J-S02020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                     Appellee              :
                                           :
                v.                         :
                                           :
 KENTLIN E. HOPKINS                        :
                                           :
                     Appellant             :        No. 455 MDA 2019

     Appeal from the Judgment of Sentence Entered February 15, 2019
              In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0000420-2015


BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY KING, J.:                  FILED: FEBRUARY 7, 2020

      Appellant, Kentlin E. Hopkins, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas, following revocation

of his probation.     For the following reasons, we vacate the probation

revocation sentence and remand with instructions.

      In its opinion, the trial court set forth the relevant facts and procedural

history of this appeal as follows:

         This matter stems from an incident occurring on November
         15, 2014, during which [Appellant] exposed his genitals to
         a Luzerne County Adult Probation Department employee.1
         On March 25, 2015, the Luzerne County District Attorney
         filed a three (3) count criminal information against
         [Appellant], charging him with indecent exposure, graded
         as a misdemeanor of the second degree (Count 1),2 open
         lewdness, graded as a misdemeanor of the third degree
         (Count 2),3 and disorderly conduct, graded as a
         misdemeanor of the third degree (Count 3).4

            1    According to the affidavit of probable cause
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          contained in the criminal complaint, while under the
          supervision of the Luzerne County Adult Probation
          Department, [Appellant] approached and spoke to a
          department employee, and then exposed his erect
          penis [to] her.

          2   18 Pa.C.S.A. § 3127(a).

          3   18 Pa.C.S.A. § 5901.

          4   18 Pa.C.S.A. § 5503(a)(3).

       On June 15, 2015, [Appellant] signed a written plea
       agreement with the Commonwealth and appeared before
       [the c]ourt with his counsel to formally enter [an open]
       guilty plea to each of the three counts. The written plea
       agreement clearly stated that the disorderly conduct charge
       was being graded as a misdemeanor of the third degree. At
       the guilty plea hearing, the Commonwealth verbally
       reiterated the grading on each of the charges, and stated
       their applicable maximum sentences, including a maximum
       sentence of one-year incarceration for the disorderly
       conduct charge.      Following a thorough colloquy of
       [Appellant], the court accepted his guilty plea to all three
       charges and scheduled sentencing for a separate date. A
       presentence investigation (PSI) was ordered to be
       completed by the Luzerne County Adult Probation and
       Parole Department prior to sentencing.

       On August 14, 2015, [Appellant] appeared before the court
       for imposition of sentence. At the sentencing hearing,
       [Appellant] and his counsel spoke on [Appellant’s] behalf,
       referencing [Appellant’s] underlying mental health problems
       leading to his behavior, and expressing [Appellant’s]
       remorse and desire to take steps to avoid similar crimes in
       the future.      In turn, the Commonwealth referenced
       [Appellant’s] lengthy criminal history, as outlined in the PSI,
       and the victim impact statement provided to the court.
       Specifically, with regard to the victim impact statement, the
       Commonwealth emphasized the victim’s ongoing anxiety
       and fear, which are exacerbated by the fact that the victim
       continues to work at the location where the crimes occurred,
       and that [Appellant] knows her identity and her work
       location. For these reasons, the Commonwealth requested

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       that the court impose a sentence in the high end of the
       applicable standard range, to run consecutive to the
       sentence imposed with regard to an existing parole
       violation.

       Upon a review of the PSI and the victim impact statement,
       and considering the testimony of [Appellant] and the
       presentations of counsel for both parties, [the c]ourt
       determined that        standard range    sentences   were
       appropriate. [Appellant] was then sentenced to twelve (12)
       to twenty-four (24) months’ imprisonment in a state
       correctional facility on Count 1, and twelve (12) months’
       probation each on Counts 2 and 3, to run consecutively to
       each other and to the sentence imposed on Count 1.
       Following the imposition of sentence, [Appellant] was
       advised of his post-sentence rights.

       On August 19, 2015, [Appellant] filed a counseled post-
       sentence motion requesting the court to (1) “sentence him
       in the lower end of the standard range (6 months) due to
       [Appellant’s] acceptance of responsibility for his actions,”
       and (2) run the sentence imposed on Count 1 consecutively
       to a sentence imposed upon [Appellant] at Luzerne County
       Court of Common Pleas Case No. 551 of 2011. The post-
       sentence motion was denied on September 16, 2015.
       [Appellant] did not file an appeal of his judgment of
       sentence.

       [Appellant] subsequently violated the probationary
       sentence imposed on Counts 2 and 3, and a revocation
       hearing was held on February 15, 2019.5 At the hearing,
       [Appellant] admitted to the violation and was resentenced
       on Count 2 (Open Lewdness) to six (6) to twelve (12)
       months’ incarceration, to run consecutively to any other
       sentence being served, and on Count 3, (Disorderly
       Conduct) to six (6) to twelve (12) months’ incarceration, to
       run consecutively to the sentence imposed on Count 2. In
       resentencing [Appellant], the court indicated that the
       periods of incarceration imposed were necessary because
       [Appellant’s] behavior indicated that he was not amenable
       to supervision. Additionally, the court indicated that during
       his incarceration, [Appellant] would be able to take
       advantage of mental health and drug and alcohol programs
       in order to rehabilitate himself.

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            5 [Appellant] had again been charged with indecent
            exposure, open lewdness and disorderly conduct.
            [The record does not include a motion to revoke
            probation with an exact date for Appellant’s violation.
            At the revocation hearing, however, Appellant’s
            probation officer stated that Appellant “has been
            incarcerated on this new arrest since 9/14/2018.”
            (N.T. Revocation Hearing, 2/15/19, at 3-4.)]

         On February 25, 2019, [Appellant] filed a timely counseled
         post-sentence motion to modify his sentence, asserting that
         it was excessive and asking the court to either reduce the
         duration or order that it be served in the Luzerne County
         Correctional Facility instead of a State Correctional Facility.
         On March 14, 2019, [Appellant] filed a supplement to his
         post-sentence motion, asserting for the first time that the
         criminal information filed on March 25, 2015 improperly
         graded Count 3 (Disorderly Conduct) as a misdemeanor of
         the third degree, instead of a summary offense. The
         supplemental motion asked the court to vacate and/or
         modify the sentence imposed at Count 3 to no more than
         90 days’ incarceration.

         The court denied the February 25, 2019 and March 14, 2019
         motions, and [Appellant] has [timely] filed a counseled
         notice of appeal. As directed, [Appellant timely] filed a
         Pennsylvania Rule of Appellate Procedure 1925(b)
         statement of errors complained of on appeal, and the
         Commonwealth has filed a response thereto.

(Trial Court Opinion, filed July 22, 2019, at 1-4) (internal citations omitted).

      Appellant raises two issues on appeal, which we have reordered for

purposes of disposition:

         DID THE TRIAL COURT ERR AND/OR ABUSE ITS
         DISCRETION IN FAILING TO GRANT RECONSIDERATION
         AND CORRECT THE GRADING OF COUNT 3, DISORDERLY
         CONDUCT, FROM A MISDEMEANOR OF THE THIRD DEGREE
         TO A SUMMARY OFFENSE AND AMEND AND IMPOSE A
         SENTENCE   OF   NO   GREATER  THAN    90   DAYS’
         INCARCERATION?

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          DID THE TRIAL COURT ERR WHEN IMPOSING A SENTENCE
          OF 6-12 MONTHS ON THE CHARGE OF OPEN LEWDNESS,
          WHICH SHOULD HAVE MERGED WITH THE ORIGINAL
          SENTENCE FOR THE OFFENSE OF INDECENT EXPOSURE?

(Appellant’s Brief at 2).

      In his first issue, Appellant argues the offense of disorderly conduct can

be graded as a third-degree misdemeanor only if the Commonwealth

establishes that the “the intent of the actor was ‘to cause substantial harm or

serious inconvenience, or [persist] in disorderly conduct after reasonable

warning or request to desist.’” (Id. at 13) (quoting 18 Pa.C.S.A. § 5503(b)).

Appellant contends the criminal complaint, criminal information, and factual

basis for his guilty plea failed to establish that he possessed the requisite

intent for a third-degree misdemeanor. Absent more, Appellant concludes the

court should have changed the grading of the disorderly conduct charge to a

summary     offense,   carrying   a   maximum   term   of   ninety   (90)   days’

imprisonment. We disagree.

      “Generally, a plea of guilty amounts to a waiver of all defects and

defenses except those concerning the jurisdiction of the court, the legality of

the sentence, and the validity of the guilty plea.”         Commonwealth v.

Morrison, 173 A.3d 286, 290 (Pa.Super. 2017). “[T]he proper grading of an

offense pertains to the legality of the sentence.” Commonwealth v. Aikens,

139 A.3d 244, 245 (Pa.Super. 2016), affirmed, 641 Pa. 351, 168 A.3d 137

(2017).


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         A challenge to the legality of a sentence…may be
         entertained as long as the reviewing court has jurisdiction.
         It is also well-established that if no statutory authorization
         exists for a particular sentence, that sentence is illegal and
         subject to correction. An illegal sentence must be vacated.
         Issues relating to the legality of a sentence are questions of
         law. … Our standard of review over such questions is de
         novo and our scope of review is plenary.

Commonwealth v. Wolfe, 106 A.3d 800, 801-02 (Pa.Super. 2014) (internal

citations and quotation marks omitted).

      “A person is guilty of disorderly conduct if, with intent to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk thereof,

he…uses obscene language, or makes an obscene gesture[.]” 18 Pa.C.S.A. §

5503(a)(3). An offense under Section 5503(a) “is a misdemeanor of the third

degree if the intent of the actor is to cause substantial harm or serious

inconvenience, or if he persists in disorderly conduct after reasonable warning

or request to desist. Otherwise disorderly conduct is a summary offense.” 18

Pa.C.S.A. § 5503(b).

      Further, before accepting a plea, “the court must also determine

whether there is a factual basis for the plea: i.e., whether the facts

acknowledged    by     the   defendant    constitute   a   prohibited     offense.”

Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa.Super. 1993). “[T]he

factual basis requirement does not mean that the defendant must admit every

element of the crime.” Id. at 315 (internal quotation marks omitted).

         A guilty plea is an acknowledgement by a defendant that he
         participated in the commission of certain acts with a criminal
         intent. He acknowledges the existence of the facts and the

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         intent. The facts that he acknowledges may or may not be
         within the powers of the Commonwealth to prove. However,
         the plea of guilt admits that the facts and intent
         occurred, and is a confession not only of what the
         Commonwealth might prove, but also as to what the
         defendant knows to have happened.

Commonwealth v. Watson, 835 A.2d 786, 796 (Pa.Super. 2003) (quoting

Commonwealth v. Anthony, 504 Pa. 551, 558, 475 A.2d 1303, 1307

(1984)) (some emphasis omitted).

      Instantly, the criminal complaint, criminal information, and written plea

agreement each indicated that the Commonwealth was charging Appellant

with the third-degree misdemeanor of disorderly conduct. At the plea hearing,

the prosecutor reiterated that disorderly conduct was graded as “a

misdemeanor of the third degree, maximum possible penalty, one year

incarceration or a $2,500.00 fine.”     (N.T. Plea Hearing, 6/15/15, at 2.)

Appellant affirmatively responded that he wished to plead guilty to this charge.

The Commonwealth also provided the following factual basis to support

Appellant’s plea: “On November 10th of 2014, [Appellant] did enter the

Luzerne County Probation Office and did expose his penis to the secretary….”

(Id. at 4.) Again, Appellant affirmatively responded that he understood the

factual basis.

      Here, Appellant’s guilty plea admitted both the facts and the intent

necessary to support his conviction for the third-degree misdemeanor of

disorderly conduct. See Watson, supra at 796. Under these circumstances,

the trial court did not impose an illegal sentence. See Wolfe, supra at 802.

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       In his second issue, Appellant reiterates that the court originally

imposed a term of imprisonment for indecent exposure, followed by a

consecutive term of probation for open lewdness. Appellant insists, however,

the two convictions arose from the same criminal act, and all of the statutory

elements for open lewdness are included in the statutory elements for

indecent exposure.        Appellant argues the court should have merged the

convictions and imposed a single sentence for indecent exposure. Appellant

concludes the court’s failure to merge the convictions resulted in an illegal

sentence, and this Court must vacate the sentence for open lewdness imposed

following the revocation of probation. We agree.

       Whether crimes merge for sentencing purposes implicates the legality

of the sentence.1         Commonwealth v. Tanner, 61 A.3d 1043, 1046

(Pa.Super. 2013). Merger of sentences is governed generally by Section 9765

of the Sentencing Code, which provides:

          § 9765. Merger of sentences

          No crimes shall merge for sentencing purposes unless the
          crimes arise from a single criminal act and all of the
          statutory elements of one offense are included in the
          statutory elements of the other offense. Where crimes
          merge for sentencing purposes, the court may sentence the
          defendant only on the higher graded offense.
____________________________________________


1Although Appellant did not raise his merger claim in post-sentence motions
or his Rule 1925(b) statement, we will address the merits of his issue. See
Wolfe, supra at 801. See also Commonwealth v. Martinez, 438 A.2d
984, 985 (Pa.Super. 1981) (addressing defendant’s legality of sentence claim
on appeal following resentencing after probation revocation, even though
defendant failed to raise same claim on direct appeal from original sentence).

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42 Pa.C.S.A. § 9765. “[T]he language of the legislature is clear. The only

way two crimes merge for sentencing is if all elements of the lesser offense

are included within the greater offense.” Commonwealth v. Coppedge, 984

A.2d 562, 564 (Pa.Super. 2009) (stating cases decided before effective date

of Section 9765 are not instructive in merger analysis; relevant question in

merger analysis now is whether person can commit one crime without also

committing other crime, regardless of whether facts of particular case

comprise both crimes; if elements of crimes differ, i.e., if one offense can be

committed without committing other offense, crimes do not merge under

legislative mandate of Section 9765) (emphasis in original).

      Additionally, “[a] person commits indecent exposure if that person

exposes his or her genitals in any public place or in any place where there are

present other persons under circumstances in which he or she knows or should

know that this conduct is likely to offend, affront or alarm.” 18 Pa.C.S.A. §

3127(a).   The Crimes Codes also defines the offense of open lewdness as

follows: “A person commits a misdemeanor of the third degree if he does any

lewd act which he knows is likely to be observed by others who would be

affronted or alarmed.” 18 Pa.C.S.A. § 5901. See also Commonwealth v.

Fenton, 750 A.2d 863, 866 (Pa.Super. 2000) (stating “lewd” acts involve

sexuality or nudity in public).

      Instantly, following the entry of Appellant’s guilty plea, the court

imposed separate sentences for the indecent exposure and open lewdness

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convictions. Both convictions, however, arose the single lewd act of Appellant

exposing his genitals to a probation department employee.                  Moreover,

Appellant could not have committed the crime of indecent exposure without

also committing the crime of open lewdness. See Coppedge, supra. See

also 18 Pa.C.S.A. § 3127(a); 18 Pa.C.S.A. § 5901. Thus, open lewdness in

this case was a lesser included offense of indecent exposure, and the court

should have merged these convictions for sentencing purposes.                See 42

Pa.C.S.A. § 9765.

       Here, the court erred when it sentenced Appellant separately on the

conviction for open lewdness at the time of the original sentencing hearing,

as well as when it resentenced Appellant for his open lewdness conviction

following the probation revocation. See Commonwealth v. Milhomme, 35

A.3d 1219, 1222 (Pa.Super. 2011) (explaining that where court imposes

illegal sentence and later finds defendant in violation of probation related to

that sentence, new sentence imposed following revocation of probation is also

illegal). Based upon the foregoing, we vacate the entire probation revocation

sentence and remand for resentencing.2 Accordingly, we affirm Appellant’s

convictions    but   vacate     the   judgment     of   sentence   and   remand   for



____________________________________________


2See Commonwealth v. Hicks, 151 A.3d 216 (Pa.Super. 2016) (explaining
where trial court errs in its sentence in multi-count case, we will vacate entire
sentence to allow trial court to re-structure its sentencing plan).



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resentencing.3

       Judgment of sentence vacated; case remanded with instructions.

Jurisdiction is relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/07/2020




____________________________________________


3 Upon remand, the court must also consider whether Appellant was still
serving his probationary sentence for disorderly conduct at the time of the
purported probation violation. In the event Appellant had completed the
sentence for disorderly conduct before the purported violation, resentencing
would be unnecessary.

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