J-S54020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

 EDWARD ALLEN LANE

                             Appellant                  No. 34 WDA 2017


             Appeal from the Judgment of Sentence December 5, 2016
                  In the Court of Common Pleas of Butler County
               Criminal Division at No(s): CP-10-CR-0000626-2009


BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                     FILED NOVEMBER 17, 2017

       Edward Allen Lane appeals from the December 5, 2016 judgment of

sentence entered in the Butler County Court of Common Pleas following

revocation of his probation. We vacate and remand for resentencing.

       On September 22, 2009, Lane pled guilty to two counts each of indecent

assault – threat of forcible compulsion and corruption of minors. 1       On

December 23, 2009, the trial court sentenced Lane to 17 to 34 months’

incarceration followed by two years’ probation for each indecent assault

conviction and 13 to 26 months’ incarceration followed by one year of




____________________________________________


       *   Former Justice specially assigned to the Superior Court.

       1   18 Pa.C.S. §§ 3126(a)(3) and 6301(a)(1)(i), respectively.
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probation for each corruption of minors conviction. The trial court directed

that Lane serve these sentences consecutive to one another.

       On June 8, 2014, Lane was paroled by the Pennsylvania Board of

Probation and Parole (“PBPP”). As part of his parole agreement, the PBPP

directed that Lane have no contact with anyone under the age of 18 years old

or “loiter, attend, visit, or participate in events where the primary activity at

such locations involves persons under the age of 18 years without the prior

written approval of probation/parole supervision staff.” Conditions Governing

Parole, 6/6/14, at 3. On October 21, 2016, the PBPP requested that the trial

court lodge a parole detainer on Lane, alleging that he had contact with a

person under the age of 18 and was present at an elementary school. That

same day, the trial court granted the request and ordered Lane detained

pending a hearing.

       On December 5, 2016, the trial court held a Gagnon2 hearing, at which

Lane admitted the violation. At the end of the hearing, the trial court revoked

Lane’s probation and resentenced him to one to eight years’ incarceration. On

December 8, 2016, Lane filed a post-sentence motion to modify sentence,

which the trial court denied on February 6, 2017. On December 29, 2016,

Lane timely filed a notice of appeal.3

____________________________________________


       2   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

       Lane’s notice of appeal is timely because the filing of motion to modify
       3

sentence imposed after a revocation of probation does “not toll the 30-day
appeal period.” Pa.R.Crim.P. 708(E).

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      Lane raises one issue on appeal: “Whether the sentencing court abused

its discretion by reaching a manifestly unreasonable conclusion, or erred as a

matter of law, when it revoked [Lane]’s probation and resentenced him to

serve a period of incarceration of not less than 12 months nor more than eight

years?” Lane’s Br. at 6 (full capitalization omitted).

      Preliminarily, we must address an issue regarding the legality of Lane’s

sentence. Although legality is not raised in his Pennsylvania Rule of Appellate

Procedure 1925(b) statement or his statement of questions involved, Lane

argues that the trial court’s sentence exceeded the statutory maximum for

each of his convictions. Lane asserts that the trial court improperly sentenced

him to one to eight years’ incarceration on each conviction, which is greater

than the 5-year maximum sentence for first-degree misdemeanors.              This

assertion – that the sentence was imposed on each conviction, rather than in

the aggregate across all convictions – is supported by both the trial court

docket and the DC-300B forms sent to the Pennsylvania Department of

Corrections.

      The legality of a particular sentence is a non-waivable issue.

Commonwealth v. Kline, 166 A.3d 337, 340 (Pa. Super. 2017).                “If no

statutory authorization exists for a particular sentence, that sentence is illegal

and subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915

(Pa.Super. 2014) (quoting Commonwealth v. Mears, 972 A.2d 1210, 1211

(Pa.Super. 2009)).    “An illegal sentence is one that exceeds the statutory

limits.”   Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003)

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(quoting Commonwealth v. Hunter, 768 A.2d 1136, 1144 n.3 (Pa.Super.

2001)).

     With respect to sentencing orders, this Court has stated:

          The only sentence known to the law is the sentence or
          judgment entered upon the records of the court. [A]
          sentence . . . is to be construed so as to give effect to the
          intention of the sentencing judge.         To determine this
          intention the reviewing court limits itself to the language of
          the written judgment, despite oral statements of the
          sentencing judge not incorporated into it.

Commonwealth v. Kennedy, 868 A.2d 582, 591-92 (Pa.Super. 2005)

(quoting Commonwealth v. Johnson, 860 A.2d 146, 152 (Pa.Super. 2004)).

“Additionally, ‘[w]hatever sentence is imposed can only be imposed upon a

named, specific crime. Where there is more than one, each should be named

of record and for each a specific sentence should be imposed according to the

penalty prescribed for that offense.’” Id. at 592 (quoting Commonwealth v.

Hitchcock, 565 A.2d 1159, 1162 (Pa. 1989)).

     Here, the trial court entered the following sentencing order:

             NOW, this 5th day of December, 2016, [Lane] appeared
          and the Court heard testimony from Chris McAndrew of the
          [PBPP]. [Lane] has acknowledged that he violated the
          terms of his probation supervision by being present at an
          elementary school and by having contact with minors.
          [Lane]’s probation is therefore revoked.        He shall be
          resentenced to serve a period of incarceration of not less
          than 12 months nor more than eight years. All other terms
          and conditions of the former sentence shall remain in effect.
          [Lane] shall receive credit for time served which is not used
          for his parole violation.




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Trial Ct. Order, 12/5/16.       This sentencing order does not tie the sentence

imposed to any particular conviction, and as set out in the docket exceeds the

maximum for each of Lane’s convictions.4 Accordingly, we are constrained to

vacate the judgment of sentence and remand for resentencing.5

       Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2017


____________________________________________


       4 As noted above, the trial court docket and the DC-300B forms sent to
the Pennsylvania Department of Corrections interpret the sentencing order as
revoking Lane’s probation and imposing one to eight years’ incarceration on
each conviction, to be served concurrent to one another. If the trial court’s
sentencing order intended to revoke probation and sentence Lane at each
conviction to an additional one to eight years’ incarceration, the sentence is
illegal. See 18 Pa.C.S. § 1104(a) (limiting maximum sentence for first-degree
misdemeanor conviction to five years). While we understand that the trial
court was attempting to sentence Lane so that he would be “supervised by
the [PBPP] as part of parole conditions rather than probation,” N.T, 12/5/16,
at 12, in so doing the trial court appears to have inadvertently imposed an
illegal sentence of one to eight years’ incarceration on each conviction, which
exceeds the maximum sentence of five years’ incarceration for a first-degree
misdemeanor conviction. We recognize that on remand the trial court could
achieve the same result, should it choose to do so, by apportioning the
sentence among multiple convictions.

       In light of our disposition, we decline to address Lane’s discretionary
       5

aspects of sentencing claim.


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