J-A15044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIMOR MITCHELL                             :
                                               :
                       Appellant               :   No. 3014 EDA 2018

         Appeal from the Judgment of Sentence Entered August 30, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006210-2015


BEFORE:      BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                              FILED AUGUST 20, 2019

        Appellant, Timor Mitchell, appeals from the judgment of sentence

imposed on August 30, 2018, after the trial court vacated two previous illegal

violation of probation/parole sentences arising from his conviction for theft

from a motor vehicle.1 We affirm.

        On October 29, 2015, after being found guilty of theft from a motor

vehicle, Appellant was sentenced to 11.5 to 23 months’ incarceration with

immediate parole at his minimum to house arrest and credit for time served.

On April 21, 2016, Appellant was released on parole. On March 13, 2017, the

court held a Gagnon II2 hearing and found Appellant in violation of his parole.

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1   18 Pa.C.S. § 3934.

2   Gagnon v. Scarpelli, 411 U.S. 778 (1973) (discussing revocation hearings).


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* Retired Senior Judge assigned to the Superior Court.
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Instead of recommitting Appellant to serve his back time on the parole

violation, the court imposed a new sentence of 3 to 6 months’ incarceration

plus 18 months’ probation.          That new sentence was an illegal sentence,

because a parole revocation calls for recommitment to serve out the originally

imposed sentence, and does not allow for the imposition of a whole new

sentence. See Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super.

2008), Commonwealth v. Stafford, 29 A.3d 800, 804 (Pa. Super. 2011) (a

court “cannot ‘extend’ a parolee's sentence beyond the original sentence, i.e.,

lengthen the period of possible incarceration”). After serving 85 days of his

new sentence, Appellant was again released on parole on June 6, 2017.

Appellant was arrested on October 18, 2017, and charged with receiving

stolen property (RSP).3 On May 9, 2018, the court held a new Gagnon II

hearing and found Appellant in technical violation of his new sentence, based

on non-reporting and not following through with treatment recommendations.

The court resentenced Appellant to serve his back time with immediate parole

to an inpatient treatment facility plus 18 months’ reporting probation; this

sentence was also illegal.        Appellant was released on May 14, 2018.   On

August 24, 2018, the municipal court found Appellant not guilty of RSP.

        On August 30, 2018, Appellant appeared before the Honorable Giovanni

O. Campbell for a hearing. The court vacated its May 9, 2018 sentence as


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3   18 Pa.C.S. § 3925.


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well as the previous sentence imposed on March 13, 2017, as it was brought

to the court’s attention that both of the sentences were illegal. On August 30,

2018, the following order was issued:

      AND NOW, this 30th day of August, 2018, the defendant having
      been previously convicted in the above captioned case, and the
      defendant’s original probation/parole on this case having been
      revoked, a new sentence is imposed. The defendant is to pay all
      applicable violation fees and costs unless otherwise noted below.
      A new sentence is hereby imposed by this Court as follows:

      Count 1- 18 § 3934 §§ A- Theft from a motor vehicle (MI)
      To be confined for a minimum period of 11 month(s) 15 day(s)
      and a maximum period of 23 month(s) at County prison. The
      following conditions are imposed: Parole Revoked. Court orders
      parole revoked on ORIGINAL sentence of 10/29/15 and imposes
      backtime.    (Balance of confinement backtime on ORIGINAL
      sentence of 10/29/15).

      Other: Court grants IMMEDIATE PAROLE on this backtime
      sentence on condition defendant be transported by sheriff to
      Gaudenzia Together for Men. 1306 Spring Garden St. Any
      detainer ordered lifted.

      Other: Supervision by Mental Health Unit. Supervision fees
      waived. Random drug screens, counseling and lifeskills training
      ordered. Credit for time served. Defendant is to receive credit
      for all time served in this matter.

      Other: Court orders sentences of 3/13/17 and 5/19/18 vacated as
      illegal sentences.

      Back Time- to serve back time. Defendant to serve the balance
      of confinement back time on original sentence of 10/29/15.




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8/30/18 Order.4       Appellant filed a motion to reconsider the judgment of

sentence on September 26, 2018, which was dismissed as untimely on

October 9, 2018. On September 28, 2018, Appellant filed this timely direct

appeal.5 Appellant presents the following issue for our review:

       Was not the evidence introduced at the revocation hearing
       insufficient as a matter of law to establish a technical violation of
       parole, in violation of Appellant’s state and federal constitutional
       right to due process?

Appellant’s Brief at 3. Appellant argues that a revocation hearing was held on

August 30, 2018, the trial court found him in violation and “the sole basis for

his revocation was an arrest on charges for which he was acquitted at a trial

prior to his revocation hearing. . . . the evidence was insufficient to establish

any technical violation of parole.” Appellant’s Brief at 8-9.

       In its opinion, the trial court discusses the August 30, 2018 hearing as

follows:

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4 The order of August 30, 2018, has a clerical error listing the date of the
second illegal sentence as “5/19/2018” instead of 5/09/2018. To avoid any
future confusion, we hereby clarify that the illegal sentence imposed on May
9, 2018, is vacated.

5 “A motion to modify a sentence imposed after a revocation shall be filed
within 10 days of the date of imposition. The filing of a motion to modify
sentence will not toll the 30-day appeal period.” See Pa.R.Crim.P. 708(e)
(regarding violation of parole hearing and disposition).        We note that
Appellant’s notice of appeal was filed within the 30-day appeal period.
Additionally, we note the trial court did not order and Appellant did not file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court
entered its opinion on November 27, 2018.



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       The March 13, 2017 and May 19, 2018[6] sentences were illegal,
       where no probationary sentence was originally imposed.
       Therefore, on August 20, 2018,[7] the Court vacated the illegal
       sentences of March 13, 2017 and May 19, 2018, and imposed the
       remaining parole back time on the October 29, 2015 sentence,
       with immediate parole to an inpatient treatment program.

TCO at 1.         The August 30, 2018 hearing transcript is convoluted.

Nevertheless, the record makes clear that the court ultimately did not find a

new violation of parole.          Instead, the court simply vacated the illegal

sentences and put Appellant back in the position of his original parole violation

by giving him proper credit for the time Appellant had served on those two

subsequent illegal sentences. The final sentence imposed in this case was a

legal sentence based solely on the original parole violation.      The limits of

jurisdiction enshrined in statute recognizing the removal of jurisdiction upon

appeal and upon the end of the term of court, or the 30-day expansion of that

time, do not impinge on time-honored inherent power of courts to correct

patent and obvious errors. Commonwealth v. Holmes, 933 A.2d 57, 65

(Pa. 2007). The Commonwealth does not dispute that the sentences imposed

on March 13, 2017 and May 9, 2018 were illegal. Considering the errors of

the sentences were clear from the orders and the docket sheets, the trial court




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6Again, we note that the date of Appellant’s May 2018 sentence at issue is
5/09/2018, not “5/19/2018.”

7This date is a typographical error, the court is referring to its August 30,
2018 hearing.

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property exercised its inherent power to correct the mistakes. See Holmes,

933 A.2d at 66. Accordingly, we affirm the order of the trial court.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/19




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