J-A28034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

DOUGLAS MARSHALL

                         Appellant                  No. 2702 EDA 2013


            Appeal from the Judgment of Sentence June 14, 2013
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001935-1999


BEFORE: GANTMAN, P.J., PANELLA, J., and WECHT, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED NOVEMBER 24, 2014

      Appellant, Douglas Marshall, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following

revocation of his probation. We vacate and remand.

      The trial court opinion sets forth the relevant facts and procedural

history of this case as follows:

         This case stems from an incident that occurred on June 18,
         1999, at 1:46 p.m., when two Chester Police Officers,
         Stanfield and Lee, responded to the area of Front and
         Norris Streets in Chester, Pennsylvania, in response to a
         complaint of illegal dumping.      Upon arrival, the two
         Officers observed a man, who identified himself as
         Appellant, operating a white Ford pick-up.        The two
         Officers observed tree limbs, brush, and other debris in the
         bed of the pick-up.

         After being advised through police radio that the vehicle
         was stolen and…Appellant’s license was suspended, Officer
         Lee went to the passenger-side door while Officer Stanfield
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       went to the driver’s-side door. Also on the scene were
       three other officers, Studzinski, Michael, and De la Cruz,
       who were at the location as back-up. Officer Stanfield
       opened the driver’s-side door, while Officer Lee opened the
       passenger-side door and asked…Appellant to exit the
       vehicle. Instead of complying with the Officer’s requests,
       …Appellant reached down to put on his boot, started the
       truck, put it in reverse, and accelerated the vehicle at a
       high rate of speed.

       Both Officers Stanfield and Lee were struck by the vehicle’s
       open doors. The truck ran over Officer Stanfield while
       dragging Officer Lee for approximately 50 yards. Officer
       Lee became dislodged from the vehicle as it struck an
       electrical pole, resulting in an explosion. The two injured
       Officers were in the street lying in the path of the pick-up.
       Officers [Studzinski], Michael, and De la Cruz were facing
       Appellant’s vehicle, ordered him to stop, but he ignored
       the order and drove at the Officers.          Then, Officers
       [Studzinski] and De la Cruz began to shoot at the pick-up
       truck.

       A bystander, who was observing the incident, attempted to
       use his truck to block the pick-up from escaping but the
       pick-up was able to get around the blocking vehicle. The
       pick-up finally collided with Officer Pompilli’s vehicle, who
       was responding to an assist officer call. Both vehicles
       were disabled and…Appellant was arrested at the scene.
       Officer Stanfield was admitted to the hospital in critical
       condition and Officer Lee was admitted in guarded
       condition. [Officers] De la Cruz and Pompilli were treated
       and released.

                               *    *    *

       …Appellant was charged with six counts of “Aggravated
       Assault.”  Thereafter, on May 17, 2000, …Appellant
       entered an open guilty plea to…Aggravated Assault, six
       Counts.     On June 27, 2000, the Trial Judge
       sentenced…Appellant on each of the Six Counts as follows:

                               *    *    *

          forty-eight (48) to ninety-six …(96) months SCI for

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          Counts 1, 2, and 4 to run concurrent with sixty-six
          (66) to one hundred thirty-two (132) months SCI for
          Counts 3, 5, and 6. All sentences (counts) run
          concurrent to one another. Additionally, …Appellant
          was sentenced on each count to 5 years of probation
          to run concurrent with each other and consecutive to
          the incarceration.

       In 2012, …Appellant was convicted of a new case in
       Philadelphia, Pennsylvania with facts strikingly similar to
       the [original] case. The facts in the Philadelphia case are
       as follows: on January [21], 2012, the Philadelphia police
       set up surveillance near 28 North Bodine for narcotics
       activity. The police observed the occupants of a Burgundy
       Chevy engage in a drug transaction and tried to stop the
       car. …Appellant was the driver of the vehicle. …Appellant
       ignored the police efforts to stop the vehicle.           As
       Appellant’s vehicle sped off, it hit numerous parked cars,
       and drove toward police and pedestrians on the street.
       There were shots fired from the vehicle and the police
       returned fire. …Appellant fled from the police, hid from
       police, but eventually turned himself into the FBI once they
       found his location in a hotel room.

       This subsequent conviction was a violation of …Appellant’s
       parole. On June 14, 2013, after a Gagnon II hearing, the
       Trial Judge resentenced…Appellant on each of the Six
       Counts as follows:

          4 to 10 years SCI. All counts were to run concurrent
          to each other but consecutive to the new
          Philadelphia conviction. Also, …Appellant’s probation
          was revoked.

       On July 11, 2013, …Appellant filed a timely pro se Notice of
       Appeal.    On July 17, 2013, the trial court entered a
       Scheduling Order relative to the appeal. On August 2,
       2013, counsel for…Appellant, …of the Delaware County
       Public Defender’s Office, filed a “Petition for Extension of
       Time to File Statement of Errors Complained of on Appeal.”
       On November 18, 2013, [counsel] filed a conflict petition
       alleging a conflict of interest that appeared in Appellant’s
       pro se [Pa.R.A.P. 1925(b)] statement. This necessitated
       the appointment of new counsel. On December 26, 2013,

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         the Trial Judge entered an Order appointing [new] counsel
         for…Appellant. On January 17, 2014, a Motion to Extend
         the Time to File a Statement of Errors Complained of on
         Appeal was filed and later granted. On January 21, 2014,
         the undersigned was assigned this case. On March 11,
         2014, [new counsel] filed a “[Rule] 1925(b) Statement on
         Appeal.”

(Trial Court Opinion, filed April 25, 2014, at 1-4) (internal footnotes and

citations to record omitted).

      Appellant raises the following issue for our review:

         DID THE…COURT ERR IN SENTENCING APPELLANT TO
         FOUR (4) TO TEN (10) YEARS AFTER FINDING APPELLANT
         VIOLATED HIS PROBATION WHEN THE ORIGINAL
         SENTENCE CONTAINED A SENTENCE OF FIVE AND A HALF
         (5½) TO ELEVEN (11) YEARS FOR THE CRIME OF
         AGGRAVATED     ASSAULT    MAKING    THE   MAXIMUM
         SENTENCE TWENTY-ONE YEARS OR ONE YEAR OVER THE
         STATUTORY MAXIMUM.

(Appellant’s Brief at 5).

      Appellant argues his revocation sentence of four (4) to ten (10) years’

imprisonment is illegal because it exceeds the maximum sentence for

aggravated assault when combined with Appellant’s original sentence of five

and one-half (5½) to eleven (11) years’ imprisonment. Appellant claims the

maximum sentence for aggravated assault, a first degree felony, is twenty

(20) years’ imprisonment.       Appellant alleges his aggregate maximum

sentence is now twenty-one (21) years’ imprisonment, which is one (1) year

over the statutory maximum for aggravated assault.           Appellant concludes

this Court should vacate his revocation sentence and remand for a new

sentencing hearing. For the following reasons, we vacate and remand.

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      When reviewing the outcome of a probation revocation proceeding, our

scope of review includes the validity of the proceeding, the legality of the

sentence imposed, and when properly preserved, the discretionary aspects

of sentencing.   Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super.

2013) (en banc).     “In general, the imposition of sentence following the

revocation of probation is vested within the sound discretion of the trial

court, which, absent an abuse of that discretion, will not be disturbed on

appeal.” Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).

A sentence should not be disturbed where it is evident the court was aware

of the appropriate sentencing considerations and weighed them in a

meaningful fashion.      Commonwealth v. Fish, 752 A.2d 921, 923

(Pa.Super. 2000).

      The Sentencing Guidelines do not apply to sentences imposed

following revocation of probation. Commonwealth v. Ferguson, 893 A.2d

735, 739 (Pa.Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196

(2006).   “[U]pon sentencing following a revocation of probation, the trial

court is limited only by the maximum sentence that it could have imposed

originally at the time of the probationary sentence.”     Commonwealth v.

Coolbaugh, 770 A.2d 788, 792 (Pa.Super. 2001). A court can sentence a

defendant to total confinement after revoking probation if the defendant was

convicted of another crime, the defendant’s conduct indicates that it is likely

that he will commit another crime if he is not imprisoned, or such a sentence


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is essential to vindicate the court’s authority. Commonwealth v. Crump,

995 A.2d 1280 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010).

      Credit for time served is governed by statute in relevant part as

follows:

           § 9760. Credit for time served

           After reviewing the information submitted under section
           9737 (relating to report of outstanding charges and
           sentences) the court shall give credit as follows:

           (1) Credit against the maximum term and any minimum
           term shall be given to the defendant for all time spent in
           custody as a result of the criminal charge for which a
           prison sentence is imposed or as a result of the conduct on
           which such a charge is based. Credit shall include credit
           for time spent in custody prior to trial, during trial, pending
           sentence, and pending the resolution of an appeal.

42 Pa.C.S.A. § 9760(1).

           [A] defendant shall be given credit for any days spent in
           custody prior to the imposition of sentence, but only if
           such commitment is on the offense for which sentence is
           imposed. In the context of sentencing after probation
           revocation, the court must give due consideration to the
           time the defendant has spent serving probation, but the
           court is not required to credit the defendant with
           any time spent on probation. Likewise, the defendant
           is not automatically granted credit for time served
           while incarcerated on the original sentence unless
           the court imposes a new sentence that would result
           in the defendant serving time in excess of the
           statutory maximum.

Commonwealth v. Infante, 63 A.3d 358, 367 (Pa.Super. 2013) (emphasis

added) (internal citations and quotation marks omitted).                 Thus, in


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sentencing upon revocation of probation, the court must consider the time

the defendant has already spent imprisoned if “the failure to award credit for

the original time spent imprisoned would result in the defendant serving

more time incarcerated than the lawful maximum.” Crump, supra at 1285.

“As long as the new sentence imposed does not exceed the statutory

maximum when factoring in the incarcerated time already served, the

sentence is not illegal.” Id. (citing Commonwealth v. Williams, 662 A.2d

658 (Pa.Super. 1995)).

      Instantly, the record suggests Appellant did not serve the entire

eleven-year maximum in prison on his original sentence.          Instead, the

record suggests Appellant was paroled and re-committed on several

occasions.   Thus, the record is unclear as to how much time Appellant

actually served in prison on his original sentence of five and one-half to

eleven years. If Appellant served more than ten years’ imprisonment on his

original sentence, then his probation revocation sentence of four to ten

years’ imprisonment is illegal as it causes Appellant’s aggregate sentence for

aggravated assault to exceed the statutory maximum of twenty years. See

Infante, supra; Crump, supra. If Appellant served less than ten years in

prison on his original sentence, then his new sentence is legal.      See id.

Therefore, on remand the trial court must determine exactly how much time

Appellant has already served in prison on his original sentence and then

assess whether that time plus the revocation sentence would exceed the


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statutory maximum.    In resolving this problem, however, the court is not

required to give Appellant any credit for time served on parole or probation.

Accordingly, we vacate the judgment of sentence in this case and remand

for re-sentencing.

      Judgment of sentence vacated; case remanded.            Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2014




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