J-S63043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEFFREY WALTER STRAMA, JR.,

                            Appellant                 No. 676 MDA 2014


             Appeal from the Judgment of Sentence March 5, 2014
              in the Court of Common Pleas of Lancaster County
              Criminal Division at No.: CP-36-CR-0001483-2013


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 14, 2015

         Appellant, Jeffrey Walter Strama, Jr., appeals from the judgment of

sentence imposed following entry of a guilty plea to burglary, intimidation of

witnesses, unlawful restraint, terroristic threats, simple assault (four

counts), criminal mischief, cruelty to animals, and possession of marijuana

(small amount).1        Appellant claims that the sentence imposed on the

summary offense of cruelty to animals is illegal. We agree and affirm the

judgment of sentence, as amended.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S.A. §§ 3502(a)(1), 4952(a)(1), 2902(a)(1), 2706(a)(1),
2701(a)(1),(a)(3), 3304(a)(5), 5511(c)(1) (summary offense), and 35 P.S.
§ 780-113(a)(31), respectively.
J-S63043-14



       On December 6, 2013, Appellant entered a guilty plea to the above-

stated offenses, and the trial court ordered preparation of a pre-sentence

investigation (PSI) report. The charges stem from Appellant’s February 9,

2013 assault of his then-girlfriend, during which he punched her, choked

her, and threatened her with a hatchet, after she attempted to stop him

from hitting their dog with a handmade club. On March 5, 2014, the court

sentenced Appellant to an aggregate term of not less than five years and

ninety days nor more than ten years’ incarceration, followed by five years’

probation. The court imposed a flat ninety-day term of incarceration for the

offense of cruelty to animals, rather than a minimum and maximum

sentence.     Appellant filed a timely post-sentence motion, which the trial

court denied on March 17, 2014. This timely appeal followed.2

       Appellant raises one question for our review:

       I. Was [Appellant’s] flat ninety-day sentence for cruelty to
       animals illegal, as the [trial] court was required to impose a
       minimum and maximum sentence, pursuant to 42 Pa.C.S. §
       9756?

(Appellant’s Brief, at 5).3


____________________________________________


2
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on May 12, 2014. See
Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) opinion on June 10,
2014. See Pa.R.A.P. 1925(a).
3
  The Commonwealth filed a letter stating its intention not to file a brief.
(See Commonwealth’s Letter, 8/28/14, at 1).



                                           -2-
J-S63043-14


              The scope and standard of review applied to determine the
       legality of a sentence are well established. If no statutory
       authorization exists for a particular sentence, that sentence is
       illegal and subject to correction. An illegal sentence must be
       vacated. In evaluating a trial court’s application of a statute, our
       standard of review is plenary and is limited to determining
       whether the trial court committed an error of law.

Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009)

(citation omitted).

       In his sole issue on appeal, Appellant contends that the flat ninety-day

sentence of incarceration for his summary offense of cruelty to animals is

illegal because the court was required to impose a minimum and maximum

sentence for the offense. (See Appellant’s Brief, at 9-11). The trial court

agrees, stating in its Rule 1925(a) opinion that Appellant’s sentence is

illegal.   (See Trial Court Opinion, 6/10/14, at 1).        We agree that the

sentence is illegal.

       Section 5511 of the Pennsylvania Crimes Code, titled “Cruelty to

animals,” provides in pertinent part:

       (m.1) Fine for summary offense.—In addition to any other
       penalty provided by law, a person convicted of a summary
       offense under this section shall pay a fine of not less than $50
       nor more than $750 or to imprisonment for not more than 90
       days, or both.

18 Pa.C.S.A. § 5511 (m.1); see also id. at (c)(1), (2)(i).

       Section 9756(c) of the Sentencing Code, pertaining to sentences of

total confinement for summary offenses, provides in relevant part:

       (c) Prohibition of parole for summary offenses.—The court
       may impose a sentence to imprisonment without the right to
       parole under this subsection only when:


                                        -3-
J-S63043-14



       (1) a summary offense is charged;

       (2) sentence is imposed for nonpayment of fines or costs, or
       both, in which case the sentence shall specify the number of
       days to be served; and

       (3) the maximum term or terms of imprisonment imposed on
       one or more indictments to run consecutively or concurrently
       total less than 30 days.

42 Pa.C.S.A. § 9756(c)(1)-(3).4

       Thus, the plain language of subsection (c) authorizes trial courts to

impose flat sentences of incarceration for summary offenses only when the

sentence is imposed for nonpayment of fines and/or costs and the maximum

term of incarceration is less than thirty days. See id. Here, Appellant’s flat

ninety-day sentence for his summary offense of cruelty to animals does not

meet the requirements of subsection (c), and is therefore illegal.       See

Mears, supra at 1211. Although the trial court was authorized pursuant to
____________________________________________


4
  We note that Appellant relies primarily on section 9756(b)(1) of statute,
(see Appellant’s Brief, at 9-10), which states “[t]he court shall impose a
minimum sentence of confinement which shall not exceed one-half of the
maximum sentence imposed.”          42 Pa.C.S.A. § 9756(b)(1).     However,
because “42 Pa.C.S.[A.] § 9756(b) applies to the sentencing of all crimes, it
is a general provision.” Commonwealth v. Klingensmith, 650 A.2d 444,
461 (Pa. Super. 1994), appeal denied, 659 A.2d 986 (Pa. 1995). Subsection
(c) governs summary offenses and implicitly creates a limited exception to
subsection (b)(1) by authorizing trial courts to impose flat sentences for
summary offenses where three specific requirements are met. See 42
Pa.C.S.A. § 9756(c)(1)-(3); Klingensmith, supra at 461 (stating rule that
“[w]here two statutory sections arguably cover the same matter and appear
to be inconsistent, the specific provision will prevail over the general
provision”) (citing 1 Pa.C.S.A. § 1933) (case citation omitted).




                                           -4-
J-S63043-14



18 Pa.C.S.A. § 5511 (m.1) to impose a ninety-day maximum term of

incarceration, it lacked authority to impose a flat ninety-day sentence, and

was therefore required to impose a minimum term of incarceration. See 42

Pa.C.S.A. § 9756(b)(1).

     We are cognizant that the standard remedy for a trial court’s omission

of a minimum sentence is to vacate the judgment of sentence and remand

for resentencing. See Commonwealth v. Duda, 831 A.2d 728, 733 (Pa.

Super. 2003). However, under circumstances “where the sentencing court

clearly intended to impose the maximum sentence this Court can amend the

sentence to include a minimum term equal to one-half of the maximum.”

Id. (amending flat sentence to include minimum term of incarceration where

court imposed maximum possible sentence for summary offense) (citing

Commonwealth v. Cain, 637 A.2d 656, 659 (Pa. Super. 1994) (amending

flat sentence to include minimum term of incarceration equal to one-half

maximum under circumstances where sentencing court clearly intended to

impose maximum sentence)).

     Here, because the trial court imposed the maximum possible sentence

of incarceration for Appellant’s summary offense, we are confident that it

intended to impose the maximum sentence. (See N.T. Sentencing, 3/05/14,

at 15 (court stating “[Appellant] committed some heinous crimes here.”));

see also Duda, supra at 733. Therefore, we amend Appellant’s ninety-day

sentence to include a minimum term of forty-five days’ incarceration. See

Duda, supra at 733; Cain, supra at 659.

                                   -5-
J-S63043-14



      Judgment of sentence affirmed as amended.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2015




                                 -6-
