J-S52032-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                  Appellee                  :
                                            :
                     v.                     :
                                            :
  SYEEN HILL,                               :
                                            :
                 Appellant                  : No. 422 MDA 2018

          Appeal from the Judgment of Sentence February 14, 2018
             in the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0005746-2015

BEFORE:    BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 31, 2018

      Syeen Hill (Appellant) appeals from the February 14, 2018 judgment of

sentence imposed following a stipulated nonjury trial.      For the following

reasons, we vacate the sentence on the person not to possess a firearm

charge, but affirm in all other respects.

      We begin with a brief procedural history. Appellant was charged with

one count each of possession with intent to deliver (PWID) cocaine, person

not to possess a firearm, receiving stolen property, and possession of drug

paraphernalia. Appellant filed a pre-trial motion to suppress the search of his

residence, person, and vehicle. Following a hearing, the trial court denied the

motion to suppress as to the search of Appellant’s person and vehicle, but

granted the motion to suppress as to the search of his residence.          The

Commonwealth appealed, and this Court reversed the order granting


*Retired Senior Judge appointed to the Superior Court.
J-S52032-18


suppression and remanded. See Commonwealth v. Hill, 174 A.3d 62 (Pa.

Super. 2017) (unpublished memorandum).

        Following remand, Appellant proceeded to a stipulated nonjury trial on

February 14, 2018.         One of the stipulations included the admission of

Appellant’s interview with police, wherein he admitted to possessing the

cocaine with intent to deliver, possessing the firearm, and knowing that the

firearm was stolen. N.T., 2/14/2018, at 14-15. Based on the stipulations and

the incorporation of the suppression hearing transcript, the trial court found

Appellant guilty as charged. The trial court sentenced Appellant that same

day to a term of 5 ½ to 11 years of incarceration for PWID, 5 ½ to 11 years

of incarceration for person not to possess a firearm, 30 months to 5 years of

incarceration for receiving stolen property, and one year of probation for

possession of drug paraphernalia. The terms of incarceration were set to run

concurrently, for an aggregate term of incarceration of 5 ½ to 11 years.

        Appellant did not file a post-sentence motion. This timely-filed appeal

followed.    The trial court ordered Appellant to file a concise statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In lieu of a

concise statement, Appellant’s counsel filed a notice of intent to file an

Anders1 brief pursuant to Pa.R.A.P. 1925(c)(4). Because Appellant did not

raise any claims before the trial court, the trial court did not address any

____________________________________________


1   Anders v. California, 386 U.S. 738 (1967).



                                           -2-
J-S52032-18


claims in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 3/27/2018.

However, Appellant’s counsel did not file an Anders brief with this Court.2

Instead, “[i]n re-reviewing the case, counsel realized that the trial court

ordered an illegal sentence [for person not to possess a firearm].” Appellant’s

Brief at 8.

       Appellant’s sole claim on appeal is that the trial court erred when it

sentenced Appellant to 5 ½ to 11 years of incarceration for person not to

possess a firearm because that is a felony of the second degree carrying a

maximum statutory sentence of 10 years. Appellant’s Brief at 4.          Though

Appellant did not raise this claim in a post-sentence motion or in his concise

statement, it is not waived because it implicates the legality of his sentence.

See Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa. Super. 2002)

(“Unlike discretionary aspects of sentence, the legality of sentence is never

waived and may be the subject of inquiry by an appellate court sua sponte.”)

(citation omitted).

       “Issues relating to the legality of a sentence are questions of law[.] ...

Our standard of review over such questions is de novo and our scope of review

is plenary.” Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super.

2014) (citations and quotations omitted).




____________________________________________


2 The Commonwealth notified this Court that it was not filing a responsive
brief to Appellant’s substantive brief on appeal. Letter, 7/20/2018.

                                           -3-
J-S52032-18


       Appellant was convicted of one count of person not to possess a firearm

as a felony of the second degree.              See 18 Pa.C.S. § 6105(a.1)(1).   The

maximum statutory sentence permissible for a felony of the second degree is

10 years of incarceration. 18 Pa.C.S. § 106(b)(3). The trial court notified

Appellant of this prior to sentencing him. N.T., 2/14/2018, at 8. Nonetheless,

the trial court sentenced Appellant at that count to 5 ½ to 11 years of

incarceration. Thus, his sentence is illegal because his maximum sentence

exceeds the statutorily authorized maximum sentence of 10 years.

       Accordingly, we vacate Appellant’s judgment of sentence as to his

conviction for person not to possess a firearm. However, because Appellant

was sentenced to a concurrent term of 5 ½ to 11 years of incarceration for

PWID,3 our disposition does not upset the trial court’s overall sentencing

scheme, and we need not remand for resentencing. See Commonwealth v.

Henderson, 938 A.2d 1063, 1068 (Pa. Super. 2007) (“Because the aggregate

sentence remains the same, we need not remand for re-sentencing.”).




____________________________________________


3 We note that a sentence of 5 ½ to 11 years of incarceration is permissible
for PWID. See 35 P.S. § 780-113(f)(1).

                                           -4-
J-S52032-18




      Portion of sentencing order imposing a sentence of 5 ½ to 11 years of

incarceration for person not to possess a firearm vacated.    Judgment of

sentence affirmed in all other respects.

      PJE Bender joins in the memorandum.

      Judge McLaughlin files a concurring and dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2018




                                     -5-
