J-S62026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NICHOLAS LEE POTTER

                            Appellant                 No. 534 WDA 2015


          Appeal from the Judgment of Sentence September 15, 2014
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0015710-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                      FILED NOVEMBER 16, 2015

        Appellant Nicholas Lee Potter appeals from the September 15, 2014

judgment of sentence entered in the Allegheny County Court of Common

Pleas. We find the sentence imposed for indecent assault (complainant less

than 13 years of age)1 of 18 to 60 months’ incarceration and 5 years’

probation is illegal because it provides for a maximum sentence of 10 years,2

which exceeds the statutory maximum of 7 years. We vacate the judgment

of sentence and remand for re-sentencing.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3126(a)(7).
2
   The sentencing order provided that Appellant was to begin serving both
the incarceration and probation portion of his sentence on the date of
sentencing.
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        On September 15, 2014, Appellant entered a negotiated guilty plea.

He pled guilty to indecent assault (complainant less than 13 years of age),

graded as a third-degree felony, corruption of a minor,3 and unlawful contact

with a minor.4 N.T., 9/15/2014, at 3-6. The Commonwealth withdrew an

involuntary deviate sexual intercourse count.5      Id. at 2.   The negotiated

sentence was 18 to 60 months’ incarceration, followed by an unspecified

period of probation. Id. at 3.

        The trial court sentenced Appellant that same day to 18 to 60 months’

incarceration and 5 years’ probation at the indecent assault count.      N.T.,

9/15/2014, at 6-7; Order of Sentence, 9/15/2014.          The court imposed no

further penalty at the other counts. Appellant filed a post-sentence motion,

which the trial court denied on February 26, 2015.         On March 27, 2015,

Appellant filed a timely notice of appeal. Both Appellant and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.

        Appellant raises the following issue on appeal:

           1. Whether [Appellant’s] September 15, 2014 judgment of
           sentence at Count 3 is illegal as the concurrent terms of
           1.5 to 5 years’ incarceration and 5 years’ probation
           exceed[] the lawful maximum of 7 years and violates his
           rights against being placed twice in jeopardy – under
           Article 1, section 10 of the Pennsylvania Constitution
____________________________________________


3
    18 Pa.C.S. § 6301(a)(1)(i).
4
    18 Pa.C.S. § 6318(a)(1).
5
    18 Pa.C.S. § 3123(b).



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           and/or the Fifth and Fourteenth Amendments to the United
           States Constitution – and/or violated other law?

Appellant’s Brief at 3. Appellant maintains his sentence is illegal because the

maximum imposed by the trial court, 5 years of incarceration and 5 years of

probation, exceeds the maximum penalty permitted for an indecent assault

conviction.      Id. at 8.        Although the Commonwealth disagrees with

Appellant’s analysis, it agrees we should remand for re-sentencing. Appellee

Brief at 11, 14-15.6

       Appellant challenges the legality of his sentence, which is a question of

law. Our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super.2012).

       “When determining the lawful maximum allowable on a split sentence,

the time originally imposed cannot exceed the statutory maximum,” i.e., the

maximum term of incarceration plus the maximum term of probation cannot

exceed the statutory maximum.              Commonwealth v. Crump, 995 A.2d

1280, 1283-84 (Pa.2010).           The Pennsylvania Rules of Criminal Procedure

provide:

           When more than one sentence is imposed at the same
           time on a defendant, or when a sentence is imposed on a
____________________________________________


6
  Appellant claims that “[e]ven though the sentences may be concurrent
with one another (since the effective dates are the same and there is no
express indication that the sentences run consecutive), concurrent sentences
are considered cumulative for” constitutional purposes. Appellant’s Brief at
7 (internal citation omitted). The Commonwealth maintains a term of
probation cannot be imposed concurrently to a term of incarceration and,
therefore, the sentence is improper. Appellee’s Brief at 14-15.



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          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.

Pa.R.Crim.P. 705. No rule permits a trial court to order the probation and

incarceration imposed as a split sentence for one count to run concurrent to

each other.7

       Appellant was sentenced for indecent assault (person less than 13

years of age), a third-degree felony.            18 Pa.C.S. § 3126(b)(3).   The

maximum penalty for a third-degree felony conviction is 7 years. 18 Pa.C.S.

§ 1103(3).       The trial court sentenced Appellant to 18-to-60 months’

imprisonment and 5 years’ probation at the indecent assault count.

Therefore, the maximum sentence imposed at the indecent assault count is

10 years, which exceeds the maximum allowed for the crime. 18 Pa.C.S. §

1103(3). Accordingly, the sentence is illegal.

       We will vacate the sentence imposed at the indecent assault count.

Further, we will remand for resentencing, as this determination disrupts the

trial court’s sentencing scheme.          See Commonwealth v. Williams, 871
____________________________________________


7
  Further, this Court has stated that “we find no support in the Pennsylvania
statutes that the General Assembly intended to permit defendants to serve a
term of probation and a term of state incarceration simultaneously.”
Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa.Super.2011).                 In
Allhouse, the appellant argued his probation for a sentence imposed in
Clearfield County began immediately following his term of incarceration,
even though he remained incarcerated in a state correctional facility on a
sentence imposed on an unrelated matter in Jefferson County. Id. at 33,
35-26.



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A.2d 254 (Pa.Super.2005) (re-sentencing required where order from

Superior Court disrupts sentencing scheme).

      Judgment of sentence vacated. Case remanded to the trial court for

re-sentencing. Jurisdiction relinquished.

      President Judge Gantman joins in the memorandum.

      Judge Platt concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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