J-S75012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    DARRYL MATTHEW NELSON

                             Appellant                 No. 535 WDA 2019


       Appeal from the Judgment of Sentence entered December 17, 2018
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0000529-2012


BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                            FILED MARCH 03, 2020

        Appellant, Darryl Matthew Nelson, appeals from the judgment of

sentence entered on December 17, 2018 in the Court of Common Pleas of

Allegheny County following a remand from this Court. Appellant argues his

sentence is excessive and unreasonable.        We find no merit to his claim.

However, in light of the trial court’s acknowledgement of its error in the

probationary portion of the sentence imposed, we vacate Appellant’s

judgment of sentence and again remand for sentencing.

        The underlying facts are not in dispute. Following a bench trial in April

2013, Appellant was found guilty of one count of possession with intent to

deliver, one count of possession of a controlled substance, and one count of


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*   Retired Senior Judge assigned to the Superior Court.
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conspiracy to possess a controlled substance. The Commonwealth filed its

notice of intention to seek mandatory minimum penalties under 42 Pa.C.S.A.

§ 9712.1, which requires imposition of a five-year mandatory minimum

sentence for possession of a firearm in close proximity to a controlled

substance, and 18 Pa.C.S.A. § 7508(7)(ii), which requires a three-year

mandatory minimum for possessing more than five grams of heroin.

        On July 10, 2013, the trial court sentenced Appellant to an aggregate

term of five to ten years in prison followed by five years’ probation. After

exhausting his direct appeals, Appellant filed a timely post-conviction petition

on May 9, 2016, claiming, inter alia, an illegal sentence. After his petition was

dismissed, he filed an appeal to this Court. In light of Alleyne v. United

States1 and subsequent decisions by this Court and our Supreme Court, we

determined Alleyne applied and Appellant’s mandatory minimum sentences

were illegal.      We affirmed Appellant’s convictions but remanded for

resentencing. Commonwealth v. Nelson, No. 891 WDA 2017 (Pa. Super.

filed October 10, 2018). By that time, Appellant had served 65 months of his

sentence and had been paroled. Because imposition of a state sentence on

remand would have required that Appellant be returned to the same state

system from which he had been paroled, the court instead imposed a sentence

of 11½ to 23 months.             The court announced it was also imposing a



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1   Alleyne v. United States, 570 U.S. 99 (2013).

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probationary sentence, indicating it would impose the same period of

probation as was included in Appellant’s original sentence. However, instead

of the original five-year period of probation, the court sentenced Appellant to

ten years’ probation. Because the trial court retained jurisdiction by virtue of

imposing a county sentence, the court paroled Appellant after giving him

credit for time served. Consequently, only the probation period remained on

Appellant’s sentence.

      Appellant filed a post-sentence motion, seeking reconsideration. The

motion was denied.        After Appellant’s appeal rights to this Court were

reinstated nunc pro tunc, Appellant filed the instant appeal.

      Appellant asks us to consider one question:

      1. Upon resentencing, did the sentencing court impose an
         excessive and unreasonable sentence considering the
         Commonwealth’s position that the 65 months Appellant had
         already served in prison was “a suitable penalty” under the
         circumstances?

Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence. As this

Court recently reiterated:

      We have long held that the right to appeal a discretionary aspect
      of sentence is not absolute.” Commonwealth v. Zirkle, 107
      A.3d 127 (Pa. Super. 2014). Instead, such challenges are
      considered petitions for allowance of appeal. See id. Generally,
      an appellant who wishes to challenge the discretionary aspects of
      his sentence must satisfy a four-part test to invoke this Court's
      jurisdiction:

         (1) whether appellant has filed a timely notice of appeal; (2)
         whether the issue was properly preserved at sentencing or

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         in a motion to reconsider and modify sentence; (3) whether
         appellant’s brief has a fatal defect [pursuant to Pa.R.A.P.
         2119(f)]; and (4) whether there is a substantial question
         that the sentence appealed from is not appropriate under
         the Sentencing Code.

      Id. at 132 (citation omitted). Finally, whether a particular issue
      constitutes a substantial question about the appropriateness of
      sentence is a question to be evaluated on a case-by-case basis.
      See id. (citation omitted).

Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa. Super. 2019).

      Appellant filed a timely notice of appeal after his appeal rights were

reinstated nunc pro tunc by order entered March 11, 2019. He preserved his

issue in a post-sentence motion and has included a Rule 2119(f) statement in

his brief. He contends the court imposed an unreasonable sentence outside

the guidelines, which is a substantial question permitting our review.

Commonwealth        v.    Griffin,   804   A.2d   1,   7   (Pa.   Super.   2002);

Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001). Therefore,

we shall consider his claim.

      In reviewing the discretionary aspects of a sentence, we are guided by

the following standard:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.




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Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en

banc) (citations omitted).

       Appellant argues that while his county sentence “falls below the

mitigated range, the sentence in the aggregate—taking into consideration the

time   [Appellant]   already   served—far    exceeds   the   aggravated    range.

[Appellant] agrees with the Commonwealth: he’s served a ‘suitable penalty.’”

Appellant’s Brief at 26. As such, he contends, the sentence imposed is not

only excessive but unreasonable. Id. at 27. At the very least, he asserts,

this Court should find that the ten-year probationary period was imposed in

error. Id.

       In its Rule 1925(a) opinion, the trial court explained:

       The sentence that was imposed upon [Appellant] took into
       consideration that he had served sixty-five months and that if a
       new sentence was imposed upon him which would result in a state
       sentence, it would require that he had to be returned to state
       custody and then seek to be paroled from his sentence, even
       though he had already been paroled from the sentence that had
       previously been imposed upon him but was vacated by the
       Superior Court. The sentence that was imposed upon [Appellant]
       was not unreasonable but, rather, was designed to effectuate the
       desires of all of the parties and was an appropriate resolution to
       this matter. This court in sentencing [Appellant] to a county
       sentence, retained the ability to parole him and, in fact, did parole
       him after giving him credit for the time that he had already served.
       If there was an error in this sentence, it was the length of the
       period of probation since this court firmly stated that he was giving
       [Appellant] the same period of probation that he originally did,
       however, that original period of probation was five years and the
       current period is ten. If there is any error in [Appellant’s]
       sentence, it is the length of period of probation which, in fact,
       should have only been five years.




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Trial Court Opinion, 7/17/19, at 4-5 (footnote and some capitalization

omitted).

      We find no abuse of discretion in the trial court’s imposition of a county

sentence, or with the reasoning behind the sentence, allowing Appellant to be

paroled based on time served. However, we do agree with Appellant, and the

trial court, that the ten-year period of probation should have been a five-year

period.     Therefore, we vacate the judgment of sentence and remand for

resentencing in accordance with this Memorandum.

      Judgment of sentence vacated.           Case remanded.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/03/2020




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