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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     v.                   :
                                          :
TODD ERIC SCHUTZEUS,                      :        No. 1895 WDA 2013
                                          :
                          Appellant       :


                Appeal from the PCRA Order, November 8, 2013,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0011106-1999


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 07, 2015

        Todd Eric Schutzeus1 appeals from the order of November 8, 2013,

dismissing his PCRA2 petition without a hearing.      After careful review, we

reverse.

        The lengthy procedural history of this matter has been set forth in a

previous Opinion of this court as follows:

              The record reflects that the Commonwealth charged
              Schutzues with one count of rape, two counts of
              involuntary deviate sexual intercourse (“IDSI”), and
              one count each of aggravated indecent assault,
              indecent assault, endangering the welfare of a child,
              and corruption of minors.[Footnote 1] These charges
              arose from Schutzues’ sexual assault of a young girl

* Retired Senior Judge assigned to the Superior Court.
1
    Appellant’s surname is alternatively spelled “Schutzeus” and “Schutzues.”
2
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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          who was six years old when the assaults began.
          N.T., 10/9/01, at 8. The assaults persisted over a
          four-year period. Id. at 8-9. The charges also arose
          from Schutzues’ repeated attempts to lure a
          12-year-old girl into his car, and an incident in which
          he exposed himself to an adult female. Id. at 9-10.

                [Footnote 1] 18 Pa.C.S.A. §§ 3121,
                3123, 3125, 3126, 4304, 6301.

          Schutzues pled guilty to rape, one count of IDSI,
          endangering the welfare of children, and corruption
          of minors.    On October 9, 2001, the trial court
          sentenced Schutzues to an aggregate 3 1/2 to
          7 years of incarceration followed by seven years of
          probation for the rape conviction. The trial court
          imposed no further penalty on the remaining counts.
          Schutzues served the maximum seven-year term of
          incarceration and then commenced his probation
          sentence. Less than six months into his probation
          term, Schutzues violated his probation by having
          contact with his young nieces.

          After a May 1, 2007 hearing, the trial court found
          Schutzues in violation of his probation and sentenced
          him to 10 to 20 years of incarceration for rape, a
          consecutive 10 to 20 years of incarceration for IDSI,
          a consecutive 2 1/2 to 5 years of incarceration for
          endangering the welfare of a child, and a consecutive
          2 1/2 to 5 years of incarceration for corrupting a
          minor. In an unpublished memorandum of July 29,
          2009, this Court vacated the judgment of sentence.
          Commonwealth v. Schutzeus, 1009 WDA 2007,
          981 A.2d 933 (Pa.Super. 2009) (Schutzeus I).
          Specifically, we concluded that the trial court failed
          to consider 42 Pa.C.S.A. § 9771(c) prior to imposing
          a sentence of incarceration. That section provides as
          follows:

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



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                (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.A. § 9771(c).

           The trial court conducted a new sentencing hearing
           on February 9, 2010, at which the court sentenced
           Schutzues to 42 to 84 months of incarceration for
           rape, a consecutive 10 to 20 years for IDSI, and
           consecutive 2 1/2 to 5 year sentences for
           endangering the welfare of a child and corruption of
           minors.     In an unpublished memorandum of
           March 31, 2011, this Court once again vacated the
           judgment     of   sentence.   Commonwealth         v.
           Schutzues, 526 WDA 2010, 26 A.3d 1212
           (Pa.Super.    2011)    (“Schutzues     II”).       In
           Schutzues II, we held that the sentences for IDSI,
           endangering the welfare of a child and corruption of
           a minor were illegal because “[a] probation
           revocation court does not have the authority to re-
           sentence an offender on a final guilt without further
           punishment sentence after the period for altering or
           modifying the sentence has expired.”       Id. at 3
           (quoting Commonwealth v. Williams, 997 A.2d
           1205, 1210 (Pa.Super. 2010)). We remanded for re-
           sentencing on the rape conviction. Id. at 3-4.

Commonwealth v. Schutzues, 54 A.3d 86, 88-89 (Pa.Super. 2012),

appeal denied, 67 A.3d 796 (Pa. 2013) (“Schutzues III”). The trial court

held another sentencing hearing on June 28, 2011, and imposed a sentence

of 6½ to 13 years’ incarceration. On the ensuing appeal, appellant argued


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that the trial court erred in imposing a sentence of incarceration without

finding that any of the Section 9771(c) factors applied to his case.                While

this court expressed frustration with the trial court’s continuing failure to

explicitly reference Section 9771(c) during sentencing, we ultimately found

the matter waived for failure to comply with Pa.R.A.P. 1925. We rejected

appellant’s     argument     that    the   trial   court’s    failure     to   adhere   to

Section 9771(c) resulted in an illegal sentence. See id. at 98 (“challenges

under § 9771(c) are not among the narrow class of issues that implicate the

legality of a sentence”).

      Appellant also claimed that his sentence was excessive given the

technical     nature   of   his   probation    violation,    which   he    described    as

de minimus, and his efforts at rehabilitation.              Id.   While we found that

appellant raised a substantial question as to the legitimacy of his sentence,

ultimately, this court found that appellant failed to establish an abuse of

discretion. Id. at 99-100.

      On May 9, 2013, our supreme court denied appellant’s petition for

allowance of appeal. A timely pro se PCRA petition was filed on August 6,

2013, and counsel was appointed.              On October 7, 2013, counsel filed a

petition to withdraw and Turner/Finley “no merit” letter.3 On October 17,

2013, the PCRA court granted counsel permission to withdraw and notified



3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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appellant of its intention to dismiss his petition without a hearing within

20 days pursuant to Pa.R.Crim.P. 907.       On November 7, 2013, appellant

filed a pro se response to Rule 907 notice; and on November 8, 2013,

appellant’s petition was dismissed.    A timely pro se notice of appeal was

filed on November 27, 2013.4 On January 6, 2014, the PCRA court ordered

appellant to file a concise statement of errors complained of on appeal within

21 days pursuant to Pa.R.A.P. 1925(b). On January 14, 2014, prior to the

Rule 1925(b) deadline, the PCRA court filed an opinion addressing the issues

raised in appellant’s pro se PCRA petition. Appellant filed his Rule 1925(b)

statement on January 28, 2014. (Docket #98.)5 Appellant has retained new

counsel on appeal.

      Appellant has raised the following issues for this court’s review:

            I.    DID THE COURT VIOLATE ITS DISCRETION
                  WHEN IT SENTENCED THE APPELLANT TO THE
                  MAXIMUM ON A PROBATION REVOCATION
                  WITHOUT STATING VALID REASONS, BY
                  ABDICATING ITS ROLE AS SENTENCER, AND
                  BY NOT ALLOWING DEFENSE INPUT INTO THE
                  REASONS FOR THE AGGRAVATED RANGE
                  SENTENCE?

4
  Appellant initially filed notice of appeal on October 28, 2013, from the
October 17, 2013 Rule 907 notice. That appeal was dismissed on January 9,
2014, as premature. (Docket #99.)
5
   Appellant’s Rule 1925(b) statement was due on January 27, 2014.
However, we note that appellant’s concise statement is dated January 23,
2014. We are mindful of the so-called “prisoner mailbox rule,” pursuant to
which a document is deemed filed on the date that a prisoner delivers it to
prison authorities for mailing. Commonwealth v. Jones, 700 A.2d 423,
426 (Pa. 1997). Furthermore, as noted above, the PCRA court issued its
Rule 1925(a) opinion before the 21-day deadline expired.


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            II.    WAS     PRIOR    APPELLATE     COUNSEL
                   INEFFECTIVE FOR NOT APPEALING ON THE
                   DISCRETIONARY ASPECT OF THE SENTENCE?

            III.   DID THE LOWER COURT NEGLECT TO IMPOSE
                   CONDITIONS   OF  PROBATION   ON   THE
                   APPELLANT SO THAT HE IS NOT IN
                   VIOLATION?

Appellant’s brief at 5.

      Initially, we recite our standard of review:

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            [T]he right to an evidentiary hearing on a
            post-conviction     petition   is    not    absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014
            (Pa.Super.2001).     It is within the PCRA court’s
            discretion to decline to hold a hearing if the
            petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. Id.
            It is the responsibility of the reviewing court on
            appeal to examine each issue raised in the PCRA
            petition in light of the record certified before it in
            order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without     conducting    an   evidentiary   hearing.
            Commonwealth v. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).


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Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,

1239-1240 (Pa.Super. 2004).

     Appellant raises several discretionary sentencing challenges, including

failing to comply with 42 Pa.C.S.A. § 9771(c); failing to state adequate

reasons on the record for the sentence imposed; failing to consider

mitigating evidence; and improperly deferring to the prosecuting attorney to

articulate reasons for the sentence.6     However, we find appellant’s third

issue concerning the trial court’s failure to comply with 42 Pa.C.S.A.




6
   See Commonwealth v. Whitmore, 860 A.2d 1032, 1036 (Pa.Super.
2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006) (“a
claim that counsel was ineffective for failing to perfect a challenge to the
discretionary aspects of sentencing is cognizable under the PCRA”) (citations
omitted); Commonwealth v. Watson, 835 A.2d 786, 801 (Pa.Super.
2003) (“a claim regarding the discretionary aspects of [the defendant’s]
sentence, raised in the context of an ineffectiveness claim, would be
cognizable under the PCRA”), discussing Commonwealth ex rel. Dadario
v. Goldberg, 773 A.2d 126 (Pa. 2001) (footnote omitted). Appellant is
correct that, despite this court’s promptings, the trial court has steadfastly
refused to comply with Section 9771(c).          Nowhere, during its three
sentencing hearings following revocation of appellant’s probation, does the
trial court make any explicit findings relative to Section 9771(c). See
Schutzues III, 54 A.3d at 91 (“Despite our directive to the trial court in
Schutzeus I to comply with § 9771(c), the trial court has continued to
ignore that statute.”). Indeed, this court observed in Schutzues III, “The
trial court’s attempts to give [appellant] the maximum amount of jail time
possible have already resulted in two flagrantly illegal sentences and two
remands from this Court, as set forth above.” Id. See also id. at 97 (“the
trial court, as noted above, offered no analysis and simply bookended the
sentencing hearing with statements of his desire to incarcerate [appellant]
for as long as possible”). The trial court’s conduct in this matter has been
regrettable, at best.



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§ 9754(b) to be dispositive.   Therefore, we need not reach the remaining

issues.

           “To    prevail on a claim alleging counsel’s
           ineffectiveness, Appellant must demonstrate (1) that
           the underlying claim is of arguable merit; (2) that
           counsel’s course of conduct was without a
           reasonable basis designed to effectuate his client’s
           interest; and (3) that he was prejudiced by counsel’s
           ineffectiveness.” Commonwealth v. Wallace, 555
           Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
           Commonwealth v. Howard, 538 Pa. 86, 93, 645
           A.2d 1300, 1304 (1994) (other citation omitted). In
           order to meet the prejudice prong of the
           ineffectiveness standard, a defendant must show
           that there is a “‘reasonable probability that but for
           counsel’s unprofessional errors, the result of the
           proceeding     would     have     been     different.’”
           Commonwealth v. Kimball, 555 Pa. 299, 308, 724
           A.2d 326, 331 (1999), quoting Strickland v.
           Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
           80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’
           is defined as ‘a probability sufficient to undermine
           confidence in the outcome.’” Id. at 309, 724 A.2d at
           331, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
           2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002),

appeal denied, 832 A.2d 435 (Pa. 2003).

                  When we consider an appeal from a sentence
           imposed following the revocation of probation, “[o]ur
           review is limited to determining the validity of the
           probation revocation proceedings and the authority
           of the sentencing court to consider the same
           sentencing alternatives that it had at the time of the
           initial sentencing.      42 Pa.C.S. § 9771(b).”
           Commonwealth v. Fish, 752 A.2d 921, 923
           (Pa.Super.2000), appeal denied, 565 Pa. 637, 771
           A.2d 1279 (2001) (citation omitted). Revocation of
           a probation sentence is a matter committed to the
           sound discretion of the trial court and that court's


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            decision will not be disturbed on appeal in the
            absence of an error of law or an abuse of discretion.
            Commonwealth v. Smith, 447 Pa.Super. 502, 669
            A.2d    1008,    1011     (Pa.Super.1996).        The
            Commonwealth establishes a probation violation
            meriting revocation when it shows, by a
            preponderance     of    the   evidence,     that   the
            probationer's conduct violated the terms and
            conditions of his probation, and that probation has
            proven an ineffective rehabilitation tool incapable of
            deterring probationer from future antisocial conduct.
            Commonwealth v. Sims, 770 A.2d 346, 350
            (Pa.Super.2001).

Commonwealth v. Perreault, 930 A.2d 553, 557-558 (Pa.Super. 2007),

appeal denied, 945 A.2d 169 (Pa. 2008).        See also Commonwealth v.

Colon, 102 A.3d 1033, 1041 (Pa.Super. 2014), appeal denied, 109 A.3d

678 (Pa. 2015) (“In order to uphold a revocation of probation, the

Commonwealth must show by a preponderance of the evidence that a

defendant violated his probation.”) (citation omitted).

      Appellant argues that prior counsel were ineffective for failing to raise

the trial court’s failure to comply with 42 Pa.C.S.A. § 9754(b),7 which

provides:




7
  This issue was argued in appellant’s pro se PCRA petition. (Docket #82.)
Appointed counsel, Robert S. Carey, Jr., Esq., did address the issue in his
Turner/Finley “no-merit” letter but found it to be meritless for the same
reason relied upon by the PCRA court and the Commonwealth, i.e., that the
trial court signed off on a “special field report” from the probation office
which contained a provision that appellant was not to have any contact with
minors. (Docket #85.) We find this argument to be unpersuasive for the
reasons discussed infra.


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            § 9754. Order of probation

            (b)    Conditions generally.--The court shall attach
                   such of the reasonable conditions authorized
                   by subsection (c) of this section as it deems
                   necessary to insure or assist the defendant in
                   leading a law-abiding life.

      Appellant argues that the terms and conditions of his probation,

including the no-contact order, were not actually imposed by the trial court

as required by Section 9754(b), but rather by the Office of Probation and

Parole. Appellant argues that this was an improper delegation of the court’s

authority. At the original plea and sentencing hearing of October 9, 2001,

the trial court stated:

            Then pursuant to the negotiated plea agreement, at
            CC199911106, at Count One, it’s three and-a-half to
            seven years, plus, seven years probation, terms and
            conditions to be set by the Probation Office or Parole
            Office, whoever is going to do that. No further
            penalty at the remaining counts.

Notes of testimony, 10/9/01 at 16-17.          In addition, the trial court’s

October 9, 2001 sentencing order did not impose any terms and conditions

of   probation    whatsoever,   except   DNA   registration.   (Docket   #7.)

Regrettably, the trial court did not check the line next to the special

probationary condition “No Contact w/Victim,” let alone order that appellant

was not to have any contact with minor children generally. (Id.)

      In Commonwealth v. MacGregor, 912 A.2d 315 (Pa.Super. 2006),

the appellant was required to sign a “Special Conditions of Parole” form upon

his release on probation, having served out the full four-year term of his


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imprisonment. Id. at 316. One of the conditions was that he was not to

have any contact with anyone under age 18. Id. Subsequently, on three

different occasions, the appellant accompanied his girlfriend to gatherings of

her family at which young children were present. Id. at 316-317. The trial

court revoked his probation and imposed a prison sentence of 18 to

60 months. Id. at 317.

      On appeal, this court vacated the judgment of sentence on the basis

that the condition appellant violated was never imposed by the trial court.

We relied on Commonwealth v. Vilsaint, 893 A.2d 753, 757 (Pa.Super.

2006), which held that, “the legislature [in the Sentencing Code] has

specifically empowered the court, not the probation offices and not any

individual probation officers, to impose the terms of probation.”         Id.

(emphasis supplied in MacGregor). Since the condition the appellant was

charged with violating, in addition to having been improperly drafted by a

parole agent, was not imposed by the court as required by Section 9754(b),

revocation of the appellant’s probation could not be sustained. Id. at 318.

      Subsequently, in Commonwealth v. Elliott, 50 A.3d 1284 (Pa.

2012), our supreme court sought to reconcile Section 9754 with the Prisons

and Parole Code, 61 Pa.C.S.A. §§ 6131(a)(5)(ii) & 6151, which mandates

that the Board and its agents establish uniform standards for the supervision

of probationers under its authority, and further to implement those

standards and conditions.     The court in Elliott distinguished between



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“conditions of probation” and “conditions of supervision,” concluding that

“the Board and its agents may impose conditions of supervision that are

germane to, elaborate on, or interpret any conditions of probation that are

imposed by the trial court.” Id. at 1292.

     In Elliott, at the conclusion of the defendant’s sentencing hearing, the

trial court imposed as a condition of his probation that he not have

unsupervised contact with any minor child. Id. at 1285. After serving out

his maximum sentence, the defendant was released and began serving his

five-year probationary term. Id. at 1285-1286. The defendant was given a

form created by the Pennsylvania Board of Probation and Parole entitled

“Standard Special Conditions for Sex Offenders -- Minor Victims,” which

included a condition that he not enter or loiter within 1,000 feet of areas

where minors commonly congregate including playgrounds, youth recreation

centers, elementary schools, etc. Id. at 1286.

     The defendant’s probation officer observed him sitting near a large

water fountain in a park in which young children were playing.           Id.

According to the probation officer, the defendant was closely observing a

young girl in a red bathing suit. Id. The defendant subsequently admitted

regularly going to the park to watch children and being sexually aroused by

the girl in the red bathing suit. Id. at 1287. The defendant’s probation was

revoked and he was sentenced to two consecutive terms of 2½ to 5 years’

incarceration. Id. The trial court opined, inter alia, that he had violated



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Supervision Condition 19, that he avoid areas where persons under age 18

commonly congregate, such as the park fountain. Id. On appeal, this court

reversed,   finding   that   Supervision   Condition   19   (no   loitering   within

1,000 feet) was not incorporated into the court’s general no-contact

requirement of the defendant’s probation.       Id. at 1288.8     Citing Vilsaint,

supra, and MacGregor, supra, this court held that only the court, and not

probation officers, can impose terms and conditions of probation.

     The Commonwealth appealed, and our supreme court vacated this

court’s order, holding that the Board merely expounded upon the trial court’s

no-contact order:

            [W]e find that Supervision Condition 19, that
            Appellee should not ‘enter or loiter within 1,000 feet
            of areas where the primary activity at such locations
            involve persons under the age of 18,’ is a permissible
            condition of supervision imposed by the Board and is
            derivative of the trial court’s condition of probation
            that Appellee not have unsupervised contact with
            minors.

Id. at 1292. The court in Elliott distinguished MacGregor where, in that

case, the trial court had ordered a $25 probation administration fee as the

sole condition of probation, without actually setting forth any terms and

conditions of probation. Id., n.4. The matter was remanded to this court



8
  This court also found there was insufficient evidence to support a violation
of Supervision Condition 17, prohibiting the defendant from engaging in
nonverbal communication with minor children while unsupervised such as
waving, gesturing, or winking. That aspect of this court’s decision was not
appealed to the Pennsylvania Supreme Court. Id. at 1288.


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for a determination as to whether the evidence was in fact sufficient to

sustain the defendant’s probation revocation based upon Supervision

Condition 19. Id. at 1293.

      The Commonwealth and the PCRA court attempt to distinguish

MacGregor based on the fact that in the matter sub judice, the trial court

signed a “Special Field Report” from the Board specifically stating that

appellant was being supervised as a sexually violent predator and was not to

have any contact with children under the age of 18.         (Appellant’s brief,

Appendix B.) Therefore, they argue that the trial court concurred with the

Board’s recommendations.

      We find MacGregor to be controlling.         As in MacGregor, in the

instant case, the trial court did not impose any terms and conditions of

probation whatsoever, remarking that they would be set by the Probation

Office or “whoever is going to do that.” Nor did the trial court set out any

terms and conditions of probation in its sentencing order. The fact that the

trial court signed a field report some six years later, dated January 28, 2007,

which contained the no-contact provision, is insufficient to comply with

Section 9754(b).    The court in Elliott did not overrule Vilsaint and

MacGregor.     MacGregor makes clear that only the court, not probation

officers, can impose terms and conditions of probation. The field report was

nothing more than a summary of appellant’s conditions of supervision, as




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contrasted with conditions of probation, which are required to be imposed by

the court.

      While Elliott did hold that the Board may impose conditions of

supervision that are “germane to” any conditions of probation imposed by

the trial court, in the instant case, there were no conditions of probation for

the Board to elaborate upon or interpret. In Elliott, at time of sentencing,

the trial court had ordered as a condition of the defendant’s probation that

he not have unsupervised contact with children. The Board does not have

the statutory authority to implement standards and conditions of supervision

out of whole cloth; it can only administer conditions of supervision within the

parameters established by the trial court. Here, since the trial court never

imposed a no-contact provision, the Board could not enforce one. As such,

appellant’s contact with his two nieces was not a violation of his probation.

The Commonwealth failed to establish, as a matter of law, that appellant’s

conduct violated the terms and conditions of his probation.       Clearly, then,

prior counsel were ineffective for failing to raise this issue in the court below

and on appeal. Appellant’s revocation sentence must be vacated and we will

reverse the order dismissing appellant’s PCRA petition.9       While it appears


9
  As should be evident from this Memorandum, appellant’s claims are not
patently frivolous or without any support in the record, so as to permit
appointed counsel to withdraw.          Even appellant’s previously waived
Section 9771(c) claim cannot be characterized as patently meritless, where
this court specifically expressed our displeasure at the trial court’s seemingly
purposeful refusal to address the Section 9771(c) factors.             Appointed
counsel should have been required to file an amended petition on appellant’s


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that appellant’s original sentence, including the seven-year probationary tail,

has expired and he is entitled to immediate discharge without condition

except for Megan’s Law registration requirements, we will remand for the

trial court to make that determination and enter an appropriate order

forthwith.

      Order reversed.        Judgment of sentence vacated.   Case remanded.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2015




behalf, and an evidentiary hearing should have been conducted. That said,
as appellant has retained counsel on the instant appeal and we have already
determined that he is entitled to PCRA relief, remand for new counsel would
be pointless.


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