J-S10012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

BERNICE HAYNES,

                         Appellee                    No. 189 EDA 2016

    Appeal from the Judgment of Sentence Entered November 20, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0000812-2015


BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED MARCH 16, 2017

      The trial court sentenced Appellee, Bernice Haynes, to 11½-23

months’ house arrest, to be followed by 6 years’ probation, following her

guilty plea to aggravated assault.       In this appeal, the Commonwealth

contends that Appellee’s sentence is illegal and, alternatively, it challenges

the discretionary aspects of her sentence. After careful review, we vacate

Appellee’s judgment of sentence and remand for resentencing.

      At Appellee’s guilty plea hearing, the Commonwealth summarized the

factual basis for Appellee’s plea as follows:

      On December 15th, 2015, police were called to 1557 North
      Frazier Street in Philadelphia where they came into contact with
      [Appellee] who told police that her [son] was missing. He
      actually was hiding in the backyard. The complainant, who was
      eight years old, had a burn to his face.

           It was learned though the investigation that [Appellee]
      heated up a spoon and held it to her child’s face enough to cause
      second degree burns and a scar on the child’s face.
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N.T. Guilty Plea, 9/22/15, at 5.

        Based on these facts, Appellee pled guilty to a single count of

aggravated assault, 18 Pa.C.S. § 2702(a)(1), a first-degree felony. The trial

court accepted Appellee’s guilty plea, ordered the production of a pre-

sentence investigation report, and deferred sentencing until November 20,

2015.     On that date, Appellee was sentenced as noted above.             The

Commonwealth filed a timely, post-sentence motion for modification of the

sentence on November 30, 2015, which was denied by the trial court on

December 17, 2015.       On January 11, 2016, the Commonwealth filed a

timely notice of appeal, as well as a preemptive Pa.R.A.P. 1925(b)

statement. The trial court issued its Rule 1925(a) opinion on July 12, 2016.

        The Commonwealth now presents the following question for our

review:
        Did the lower court impose an illegal sentence and abuse its
        discretion by imposing a term of 11½ to 23 months of house
        arrest followed by six years of probation for aggravated assault
        as a felony of the first degree where, inter alia, defendant
        microwaved a spoon and inflicted second–degree burns to the
        face of her 8-year-old son?

Commonwealth’s Brief, at 5.

        We first address whether Appellee’s sentence is illegal.       “If no

statutory authorization exists for a particular sentence, that sentence is

illegal and subject to correction.” Commonwealth v. Syno, 791 A.2d 363,

365 (Pa. Super. 2002). “An illegal sentence must be vacated.” Id.




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J-S10012-17



        The Commonwealth contends that Appellee’s sentence of house arrest,

a form of county intermediate punishment (hereinafter “CIP”), is illegal

pursuant to 42 Pa.C.S. § 9802, as her conviction for aggravated assault

disqualifies her for CIP.     In its opinion, the trial court agrees with the

Commonwealth’s assessment that           Appellee’s sentence      is   illegal, and

recommends that this Court vacate Appellee’s sentence and remand this

matter for resentencing.

        The County Intermediate Punishment Act, 42 Pa.C.S. §§ 9801-9813,

governs house arrest and all other forms of CIP. Section 9802 sets forth the

definition of what constitutes an “[e]ligible offender” for purposes of CIP;

that provision states, in pertinent part, that:

        The term does not include … an offender with a current
        conviction or a prior conviction within the past ten years for any
        of the following offenses:
                                         …

           18 Pa.C.S. § 2702 (relating to aggravated assault).

42 Pa.C.S. § 9802.

        Appellee’s current conviction is for aggravated assault.       Accordingly,

Appellee is not eligible for any form of CIP, including house arrest. Thus, we

agree with the Commonwealth and the trial court that Appellee’s CIP

sentence of house arrest is illegal and must be vacated. As such, we do not

reach    the   Commonwealth’s     alternative   claim,   which   pertains   to   the

discretionary aspects of Appellee’s sentence.




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J-S10012-17



       Judgment of sentence vacated.             Case remanded for resentencing.1

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2017




____________________________________________


1
   The record below indicates that Appellee’s counsel, William Joseph
Ciancaglini, Esq., filed a motion to withdraw in the trial court on February
24, 2016. However, it does not appear that the trial court ruled on that
motion. Nevertheless, we stress to the trial court that Appellee is entitled to
the appointment of new counsel for resentencing proceedings if Appellee is
no longer being represented by Attorney Ciancaglini.



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