J-S86019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JEFFREY ALLEN BLANK

                            Appellant                   No. 341 WDA 2016


             Appeal from the Judgment of Sentence January 29, 2016
                   In the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-CR-0001997-2011


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                          FILED JANUARY 27, 2017

       Jeffrey Allen Blank appeals from the January 29, 2016 judgment of

sentence entered in the Erie County Court of Common Pleas following his

revocation of parole and probation on a conviction for persons not to possess

a firearm.1 We affirm.

       On May 17, 2011, Blank was sentenced to 4 to 23 months’

incarceration on a separate criminal conviction for theft by unlawful taking 2

and ordered to report to the Erie County Sheriff’s Office on May 20, 2011 to

begin serving his sentence. Blank failed to appear on that date, and on May

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       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. § 6105(c)(1).
       2
           18 Pa.C.S. § 3921.
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23, 2011, the Erie County Court of Common Pleas issued an arrest warrant.

On June 24, 2011, United States Marshals and representatives of the

Pennsylvania State Police attempted to serve the arrest warrant on Blank at

the trailer park in which he resided. After locating the trailer Blank rented

and receiving permission of the trailer’s owner, police forced entry into the

trailer and found Blank at the rear of the trailer. Police found Blank pointing

a handgun at his right temple with his finger on the trigger; Blank told police

he did not want to go to prison.          After a series of negotiations, Blank put

down the weapon and surrendered to police.

       On August 30, 2011, Blank pled guilty to the persons not to possess a

firearm.3    On October 12, 2011, Blank was sentenced to 1 to 2 years’

incarceration for the firearm conviction, to be served consecutive to his

sentence for the theft conviction, followed by 3 years’ probation, to be

supervised by the Pennsylvania Board of Probation and Parole (“Board”). On

October 24, 2011,4 the trial court submitted a request to the Board that

Blank be placed on special probation and remain under the Board’s

supervision.

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       3
        Blank also pled guilty to recklessly endangering another person, 18
Pa.C.S. § 2705, and was sentenced to a concurrent term of 1 to 2 years’
incarceration.
       4
        The request for special probation/parole supervision was dated
October 20, 2011, but was signed on October 24, 2011 and filed with the
Erie County Clerk of Courts on October 31, 2011.



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       On January 4, 2016, Blank pled guilty to acquiring a controlled

substance by misrepresentation5 and received a sentence of 5 to 12 months’

incarceration.     On January 29, 2016, the trial court held a probation

revocation hearing, wherein Blank’s counsel stated that, “because of nature

of the timing in all of this, he is [or was] still facing a revocation for the state

parole portion”:

            [BLANK’S COUNSEL]: I did check with his probation –
            parole officer.    Basically, he is going back for the
            revocation proceedings with the state system. And my
            guess, in all likelihood, they will probably give him
            something out of it.      And they will probably include
            treatment as a portion of that. And for that reason, Your
            Honor, because of the new sentence and because of the
            other sentence – I know it may be an unusual request –
            I’d ask the Court to continue the probation tail that the
            Court had originally imposed, the three years, and make it
            consecutive to the sentence that is currently in place.

N.T., 1/29/16, at 8. The trial court found that Blank violated the terms of

his parole and probation, revoked Blank’s parole and probation, and imposed

a new sentence as follows:

            THE COURT: I’m going to do the following. I thought
            about this case. I’m going to do the following: I’m going
            to revoke – on the firearm charge, I’m going to revoke.
            I’m going to impose a sentence one and a half to five,
            State. It’s my intention that be consecutive to any other
            State sentence he’s serving on the new conviction or on
            his old conviction on the back time. So I’m going to add a
            year and a half minimum to what he’s serving now.

Id. at 9.
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       5
           35 P.S. § 780-113(a)(12).



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      That same day, Blank filed a post-sentence motion, alleging that he

still faced revocation before the Board and, as such, the trial court could only

impose incarceration on Blank for the revoked three-year period of

probation.       On February 1, 2016, the trial court denied the motion.           On

February 8, 2016, Blank filed a motion to correct illegal sentence, asserting

the same issue as in his earlier post-sentence motion.               The trial court

granted this motion on February 9, 2016, amending Blank’s sentence to

credit him with all time served on this conviction.          Blank filed a notice of

appeal on February 29, 2016.

      Blank’s sole stated issue on appeal is “[w]hether [his] sentence is

illegal due to the fact that the trial court’s sentence exceeded the maximum

possible sentence following the probation revocation.” Blank’s Br. at 3.

      “[T]he scope of review in an appeal following a sentence imposed after

probation revocation is limited to the validity of the revocation proceedings

and   the        legality   of   the   sentence   imposed    following   revocation.”

Commonwealth v. Infante, 888 A.2d 783, 790 (Pa. 2005). Any claim that

a “sentence imposed exceeds the statutory maximum . . . . implicates the

legality    of     a   sentence    [and]   presents   a   pure   question   of   law.”

Commonwealth v. Taylor, 104 A.3d 479, 489 (Pa. 2014). “Our standard

of review of such questions is de novo and our scope of review is plenary.”

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.Super. 2014).

      Blank argues that the trial court imposed an illegal sentence because

he had already served time on the original sentence, and apparently would

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likely serve the full two years based on revocation of parole by the Board, so

the trial court only “had the remaining three (3) years from which to fashion

an appropriate sentence.” Blank’s Br. at 7. Thus, according to Blank, the

trial court’s imposition of a maximum sentence of 5 years’ incarceration

actually imposes an aggregate maximum sentence of 7 years’ incarceration,

which exceeds the maximum allowable sentence of 5 years’ incarceration on

his firearm conviction, a first-degree misdemeanor. Id.

       The Commonwealth responds that Blank’s sentence was legal because

the sentence did not exceed the statutory maximum.                 Cmwlth’s Br. at 2.

According to the Commonwealth, “[a]s long as the new sentence imposed

does not exceed the statutory maximum when factoring in the incarcerated

time   already     served,    the    sentence    is   not   illegal.”   Id.   (quoting

Commonwealth v. Crump, 995 A.2d 1280, 1285 (Pa.Super. 2010)). The

Commonwealth argues that “the sentence on its face is within the statutory

maximum and the lower court ensured that [Blank] received all credit for

which he was due.” Id. at 2-3.

       We agree with the Commonwealth.                It is well settled that upon

revocation of probation, “a sentencing court may choose from any of the

sentencing options that existed at the time of the original sentencing,

including incarceration.”6       Commonwealth v. Swope, 123 A.3d 333, 338

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       6
       Section 9771(c) of the Sentencing Code imposes some limitations on
when a sentencing court may impose a sentence of total confinement:
(Footnote Continued Next Page)


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(Pa.Super. 2015) (citing 42 Pa.C.S. § 9771(b)). Further, pursuant to 42

Pa.C.S. § 9760, a sentencing court may impose a statutory maximum

sentence as long as the defendant receives credit for time served such that

he   is   not    incarcerated        in   excess      of   the   statutory   maximum.

Commonwealth v. Williams, 662 A.2d 658, 659 (Pa.Super. 1995).                      In

Williams, we held that, after revoking probation, the trial court erred in

sentencing the defendant to a statutory maximum and failing to credit the

defendant for 23 months already served on the original sentence. Id. We

vacated    the   defendant’s       judgment      of   sentence   and   remanded   with

instructions to impose a revised sentence that did not exceed the statutory

maximum by subtracting the time served (as well as time held on a

probation detainer) from the statutory maximum sentence. Id.




                       _______________________
(Footnote Continued)


          (c) Limitation on sentence of total confinement.--The
          court shall not impose a sentence of total confinement
          upon revocation unless it finds that:

             (1) the defendant has been convicted of another crime;
             or

             (2) the conduct of the defendant indicates that it is
             likely that he will commit another crime if he is not
             imprisoned; or

             (3) such a sentence is essential to vindicate the
             authority of the court.

42 Pa.C.S. § 9771(c).



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       We conclude that Blank is not entitled to relief.          The trial court

corrected its sentence to include credit for time served. Therefore, Blank will

receive credit for time spent incarcerated as a result of the firearms

conviction, and the trial court merely left the time-served calculation to the

Pennsylvania Department of Corrections.7 Because Blank will be given credit

for any time served on the original sentence, we conclude that the trial court

appropriately ensured that Blank will only be subject to a five-year

maximum period of incarceration.

       Further, Blank’s argument regarding the trial court’s inability to

resentence him on his original period of incarceration is meritless. Whatever

action the Board has taken or may take with respect to Blank’s alleged

parole violation,8 it is clear that the trial court retained jurisdiction to revoke

Blank’s probation and sentence him to a period of incarceration.              See

Swope, 123 A.3d at 338. The new sentence was imposed upon the same




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       7
        Should Blank have a grievance with the Pennsylvania Department of
Corrections’ time-served calculation, he still has a form of redress. See,
e.g., Allen v. Dep’t of Corrections, 103 A.3d 365 (Pa. Cmwlth. 2014).
       8
         The authority to revoke parole on sentences that impose
incarceration with a maximum of two years or more is vested in the Board.
The authority to revoke parole on sentences that impose a maximum
incarceration of less than two years is vested in the Courts of Common
Pleas. See 61 Pa.C.S. § 6132; see also Commonwealth v. Tilghman,
673 A.2d 898, 901 (Pa. 1996) (addressing the predecessor to 61 Pa.C.S. §
6132, which has since been repealed but was similarly worded).



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conviction and replaced the prior split sentence of incarceration and

probation, while giving Blank credit for any time served on the conviction. 9

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2017




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       9
        Our decision in no way divests the Board of its authority to recommit
parole violators.   Rather, we reaffirm that the sentencing court, upon
revocation, may re-incarcerate probation violators to a statutory maximum
as long as the violator is credited with time previously served on the
conviction.



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