J-A21001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ZACHARY BLAIR,

                         Appellant                  No. 768 WDA 2016


       Appeal from the Judgment of Sentence Entered April 28, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0000922-2015


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED NOVEMBER 07, 2017

     Appellant, Zachary Blair, appeals from the judgment of sentence of

two years’ probation, imposed following his guilty plea to simple assault, 18

Pa.C.S. § 2701. Appellant contends the sentence is illegal because the trial

court directed that it run consecutively to a sentence which had yet to be

imposed. After careful review, we vacate Appellant’s sentence and remand

for resentencing.

     The facts underlying Appellant’s conviction are not germane to this

appeal. Appellant

     pled guilty to simple assault on December 16, 2015 and at that
     time he was facing unrelated homicide charges at a different
     case number. [Appellant] requested that his sentencing be
     delayed because of a concern that the Commonwealth … would
     seek the death penalty in the homicide case and there was a
     concern as to how the simple assault case would affect the death
     penalty case. The Commonwealth … eventually opted not to
     seek the death penalty in the homicide case. On April 28, 2016,
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      this [c]ourt sentenced [Appellant]. [Appellant] had not yet been
      sentenced on the homicide case.         This [c]ourt sentenced
      [Appellant] to a term of two years' probation upon his release
      from custody on the homicide case.

Trial Court Opinion (TCO), 1/19/17, at 1.

      Appellant did not file any post-sentence motions.    He filed a timely,

court-ordered Pa.R.A.P. 1925(b) statement on June 22, 2016. On June 23,

2016, at CP-02-CR-0015391-2013, the trial court sentenced Appellant to a

term of 15-30 years’ incarceration for third-degree murder, pursuant to a

negotiated guilty plea. The trial court issued its Rule 1925(a) opinion in the

instant case on January 19, 2017.

      Appellant now presents the following question for our review:

      Whether a sentence of two years[’] probation for simple assault
      with an effective date in the unknown future when Appellant
      leaves incarceration is illegal because it essentially is running
      consecutive to a sentence that has not been previously imposed
      and/or runs consecutive to pretrial incarceration, which would
      result in Appellant serving a sentence of probation longer than
      the statutory maximum?

Appellant’s Brief at 5.

      Appellant’s illegal sentencing claim is two-fold.   He first claims his

sentence is illegal because it was issued to run consecutively to a then non-

existent sentence. Second, he asserts that the sentence was illegal because

it exceeded, or could potentially exceed, the statutory maximum penalty for

the offense. Because we agree that Appellant’s sentence is illegal pursuant

to his first argument, we need not address his second.

      [A] challenge to the legality of the sentence can never be waived
      and may be raised by this Court sua sponte. Commonwealth


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J-A21001-17


     v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014) (citation
     omitted).

                                    ***

            “A challenge to the legality of a sentence ... may be
     entertained as long as the reviewing court has jurisdiction.”
     Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.
     Super. 2011) (citation omitted). It is also well-established that
     “[i]f 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)
     (citation omitted). “An illegal sentence must be vacated.” Id.
     “Issues relating to the legality of a sentence are questions of
     law[.] ... Our standard of review over such questions is de novo
     and our scope of review is plenary.” Commonwealth v. Akbar,
     91 A.3d 227, 238 (Pa. Super. 2014) (citations omitted).

Commonwealth v. Wolfe, 106 A.3d 800, 801–02 (Pa. Super. 2014), aff'd,

140 A.3d 651 (Pa. 2016).

     At issue is the trial court’s order imposing on Appellant a term of two

years’ probation, “effective upon [his] release from custody.”   Sentencing

Order, 4/28/16, at 1 (single page). Appellant contends that the trial court

essentially sentenced him to a term of probation consecutive to whatever

sentence would be imposed at CP-02-CR-0015391-2013.          At the time of

sentencing in this matter, Appellant had not yet been sentenced at CP-02-

CR-0015391-2013. The trial court states that the sentence imposed was not

consecutive to any future sentence, but “was to begin upon his release from

custody, whether by [Appellant]’s making bail during the pendency of the

homicide case, a dismissal of the homicide case or an acquittal of the

homicide charges, or the completion of any sentence issued relative to the

homicide case.” TCO at 2.


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J-A21001-17



       The trial court asserts no justification by statute or case law for such a

sentence. Clearly, the beginning date of Appellant’s term of probation was

indeterminate at the time of sentencing, and was largely dependent on the

resulting sentence, if any, of the pending homicide case at CP-02-CR-

0015391-2013.        If and/or when Appellant was sentenced at CP-02-CR-

0015391-2013, his sentence of probation in the instant case would

constitute a consecutive term of probation to that sentence.         We do not

accept the trial court’s semantical argument that a sentence commencing

upon a defendant’s release from custody is substantially different from a

consecutive sentence.           Furthermore, neither the trial court nor the

Commonwealth asserts any statutory authority or other basis in case law for

a sentence imposed in such a manner.1

       “When imposing a sentence of imprisonment, the judge shall state the

date the sentence is to commence.” Pa.R.Crim.P. 705(A). However,

       When more than one sentence is imposed at the same time on a
       defendant, or when a sentence is imposed on a defendant who is
       sentenced for another offense, the judge shall state whether the
       sentences shall run concurrently or consecutively. If the
       sentence is to run concurrently, the sentence shall commence
       from the date of imposition unless otherwise ordered by the
       judge.
____________________________________________


1
  We do not say this to disparage the trial court in any way. Indeed, the
trial court appears to have intended to craft a sentence out of practical
concerns, which balanced Appellant’s right to be sentenced in a timely
manner against the Commonwealth’s interest in having a meaningful
punishment imposed. However, we simply cannot countenance an illegal
sentence, even if it was issued with the best of intentions.



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J-A21001-17



Pa.R.Crim.P. 705(B).

       From these rules, we ascertain three distinct possibilities regarding the

timing of a new sentence.          First, the trial court may impose a sentence

beginning on a date certain. See Pa.R.Crim.P. 705(A). Second, the court

may impose a sentence to run concurrently to a previously-existing

sentence. See Pa.R.Crim.P. 705(A). Third, a court may impose a sentence

to run consecutively to a previously-existing sentence.      Id.   There are no

provisions for the imposition of sentences set to run concurrently or

consecutively to non-existent sentences, nor are there any provisions

permitting the imposition of a sentence upon release from custody.

Accordingly, we are compelled to vacate Appellant’s judgment of sentence

and remand for resentencing.2
____________________________________________


2
   Appellant argues that this Court should simply vacate the consecutive
aspect of Appellant’s sentence, thereby setting the beginning date for that
sentence on April 28, 2016, citing Commonwealth v. Holz, 397 A.2d 407
(Pa. 1979). In Holz, consistent with our disposition here, our Supreme
Court determined that one portion of an aggregate sentence was illegal
because it was set to run consecutively to a sentence in a wholly different
case that had not yet been imposed. In granting relief, the Supreme Court
vacated only the portion of the sentence which was illegal, thereby rendering
it concurrent to the non-illegal portions of the aggregate sentence, rather
than remanding to the trial court for resentencing. Id. at 408. The Holz
Court offered no reason why it had not instead remanded for resentencing.

       Instantly, there is no aggregate sentence at issue, only a single term
of probation. As such, and given the Holz Court’s lack of reasoning for the
form of relief granted, we find that that decision is not controlling.
Moreover, “[t]his Court has the authority to correct an illegal sentence
directly rather than to remand the case for re-sentencing so long as we do
not disrupt the trial court's sentencing scheme in doing so.”
(Footnote Continued Next Page)


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J-A21001-17



      Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2017




                       _______________________
(Footnote Continued)

Commonwealth v. Melvin, 103 A.3d 1, 56 (Pa. Super. 2014) (emphasis
added). It is patently clear from the trial court’s opinion that it did not
intend to issue a sentence which would commence on the date of the
sentencing order, April 28, 2016. Accordingly, this Court believes that the
trial court’s sentencing scheme has been disrupted and, therefore,
resentencing is appropriate in these circumstances.



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