J-S79043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
            v.                            :
                                          :
ROBERT RYGALSKI,                          :
                                          :
                   Appellant              :           No. 166 EDA 2016

             Appeal from the Judgment of Sentence July 8, 2013
            in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-1003751-2004

BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED JANUARY 19, 2017

      Robert Rygalski (“Rygalski”) appeals from the judgment of sentence

entered following the revocation of probation.        We vacate Rygalski’s

judgment of sentence and remand for further proceedings.

      In its Opinion, the trial court summarized the relevant history

underlying the instant appeal, which we adopt as though fully restated

herein. See Trial Court Opinion, 2/23/16, at 1-2.

      Rygalski presents the following claims for our review:

      I. Was the sentence imposed by the trial court, which was 2½
      to five years in state prison[,] unjust, improper, manifestly
      unreasonable, and an abuse of discretion because the process []
      did not take into consideration [Rygalski’s] age, family history
      and rehabilitative needs?

      II. Was the sentence imposed by the trial court illegal because
      the trial court did not order that [Rygalski] be given credit for
      time served?

Brief for Appellant at 2.
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      Rygalski first challenges the discretionary aspects of his sentence. “A

challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.”   Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004) (citation omitted). An appellant challenging the discretionary aspects

of his sentence must invoke this Court’s jurisdiction by satisfying a four-part

test to determine

      (1) whether the appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. [720]; (3) whether the appellant’s
      brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
      is a substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, Rygalski filed a timely Notice of Appeal and preserved his issue

in a post-sentence Motion. Rygalski also included a Rule 2119(f) Statement

in his brief. Accordingly, we will review Rygalski’s Rule 2119(f) Statement to

determine whether he has raised a substantial question.

      Rygalski claims that the trial court abused its discretion by imposing a

sentence of 2½ to 5 years in prison, “which was the maximum allowable

sentence for a first[-]degree misdemeanor in a 53[-]year[-]old individual

who told the court he was sorry for what happened.” Brief for Appellant at

3. Rygalski asserts that the trial court based its sentence only on the crime



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itself, not taking into consideration his age, family history and rehabilitative

needs.   Id.   According to Rygalski, the trial court did not consider a pre-

sentence investigation, or that Rygalski had served three years of probation

prior to this violation.   Id.   Rygalski relies on an error in the trial court’s

Opinion, which states that that Rygalski was on probation for aggravated

assault (a felony), when he was actually on probation for possessing an

instrument of crime (a first-degree misdemeanor).         Id. (citing Trial Court

Opinion, 2/23/15, at 5).     Rygalski additionally asserts that the trial court

failed to take into consideration the factors set forth at 42 Pa.C.S.A. § 9771,

and that his sentence is manifestly excessive. Brief for Appellant at 3.

      As this Court has explained, “[a]n appellant making an excessiveness

claim raises a substantial question when he sufficiently articulates the

manner in which the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code[,] or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (internal citations omitted).

      However, “prior decisions from this Court involving whether a
      substantial question has been raised by claims that the
      sentencing court ‘failed to consider’ or ‘failed to adequately
      consider’ sentencing factors has been less than a model of clarity
      and consistency.” Commonwealth v. Seagraves, 103 A.3d
      839, 842 (Pa. Super. 2014) (citation omitted).                  In
      Commonwealth v. Dodge, [77 A.3d 1263 (Pa. 2013),] [the
      Pennsylvania Supreme] Court determined [that] an appellant’s
      claim that the sentencing court “disregarded rehabilitation and
      the nature and circumstances of the offense in handing down its
      sentence” presented a substantial question. Dodge, 77 A.3d at
      1273.


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     This Court has also held that “an excessive sentence claim—in
     conjunction with an assertion that the court failed to consider
     mitigating    factors—raises    a     substantial    question.”
     Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
     2014), appeal denied, 105 A.3d 736 (Pa. 2014) (quoting
     Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super.
     2005)). Additionally:

         In determining whether a substantial question exists, this
         Court does not examine the merits of whether the
         sentence is actually excessive. Rather, we look to
         whether the appellant has forwarded a plausible
         argument that the sentence, when it is within the
         guideline ranges, is clearly unreasonable. Concomitantly,
         the substantial question determination does not require
         the [C]ourt to decide the merits of whether the sentence
         is clearly unreasonable.

     Dodge, supra, at 1270 (internal citations omitted).

Commonwealth v. Swope, 123 A.3d 333, 339-40 (Pa. Super. 2015).

     Based on our review of the foregoing precedents, we conclude that

Rygalski’s challenge to his sentence as unduly excessive, together with his

claim that the court failed to consider certain factors upon fashioning its

sentence, presents a substantial question.   Thus, we grant his Petition for

allowance of appeal.

     In its Opinion, the trial court addressed the merits of Rygalski’s

challenge to the discretionary aspects of his sentence, and concluded that it

lacks merit.   See Trial Court Opinion, 2/23/16, at 2-5 (addressing the

discretionary aspects of Rygalski’s sentence, and the challenge to his

sentence upon revocation of probation). We agree with the sound reasoning

of the trial court, and discern no abuse of discretion in this regard. See id.



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Accordingly, we affirm on the basis of the trial court’s Opinion with regard to

this claim. See id.

      Rygalski next claims his sentence is illegal because the trial court

failed to give him credit for time served. Brief for Appellant at 10. Rygalski

claims that he should have been given credit from June 8, 2013. Id.

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the

judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1030, 1033-34 (Pa. Super. 2013)

(en banc).

      A challenge to a trial court’s failure to award credit for time served in

custody implicates the legality of the sentence and therefore, is appealable

as of right.   Commonwealth v. Clark, 885 A.2d 1030, 1032 (Pa. Super.

2005). “[T]he determination as to whether the trial court imposed an illegal

sentence is a question of law; our standard of review in cases dealing with

questions of law is plenary.” Commonwealth v. Williams, 868 A.2d 529,

532 (Pa. Super. 2005).

      In its Opinion, the trial court deemed Rygalski’s claim waived, based

upon his failure to lodge an objection at sentencing.     Trial Court Opinion,

2/23/16, at 6. In deeming the claim waived, the trial court relied upon the

Pennsylvania Supreme Court’s decision in McCray v. Pa. Dep’t of Corr.,

872 A.2d 1127 (Pa. 2005). In McCray, the inmate sought relief by means



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of a petition for review, in the original jurisdiction of the Commonwealth

Court, claiming that the Department of Corrections (“the Department”) had

failed to credit him for time served. Id. at 1129. In rejecting the inmate’s

claim, the Supreme Court explained that “[t]he Department is an executive

branch agency that is charged with faithfully implementing sentences

imposed by the courts.     As part of the executive branch, the Department

lacks the power to adjudicate the legality of a sentence or to add or delete

sentencing conditions.”1 Id. at 1133.

      Here, Rygalski challenged the legality of his sentence, in the court with

jurisdiction to adjudicate the legality of his sentence. Further, this Court has

long held that a challenge to the legality of a sentence “is nonwaivable and

may be considered sua sponte by our Court.”               Commonwealth v.

Williams, 662 A.2d 658, 659 (Pa. Super. 1995). As such, we will address

Rygalski’s claim.

      Credit for time served is governed by the Sentencing Code, which

provides, in relevant part, as follows:

      § 9760. Credit for time served

      After reviewing the information submitted under section 9737
      (relating to report of outstanding charges and sentences) the
      court shall give credit as follows:


1
 The Supreme Court ultimately concluded that the Department did not have
a duty to credit the inmate for the time previously served, because the
probation revocation judge did not order credit for time served, “and the
Department is without authority to alter sentencing conditions.” McCray,
872 A.2d at 1133.


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      (1) Credit against the maximum term and any minimum term
      shall be given to the defendant for all time spent in custody as a
      result of the criminal charge for which a prison sentence is
      imposed or as a result of the conduct on which such a charge is
      based. Credit shall include credit for time spent in custody prior
      to trial, during trial, pending sentence, and pending the
      resolution of an appeal.

42 Pa.C.S.A. § 9760(1).

      Here, the Commonwealth concedes that the certified record is deficient

for determining whether Rygalski is entitled to credit for time served. Brief

for the Commonwealth at 13.         As this claim implicates the legality of

Rygalski’s sentence, we deem it necessary to vacate the judgment of

sentence and remand for further proceedings. On remand, the trial court is

directed to ascertain whether Rygalski is entitled to credit for time served,2

and if so, to resentence Rygalski accordingly. If Rygalski is not entitled to

credit for time served, the trial court is directed to resentence Rygalski to

the sentence previously imposed.

      Judgment of sentence vacated.        Case remanded with instructions.

Superior Court jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/19/2017

2
  If necessary, the trial court may conduct an evidentiary hearing regarding
this issue.


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