J-S13005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JAMES NELSON,

                            Appellant                    No. 1121 EDA 2016


         Appeal from the Judgment of Sentence Entered March 9, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001718-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED MARCH 21, 2017

        Appellant, James Nelson, appeals from the judgment of sentence

imposed after he was found to be in violation of his parole, as well as a term

of probation he was serving concurrently. On appeal, Appellant challenges,

inter alia, the legality of his sentence.        After careful review, we vacate

Appellant’s judgment of sentence and remand for resentencing.

        The facts underlying Appellant’s convictions are unnecessary to our

disposition of his appeal. We need only summarize the complex procedural

history of his case as follows.        In May of 2015, Appellant entered a guilty

plea to identity theft, 18 Pa.C.S. § 4120(a), access device fraud (hereinafter,

“fraud”), 18 Pa.C.S. § 4106(a)(1), and theft by unlawful taking (hereinafter,

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*
    Former Justice specially assigned to the Superior Court.
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“theft”), 18 Pa.C.S. § 3921(a). On September 4, 2015, he was sentenced to

11½ to 23 months’ incarceration (with immediate parole) for fraud, three

years’ probation for identity theft, and no further penalty for theft.

       In March of 2016, Appellant violated the conditions of both his parole

and probation sentence. Following a revocation hearing on March 9, 2016,

Appellant’s probation sentence for identity theft was revoked, and he was

resentenced to 2 years’ probation.             Appellant’s parole that he was serving

for fraud was also revoked, and he was resentenced to a new term of

incarceration of 1 to 3 years.         Additionally, while the court had originally

imposed no further penalty for Appellant’s theft conviction, the court

resentenced Appellant to 2 years’ probation for that crime.

       On March 18, 2016, Appellant filed a timely post-sentence motion for

reconsideration of his sentence. When the court did not rule on that motion,

Appellant filed a timely notice of appeal on April 7, 2016.1            On April 12,

2016, the trial court issued an order directing Appellant to file a Pa.R.A.P.

1925(b) statement. Appellant timely complied, asserting, inter alia, that his

sentence of 2 years’ probation for theft was illegal. See Pa.R.A.P. 1925(b)

Statement, 5/3/16, at 2 (unnumbered). Additionally, Appellant challenged



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1
  Under Pa.R.Crim.P. 708(E), “[a] motion to modify sentence imposed after a
revocation … will not toll the 30-day appeal period.” Thus, Appellant only
had until April 8, 2016, to file a timely notice of appeal, as the trial court had
not expressly granted his motion for reconsideration of his sentence.



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the legality of the new sentence of incarceration imposed for his fraud

conviction. Id. at 3 (unnumbered).

        Despite the fact that Appellant’s appeal to this Court was pending, on

May 6, 2016, the trial court issued an order vacating his sentence and

scheduling a hearing on Appellant’s motion for reconsideration of his

sentence. In lieu of this action by the trial court, Appellant filed with this

Court a “Petition for Remand or to Order Trial Court to File Opinion and

Transmit Record.” Before we could rule on Appellant’s petition for remand,

however, the trial court conducted the hearing on July 7, 2016, and

‘corrected’ Appellant’s sentence by imposing 30 days’ to 12 months’

incarceration   for   his   identity   theft   conviction,   11½   to   23   months’

incarceration for his fraud offense, and no further penalty for his theft

conviction. According to the trial court it “rescheduled the reconsideration

sentencing” until August of 2016. See Trial Court Opinion (TCO), 8/15/16,

at 4.

        Meanwhile, on July 15, 2016, this Court issued a per curiam order

directing the trial court “to certify and transmit the record, including its

opinion pursuant to Pa.R.A.P. 1925(a), to the Prothonotary of this Court, no

later than thirty (30) days from the date” on which that order was filed.

Order, 7/15/16. Notwithstanding our directive, the trial court ultimately held

the ‘reconsideration sentencing’ hearing on August 15, 2016.                 At that

proceeding, the court again sentenced Appellant to 30 days’ to 12 months’

incarceration   for   his   identity   theft   conviction,   11½   to   23   months’

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incarceration for his fraud offense, and no further penalty for his theft

conviction.   On August 17, 2016, this Court finally received the certified

record from the trial court.

      Now, on appeal, Appellant raises the following three issues for our

review, which we have reordered for ease of disposition:

      1. Did not the lower court err by imposing new sentences in
      2016 on count 2[, fraud,] of a new period of incarceration upon
      which [Appellant] was sentenced in 2015 to a period of
      incarceration without a consecutive period of probation, and thus
      only a back[-]time sentence was available[,] and on count 3[,
      theft,] on which he was adjudged guilty without further penalty
      in 2015?

      2. Did not the lower court err by entering the May 10, 2016
      order vacating the sentence imposed on March 9, 2016, and
      then imposing new sentences on July 7, 2016 and August 15,
      2016, as the lower court lacked jurisdiction, because more than
      thirty days had passed since the imposition of a sentence for a
      violation of probation and parole, and a timely appeal had been
      taken to this Court?

      3. Did not the lower court err by imposing a manifestly excessive
      sentence of total confinement for minor technical violations,
      where the lower court failed to consider the Sentencing Code in
      imposing the sentence[?]

Appellant’s Brief at 3.

      We begin by addressing Appellant’s challenge to the legality of the

revocation sentence imposed by the trial court on March 9, 2016.          First,

Appellant maintains that the sentence imposed for his fraud offense was

illegal because, after revoking his parole, “the court imposed a new sentence

of incarceration.” Appellant’s Brief at 32. The Commonwealth agrees with

Appellant that his sentence for fraud was illegal. See Commonwealth’s Brief


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at 5 (concluding that Appellant’s sentence for fraud was illegal because the

“court did not sentence him to serve the balance of his original sentence, but

instead ordered him to serve a new term of one to three years”).            In

support, both parties rely on this Court’s decision in Commonwealth v.

Ware, 737 A.2d 251 (Pa. Super. 1999). There, we stated:

     Clearly, the order revoking parole does not impose a new
     sentence; it requires appellant, rather, to serve the balance of a
     valid sentence previously imposed. See Commonwealth v.
     Carter, 336 Pa. Super. 275, 281 n. 2, 485 A.2d 802, 805 n. 2
     (1984). Moreover, such a recommittal is just that - a
     recommittal and not a sentence. Abraham v. Dept. of
     Corrections, 150 Pa. Cmwlth. 81, 97, 615 A.2d 814, 822
     (1992). Further, at a “Violation of Parole” hearing, the court is
     not free to give a new sentence. The power of the court after a
     finding of violation of parole in cases not under the control of the
     State Board of Parole is “to recommit to jail....” See
     Commonwealth v. Fair, 345 Pa. Super. 61, 64, 497 A.2d 643,
     645 (1985) citing 61 P.S. § 314. There is no authority for giving
     a new sentence with a minimum and maximum. Id. at 61, 497
     A.2d at 645.

Ware, 737 A.2d at 253 (quoting Commonwealth v. Mitchell, 632 A.2d

934, 936 (Pa. Super. 1993)).

       Based on Ware, we agree with Appellant, and the Commonwealth,

that Appellant’s March 9, 2016 sentence for fraud was illegal, as it was

imposed after the court revoked his parole for that crime.

     Appellant also argues that his March 9, 2016 sentence for theft was

illegal. He stresses that he was originally sentenced to ‘no further penalty’

for that conviction, yet at the revocation/resentencing hearing, the court

imposed a term of 2 years’ probation for that offense.             Again, the



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Commonwealth agrees with Appellant that his March 9, 2016 sentence for

theft was illegal. See Commonwealth’s Brief at 6 (citing Commonwealth v.

Williams, 997 A.2d 1205, 1210 (Pa. Super. 2010) (holding that a ‘no

further penalty’ sentence carries “an expectation of finality[,]” and “a

probation revocation court does not have the authority to re-sentence an

offender on   a final guilt-without-punishment sentence after the period for

altering or modifying the sentence has expired”) (citing Commonwealth v.

Smith, 678 A.2d 1206 (Pa. Super. 1996)).          Based on our discussion in

Williams, we agree with the parties that Appellant’s March 9, 2016

sentence of 2 years’ probation for theft was patently illegal.

      Having concluded that the court imposed two illegal sentences at the

March 9, 2016 revocation/resentencing hearing, we must now address

Appellant’s argument that the trial court lacked jurisdiction to correct those

illegal sentences in July and August of 2016.        In support of this claim,

Appellant relies on 42 Pa.C.S. § 5505, which states:

      Except as otherwise provided or prescribed by law, a court upon
      notice to the parties may modify or rescind any order within 30
      days after its entry, notwithstanding the prior termination of any
      term of court, if no appeal from such order has been taken or
      allowed.

Appellant stresses that here, not only had thirty days elapsed between his

March 9, 2016 sentencing and the court’s May 6, 2016 order vacating that

sentence, but he had also filed a timely notice of appeal in April of 2016.

Therefore, Appellant asserts that the trial court lacked jurisdiction to vacate

his March 9, 2016 sentence and resentence him.

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     We agree.     Clearly, under section 5505, the court did not have

jurisdiction to vacate the March 9, 2016 sentencing order, as more than 30

days had passed since the filing of that order, and because Appellant had

also filed a notice of appeal.   However, as our Supreme Court has held,

there exists a “limited class of cases amenable to the exercise by a trial

court of the inherent power to correct patent errors despite the absence of

traditional jurisdiction.” Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa.

2007). Here, the trial court concluded that it had such ‘inherent power’ to

correct the illegal sentences imposed on March 9, 2016.      See TCO at 3

(stating that it had “the inherent power to correct [the] obvious and patent

error[s]” contained in the March 9, 2016 sentencing order) (citing

Commonwealth v. Cole, 263 A.2d 339, 341 (Pa. 1970)).

     We recognize that in Holmes, our Supreme Court concluded that a

‘new sentence’ of incarceration, imposed after the defendant’s parole was

revoked, constituted a ‘patent error’ that the trial court had inherent

authority to correct.   See Holmes, 933 A.2d at 66.       Therefore, under

Holmes, it seems that the trial court did have the authority to correct that

same error in Appellant’s sentence for fraud. However, on the two occasions

(July 7, 2016 and August 15, 2016) that the court attempted to correct

Appellant’s fraud sentence, it again imposed a ‘new sentence’ of 11½ to 23

months’ incarceration, and did not expressly give Appellant credit for the

time he had served on that sentence prior to his release on parole. Thus,

even accepting that the court had the authority to correct Appellant’s March

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9, 2016 sentence for his fraud offense, the ‘corrected sentence’ is still illegal

and must be vacated.

       In lieu of this decision, and given the “tortured history” of this case as

a whole, see TCO at 4, we conclude that it is appropriate to vacate

Appellant’s judgment of sentence as a whole, and remand for resentencing

on all of his convictions.2 In particular, for Appellant’s fraud conviction, the

court may resentence him to serve only the balance of the sentence

previously imposed. Additionally, for Appellant’s theft conviction, the court

may only impose a sentence of ‘no further penalty.’ Finally, for Appellant’s

conviction of identity theft, for which the court revoked Appellant’s

probation, “the trial court is limited only by the maximum sentence that it

could have imposed originally at the time of the probationary sentence.”

Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001)

(citations omitted).

       Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.




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2
  Given our decision, we need not address Appellant’s third issue challenging
the discretionary aspects of his sentence.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2017




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