J-S07006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MICHAEL FUSCELLARO,

                         Appellant                   No. 999 EDA 2015


      Appeal from the Judgment of Sentence Entered March 10, 2015
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0710551-2006


BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED MAY 11, 2018

      Appellant, Michael Fuscellaro, appeals from the March 10, 2015

judgment of sentence of 11½ to 23 months’ incarceration, followed by 4 years’

probation, imposed after the trial court revoked a term of probation Appellant

was serving for a robbery conviction. Appellant claims that his sentence for

robbery is illegal because it exceeds the statutory maximum term for that

offense. After careful review, we affirm.

      The facts of Appellant’s case are not necessary to our disposition of his

appeal. We only note that on September 13, 2010, Appellant entered an open

nolo contendere plea to robbery, graded as a second-degree felony, and other

related offenses. That same day, the trial court sentenced him to 2½ to 5

years’ incarceration, followed by four years’ probation, for his robbery

conviction. However, on September 17, 2010, the trial court vacated that
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sentence and resentenced Appellant to a term of 2 to 4 years’ incarceration,

with a consecutive term of 5 years’ probation. Due to procedural complexities

that we need not discuss herein, this Court did not affirm Appellant’s judgment

of sentence until November 20, 2013. Commonwealth v. Fuscellaro, 91

A.3d 1290 (Pa. Super. 2013) (unpublished memorandum). Appellant did not

petition for allowance of appeal with our Supreme Court.

      On March 13, 2013, while Appellant’s direct appeal was pending, the

trial court found that he had violated the conditions of his probation.

Consequently, the court revoked Appellant’s probationary sentence, and

resentenced him to a term of 1½ to 4 years’ incarceration, followed by 2 years’

probation. Appellant did not file a timely direct appeal.

      However, on November 22, 2013, Appellant filed a pro se petition under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 941-9546, alleging, inter

alia, that his robbery sentence was illegal. On March 10, 2015, the PCRA court

issued an order denying in part, and granting in part, Appellant’s PCRA

petition. In regard to granting Appellant relief, the court reinstated his post-

sentence motion and direct appeal rights from the March 13, 2013 revocation

sentence.   That same day, Appellant filed a nunc pro tunc motion for

reconsideration of his March 13, 2013 sentence.        The court granted that

motion and resentenced Appellant to 11½ to 23 months’ incarceration,

followed by 4 years’ of probation, for his robbery conviction.




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       Appellant filed a timely notice of appeal with this Court.1 He raises one

issue for our review:

       1. Did the court issue an illegal sentence for robbery when the
          combined custodial portion of the original sentence (two and
          one[-]half to five years[’] incarceration) and [the] split
          sentence for violation of probation (11½ to 23 months[’]
          incarceration plus four years[’] probation) exceeded the
          maximum permissible sentence for a [second]-degree felony?

Appellant’s Brief at 2.

       Essentially, Appellant complains that his current, split-sentence, added

to his prior custodial sentence, exceeds the statutory maximum permissible

for his robbery conviction. Appellant acknowledges that,

              [w]hen determining whether two split sentences exceed the
       statutory maximum, a defendant is to be given credit for [the]
       custodial portion of the original sentence. If the custodial portion
       of the original sentence exceeds the statutory maximum when
       combined with the custodial and probationary portion of the
       violation of probation sentence, the sentence is illegal.
       Commonwealth v. Crump, 995 A.2d 1280 (Pa. Super. 2010).

Appellant’s Brief at 6-7. In arguing that his sentence is illegal under Crump,

Appellant states that the maximum, custodial portion of his original sentence

was five years’ incarceration. Id. at 7. He then adds that term to his current,

split-sentence of 11½ to 23 months’ incarceration and four years’ probation,



____________________________________________


1 Although Appellant is clearly challenging the legality of the court’s March 10,
2015 sentence, he filed this appeal from the PCRA court’s order denying in
part, and granting in part, his PCRA petition, rather than from the sentencing
order issued that same day. Because this was obviously an oversight by
Appellant, we treat this appeal as stemming from his March 10, 2015
judgment of sentence.

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contending that “the combined total” exceeds the 10-year statutory maximum

term for robbery as a second-degree felony. Id.

       Appellant’s argument is meritless. He wholly ignores that his original

sentence of 2½ to 5 years’ incarceration for robbery was vacated just a few

days after it was imposed, and he was resentenced to 2 to 4 years’

incarceration. See Reconsideration of Sentence Order, 9/17/10, at 1. Adding

that 4-year, maximum term of incarceration to Appellant’s current, split-

sentence of 11½ to 23 months’ incarceration and four years’ probation,

demonstrates that his total sentence is just under the 10-year, statutory

maximum for his robbery conviction. Accordingly, Appellant’s sentence is not

illegal.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/18




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