J-S59042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

JOSEPH BOYCE

                           Appellant                  No. 2510 EDA 2016


              Appeal from the Judgment of Sentence July 5, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0007486-2014,
                           CP-51-CR-1004931-2001

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 12, 2017

        Appellant, Joseph Boyce, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following the

revocation of his probation in two cases. Appellant claims that the sentence

imposed in one of the cases, CR-1004931-2011, is illegal because a prior

revocation sentence in that case exceeded the maximum permissible

sentence for the underlying offense. We vacate the judgment of sentence

and remand this case for further proceedings.

        The trial court set forth the procedural history of this appeal as

follows:



*   Former Justice specially assigned to the Superior Court.
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          In 2001, [Appellant] was charged with Burglary,
       Criminal Mischief, Attempted Theft Unlawful Taking,
       Criminal Trespass, and Criminal Conspiracy on case CP-51-
       CR-1004931-2001.      On August 1, 2002, Judge Denis
       Cohen accepted a negotiated guilty plea to Burglary as a
       felony of the second degree and sentenced Appellant to
       five years probation. The remaining charges were nolle
       prossed.

           On September 8, 2004, Appellant was found in violation
       of his probation by Judge Cohen.         His probation was
       revoked and he was sentenced to a new period of five
       years probation. On February 28, 2005, Appellant was
       again found in violation of probation and was sentenced to
       11½-23 months of incarceration followed by five years
       probation. On October 10, 2010 Appellant violated his
       probation for a third time. His probation was revoked, and
       he was sentenced to ten years probation. On June 18,
       2012, Appellant was found in violation of his probation
       once again by Judge Cohen and he was sentenced to 11½
       -23 months of incarceration followed by eight years
       probation. On October 9, 2014, this Court accepted a
       negotiated guilty plea to Theft as a felony of the third
       degree on case CP-51-CR-0007486-2014. Appellant was
       sentenced to 6-23 months incarceration followed by two
       years probation. This Court also assumed supervision of
       case CP-51-CR-1004931-2001 due to Judge Cohen
       transferring to the Civil Trial Division. The Court found
       Appellant to be in direct violation of his Probation but
       allowed him to continue his probation with the added
       requirement that Appellant attend drug treatment.

          On July 5, 2016, this Court found Appellant to be in
       violation of his probation on cases CP-51-CR-1004931-
       2001 and CP-51-CR-0007486-2014.           Appellant was
       sentenced to 2 ½-5 years incarceration followed by three
       years probation on CP-51-CR-1004931-2001 and 2½-5
       years incarceration on case CP-51-CR-0007486-2014 to
       run concurrent to each other.

          Appellant filed a Motion for Reconsideration of the
       violation of probation sentences. The Court denied the
       motion on July 22, 2016. Appellant filed a timely Notice of
       Appeal to the Superior Court on August 4, 2016.


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Trial Ct. Op. at 1-2, 2/16/17, at 1-2.

      Appellant presents the following question involved in this appeal:

         Did not the [trial] court, on July 5, 2016, impose an illegal
         sentence on Docket No. CP-51-1004931-2001 charging
         Appellant with second degree felony burglary, where the
         sentence on which Appellant’s probation was revoked was
         illegal as was the sentence before that, since on October
         14, 2010, the [trial] court imposed a sentence of 10 years’
         reporting probation after a revocation which, when added
         to the period of incarceration Appellant had already
         served, surpassed the maximum sentence permitted by
         law, as did the revocation of sentence of 11 1/2 to 23
         months followed by 8 years’ reporting probation imposed
         on June 18, 2012, and thus, because the original
         sentences were illegal, Appellant cannot be found in
         violation of an illegal sentence, making his current
         sentence also illegal?

Appellant’s Brief at 3.

      Preliminarily, we note there is no dispute that that prior revocation

sentences imposed on October 14, 2010 and July 18, 2012 in this matter

were illegal, because they exceeded the lawful maximum sentences

applicable at those times.        Appellant relies on Commonwealth v.

Milhomme, 35 A.3d 1219 (Pa. Super. 2011), and asserts that he is entitled

to have the instant sentence vacated. The trial court, however, concluded

that because Appellant had only served 1,747 days in custody on the

offense, the present sentence was proper. The Commonwealth relies in part

on Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013), and

contends that Milhomme should not apply because Appellant failed to




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challenge the prior illegal sentences in a timely manner.      For the reasons

that follow, we conclude that Appellant is entitled to resentencing.

      It is well settled that a claim of an illegal sentence is non-waivable and

subject to correction. Milhomme, 35 A.3d at 1221. However, a challenge

to the legality of a sentence is cognizable under the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, and is subject to the PCRA’s

timeliness requirements. See Infante, 63 A.3d at 365. Thus, “a collateral

claim regarding the legality of a sentence can be lost for failure to raise it in

a timely manner under the PCRA.” Id. (citation omitted).

      In Milhomme, the trial court initially sentenced the defendant on July

25, 2007, and ordered him to serve two years’ probation on the condition

that he serve four month’s incarceration in county jail. Milhomme, 35 A.3d

at 1220.    He was subsequently found in violation of his probation and

resentenced in June and July 2008, as well as January 2010.             Id.   On

October 2, 2010, the trial court found that the defendant violated his

probation again and resentenced him to two to four years’ imprisonment.

Id. at 1220-1221.

      The defendant took an appeal arguing that the October 2, 2010

sentence was illegal because the original, July 25, 2007 sentence was illegal.

Id. at 1221. The Milhomme Court agreed that the July 25, 2007 sentence

was illegal because it contained an impermissible flat sentence of four

months’ incarceration. Id. (discussing 42 Pa.C.S. § 9756). The Court then



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relied on Commonwealth v. Everett, 419 A.2d 793 (Pa. Super. 1980) (per

curiam),1 and concluded that “because the original sentence was illegal . . .

the recent probation revocation sentence is also illegal . . . .” Id. at 1222.

Therefore, the Milhomme Court vacated both the initial July 25, 2007

sentence, as well as the August 2, 2010 sentence under appeal, and

remanded for resentencing. Id.

        In Infante, the defendant was charged with two counts of driving

under the influence (“DUI”) based on separate incidents. Infante, 63 A.3d

at 360. On April 13, 2009, he pleaded guilty to both charges, which were

regarded as a first and second offense under 75 Pa.C.S. §§ 3804(c) and

3806. Id. at 360-61, 363. He was sentenced to three days’ to six months’

incarceration for the first offense, and ninety days’ to twelve month’s

incarceration and two years’ concurrent probation for the second offense.

Id. at 361. The defendant did not take a direct appeal. Six months after

the imposition of sentence, the Pennsylvania Supreme Court concluded that

section 3804(c) was a recidivist sentencing provision that required a

conviction on the first offense to occur before the defendant committed a

second offense. Id. at 361, 364 (discussing Commonwealth v. Haag, 981

A.2d 902, 907 (Pa. 2009)).        The defendant subsequently violated his

probation and was resentenced on December 19, 2011, to six months’ to

twenty-three months’ and fifteen days’ imprisonment. Id. at 362.

1   Everett was decided before the PCRA time limitations were enacted.



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     The defendant appealed asserting that his original sentence was illegal

under Haag and therefore the revocation sentence was illegal. The Infante

Court agreed that the original sentence was illegal because it treated the

defendant’s second DUI charge as a second offense. Id. at 367. The Court,

however, concluded that the defendant waived his right to challenge the

legality of the original sentence because he did not take a direct appeal or

file a timely PCRA petition.   Id.   However, the Court also found that the

revocation sentence was illegal as it exceeded the maximum permissible

sentence for a first DUI offense and remanded for resentencing. Id. at 368.

     In finding waiver of the defendant’s challenge to the legality of the

original sentence, the Infante Court distinguished Milhomme. Specifically,

the Infante Court noted that Milhomme determined that the original

sentence was illegal based on the law in existence at the time of sentencing

rather than a new decision issued after the imposition of sentence. Id. at

367 n.4.   The Infante Court further called into question Milhomme’s

reliance on Everett to invalidate a defendant’s original sentence in light of

the PCRA time bar. Id.

     We note that Milhomme and Infante were both decisions issued by

three-judge panels of this Court.     Although Infante called into question

Milhomme’s reasoning, it is well settled that a three-judge panel may not

overrule a prior decision of another three-judge panel. Commonwealth v.

Hill, 705 A.2d 911, 912 (Pa. Super. 1998).



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      Following our review, we conclude that Milhomme remains binding on

this panel and constrains us to find the instant sentence illegal because it

was imposed based on two prior illegal revocation sentences.           Unlike

Infante, the illegality of the prior sentences was not a product of

intervening case law.        The facts that the present case involves several

revocation sentences, as opposed to an original sentence, or a probationary

sentence do not meaningfully distinguish Milhomme. Therefore, we vacate

the present sentence, as well as the October 10, 2010 sentence and remand

for resentencing.

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.

      PJE Bender joins the Memorandum.

      Judge Ott Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2017




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