J-S65003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
                  v.                         :
                                             :
                                             :
 HERIBERTO RODRIGUEZ-PENA                    :
                                             :
                        Appellant            :   No. 568 MDA 2018

           Appeal from the Judgment of Sentence March 5, 2018
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0005998-2006


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY SHOGAN, J.:                         FILED NOVEMBER 14, 2018

      Appellant, Heriberto Rodriguez-Pena, appeals from the judgment of

sentence entered on March 5, 2018, in the Lancaster County Court of Common

Pleas. After review, we vacate and remand for resentencing.

      The trial court summarized the relevant procedural history of this matter

as follows:

      On July 16, 2007, Appellant pleaded guilty to two counts of
      aggravated indecent assault;1 two counts of indecent assault;2
      two counts of corruption of minors;3 and one count of sexual
      assault.4 On October 22, 2007, following an evaluation by the
      Sexual Offenders Assessment Board, Appellant was sentenced to
      an aggregate term of four to eight years of incarceration in a state
      correctional institution, followed by five years of consecutive
      probation. The [c]ourt also ordered Appellant to comply with the
      sexual offender registration requirements pursuant to then-
      effective Megan’s Law III, 42 Pa.C.S. §§ 9791-9799.7 (expired).

              1   18 Pa.C.S. § 3125(a)(7)-(8).

              2   18 Pa.C.S. § 3126(a)(8).
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            3   18 Pa.C.S. § 6301(a)(1).

            4   18 Pa.C.S. § 3124.1.

             The record reflects that Appellant served the entire eight
      years of incarceration in a state correctional institution and was
      subsequently released. See Notes of Testimony, Sentencing
      Hearing, 10/23/15, at 9 (hereinafter “N.T. Sentencing Hr’g,
      10/23/15”). On October 23, 2015, Appellant was found in violation
      of his probation. Appellant was resentenced to one to two years
      of incarceration on Count 4, Sexual Assault, followed by five years
      of consecutive probation on Count 1, Aggravated Indecent
      Assault. See id. at 10.

            Appellant served the two years of incarceration and was
      released from prison. Thereafter, on December 7, 2017, Appellant
      appeared before the [c]ourt for his second violation of probation
      hearing, and the Court determined that Appellant had violated his
      probation. Following a presentence investigation and report, the
      [c]ourt resentenced Appellant on March 5, 2018 to five to ten
      years of incarceration on Count 1 [(aggravated indecent assault)],
      followed by five years of probation on Count 5. See Notes of
      Testimony, Sentencing Hearing, 3/5/18, at 4 (hereinafter “N.T.
      Sentencing Hr’g, 3/5/18”). Appellant filed a timely post-sentence
      motion, which this [c]ourt denied on March 20, 2018. The instant
      appeal followed.

Trial Court Opinion, 7/16/18, at 1-2.

      Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issue for this Court’s consideration:

      Did the trial court impose an illegal sentence on count one where
      only five years remained, yet the court imposed five to ten years
      incarceration?




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Appellant’s Brief at 4.1

       In an appeal from a sentence imposed after a trial court’s revocation of

probation, this Court can review the validity of the revocation proceedings,

the legality of the sentence imposed following revocation, and any challenge

to the discretionary aspects of the sentence imposed. Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (citation omitted). The instant

appeal involves a challenge to the legality of the sentence imposed.

       The scope and standard of review applied to determine the legality
       of a sentence are well established. If no statutory authorization
       exists for a particular sentence, that sentence is illegal and subject
       to correction. An illegal sentence must be vacated. In evaluating
       a trial court’s application of a statute, our standard of review is
       plenary and is limited to determining whether the trial court
       committed an error of law.

Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017).

       When imposing a sentence following the revocation of probation, the

trial court is required to give credit “against the maximum term and any

minimum term ... 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.”           42 Pa.C.S. § 9760(1).   Therefore, if the
____________________________________________


1  In Appellant’s Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, he challenged the sentences imposed at count one and count five.
However, in his brief, Appellant opted not to pursue his challenge to the
sentence at count five. Accordingly, we shall only address the sentence
imposed at count one. Nevertheless, we point out that if we discerned an
issue with the legality of any portion of Appellant’s sentence, we could address
it sua sponte. Commonwealth v. Bebout, 186 A.3d 462, 466 (Pa. Super.
2018). However, in the instant case, we are in agreement with the trial court’s
assessment that the sentence imposed at count five was a legal sentence.
Trial Court Opinion, 7/16/18, at 4.

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sentence imposed after the revocation of probation when added to the time

already served at that count exceeds the statutory maximum, the sentence is

illegal. Commonwealth v. Crump, 995 A.2d 1280, 1285 (Pa. Super. 2010).

       In the case at bar, Appellant was originally given a split sentence on

count one. The trial court initially imposed a term of incarceration of two and

one-half to five years followed by a consecutive term of five years of probation.

On March 5, 2018, the trial court, after revoking Appellant’s probation,

resentenced Appellant to a term of five to ten years of incarceration at count

one.    Appellant argues that because he already served five years of

incarceration at count one, the newly imposed sentence with a maximum term

of ten years renders the sentence illegal. Appellant’s Brief at 10. We agree.

       Initially, we point out that the trial court concedes that Appellant’s

sentence is illegal. Trial Court Opinion, 7/16/18, at 4. When Appellant was

originally sentenced, count one was a conviction for aggravated indecent

assault, which was graded as a felony of the second degree, and the statutory

maximum sentence was ten years. 18 Pa.C.S. § 1103(2). Because Appellant

had already served five years of incarceration at count one, the maximum

sentence the trial court could impose after revoking Appellant’s probation at

that count was five years. However, the trial court erroneously imposed a

sentence of five to ten years. This maximum sentence of ten years, when

added to the five years Appellant already served, exceeds the statutory

maximum. Thus, the sentence imposed after the revocation of Appellant’s

probation was illegal.   Crump, 995 A.2d at 1285.       Accordingly, we vacate

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Appellant’s judgment of sentence on count one, and we remand for

resentencing.

      Judgment of sentence vacated.   Case remanded for resentencing.

Jurisdiction is relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2018




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