J-S75041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOWELL FAUNTLEROY,                         :
                                               :
                       Appellant               :       No. 411 EDA 2018

           Appeal from the Judgment of Sentence November 4, 2014
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000173-2010,
                           CP-51-CR-0013311-2009

BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 12, 2019

        Jowell Fauntleroy (“Fauntleroy”) appeals, nunc pro tunc, from the

judgment of sentence entered following the revocation of the probationary

sentences that were imposed following his guilty pleas to theft by receiving

stolen property, trespass, and criminal conspiracy.1 We vacate the judgment

of sentence and remand for resentencing.

        The trial court summarized the relevant history underlying the instant

appeal as follows:

              On August 19, 2009, [Fauntleroy] was arrested and charged
        with Receiving Stolen Property (“RSP”) and related charges (CP-
        51-CR-0013311-2009). On November 11, 2009, [Fauntleroy] was
        arrested and charged with Criminal Trespass and related charges
        (CP-51-CR-0000173-2010). [Fauntleroy] pled guilty to RSP on
        January 7, 2010. On February 3, 2010, [Fauntleroy] pled guilty
        to Criminal Trespass and Conspiracy. Following that plea, [the
____________________________________________


1   See 18 Pa.C.S.A. §§ 3925(a), 3503, 903.
J-S75041-18


        trial court] sentenced [Fauntleroy] on both dockets. [Fauntleroy]
        was sentenced to three to twenty[-]three (23) months of
        confinement with immediate parole, followed by one year of
        probation for both RSP and Criminal Trespass, to run concurrently.
        Conspiracy merged for the purposes of sentencing.[2]

              [Fauntleroy] tested positive for THC multiple times between
        July 12, 2012, and November 7, 2012. As a result of the positive
        urinalysis results, a Violation of Probation (“VOP”) hearing was
        scheduled before [the trial court], thus extending [Fauntleroy’s]
        probation beyond its natural date. While awaiting a VOP hearing
        before [the trial court], [Fauntleroy] was arrested and charged
        with [t]hird[-d]egree [m]urder and related charges. [Fauntleroy]
        pled guilty to [t]hird[-d]egree [m]urder and related charges … on
        September 8, 2014….

Trial Court Opinion, 5/10/18, at 2 (footnote added).

        On November 4, 2014, following a VOP hearing, [the trial court] found

Faunlteroy to be in violation of his probation and sentenced him to 3½ to 7

years in prison for his conviction of RSP.       For his convictions of criminal

trespass and criminal conspiracy, the trial court imposed prison terms of 5 to

10 years, to be served consecutive to each other and to Fauntleroy’s RSP

sentence. Fauntleroy filed no direct appeal from his judgment of sentence.

        On November 5, 2015, Fauntleroy filed a Petition for relief pursuant to

the Post Conviction Relief Act (“PCRA”),3 seeking the reinstatement of his

direct appeal rights, nunc pro tunc. The PCRA court subsequently granted

Fauntleroy’s Petition. On January 29, 2018, Fauntleroy filed the instant nunc


____________________________________________


2 The trial court’s determination that Fauntleroy’s conviction of criminal
conspiracy merged for sentencing purposes will be discussed in detail, infra.

3   See 42 Pa.C.S.A. §§ 9541-9551.

                                           -2-
J-S75041-18


pro tunc appeal of his judgment of sentence, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

      Fauntleroy presents the following claims for our review:

      A. Did the sentencing court violate [] Fauntleroy’s probation
         without legal authority where [] Fauntleroy’s probation had
         naturally expired before the commission of the offenses which
         [led] to the instant violation?

      B. Did the trial court impose an illegal sentence on transcript CP-
         51-CR-0000173-2010[,] when it re-sentenced [] Fauntleroy to
         5-10 years[’] incarceration[,] on count 2, where[,] at the time
         of the original sentence[,] the count merged and no penalty
         was assessed?

      C. Did the trial court abuse its discretion when it sentenced []
         Fauntleroy to an aggregate sentence of 13½-27 years[’]
         incarceration[,] where the trial court did not follow the dictates
         of 42 Pa.C.S.[A.] § 9721(b), which states that in every case
         following the revocation of probation, the [c]ourt shall make
         part of the record, and disclose in open court at the time of
         sentencing, a statement of the reason or reasons for the
         sentence impose[d,] nor did it follow the limitations set forth
         in 42 Pa.C.S.[A.] § 9771 when imposing a sentence of total
         confinement?

Brief for Appellant at 5.

      Fauntleroy first claims that the trial court imposed an illegal sentence,

because his probationary sentence had expired prior to his commission of the

offense giving rise to his instant VOP. Id. at 13. Fauntleroy states that on

February 3, 2010, he was sentenced to 3-23 months’ confinement with

immediate parole, followed by one year of reporting probation. Id. at 14.

Fauntleroy states that the conduct forming the basis of his VOP occurred on

November 27, 2012, 25 days after his probation had expired. Id. Fauntleroy


                                      -3-
J-S75041-18


concedes that he had “a series of positive drug tests from July through

October, immediately preceding the expiration of his probation, but the court

never acted upon these positive drug tests.” Id. at 15. Fauntleroy asserts

that because the sentencing court had failed to act on his positive drug tests,

before his probation expired, the court lacked the authority to revoke his

probation and impose a new sentence. Id. at 16.

      “[I]n an appeal from a sentence imposed after the court has revoked

probation, we can review the validity of the revocation proceedings, the

legality of the sentence imposed following revocation, and any challenge to

the discretionary aspects of the sentence imposed.”         Commonwealth v.

Wright, 116 A.3d 133, 136 (Pa. Super. 2015).            Fauntleroy’s first claim

challenges the legality of his sentence.

      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. 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. Karth, 994 A.2d 606, 607 (Pa. Super. 2010) (citation

omitted). “[T]he determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Williams, 868 A.2d 529,

532 (Pa. Super. 2005).




                                      -4-
J-S75041-18


      In its Opinion, the trial court disputes Fauntleroy’s assertion that no VOP

took place prior to the natural expiration of his probationary sentence.

Specifically, the trial court found that

      [Fauntleroy] tested positive for THC multiple times between July
      12, 2012, and November 7, 2017. As a result of the positive
      urinalysis results, a [VOP] hearing was scheduled before this
      [c]ourt, thus extending [Fauntleroy’s] probation beyond its
      natural end date. While awaiting a VOP hearing before this
      [c]ourt, [Fauntleroy] was arrested and charged with [t]hird[-
      d]egree[-m]urder and related charges. [Fauntleroy] pled guilty
      to [t]hird[-d]egree[-m]urder and related charges before [the trial
      court] on September 8, 2014….

Trial Court Opinion, 5/10/18, at 1-2.

      Our review of the record discloses that on October 22, 2012, during

Fauntleroy’s probationary period, the trial court issued a VOP hearing Notice

to Fauntleroy. See Trial Court Docket, 10/22/12. Thus, the trial court issued

its Notice prior to the expiration of Fauntleroy’s probationary sentence, and

Fauntleroy is not entitled to relief on this claim. See Wright, 116 A.3d at 137

(stating that “a sentence for a violation of the terms of probation can be

imposed after the expiration of the probationary period if the revocation is

based on a violation which occurred within the probationary period.”).

      In his second claim, Fauntleroy argues that the trial court imposed an

illegal sentence when it sentenced him to five to ten years in prison for his

conviction of criminal conspiracy when, “at the time of the original sentence[,]

the count merged and no penalty was assessed.” Brief for Appellant at 16.

Fauntleroy directs our attention to this Court’s decision in Commonwealth v.


                                       -5-
J-S75041-18


Williams, 997 A.2d 1205 (Pa. Super. 2010), as barring a probation revocation

court from resentencing an offender, who previously had been subject to a

“guilt without punishment” sentence, after the period for altering or modifying

the sentence has expired. Brief for Appellant at 17.

      In Williams, the defendant entered a negotiated plea whereby he pled

guilty to one count each of corruption of minors and indecent assault at one

criminal information number, and one count each of corruption of minors and

indecent assault at a second criminal information number. Williams, 997

A.2d at 1206. For his conviction of corruption of minors at the first criminal

information number, and the conviction of indecent assault at the second

criminal information number, the trial court imposed concurrent sentences of

one year less a day to two years less two days in prison, followed by three

years of probation. Id. For his remaining convictions, the trial court imposed

“no further penalty.” Id. Subsequently, the defendant violated his probation.

Id. At resentencing following the VOP hearing, the trial court sentenced the

defendant to consecutive terms of 2½ to 5 years in prison for his convictions

of indecent assault and corruption of minors at the first criminal information

number, and consecutive prison terms of 2½ to 5 years for his convictions of

indecent assault and corruption of minors at the second criminal information

number.   Id. at 1207.

      On appeal, this Court vacated the defendant’s sentences for one count

of indecent assault and one count of corruption of minors, i.e., the convictions


                                     -6-
J-S75041-18


that previously were subject to a guilt with “no further penalty” sentence. Id.

at 1210. This Court explained that

      [a] determination of guilt without further imposition of penalty
      constitutes a final, appealable order. A trial court may alter or
      modify a final order within thirty days after its entry, if no appeal
      is taken. Once the thirty-day period for altering or modifying
      sentence is over, the trial court loses power to alter its orders.
      Furthermore, a modification of sentence imposed on a criminal
      defendant which increases his punishment constitutes double
      jeopardy.

      Although the trial court acted within its power when it revoked
      appellant’s probation and resentenced her for the simple assault
      conviction, the trial court erred when it resentenced appellant for
      the PIC conviction. First, the trial court had already issued a final
      sentence for the [possession of an instrument of crime] conviction
      in the form of a guilt determination without further penalty. The
      thirty-day period in which it could have altered the sentence
      expired, and the appellant did not appeal. Therefore, the trial
      court did not have the power to alter or modify the no-further-
      penalty sentence it had initially imposed upon appellant. Thus,
      the increased punishment appellant received for her [possession
      of an instrument of crime] conviction[,] following her resentencing
      for violating her probation for the simple assault conviction[,]
      constituted a denial of appellant’s constitutional right not to be
      subject to double jeopardy.

Id. at 1209. Thus, this Court concluded that “a probation revocation court

does not have the authority to re-sentence an offender on a final guilt-without-

punishment sentence after the period for altering or modifying the sentence

has expired.” Id.

      In this case, the trial court did not expressly impose a “guilt without

further penalty” sentence, mistakenly believing that Fauntleroy’s conspiracy

conviction merged at sentencing.     Regardless of the trial court’s intention,

however, the record clearly reflects that the trial court imposed no penalty for

                                      -7-
J-S75041-18


Fauntleroy’s conspiracy conviction. Applying the reasoning of this Court in

Williams, we conclude that the trial court’s imposition of no penalty for

Fauntleroy’s conspiracy conviction constituted a final sentence. Because the

trial court did not amend or modify that sentence within 30 days, it cannot

now do so under the guise of resentencing upon a probation violation. 4 See

42 Pa.C.S.A. § 5505 (providing that a trial court may amend or modify a final

order within 30 days of its entry).            We therefore vacate the trial court’s

sentence for Fauntleroy’s conviction of criminal conspiracy.

       In his third claim, Fauntleroy challenges the discretionary aspects of his

sentence. Brief for Appellant at 18. “A challenge to the discretionary aspects

of   sentencing      is   not    automatically     reviewable   as   a   matter   of

right.” Commonwealth v. Grays, 167 A.3d 793, 815 (Pa. Super. 2017).

Prior to reaching the merits of a discretionary sentencing issue,

       [w]e conduct a four-part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
       and 903; (2) whether the issue was properly preserved at
       sentencing or in a motion to reconsider and modify sentence, see
       [Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal
       defect, 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, 42 Pa.C.S.A. § 9781(b).

Grays, 167 A.3d at 815-16 (citation omitted).




____________________________________________


4 In its appellate brief, the Commonwealth agrees that the trial court lacked
the authority to resentence Fauntleroy for his criminal conspiracy conviction.
See Brief for the Commonwealth at 7-8.

                                           -8-
J-S75041-18


      Here, the PCRA court granted Fauntleroy leave to file a direct appeal,

nunc pro tunc. Fauntleroy properly preserved his claim in a post-sentence

Motion, and included in his brief a Statement of Reasons relied upon for

allowance of appeal, in accordance with Pa.R.A.P. 2119(f). Consequently, we

next determine whether Fauntleroy has raised a substantial question that his

sentence is appropriate under the Sentencing Code.

      In his Statement of Reasons relied upon for allowance of appeal,

Fauntleroy argues that the trial court’s sentence is manifestly excessive. Brief

for Appellant at 12. Fauntleroy further asserts that “the record is silent as to

whether the [trial] court fully considered the factors under 42 Pa.C.S.[A.]

§ 9721(b)[.]”   Brief for Appellant at 11.    According to Fauntleroy, “[t]he

sentencing court merely sentenced [] Fauntleroy to the statutory minimum

and maximum for each offense, not even taking into consideration the time

previously served on each offense.” Id.

      A claim that the trial court failed to state adequate reasons on the record

for imposing a sentence outside of the sentencing guidelines presents a

substantial question. Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.

Super. 2014). Further, “an excessive sentence claim—in conjunction with an

assertion that the court failed to consider mitigating factors—raises a

substantial question.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.

Super. 2015) (en banc). Because Fauntleroy raises a substantial question, we

will address his challenge to the discretionary aspects of his sentence.


                                      -9-
J-S75041-18


     Fauntleroy argues that the trial court abused its discretion by sentencing

him to an excessive sentence, outside of the guidelines, without placing

adequate reasons for that sentence on the record. Brief for Appellant at 18.

In its Opinion, the trial court agrees, stating that, “[h]aving reviewed

[Fauntleroy’s] statement and the record, this [c]ourt agrees that it erred in

failing to state adequate reasons for its sentence on the record.” Trial Court

Opinion, 5/10/18, at 2. Our review of the record confirms the trial court’s

assessment.   Therefore, we vacate Fauntleroy’s judgment of sentence and

remand for resentencing.

     Judgment of sentence vacated.           Case remanded for resentencing

consistent with this Memorandum. Superior Court jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/19




                                    - 10 -
