J-S22012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KARL ERNST ROMINGER,

                            Appellant               No. 1710 MDA 2016


            Appeal from the Judgment of Sentence August 17, 2016
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000884-2015


BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 11, 2017

       Appellant, Karl Ernst Rominger, appeals from the judgment of

sentence entered on August 17, 2016, in the Cumberland County Court of

Common Pleas.         After careful review, we are constrained to vacate the

judgment of sentence and remand for resentencing.

       The relevant facts and procedural history of this matter are straight

forward. On February 20, 2015, Appellant was arrested and charged with

numerous crimes involving theft, dealing in proceeds of unlawful activities,

and misapplication of entrusted property.      Additional similar crimes were

subsequently charged. On May 12, 2016, the information was amended to

include eighteen charges of misapplication of entrusted property. Appellant
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*
    Retired Senior Judge assigned to the Superior Court.
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then entered an open guilty plea to one count of theft by deception 1 graded

as a felony of the first degree at count seven, and eighteen charges of

misapplication      of    entrusted      property2       graded   as     second-degree

misdemeanors at count ten.             N.T., Guilty Plea, 5/12/16, at 2-3.           The

remaining counts were dismissed. Id. at 3.

        On   August      17,   2016,    the    trial   court   imposed   sentences    of

incarceration, concurrent probation, fines, and restitution.3 The specifics of

these sentences will be discussed in detail below.              Post-sentence motions

were filed and denied, and this timely appeal followed. Both Appellant and

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

        In this appeal, Appellant presents the following issues for our

consideration:

        A. Whether Appellant’s sentence was illegal because the court,
        as it explained in denying the post-sentence motion, imposed
        sentences of probation on the count 10 convictions (18 offenses)
        while aggregating the intended incarceration on each separate
        count conviction into a single sentence on count 7 (1 offense) in
        order to permit the probationary sentences and retain local
        supervision of such sentence for the collection of restitution,
        which it may not do?

____________________________________________


1
    18 Pa.C.S. § 3922(a).
2
    18 Pa.C.S. § 4113(a).
3
  The amount of restitution was set at $767,337.05 at the guilty plea
colloquy. N.T., 5/12/16, at 9. However, in the sentencing order, the
amount of restitution totaled $788,418.95. Order, 8/17/16, at unnumbered
2. On remand this amount will need to be settled.



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      B. Whether Appellant’s sentence is manifestly excessive, too
      harsh a punishment and unconstitutional because, according to
      the clerk of courts’ docket sheets, the sentence of 5.5 to 18
      years’ incarceration for theft was close to thrice the outer end of
      the applicable aggravated range under the guidelines, and the
      court ignored significant factors of mitigation?

      C. Whether Appellant’s sentence is manifestly excessive, too
      harsh a punishment and unconstitutional because, according to
      the court’s order denying the post-sentence motion, the theft
      sentence of 12 months’ imprisonment - which was outside the
      guidelines - was run consecutively to 18 consecutive 3-month
      aggravated range minimum sentences for misappropriation of
      funds, thereby resulting in a clearly unreasonable application of
      the sentencing guidelines?

Appellant’s Brief at 8 (full capitalization omitted).

      In Appellant’s first issue, he alleges that the sentence imposed by the

trial court was illegal.     “[A] claim that implicates the fundamental legal

authority of the court to impose a particular sentence constitutes a challenge

to the legality of the sentence.     If no statutory authorization exists for a

particular sentence, that sentence is illegal and subject to correction.”

Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013) (citation

omitted).    Moreover, “[i]ssues relating to the legality of sentence are

questions of law, and thus, our standard of review is de novo and our scope

of review is plenary.” Id.

      The sentence imposed by the trial court is as follows:

             In light of the information contained in that background,
      the Court will sentence in the standard guideline -- I’m sorry --
      will sentence in the guideline range. In order to accomplish the
      Court’s goal of having local supervision over [Appellant] to
      ensure payment of restitution, the Court will impose all
      sentences of incarceration in aggregated form on the sentence

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J-S22012-17


     imposed on Count 7; however, the total minimum of the
     sentence imposed on Count 7 is an aggregate number for each
     of the nineteen charges for which [Appellant] has been convicted
     taking into account the sentencing guidelines.

            In essence on each of the eighteen counts, [Appellant] will
     be sentenced to not less than 3 months nor more than 12
     months; however, as indicated, that sentence will be aggregated
     on Count 7. Accordingly, the sentence of the Court on Count 7 is
     the [Appellant] shall serve no less than 66 months nor more
     than 18 years in confinement at the State Correctional
     Institution designated by the State Department of Corrections.

           The Cumberland County Sheriff is directed to take
     [Appellant] into custody forthwith and transport him to the State
     Correctional Institution at Camp Hill for purposes of classification
     and effectuation of this sentence.

           The sentence of the Court on Count 10 is on each count
     [Appellant] is sentenced to 12 months probation. On each count
     the sentence shall run consecutive to each other for a total
     supervision on Count 10 of eighteen years. That sentence shall
     run concurrent to the sentence imposed on Count 7.

           As a condition of [Appellant’s] sentence, he is directed to
     pay restitution consistent with the presentence investigation. …

N.T., 8/17/16, at 29-30.    In the order denying Appellant’s post-sentence

motions, the trial court expounded upon its rationale for the sentences it

imposed:

     [Appellant’s] sentences were structured to account for the
     seriousness of [Appellant’s] conduct while permitting continued
     Court supervision of [Appellant] for purposes of monitoring the
     payment of restitution. This was accomplished by imposing
     sentences of probation on the Count 10 convictions while
     aggregating the intended incarceration on each separate count
     conviction into a single sentence on Count 7 in order to permit
     the probationary sentences. As such, [Appellant’s] Count 7
     sentence is technically outside the guidelines, however, in
     application, it is the total of a standard guideline sentence of 12
     months for Count 7 and 18 consecutive 3-month aggravated

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J-S22012-17


     range minimum sentences for each of the 18 separate
     convictions in Count 10 (18 x 3 months + 12 months = 66
     months). The sentences were structured in this manner to
     permit local supervision for a sufficient time for the collection of
     restitution as imposing a sentence of no less than 3 months nor
     more than 12 months on each of the 18 convictions at Count 10
     would aggregate under statutory law into a state supervised
     sentence.     See 42 Pa.C.S.A. § 9762 (aggregate maximum
     sentences of two years or more shall be committed to the
     Department of Corrections except in limited circumstances). …

Order, 9/23/16, at 1.

     As noted above, the trial court sentenced Appellant to eighteen

separate consecutive sentences of three to twelve months of incarceration

for the misapplication of entrusted property charges, and it subdivided the

single theft conviction into eighteen separate consecutive sentences of

twelve months of probation to run concurrently with the sentences for

misapplication of entrusted property.   This sentence results in a fifty-four

month to eighteen-year term of incarceration, to be served concurrently with

eighteen separate consecutive twelve-month terms of county probation.

However, the trial court states that the sentence results in a sentence of

sixty-six months to eighteen years and explains its calculation as follows:

“Twelve months + eighteen x three months equals 66 months.” Trial Court

Opinion, 12/2/16, at 5, n.5. After review, we conclude that the trial court

lacked the authority to impose these sentences.

     Despite the trial court’s arithmetic explanation, we cannot uncover

where the additional twelve-month prison term was imposed.           The only

sentences of total confinement are the eighteen sentences of three months

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J-S22012-17


to twelve months for misapplication of entrusted funds.4 N.T., Sentencing,

8/17/16, at 30; Sentencing Order, 8/17/16, at unnumbered 1-3.        Moreover,

even if we assume that the twelve-month sentence was imposed for the one

count of theft by deception, there was no authority for the trial court to

order a flat, twelve-month sentence of incarceration in the case at bar. See

Commonwealth v. Mitchell, 986 A.2d 1241, 1244 (Pa. Super. 2009)

(stating that flat sentences are generally illegal); 42 Pa.C.S. § 9756.

       Finally, we are also constrained to conclude that there is no authority

allowing the trial court to direct that county (or state) probation is to be

served at the same time as a state sentence of incarceration.             We are

cognizant that sentences may be ordered to be served consecutively or

concurrently:

       (a) General rule.--In determining the sentence to be imposed
       the court shall, except as provided in subsection (a.1), consider
       and select one or more of the following alternatives, and may
       impose them consecutively or concurrently:

              (1) An order of probation.
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4
  Additionally, there is a discrepancy in the trial court opinion as to which
sentences are for which crimes. The record reflects that theft was graded as
a first-degree felony, and misapplication of entrusted funds was graded as a
second-degree misdemeanor.         Information, 6/23/15; N.T., Guilty Plea
(amendment to information), 5/12/16, at 2. At sentencing, the trial court
imposed incarceration for the theft graded as a first-degree felony and
probation for the misapplication of entrusted funds graded as a second-
degree misdemeanor. N.T., Sentencing, 8/17/16, at 30; Sentencing Order,
8/17/16, at unnumbered 1-3. However, in its opinion, the trial court stated
that it imposed probation for the felony and incarceration for the
misdemeanors. Trial Court Opinion, 12/2/16, at 5.



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J-S22012-17



              (2) A determination of guilt without further penalty.

              (3) Partial confinement.

              (4) Total confinement.

              (5) A fine.

              (6) County intermediate punishment.

              (7) State intermediate punishment.

42 Pa.C.S. § 9721(a). In Commonwealth v. Pierce, 441 A.2d 1218, 1219

(Pa. 1982), our Supreme Court held that 18 Pa.C.S. § 1321(a), the

precursor to 42 Pa.C.S. § 9721, empowered a sentencing court to impose

the sentencing alternatives consecutively or concurrently.            However, in

Pierce, the appellant’s probation was consecutive to incarceration, and

Pierce does not specifically address the situation in the case at bar where

county probation was ordered to be served concurrently with a state prison

sentence. Conversely, Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa.

Super. 2011),5 confronted this issue directly and stated: “Moreover, we find

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5
  The Commonwealth attempts to distinguish Allshouse by claiming that it
dealt with a situation where the defendant was attempting to obtain a
windfall by having time spent incarcerated count toward a concurrent
sentence of probation.        The Commonwealth’s Brief at 15.            The
Commonwealth’s argument is misplaced. Indeed, Appellant’s subjective
intent or desire to have time spent incarcerated count toward a probationary
sentence is not presently at issue. Rather, we are concerned with the more
prefatory question answered in Allshouse, where this Court held that
defendants cannot serve a term of probation and state incarceration
simultaneously.
(Footnote Continued Next Page)


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J-S22012-17


no support in the Pennsylvania statutes that the General Assembly intended

to permit defendants to serve a term of probation and a term of state

incarceration simultaneously.”6

      In conclusion, the sentence that the trial court imposed contains a

computation error and/or a portion of the sentence that is not clearly

explained in the record. More importantly, because there was no authority

for the trial court to impose the sentence in its current form pursuant to

Allshouse, it is illegal, and it must be corrected. Clarke, 70 A.3d at 1284.7

For these reasons, we vacate Appellant’s sentence and remand for

resentencing in accordance with this memorandum.8

                       _______________________
(Footnote Continued)


6
  Allshouse does not cite 42 Pa.C.S. § 9721(a); however, it specifically
addresses the issue at hand, and we are bound by prior panel decisions of
the Superior Court. Commonwealth v. Prout, 814 A.2d 693, 695 n.2 (Pa.
Super. 2002).
7
  The trial court’s citation to Commonwealth v. Mitchell, 955 A.2d 433
(Pa. Super. 2008), Trial Court Opinion, 12/2/16, at 9, is of little import
because that case discussed probationary “tails,” which are terms of
probation following incarceration, violations of probation, and the
supervisory responsibilities of the courts of common pleas versus the
Pennsylvania Board of Probation and Parole. Here, we do not reach the
issue of supervision, as we are faced with the preliminary question
concerning the legality of the sentence imposed.
8
   In light of our disposition and order remanding this matter for
resentencing, we do not reach Appellant’s remaining issues challenging the
discretionary aspects of the sentences imposed. However, we point out that
there is no specific authority permitting the trial court to parcel out eighteen
separate sentences for the single theft conviction. Yet, Appellant has not
directed our attention to any authority making this portion of Appellant’s
(Footnote Continued Next Page)


                                            -8-
J-S22012-17


      Vacate and remand for resentencing. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2017




                       _______________________
(Footnote Continued)

sentence illegal. We conclude that this issue may be better addressed in a
challenge to the discretionary aspects of Appellant’s sentence should the trial
court impose this aberrant disposition upon resentencing, and we would then
expect the trial court to explain and defend its actions.



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