nolle prossed

pursuant to a negotiated plea agreement. Appellant pleaded guilty to the

remaining count of receipt of stolen property, graded as a felony of the third

degree. On May 12, 2005, the trial court1 accepted and imposed the

negotiated sentence of six to twenty-three months confinement followed by

one year of probation. On October 7, 2005, the trial court granted

Appellant’s petition for early parole.

While still on parole, Appellant committed another crime2 and, as a

result, was found to be in direct violation of the judge’s county parole. On

January 18, 2007, the court terminated parole, anticipatorily revoked

probation, and re-sentenced Appellant to thirty to sixty months of state

incarceration followed by two years probation. Since the trial court

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1
We note that the Honorable Genece Brinkley presided over the 2005 plea
and all the violation hearings in these three cases.
2
The trial court’s Pa.R.A.P. 1925(a) opinion states that Appellant appeared
before the Honorable William Furber, Jr. on October 13, 2006, and entered a
guilty plea. Appellant’s docket indicates several aliases, including Stephen
Crompton; the Court of Common Pleas Case Management System indicates
that a Stephen Crompton pleaded guilty to receiving stolen property, graded
as a felony of the third degree, on October 13, 2006 before Judge Furber in
Montgomery County, with a sentence of nine to twenty-three months of
incarceration followed by two years probation.

https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=
CP-46-CR-0003841-2006

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terminated parole, Appellant did not fully serve the first sentence imposed.

On July 1, 2009, Appellant was released on parole.

In February 2012, while serving the court’s probationary tail sentence,

a probation detainer was issued. On March 13, 2012, the court revoked

probation and imposed a new sentence of two years probation. On May 5,

2012, Appellant stole items valued at $92.00 from Toys “R” Us, and was

charged, at action number 18430 of 2012, with one count of retail theft,

graded as a misdemeanor of the second degree. On June 18, 2012, he took

items valued at $184.60 from Rite Aid, and was charged, at case number

24860 of 2012, with one count of retail theft, graded as a misdemeanor of

the first degree. These two cases were consolidated for a plea on October

12, 2012; Appellant received a concurrent period of two years of probation

at each case.

The aforementioned convictions resulted in yet another probation

violation before the court concerning the receipt of stolen property

conviction. On March 1, 2013, the trial court revoked probation and

imposed a new sentence of eleven and one-half to twenty-three months

incarceration. Appellant was ordered to serve the sentence at Hoffman

Hall.3 On October 29, 2013, his petition for early parole was granted.

____________________________________________

3
Hoffman Hall is contracted by the Philadelphia Prison System and is
designed for low to medium risk offenders with drug and alcohol dependency
(Footnote Continued Next Page)

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Appellant was arrested on November 11, 2013 for trespassing at a

casino. The next day, Appellant failed to appear for a drug test. In

December, Appellant tested positive for PCP. The trespassing charge was

dropped, but Appellant failed to appear at a scheduled violation hearing

before another judge. A bench warrant was issued, which was cleared when

a police officer stopped Appellant on an unrelated matter.

On January 17, 2014, the trial court (hereinafter “VOP court”) held a

violation and re-sentencing hearing4 at all three cases. Appellant was found

in direct violation, and, as a result, parole was revoked on the receiving

stolen property charge. Appellant was properly ordered to serve the back

time in jail for the receipt of stolen property. Commonwealth v. Kalichak,

943 A.2d 285 (Pa.Super. 2008) (parole revocation does not involve

imposition of new sentence; court must recommit defendant to serve

balance of original sentence, with ability to again grant parole). With

respect to the retail theft cases, the VOP court revoked probation and

_______________________
(Footnote Continued)

issues. See http://www.cecintl.com/reentry/residential-reentry-
locations/hoffman-hall/
4
Gagnon v. Scarpelli, 411 U.S. 778 (1973) (defendant accused of violating
probation is entitled to two hearings: 1) a pre-revocation hearing to
determine probable cause of a violation; and 2) a revocation hearing to
establish violation and determine whether revocation is warranted).

The docket indicates that the Gagnon I hearing was held on January 10,
2014.

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elected to impose total confinement. Appellant received statutory maximum

terms of two and one-half to five years incarceration and one to two years

incarceration at the corresponding retail theft charges. All three sentences

were imposed consecutively.

Appellant filed a post-sentence motion for reconsideration, which was

denied. Appellant did not appeal; however, Appellant’s appellate rights were

reinstated nunc pro tunc. Appellant raises two issues for our review:

I. Was the aggregate sentence imposed by the trial court, which
was 5 ½ to 7 years in state prison unjust, improper, manifestly
unreasonable, and an abuse of discretion because the sentence
imposed of total incarceration was contrary to the fundamental
norms which underlie the sentencing process and was not
necessary to vindicate the authority of the Court?

II. Was the sentence imposed by the trial court illegal because
including the initial sentence of the court on the receiving stolen
property offense of 11 1/2 to 23, plus 1 year probation including
the subsequent VOP sentences the entire sentence imposed was
longer than the maximum authorized allowable sentence of 7
years and because the probation had terminated prior to the
appellant's violations and the trial court did not give the
appellant credit for time served?

Appellant’s brief at 2.

Appellant’s first claim concerns the discretionary aspects of

sentencing. Preliminarily, we note that Appellant’s calculation of the total

sentence, of five and one-half to seven years confinement, is incorrect. A

sentence of five and one-half to seven years of incarceration would be

illegal. 42 Pa.C.S. § 9756(b)(1) (minimum sentence of total confinement

shall not exceed one-half of the maximum sentence). The actual aggregate

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term was forty-two months to eighty-four months of incarceration at the

retail theft charges, plus the remaining sentence on his county sentence of

eleven and one-half to twenty-three months. The minimum term of

confinement at the two retail theft counts was reduced to thirty-five months,

due to application of the Recidivism Risk Reduction Incentive. 61 Pa.C.S. §§

4501-4512.5

When reviewing a criminal sentence, we apply the following standard

of review.

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (citing

Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)).

However, the right to appeal the discretionary aspects of a sentence is not

absolute. We determine whether Appellant has invoked this Court’s

jurisdiction by examining the following four criteria:

(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
____________________________________________

5
The remaining balance of the county sentence was not specified. Thus,
the VOP court applied the calculation of the reduction to the forty-two to
eighty-four months of incarceration at the two retail theft crimes.

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preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief
[complies with] 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. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing

Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)).

The first three requirements have been met.

We also conclude that Appellant has satisfied the substantial question

requirement. As a prefatory matter, we note that Appellant does not clearly

delineate one or more substantial questions for our review. He alleges that

the trial court violated the “fundamental norms which underlie the

sentencing process . . . [which] were not necessary to vindicate the

authority of the Court[.]” Appellant’s brief at 3.

The general sentencing provisions mandate that the court select from

one or more of seven alternatives, including total confinement. 42 Pa.C.S. §

9721(a). In selecting one of these options, the court is required to consider

a sentence that “is consistent with the protection of the public, the gravity of

the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.” Id. However, §

9771 separately governs the trial court’s ability to impose total confinement

following revocation of probation; the court may do so only if it finds one of

three conditions has been met:

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(c) Limitation on sentence of total confinement.--The court shall
not impose a sentence of total confinement upon revocation
unless it finds that:

(1) the defendant has been convicted of another
crime; or

(2) the conduct of the defendant indicates that it is
likely that he will commit another crime if he is not
imprisoned; or

(3) such a sentence is essential to vindicate the
authority of the court.

42 Pa.C.S. § 9771(c). Thus, the § 9771(c) factors, standing alone, govern

only the VOP court’s ability to impose total confinement at all, and do not

speak to the length of confinement. We unequivocally held in

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc),

that a VOP court must follow § 9721(b) in tandem with § 9771. Thus, this

Court’s scope of review in appeals from revocation sentences encompasses

the discretionary aspects of the sentence. “Such issues should not escape

review merely because a defendant’s revocation sentence falls within the

statutory limits.” Id. at 1038.

Post-Cartrette, our Supreme Court decided Commonwealth v.

Pasture, 107 A.3d 21 (Pa. 2014), which reversed a decision from this Court

vacating a revocation sentence, holding that we erroneously applied certain

sentencing provisions, and, as a result, gave “insufficient deference to the

revocation court’s imposition of the sentence following the revocation of

[appellant]’s probation[.]” Id. at 22. Pasture noted that a trial court’s

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initial sentencing decision is afforded broad discretion, because the court

“sentences flesh-and-blood defendants and the nuances of sentencing

decisions are difficult to gauge from the cold transcript used upon appellate

review. Moreover, the sentencing court enjoys an institutional advantage to

appellate review, bringing to its decisions an expertise, experience, and

judgment that should not be lightly disturbed.” Id. at 27 (citing

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)). Pasture went

on to observe that this rationale applies with even more force in the

revocation context:

The sentencing court's institutional advantage is, perhaps, more
pronounced in fashioning a sentence following the revocation of
probation, which is qualitatively different than an initial
sentencing proceeding. At initial sentencing, all of the rules and
procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a defendant
reappears before the court for sentencing proceedings following
a violation of the mercy bestowed upon him in the form of a
probationary sentence. For example, in such a case, contrary to
when an initial sentence is imposed, the Sentencing Guidelines
do not apply, and the revocation court is not cabined by Section
9721(b)'s requirement that “the sentence imposed should call
for confinement that is consistent with the protection of the
public, the gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the
rehabilitative needs of the defendant.”

Id. at 27. In Commonwealth v. Derry, 150 A.3d 987 (Pa.Super. 2016),

we rejected the Commonwealth’s argument that Pasture, as a matter of

law, dictated that no substantial question is presented for our review in VOP

cases:

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[T]he Commonwealth argues that our Supreme Court, in
Commonwealth v. Pasture, 630 Pa. 440, 107 A.3d 21, 27
(2014), held that Section 9721(b) does not apply to a sentence
imposed for a VOP and, therefore, that a sentence's
inconsistency with Section 9721(b) factors does not present a
substantial question for our review on the basis that a sentence
is “inconsistent with a specific provision of the Sentencing Code.”
Commonwealth's Brief, at 6–7; Moury, 992 A.2d at 170
(quoting from Sierra 752 A.2d at 912–13).

Id. at 992. We highlighted the foregoing passage from Pasture, and noted

that the Commonwealth’s interpretation contradicted Cartrette, supra. We

resolved the apparent discrepancy between Cartrette and Pasture by

observing that Pasture held a revocation court is not cabined by § 9721(b):

This discrepancy between this Court's unanimous en banc
decision in Cartrette, and our Supreme Court's decision in
Pasture, turns on the Supreme Court's use of the term,
“cabined,” in the phrase, “the revocation court is not cabined by
Section 9721(b)'s requirement that ‘the sentence imposed
should call for confinement that is consistent with the protection
of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.’ ” Pasture, 107 A.3d at 27
(emphasis added).

The Commonwealth would have us interpret ‘cabined’ in this
context to mean, effectively, ‘need not consider at all.’ See
Commonwealth's Brief, at 7 (“Plainly, the revocation court could
not have violated a provision of the Sentencing Code that did not
apply to [Appellant]'s case.”). This interpretation contradicts the
more nuanced view expressed in Cartrette regarding the
applicability of Section 9721(b) to VOP sentences:

While parts of § 9721(b) do not govern revocation
proceedings, as our sentencing guidelines are not
required to be consulted in such instances, see 204
Pa.Code. § 303.1(b), other provisions of that section
do apply. For example, the sentencing court must
“follow the general principle that the sentence

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imposed should call for confinement that is
consistent with the protection of the public, the
gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. §
9721(b). In addition, in all cases where the court
“resentences an offender following revocation of
probation, county intermediate punishment or State
intermediate punishment or resentences following
remand, the court shall make as a part of the record,
and disclose in open court at the time of sentencing,
a statement of the reason or reasons for the
sentence imposed.” Id. Failure to comply with these
provisions “shall be grounds for vacating the
sentence or resentence and resentencing the
defendant.” Id.

Cartrette, 83 A.3d at 1040–41 (emphasis added).

Id. at 993. Derry ultimately concluded that a “VOP sentencing court must

consider [the § 9721(b)] factors, but must also consider factors set forth in

Section 9771(c), which are unique to VOP sentences.” Id. at 995. Derry

accepted the claim that “the aggregate VOP sentence imposed by the court

was manifestly excessive and unreasonable” constituted a substantial

question. Id. at 995.

Herein, Appellant does not clearly distinguish the decision to impose

total confinement under § 9771(c) from the decision fixing the length of that

confinement. Appellant’s substantial question argument largely treats the

questions of whether the court erred in electing to impose total confinement

at all and the resulting length of confinement as one overarching issue.

The sentence imposed by the trial court was unjust, improper,
manifestly unreasonable, and an abuse of discretion because the

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sentence imposed was contrary to the fundamental norms which
underlie the sentencing process . . . when the reasons stated for
total confinement were not necessary to vindicate the authority
of the court.
....

The . . . sentence did not consider any of the factors required by
42 Pa.C.S. § 9721(b) and did not consider the defendant’s age,
family history and rehabilitative needs.

Appellant’s brief at 3.

We find that Appellant has raised a substantial question for our review.

However, in light of the foregoing discussion of Pasture and Derry, we

address Appellant’s claim as comprising two distinct substantial questions.

The first is the asserted failure to consider, inter alia, the general principles

of § 9721(b) in electing to impose a sentence of total confinement under §

9771. We separately address the claim that the resulting length of

incarceration was manifestly excessive and unreasonable.

Having determined Appellant has properly invoked our jurisdiction, we

now turn to the substantive merits. First, we quickly dispose of Appellant’s

claim that the failure of the court to order a pre-sentence report requires

reversal. This argument was squarely rejected by Pasture. Consistent with

the institutional advantage rationale employed by Pasture, the Court held

that nothing requires the judge, who already had the benefit of a full record

and a pre-sentence report, to order another pre-sentence report. Id. at 28.

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Hence, we cannot find that the court’s failure to order a report is an abuse of

discretion.6

We also find that the trial court’s decision to impose total confinement

was not an abuse of discretion. The VOP court noted that Appellant’s

inability to treat his drug and alcohol problems while on probation, combined

with his multiple technical violations and the failed treatment at Hoffman

Hall, factored heavily in its decision to impose total confinement:

THE COURT: Well, see, my involvement with [Appellant] dates
back to 2005. I’ve been giving him numerous opportunities to
try to get himself together since 2005. It’s now 2014. And I
just sent him to Hoffman Hall. If Hoffman Hall doesn’t turn a
person around, in my view, then there’s nothing that the county
can do for them.

N.T., 1/17/14, at 21. Therefore, the trial court clearly found that “probation

has proven to have been an ineffective vehicle to accomplish rehabilitation

and not sufficient to deter against future antisocial conduct.”

Commonwealth v. Infante, 888 A.2d 783, 791 (Pa. 2005) (citation

omitted). Hence, the court clearly considered Appellant’s need for

rehabilitation, as weighed against the past rehabilitative failures and the

court’s need to vindicate its own authority, in electing to impose total

confinement. As a result, we cannot question the judge’s weighing of the §

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6
The record does not indicate whether the court ordered or considered a
pre-sentence report, and Appellant did not object or ask the court to order a
new one. Commonwealth v. Pasture, 107 A.3d 21, 28, n.6.

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9721(b) factors as balanced against the § 9771(c) considerations, and find

no abuse of discretion.

Next, we address the separate question of whether the length of the

sentence is excessive. Appellant avers that the imposition of consecutive

state sentences is unreasonable and not necessary to vindicate the authority

of the court. For the following reasons, we do not agree.

First, we note that there is a clear distinction between a claim

attacking the length of one of the two individual sentences, i.e., the fact that

the statutory maximum penalty was imposed at each retail theft count, and

the resulting aggregate length when the sentences are imposed

consecutively. See Commonwealth v. Coulverson, 34 A.3d 135, 143

(Pa.Super. 2011) (substantial question raised where statutory maximum was

imposed); Derry, supra (finding challenge that aggregate VOP sentence

was manifestly excessive and unreasonable raises a substantial question).

That Appellant appears to raise two different types of claims is not an

impediment to our review, as we ultimately conclude Appellant is not

entitled to relief in any event.

Generally speaking, when reviewing a claim that the length of a

sentence is manifestly excessive, our starting point is the length of a

sentence starts with the applicable sentencing guidelines. “[O]n appeal, a

defendant ‘must provide a separate statement specifying where the sentence

falls in the sentencing guidelines[.]’” Commonwealth v. Naranjo, 53 A.3d

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66, 72 (Pa.Super. 2012) (citation omitted). However, the sentencing

guidelines do not apply to sentences imposed following a revocation of

probation. 204 Pa.Code § 303.1(b). Thus, we are confined by the statutory

mandates of 42 Pa.C.S. § 9721(b). As we explained in Commonwealth v.

Williams, 69 A.3d 735 (Pa.Super. 2013), a case finding a manifestly

excessive revocation sentence:

[B]ecause sentencing guidelines do not apply to sentences
imposed following a revocation of probation, in this case we look
solely to the provisions of 42 Pa.C.S. § 9721(b).
Commonwealth v. Coolbaugh, 770 A.2d 788, 792
(Pa.Super.2001). Section 9721(b) provides in pertinent part as
follows:

[T]he court shall follow the general principle that the
sentence imposed should call for confinement that is
consistent with the protection of the public, the
gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the
rehabilitative needs of the defendant.

42 Pa.C.S. § 9721(b).

Id. at 741.

After careful review of the record, we cannot find that the VOP court

abused its discretion under the Pasture court’s pronouncements and the

high degree of deference owed to the VOP court. As we explained supra, the

trial court clearly considered these 9721(b) principles; it simply weighed

them in tandem with the 9771(c) requirements, in particular, the need for

the VOP court to vindicate its authority. The VOP court, after imposing

sentence, stated the following:

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For the record, the defendant is requesting, at the bar of the
court, that defense counsel file motions for reconsideration and
appeal. And for the record, this sentence is absolutely necessary
to vindicate the authority of the [c]ourt.

This defendant has repeatedly disregarded the probation officer’s
requests to him, repeatedly disregarded this [c]ourt’s order, has
not paid a dime towards the $3,000, and has never reported in
the fashion that he’s reported to, and I incorporate what the
probation officer indicated today, that he never – when he was
supposed to come, he didn’t come. When he was supposed to
pay, he didn’t pay. And he showed up and gave a positive urine
and walked away from other urines.

Those have been the same activities that he’s engaged in for the
entire course of my sentence since 2005. This sentence is
absolutely necessary to vindicate the authority of this [c]ourt.

N.T.,1/17/14, at 26-27.

We cannot deem that decision an abuse of discretion. We do not

doubt that the imposition of consecutive, statutory maximum sentences for

two minor retail theft crimes could constitute an unreasonable sentence.

Appellant received the most severe sentence possible, and the instant

violations—missing probation violations, failure to appear at hearings, and

testing positive for PCP—are technical in nature. Yet the severity of the

particular violations cannot be considered in isolation. The instant sentence

represents the culmination of almost a decade of appearances before the

VOP court, and four prior violations. Appellant was still serving a

probationary sentence from the 2004 sentence in 2013, when the trial court

imposed a county sentence and ordered Appellant to serve the sentence at

Hoffman Hall. The VOP court granted two petitions for early parole,

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extended mercy to Appellant when pleading guilty to the retail thefts, and

drew on almost a decade’s worth of experience with this offender. We are

loath to question the trial court’s judgment that this sentence, while harsh,

was necessary to vindicate its authority. The record adequately

demonstrates that the court relied on Appellant’s whole history while on

probation, and determined that the sentence was necessary to vindicate its

authority in spite of the § 9721(b) factors.

Finally, we note that Pasture, supra arguably suggests that the VOP

court’s decision regarding the length of sentence is subject to an even higher

deferential standard of review than applies to the initial sentencing:

In point of fact, where the revocation sentence was adequately
considered and sufficiently explained on the record by the
revocation judge, in light of the judge's experience with the
defendant and awareness of the circumstances of the probation
violation, under the appropriate deferential standard of review,
the sentence, if within the statutory bounds, is peculiarly within
the judge's discretion.

Id. at 28-29. Pasture inserted peculiarly as a modifier to “within the

judge’s discretion,” which suggests that we review a revocation sentence

with greater deference than the initial sentencing decision. 7 Derry, supra

also suggested that Pasture may require a higher degree of deference. “As

the Pasture Court suggested, review of the discretionary aspects of a VOP
____________________________________________

7
That same phrase is used, for example, in reviewing the award of counsel
fees, which applies a plain error standard. Estate of McClatchy, 424 A.2d
1227, 1230 (Pa. 1981).

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court’s sentence with regard to Section 9721(b) factors may, as a practical

matter, dictate a greater degree of deference from a reviewing court[.]” Id

at 995, n.2. While we do not read Pasture as abandoning the abuse of

discretion standard, we are mindful that Pasture directs this Court to

consider the institutional advantage of the VOP court, an advantage that is

surely more pronounced due to the court’s long history with Appellant.

We now address Appellant’s second claim, which avers that his

probationary sentence for receipt of stolen property expired prior to the

instant revocation proceeding, or, in the alternative, that the VOP court

failed to apply time credit, meaning he will serve more than the statutory

maximum of seven years. We address both arguments together.

The original sentence was six to twenty-three months, effective May

12, 2005, with no time credit. The certified record reveals that the trial

court granted a petition for early parole on October 7, 2005. Therefore,

Appellant served 148 days of that sentence in the county facility. Appellant

was not re-incarcerated on this receipt of stolen property charge until

January 18, 2007, when the court terminated parole, anticipatorily revoked

probation, and re-sentenced Appellant to thirty to sixty months of

incarceration, effective the same day, followed by two years probation.

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This sentence was illegal.8 The total sentence imposed was the

statutory maximum for the receipt of stolen property charge; however, the

VOP court did not apply any time credit. Order, 1/18/2007, at 1 (“This

sentence shall commence on January 18, 2007.”). At minimum, Appellant

was entitled to the 148 days he served in the county facility, plus any time

served on parole that would constitute the equivalent of time in jail. See

Commonwealth v. Frye, 853 A.2d 1062 (Pa.Super. 2004) (concluding that

defendant was entitled to credit for period of time on house arrest under

electronic monitoring while on parole, as such time was “equivalent of time

spent in the county jail.”).

Next, we note that the Rule 1925(a) opinion states that Appellant was

paroled from this state sentence on July 1, 2009. No further action occurred

until February of 2012, when a probation detainer was lodged. We note

that, by its terms, Appellant’s sentence of thirty to sixty months, which was

imposed on January 18, 2007 with no time credit, meant that his

probationary tail commenced on January 18, 2012. In other words, his state

sentence expired no later than January 18, 2012, and Appellant was serving

only the probationary tail sentence in February of 2012 when the detainer

was issued.
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8
We note that we are not revisiting the legality of this sentence, but rather
the legality of the subsequent revocation of the probationary tail and
corresponding parole revocation.

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The VOP court subsequently revoked that probationary tail and

imposed a new sentence of eleven and one-half to twenty-three months of

incarceration, which was re-imposed on January 17, 2014. Kalichak,

supra. For the foregoing reasons, this sentence was similarly illegal, as it

failed to account for the required time credit. Thus, the instant January 17,

2014 parole revocation sentence is illegal.

We are cognizant of the fact that this maximum term of twenty-three

months of incarceration, when added to the five year sentence Appellant

successfully served, would indeed fall short of seven years. However, that

calculation ignores the fact that Appellant served at least 148 days that

should have been applied towards the initial state sentence. Hence, the

instant sentence of eleven and one-half to twenty-three months exceeded

the statutory maximum sentence and is illegal. As we explained in

Commonwealth v. Crump, 995 A.2d 1280, 1283–84 (Pa.Super. 2010):

When determining the lawful maximum allowable on a split
sentence, the time originally imposed cannot exceed the
statutory maximum. Thus, where the maximum is ten years, a
defendant cannot receive a term of incarceration of three to six
years followed by five years probation. However, in a situation
where probation is revoked on a split sentence, as in the case
sub judice, a defendant is not entitled to credit for time spent on
probation. Nor is a defendant 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 prison in excess of the statutory
maximum.

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J-S81008-16

Id. at 1283-84 (citations omitted, emphasis added). Accordingly, we must

vacate the sentence and remand for proceedings consistent with this

memorandum. We reject Appellant’s alternative challenge that he was no

longer serving a probationary sentence, as the procedural history set forth

above demonstrates that Appellant never completed his probationary

sentence.

Judgment of sentence at case number 208691 of 2005 is vacated and

remanded. Judgment of sentence at the remaining case numbers is

affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/21/2017

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