J-S23018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JUAN TRUONG,

                            Appellant                 No. 1122 EDA 2014


        Appeal from the Judgment of Sentence Entered March 13, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001043-2010


BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 29, 2015

       Appellant, Juan Truong, appeals from the judgment of sentence

entered following his revocation of probation.    We vacate the judgment of

sentence and remand for resentencing.

       The trial court summarized the history of this case as follows:

             In 2010, the Ridley Township police department arrested
       [Appellant] and charged him with a variety of criminal offenses.
       On April 6, 2010, [Appellant] entered into a negotiated plea
       pursuant to which he pled guilty to Receiving Stolen Property
       (F3) and Criminal Mischief (M2). He was sentenced to a term of
       incarceration for the Receiving Stolen Property charge and a
       consecutive term of probation for Criminal Mischief.

            On February 22, 2014, while on parole for Receiving Stolen
       Property and on probation for Criminal Mischief, he was arrested

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       for possession of controlled substances, public drunkenness,
       theft and receiving stolen property.

             On March 13, 2014, he entered into a negotiated plea on
       the charges arising out of the February 22, 2014 arrest and was
       sentenced pursuant to that agreement. At the same time, this
       Court conducted a Gagnon II[1] hearing. The Gagnon II Hearing
       Report prepared by the Adult Probation and Parole Services
       department stated that the original charges included Information
       “E) Criminal Mischief (M1).”       [Gagnon II Hearing Report,
       3/11/2014][.] This Court found [Appellant] guilty of a violation
       of his probation and sentenced him to a term of 2 to 4 years
       incarceration on the Criminal Mischief charge.

Trial Court Opinion, 7/30/14, at 1-2.            This timely appeal followed.   Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant presents the following issue for our review:

             Was the sentence imposed for the offense of Criminal
       Mischief illegal since it exceeds the statutory maximum for that
       crime?

Appellant’s Brief at 5.

       Our scope of review of challenges to the legality of a sentence is

plenary, and the standard of review is de novo.                Commonwealth v.

Brougher, 978 A.2d 373, 377 (Pa. Super. 2009). A challenge to the legality

of the sentence is non-waivable. Commonwealth v. Williams, 920 A.2d

887, 888 (Pa. Super. 2007).



____________________________________________


1
  See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (due process
requires that a probationer be given preliminary (Gagnon I) and final
(Gagnon II) hearings prior to the court revoking probation).



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      Appellant argues that the trial court imposed an illegal sentence

following Appellant’s probation revocation on his criminal mischief charge.

Appellant’s Brief at 10. Appellant asserts that the criminal mischief charge

was graded as a misdemeanor of the second degree.                Id.    Because

sentencing for misdemeanors of the second degree is limited to a maximum

of two years of incarceration, Appellant contends that the trial court’s

sentence of two to four years imprisonment was illegal. Id. at 10-11.

      “[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.

Fish, 752 A.2d 921, 923 (Pa. Super. 2000) (citations omitted). This Court

has stated:

          Our statutory and case law are clear.            Subsequent to
      revocation of probation, the sentencing court has available to it
      all the options permissible at the time of initial sentencing, giving
      due consideration “to the time spent serving the order of
      probation.” 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.
      Additionally, the sentencing court cannot give a new split
      sentence where the period of incarceration and period of
      probation exceed the statutory maximum.


Commonwealth v. Crump, 995 A.2d 1280, 1285 (Pa. Super. 2010)

(citations omitted).

      Additionally, the Pennsylvania Crimes Code provides as follows for

misdemeanor convictions:



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       § 1104. Sentence of imprisonment for misdemeanors

       A person who has been convicted of a misdemeanor may be
       sentenced to imprisonment for a definite term which shall be
       fixed by the court and shall be not more than:

              (1) Five years in the case of a misdemeanor of the
              first degree.

              (2) Two years in the case of a misdemeanor of the
              second degree.

              (3) One year in the case of a misdemeanor of the
              third degree.

18 Pa.C.S. § 1104.

       The trial court provided the following analysis on this issue:

             The 2 to 4 year sentence would have been legal had the
       Criminal Mischief charge been an M1 offense, which carries a
       maximum penalty of five years’ incarceration. See 18 Pa.C.S. §
       1104(1).    The Gagnon II report was, however, incorrect.
       According to the dockets, [Appellant] pled guilty to an M2
       Criminal Mischief offense. See: 18 Pa.C.S. § 3304(b). An M2
       offense carries a maximum penalty of two years’ incarceration.
       See: 18 Pa.C.S. § 1104(2).

              Defense counsel has correctly noted that the sentence was
       illegal. The Superior Court should remand the case to [the trial
       court] for resentencing.

Trial Court Opinion, 7/30/14, at 2.2

       A review of the record reflects that Appellant was charged with

criminal mischief graded as a misdemeanor of the second degree. Judgment
____________________________________________


2
  We note that the Commonwealth filed a letter in this Court stating its
concurrence with the trial court’s request to remand the case for re-
sentencing. Therefore, it did not file a brief in this matter. Letter from the
Assistant District Attorney of Delaware County, 2/20/15, at 1.



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of Sentence, 4/6/10, at 1.    The Gagnon II Hearing Report incorrectly

identified Appellant’s criminal mischief conviction as a misdemeanor of the

first degree. Gagnon II Hearing Transcript, 7/23/13. Thus, the sentence

on the criminal mischief charge following probation revocation was illegal

because it exceeded the statutory maximum of two years of imprisonment.

The trial court properly concluded that Appellant’s sentence on this charge

was illegal. Accordingly, we vacate the judgment of sentence and remand

for resentencing.

      Judgment of sentence vacated.      Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2015




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