J-S60026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JESSIE KIRCHNER

                            Appellant                No. 1648 EDA 2015


               Appeal from the Judgment of Sentence May 1, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005550-2014


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 25, 2016

        Jessie Kirchner appeals from the judgment of sentence imposed on

May 1, 2015, in the Court of Common Pleas of Philadelphia County, following

the revocation of Kirchner’s parole and probation at docket number CP-51-

CR-0005550-2014. In this timely appeal, Kirchner raises two issues.        He

claims, first, the sentence of three to six years’ incarceration is manifestly

excessive, and second, the sentence is illegal because the original sentence

on the burglary/theft charges of 11½ to 23 months’ imprisonment, with

immediate parole, had no associated term of probation. Although the trial

court asserts Kirchner was properly sentenced for a probation violation, the

Commonwealth has filed a brief agreeing with Kirchner that his sentence is

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*
    Retired Senior Judge assigned to the Superior Court.
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illegal.   After a thorough review of the submissions by the parties, the

certified record and relevant law, we vacate the sentence and remand to the

trial court for resentencing.

       Because we agree with Kirchner that his sentence is illegal, we need

not address his claim challenging the discretionary aspects of his sentence.

Our scope and standard of review for a claim of an illegal sentence are as

follows:

       A claim that implicates the fundamental legal authority of the
       court to impose a particular sentence constitutes a challenge to
       the legality of the sentence. If no statutory authorization exists
       for a particular sentence, that sentence is illegal and subject to
       correction. An illegal sentence must be vacated. When the
       legality of a sentence is at issue on appeal, our standard of
       review is de novo and our scope of review is plenary.

Commonwealth v. Martinez, 141 A.3d 485, 487 (Pa. Super. 2016)

(citation omitted).

Further,

       ‘Upon revocation of probation a sentencing court possesses the
       same sentencing alternatives that it had at the time of initial
       sentencing.’ Commonwealth v. Byrd, 444 Pa.Super. 86, 663
       A.2d 229, 231 (1995), citing 42 Pa.C.S. § 9771.
       …
       On the other hand, “a parole revocation does not involve the
       imposition of a new sentence.” Commonwealth v. Kalichak,
       943 A.2d 285, 290 (Pa. Super. 2008) (citing Commonwealth v.
       Mitchell, 429 Pa.Super. 435, 632 A.2d 934, 936 (1993)).
       “Rather, the only option for a court that decides to revoke parole
       is to recommit the defendant to serve the already-imposed,
       original sentence. At some point thereafter, the defendant may
       again be paroled.” Id. (internal citations and footnote omitted);
       see also Commonwealth v. Galletta, 864 A.2d 532, 538 (Pa.
       Super. 2004) (finding that in a violation of parole, the court is
       not free to impose a new sentence); Commonwealth v. Ware,

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         737 A.2d 251, 253 (Pa. Super. 1999) (holding that “upon
         revocation of parole, the only sentencing option available is
         recommitment to serve the balance of the term initially
         imposed”).

Commonwealth v. Melius, 100 A.3d 682, 686 (Pa. Super. 2014).

         Our review1 reveals that on October 24, 2014, Kirchner entered into

an open plea at docket numbers CP-51-CR-0005550-2014 (hereinafter

5550-2014), CP-51-CR-0005551-2014 (hereinafter 5551-2014), and CP-51-

CR-0005552-2014 (hereinafter 5552-2014).2,        3
                                                      Relevant to this appeal, on

December 29, 2014, at docket number 5550-2014, Kirchner was sentenced

to concurrent terms of 11½ to 23 months’ incarceration for burglary and

theft.    He was also sentenced to two years of probation on the charge of

possession of an instrument of crime and one year of probation on the

charge of criminal mischief.        The probationary sentences were concurrent

with each other and consecutive to the sentences for burglary/theft.
____________________________________________


1
   The certified record in this matter is from the violation of parole/probation
aspect of Kirchner’s case and includes virtually no documents from the initial
file that concluded with Kirchner’s guilty plea and sentencing.
2
  Although docket number 5550-2014 and 5552-2014 were before the court
at the May 1, 2015 parole/probation violation hearing, only the sentence at
docket number 5550-2014 was appealed and is currently under our
consideration.
3
  From reading the affidavit of probable cause, it appears that Kirchner, on
consecutive days, broke into Richmond Hall and stole items. This would be
the facts of dockets 5550-2014 and 5552-2014.           Kirchner reportedly
assaulted his roommate with a cane. This appears to be the facts of the
charges at docket number 5551-2014. There is no indication that the
charges were consolidated or that the charges were alleged to be part of the
same criminal episode.



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Additionally,    the    trial   court   immediately   paroled   Kirchner   on   the

burglary/theft charges to “Self Help.”           Although, Kirchner’s aggregate

sentence at docket 5550-2014 was 11½ to 23 months of incarceration,

followed by two years of probation, no sentence of probation was directly

associated with the burglary/theft charges.4

       On January 28, 2015, Kirchner was accepted into the Self Help

program. He tested positive for heroin use in March, 2015. Approximately

two weeks later, on April 7, 2015, Kirchner left the program against staff

advice and he was subsequently terminated from the program. On April 15,

2015, Kirchner was arrested as an absconder.

       On May 1, 2015, a Gagnon II hearing was held relevant to docket

numbers 5550-2014 and 5552-2014. At the hearing, the following exchange

took place:

       [ADA]: He’s currently on parole. I’m asking you to find him in
       anticipatory breach of his probation. He’s got - it was 11 and a
       half to 23 is what he was sentenced to. I think that’s set to
       expire – because you gave him credit for time served.[5]

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4
 The relevant docket entries from 12/29/2014, for original sentencing show:
Burglary, 18 Pa.C.S. § 3502(a)(4) 11½ - 23 months [Kirchner] immediately
paroled to FIR program Self Help; Criminal Trespass, 18 Pa.C.S. §
3503(a)(1)(ii), merged; Theft by Unlawful Taking, 18 Pa.C.S. § 3921(a);
11½ - 23 months; Receiving Stolen Property, 18 Pa.C.S. § 3925(a), merged;
Possession of an Instrument of Crime, 18 Pa.C.S. § 907(a), probation 2
years; and Criminal Mischief, 18 Pa.C.S. § 3304(a)(2), probation 1 year.
5
  The certified record does not reveal the actual date Kirchner’s parole was
set to expire.



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     THE COURT: I gave him immediate parole to treatment.

     [ADA]: And you gave him immediate parole to treatment. It’s
     set to expire – the parole is set to expire – do the math[.]

     THE COURT: But if I violate him on the parole, I can go back to
     the sentencing guidelines; correct?

     [ADA]: If you violate him on parole … you can sentence him to
     his backtime. If you anticipatorily violate him on his probation,
     you can sentence him to whatever you want.

     THE COURT: Let me see counsel in the back.

     THE CRIER: Ready for him?

     THE COURT: All right. I’ve had some discussions with counsel.
     Sir, I’m going to find you in anticipatory breach of your
     probation, which is under my purview, and I’m going to sentence
     you to three to six years in state prison followed by three years
     reporting probation. And when you’re in, I want mandatory drug
     treatment and counseling for you because if you don’t get it out
     of the way from where you’re used to being, you’re never going
     to get clean. That’s my sentence.

     [DEFENSE COUNSEL]: Your Honor, I just ask if Your Honor would
     consider him being Boot Camp eligible, triple R-I eligible, and
     consider a stipulation to SCI Chester.

     [ADA]: I don’t have a problem with SCI Chester. I don’t think
     he’s triple R-I eligible because of his prior convictions, one of
     them being simple assault and PIC. I don’t know about Boot
     Camp.

     THE COURT: Well, file something with me after you find out
     whether he is for those – those things, and then I’ll consider it at
     that time.

     [DEFENSE COUNSEL]: Okay. Thank you.

     THE CLERK: So how are you fashioning the sentence?




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        THE COURT: On No. 13,[6] it’s three to six years.

        THE CLERK: Yeah. Okay. But is that on all of the felonies? How
        do you want it, Judge?

        [ADA]: I would ask Your Honor that you put the three to six
        years on the burglary. And then for the other charges, I guess
        it’s just parole to continue.

        THE COURT: No.

        [DEFENSE COUNSEL]: No further penalty on –

        THE COURT: Yeah. We can – yeah. Three to six years I’ll put on
        the burglary; and the 2 through 6 on case No. 13 [7] will be no
        further penalty. And then on 14, the burglary will be three years
        reporting probation to start after he gets out. And then no
        further penalty on the remaining charges.

N.T. Gagnon II Hearing, 5/1/2015, at 10-12.

        Both Kirchner and the Commonwealth acknowledge that Kirchner’s

original sentence for burglary on docket number 5550-2014 was for 11½ to

23 months’ incarceration, with immediate parole to treatment with no

accompanying sentence of probation on that charge.          Our review of the

certified record before us confirms that fact.      Because Kirchner was on

parole for that sentence and there was no associated sentence of probation,

“the only option for a court that decides to revoke parole is to recommit the

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6
  At the beginning of the hearing, the Crier states on the record: “This is No.
13 and 14, Jessie Kirchner, CP-5550 and 5552-2014.” Accordingly, “No. 13”
references 5550-2014.
7
    This references the remaining counts on docket number 5550-2014.




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defendant to serve the already-imposed, original sentence.” Melius, supra,

at 686. The trial court had no authority to impose a new sentence on that

charge. Accordingly, that sentence is illegal and must be vacated. Because

vacating the revocation sentence for burglary clearly upsets the entire

revocation sentencing scheme for docket number 5550-2014, we vacate the

entire   revocation sentence        at that      docket number   and remand for

resentencing.      See Commonwealth v. Brown, 26 A.3d 485, 510 (Pa.

Super. 2011) (“[W]here this Court vacates a conviction in a multiple count

appeal, and vacating the conviction               upsets the trial court's overall

sentencing scheme, this Court must remand for re-sentencing because

sentencing lies within the sole discretion of the trial court.”).8

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8
   In its appellee’s brief, the Commonwealth suggests the trial court can
resentence on the revocation sentence at docket number 5552-2014 as well.
From the trial court opinion, it appears the original sentence on 5552-2014
was identical to that sentence imposed on 5550-2014 and the two were to
be served concurrently. See Trial Court Opinion, 9/15/2015, at 2, n.2.
However, as previously noted, there is nothing in the certified record to
indicate the docket numbers were consolidated or that the sentences on
each docket number were dependent upon each other. No appeal has been
filed regarding docket number 5552-2014. Therefore, that sentence is not
before us and we have no jurisdiction to vacate that sentence. See Pa.R.A.P.
341, comment (requiring separate appeals for separate docket numbers).

The trial court also noted, in footnote 3 of the September 15, 2015 opinion,
that on May 1, 2015, Kirchner was determined to be in violation of his
probationary sentence on docket number 5551-2014. Other than in the trial
court’s opinion, the certified record before us does not refer to that docket
number. No appeal has been filed at that docket number. Therefore, that
sentence is not before this Court.

(Footnote Continued Next Page)


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      Judgment of sentence vacated.               This matter is remanded for

resentencing on docket number CP-51-CR-0005550-2014.               Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016




                       _______________________
(Footnote Continued)

The trial court has filed a supplemental opinion asserting it had the authority
to impose the three to six year sentence as Kirchner had violated his
probation. As we have explained, Kirchner only violated probation regarding
the sentences originally imposed on the charges of PIC and criminal
mischief. For those two charges, upon resentencing, the trial court is free to
consider any sentence alternative it possessed at the time of the original
sentencing. See 42 Pa.C.S. § 9771(b).




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