J.A21011/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEVIN JACKSON, :
:
Appellant : No. 87 EDA 2014
Appeal from the Judgment of Sentence December 6, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0008089-2010
BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.
JUDGMENT ORDER BY FITZGERALD, J.: FILED JULY 24, 2015
Appellant, Kevin Jackson, appeals from the judgment of sentence
entered on December 6, 2013 in the Philadelphia County Court of Common
Pleas. Appellant contends his violation of probation sentence was illegal and
the court lacked jurisdiction to correct the illegal sentence. We vacate and
remand for resentencing.
We adopt the procedural history set forth in the trial court opinion.
See Trial Ct. Op., 1/28/15, at 1-2. Appellant raises the following issue for
our review: “Did not the trial court err by attempting to correct an illegal
sentence more than 30 days after the imposition of sentence and after an
*
Former Justice specially assigned to the Superior Court.
J.A21011/15
appeal was filed in violation of 42 Pa.C.S.[ ] § 5505[1] and Pa.R.A.P.
1701(b)(3),[2] as it lacked jurisdiction to do so? Appellant’s Brief at 2.
Instantly, the notice of appeal was filed on January 6, 2014. On
January 17th, the court granted Appellant’s motion to modify sentence. The
1
Section 5505 provides:
Except as otherwise provided or prescribed by law, a court
upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such
order has been taken or allowed.
42 Pa.C.S. § 5505.
2
Rule 1701(b)(3) provides:
(3) Grant reconsideration of the order which is the subject
of the appeal or petition, if:
(i) an application for reconsideration of the order is
filed in the trial court or other government unit
within the time provided or prescribed by law; and
(ii) an order expressly granting reconsideration of
such prior order is filed in the trial court or other
government unit within the time prescribed by these
rules for the filing of a notice of appeal or petition for
review of a quasijudicial order with respect to such
order, or within any shorter time provided or
prescribed by law for the granting of reconsideration.
A timely order granting reconsideration under this
paragraph shall render inoperative any such notice of
appeal or petition for review of a quasijudicial order
theretofore or thereafter filed or docketed with respect to
the prior order. . . .
Pa.R.A.P. 1703(b)(3).
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court corrected the sentence from three years to two years of reporting
probation. Order, 1/17/14. The trial court amended the sentence on May
28, 2014, “to run consecutive to MC-51-CR-0034788-2013.” Amended
Sentence, 5/28/14.
Pursuant to Rule 1701(a), “after an appeal is taken or review of a
quasijudicial order is sought, the trial court or other government unit may no
longer proceed further in the matter.” Pa.R.A.P. 1701(a); see also 42
Pa.C.S. § 5505; Commonwealth v. Martz, 926 A.2d 514, 525 (Pa. Super.
2007) (holding trial court without jurisdiction to amend sentence after notice
of appeal filed, unless mistake is patent or obvious, e.g., correction of credit
for time served). Instantly, we find the trial court lacked jurisdiction to
modify the December 6th sentence. See 42 Pa.C.S. § 5505; Pa.R.A.P.
1701(a); Martz, 926 A.2d at 525.
Accordingly, we remand for resentencing.3
Sentence vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
3
We note that the Commonwealth does not oppose resentencing.
Commonwealth’s Brief at 5.
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F~LED
IN THE COURT OF COMMON PLEAS JAN 2 8 2015
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION Criminal ;~ppeals UnH
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COMMON\VEALTH OF PENNSYLVANIA CP-Sl-CR-0008089-2010
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KEVIN JACKSON
OPINION
CP-51-CR-0008089--201? Comm.\/. Jackson, KeV!n
Opinion
COVINGTON, J.
IIIII II7250464081
/Ill II II IIIIIII Ill
PROCEDURAL HISTORY
On April 20, 2011, following a waiver trial, the defendant was found guilty of Criminal
Trespass ( 18 §3503 § §A), Possession of an Instrument of Crime (18 §907 §§A), Criminal
Mischief- Tampering with Property (18 §3304 §§A2), Simple Assault (18 §2701 §§A), and
Recklessly Endangering Another Person (18 §3925 §§A). A Pre-sentence Report was ordered by
the Court and prepared on April 20, 2011. On June 28, 2011, following a sentencing hearing
defendant was sentenced to fifteen (15) months to thirty (30) months incarceration followed by
three (3) years reporting probation. Additionally, the Court required the defendant to attend
anger management, participate in anger management counseling, and stay away from the victim.
On October 28, 2013, defendant appeared for a violation of probation hearing. The Court
revoked defendant's probation and terminated parole. Defendant was resentenced to fifteen (15)
months to thirty (30) months incarceration followed by three (3) years reporting probation,
backtime to be served. On November 7, 2013, defense counsel filed a Petition to Vacate and
Reconsider Illegal Sentence. Defense counsel's motion asserted the back time would amount to
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an aggregate state sentence incompatible with his county probation. On December 6, 2013, the
court heard argument for defense counsel's motion and the defendant was resentenced to fifteen
(15) months to thirty (30) months incarceration followed by three (3) years reporting probation,
removing the condition ofbacktime. On December 9, 2013, defense counsel filed a Motion to
Correct Sentence. Based on the time Defendant had already spent incarcerated on the instant
case, the court's sentence imposed on December 6, 2013, was one year longer than the statutory
maximum for a third-degree felony. A motion hearing was held on January 17, 2014, and
Defendant's motion was granted. The Court modified Defendant's sentence to fifteen (15)
months to thirty (30) months incarceration followed by two (2) years reporting probation.
On January 6, 2014, the defendant filed a timely notice of appeal of his re sentence.
FACTUAL HISTORY
Following Defendant's sentencing on June 28, 2011, Defendant was incarcerated until
March 2, 2013. See Gagnon II Hearing, 10/25/2013. Probation Officer Renee Waters discussed
Defendant's probation with Defendant's counselor prior to his release, informing the counselor
that Defendant would have to report for probation until March 2, 2016. Id. Officer Waters sent
two contact letters, but Defendant failed to report for probation on March 11, 2013, March 21,
2013, March 22, 2013, and April 1, 2013. Id. On March 12, 2013, Defendant left a voice
message for Officer Waters saying he would report to probation on April 15, 2013. Id.
Defendant failed to ever report to probation, and wanted cards were issued on April 30, 2013.
id. On September 6, 2013, Defendant was arrested for Intentional Possession of a Controlled
Substance. N.T. 10/29/2013, p. 9. Defendant plead guilty for the Possession charge before the
court at the Violation of Probation hearing on October 29, 2013. Id. Defendant waived his right
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to a Presentence Investigative Report. Id. at 10. The Court issued its sentence based on
defendant's technical violations of non-reporting and defendant's direct violation of the guilty
plea to possession.
STANDARD OF REVIE\V
"When reviewing sentencing matters, [ an appellate court] must accord the sentencing
court great weight as it is in the best position to view defendant's character, displays or remorse,
defiance or indifferences, and the overall nature of the crime." Commonwealth v. Cappellini, 690
A.2d 1220, 1225 (Pa. Super. 1997) (quoting Commonwealth v. Viera, 659 A.2d 1024, 1030
(Pa.Super. 1995). The sentencing function is vested in the sound discretion of the trial court,
whose judgment will not be disturbed by an appellate court in the absence of an abuse of
discretion. Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007).
DISCUSSION
Pursuant to the 1925(b) Statement of Errors Complained of on Appeal, the defendant
asserts that despite correcting the illegal sentence, the court ens in imposing an illegal sentence.
L The Court's Sentence Was Legal and Justified
Defendant was convicted of Criminal Trespass graded as a third degree felony. The
statutory maximum supervision for a third degree felony is seven (7) years or eighty-four (84)
months. At the time of resentencing Defendant had served thirty (30) months of incarceration on
the instant case, thus the Court could not impose a sentence of supervision above fifty-four (54)
months. The Court's sentence of fifteen (15) months to thirty (30) months incarceration
followed by two (2) years reporting probation aggregates to fifty-four (54) months. As the
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Court's sentence is within the statutory maximum, was imposed after a direct violation of
probation, and the court considered the totality of the circumstances at the sentencing hearing,
the sentence is legal.
CONCLUSION
For the foregoing reasons, it ts respectfully requested the Trial Court's sentence be
affirmed.
BY THE COURT:
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