J-S76009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

VERNELL CARR, JR.

                            Appellant                 No. 3324 EDA 2015


        Appeal from the Judgment of Sentence Entered August 17, 2015
               In the Court of Common Pleas of Delaware County
            Criminal Division at Nos: CP-23-CR-0000797-2013 and
                            CP-23-CR-0000805-2013


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 30, 2016

        Appellant Vernell Carr, Jr. appeals from the August 17, 2015 judgment

of sentence entered in the Court of Common Pleas of Delaware County (“trial

court”), following the revocation of his parole and probation. Upon review,

we vacate in part and remand for resentencing.

        The facts and procedural history underlying this case are undisputed.1

Briefly, on May 8, 2013, Appellant was sentenced to one year less one day

to two years less one day and two consecutive years of probation following

his guilty plea to burglary and resisting arrest at docket number 805-13


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 Unless otherwise specified, these facts come from the trial court’s May 20,
2016 opinion.
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(“First Case”). On the same day, following his guilty plea to simple assault,

Appellant also was sentenced to two years of probation at docket number

797-13 (“Second Case”), to run concurrently with the sentence imposed in

the First Case. Appellant was released on parole on May 7, 2014.

       On June 24, 2014, while on parole, Appellant was arrested at docket

number 5929-14 and charged with numerous crimes. On June 26, 2014, a

bench warrant was issued against Appellant based on his violation of the

terms and conditions of his parole.            On April 2, 2015, following his guilty

plea to possession of a firearm with an altered manufacturer’s number,

Appellant was sentenced to a state sentence of 20 to 54 months’

imprisonment with 30 consecutive months of probation.

       On August 17, 2015, the trial court held a Gagnon II2 hearing on

Appellant’s parole and probation violations at docket numbers 805-13 and

797-13. Eventually, Appellant was sentenced, inter alia, to 18 to 36 months’

imprisonment for resisting arrest in the First Case to run concurrently with

____________________________________________


2
  In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court
determined a two-step procedure was required before a parole or probation
may be revoked:

       [A] parolee [or probationer] is entitled to two hearings, one a
       preliminary hearing [Gagnon I] at the time of his arrest and
       detention to determine whether there is probable cause to
       believe that he has committed a violation of his parole [or
       probation], and the other a somewhat more comprehensive
       hearing [Gagnon II] prior to the making of a final revocation
       decision.

Id. at 781-82.



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the 12 to 24 months’ imprisonment for simple assault in the Second Case.

Appellant appealed to this Court.3 Following Appellant’s filing of a Pa.R.A.P.

1925(b) statement of errors complained of on appeal, the trial court issued a

Pa.R.A.P. 1925(a) opinion.

       On appeal, Appellant argues only that he received an illegal sentence

in the First Case for resisting arrest because the trial court sentenced him to

18 to 36 months’ imprisonment. We agree.

       At the outset, we note that because Appellant’s argument relates to

the legality of sentence, our standard of review is de novo and our scope of

review is plenary. See Commonwealth v. Gentry, 101 A.3d 813, 817 (Pa.

Super. 2014). Here, the Commonwealth agrees with Appellant that under

____________________________________________


3
  Instantly, although Appellant did not appeal within 30 days from the date
of sentencing, we decline to quash the appeal based on a breakdown in the
processes of the trial court. See Commonwealth v. Patterson, 940 A.2d
493, 498-99 (Pa. Super. 2007) (noting that generally an appellate court
cannot extend the time for filing an appeal, but may grant relief where there
is a breakdown in the processes of the trial court.), appeal denied, 960
A.2d 838 (Pa. 2008). A breakdown in the processes of the court occurs
“when the trial court or the clerk of courts depart[s] from the obligations
specified in” Rules of Criminal Procedure.          See id. at 499; accord
Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003)
(declining to quash the appeal because of a breakdown in the court’s
operation); see also Pa.R.Crim.P. 708(D)(3)(a) (“The judge shall advise the
defendant on the record . . . of the right to file a motion to modify sentence
and to appeal, [and] of the time within which the defendant must exercise
those rights.”).    Here, as the Commonwealth admits, and the record
confirms, the trial court failed to apprise Appellant of his post-sentence
appeal rights on the record following a Gagnon II hearing as required under
Rule 708(D)(3)(a). Accordingly, given the breakdown of the trial court’s
operation, we decline to quash this appeal as untimely filed.



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the Crimes Code, a conviction for resisting arrest is a misdemeanor of the

second degree, which carries a term of imprisonment, “the maximum of

which is not more than two years.” 18 Pa.C.S.A. § 106(b)(7) (emphasis

added);   see also     18   Pa.C.S.A.    §    1104(2);      18    Pa.C.S.A.   §   5104.

Accordingly, because Appellant was sentenced to a maximum term of

imprisonment exceeding two years, his sentence was illegal.                        See

Commonwealth v. Tobin, 89 A.3d 663, 668 (Pa. Super. 2014) (“The . . .

most basic and classic examples of an illegal sentence are sentences that

exceed the statutory maximum[.]”).            We, therefore, vacate Appellant’s

sentence for resisting arresting in the First Case.

      Judgment    of   sentence   vacated      in   part.        Case   remanded    for

resentencing consistent with this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2016




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