J-S27024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOSHUA SCOTT SCHAUER,

                            Appellant                  No. 722 MDA 2015


             Appeal from the Judgment of Sentence March 18, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000761-2012


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

CONCURRING MEMORANDUM BY SHOGAN, J.:                     FILED JULY 28, 2016


        Upon review of the certified record, I join in the Majority’s decision to

vacate the judgment of sentence and remand for resentencing. However, I

write separately to express my concern regarding the trial court’s failure to

follow the express dictates of Pa.R.Crim.P. 704.

        As the Majority correctly notes, on February 24, 2015, a panel of this

Court vacated Appellant’s initial judgment of sentence due to the imposition

of an illegal mandatory minimum sentence and remanded the case for

resentencing. Commonwealth v. Schauer, 2019 MDA 2013, 120 A.3d 390

(Pa. Super. filed February 24, 2015). Upon remand, the trial court held a

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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brief resentencing hearing on March 18, 2015, and resentenced Appellant to

an aggregate term of incarceration of time served to ten years.

      Pa.R.Crim.P. 704 sets forth the appropriate procedures to be followed

at the time of sentencing. Specifically, Rule 704(C) provides as follows:

      (C) Sentencing Proceeding.

      (1)   At the time of sentencing, the judge shall afford the
      defendant the opportunity to make a statement in his or her
      behalf and shall afford counsel for both parties the opportunity
      to present information and argument relative to sentencing.

      (2) The judge shall state on the record the reasons for the
      sentence imposed.

      (3) The judge shall determine on the record that the defendant
      has been advised of the following:

            (a) of the right to file a post-sentence motion
            and to appeal, of the time within which the
            defendant must exercise those rights, and of
            the right to assistance of counsel in the
            preparation of the motion and appeal;

            (b) of the rights,

                  (i) if the defendant is indigent, to
                  proceed in forma pauperis and to
                  proceed with appointed counsel as
                  provided in Rule 122, or,

                  (ii) if represented by retained counsel, to
                  proceed with retained counsel unless the
                  court has granted leave for counsel to
                  withdraw pursuant to Rule 120(B);

            (c) of the time limits within which post-sentence
            motions must be decided;




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           (d) that issues raised before or during trial shall be
           deemed preserved for appeal whether or not the
           defendant elects to file a post-sentence motion; and

           (e) of the defendant’s qualified right to bail under
           Rule 521(B).
Pa.R.Crim.P. 704(C) (emphases added).         In addition, the      comment

accompanying Pa.R.Crim.P. 704 states the following, in relevant part:

           The judge should explain to the defendant, as clearly as
     possible, the timing requirements for making and deciding a
     post-sentence motion under Rule 720. The judge should also
     explain that the defendant may choose whether to file a post-
     sentence motion and appeal after the decision on the motion, or
     to pursue an appeal without first filing a post-sentence motion.

          Paragraph (C)(3) requires the judge to ensure the
     defendant is advised of his or her rights concerning post-
     sentence motions and appeal, and the right to proceed with
     counsel.

           The rule permits the use of a written colloquy that is read,
     completed, signed by the defendant, and made part of the
     record of the sentencing proceeding. This written colloquy must
     be supplemented by an on-the-record oral examination to
     determine that the defendant has been advised of the applicable
     rights enumerated in paragraph (C)(3) and that the defendant
     has signed the form.

Pa.R.Crim.P. 704 cmt. (citation omitted).

     As this Court has long stated, “[w]hen a judgment has been vacated it

is entirely destroyed and the rights of the parties are left as though no

judgment has been entered.”      Commonwealth v. Anderson, 603 A.2d

1060, 1063 (Pa. Super. 1992) (citations and internal quotations omitted).

After a judgment is vacated, a defendant is basically being “sentenced

anew.”   Id.   “Such a de novo sentencing resuscitates the duties of the


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sentencing court and the rights of the defendant….” Id. Consequently, the

requirements of Pa.R.Crim.P. 704 are resuscitated after a judgment of

sentence is vacated.

     Instantly, my review of the record reflects that the trial judge did offer

Appellant the opportunity to make a statement in his own behalf, as required

under Pa.R.Crim.P. 704(C)(1). N.T., 3/18/15, at 4. However, the trial judge

failed to state on the record the reasons for the sentence imposed as

required under Pa.R.Crim.P. 704(C)(2). Moreover, the trial judge failed to

determine on the record whether Appellant was advised of his post-sentence

and appellate rights as required under Pa.R.Crim.P. 704(C)(3). Indeed, the

trial judge’s only comments at the time of the sentencing were as follows:

           All right. This was remanded on an issue of a mandatory.
     I read the Case Law pretty carefully, and the decision of the
     Court found no merit to the other claims. They basically just
     said, okay, the two year mandatory is not permissible.

                                    ***

            So what I’m going to do is just a technical resentencing.
     It’s the same thing only we’ll just do time served and he’s
     immediately released on parole. All the other conditions will
     remain the same as they would have previously been imposed.

N.T., 3/18/15, at 4-5. At that point, the resentencing proceedings ended.

     Hence, I am compelled to conclude that the trial judge failed to

implement the requirements of Pa.R.Crim.P. 704.         Specifically, the trial

judge did not state on the record the reasons for the sentence imposed as

necessitated under Pa.R.Crim.P. 704(C)(2).      Also, the trial court did not


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apprise Appellant of his post-sentence and appellate rights pursuant to

Pa.R.Crim.P. 704(C)(3).   These duties imposed upon the trial court were

resuscitated after this Court vacated the previous judgment of sentence and

remanded for resentencing.     Anderson, 603 A.2d at 1063.       For these

reasons, I agree with the Majority that we must vacate the judgment of

sentence and remand for further proceedings, which include full and

complete compliance with the dictates of Pa.R.Crim.P. 704.




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