J-S16015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE MANUEL REYES                          :
                                               :
                       Appellant               :     No. 1843 MDA 2018

       Appeal from the Judgment of Sentence Entered October 24, 2018
                In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0002973-2018


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                       FILED JULY 03, 2019

       Jose Manuel Reyes appeals from the amended judgment of sentence

imposed October 24, 2018, in the Berks County Court of Common Pleas. On

October 9, 2018, a jury convicted Reyes of firearms not to be carried without

a license.1 The trial court sentenced Reyes to a term of three years and six

months to seven years’ incarceration.              On appeal, Reyes challenges the

legality of his sentence. For the reasons below, we affirm the judgment of

sentence.

       The underlying facts are not pertinent to this appeal; therefore, we need

not recite them herein. As noted above, a jury convicted Reyes of the firearms



____________________________________________


1   See 18 Pa.C.S. § 6106(a)(1).
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offense.2 On October 15, 2018, the court sentenced Reyes to a period of not

less than three years and six months nor more than seven years of

incarceration to be effective at the expiration of the order imposed on an

unrelated matter at Criminal Docket No. 684-2015, Count 2, Part 2 (“Docket

No. 684-2015”). On October 23, 2018, Reyes filed post-sentence motions,

seeking modification of his sentence and motion for judgment of acquittal

challenging the sufficiency and weight of the evidence. On October 24, 2018,

the court granted the modification of sentence to correctly reflect the credit

for time served and denied the motion for judgment of acquittal. This appeal

followed.3

       In his sole issue on appeal, Reyes argues his sentence is illegal because

the effective date of the sentence in the present matter was to be imposed

consecutively to a sentence that had not yet been imposed at Docket No. 684-

2015. See Reyes’ Brief at 10.

       By way of background, with respect to Docket No. 684-2015, Reyes was

convicted of retail theft and receiving stolen property. See N.T., 10/15/2018,

at 5. He was sentenced to 11½ to 23 months’ incarceration, followed by three

____________________________________________


2 The jury found him not guilty of possession of drug paraphernalia. See 35
P.S. § 780-113(a)(32).

3  On November 8, 2018, the trial court ordered Reyes to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Reyes filed a concise statement on November 21, 2018. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on November 27, 2018.



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years probation. Reyes was then paroled, which expired on November 20,

2017. Thereafter, at the time of sentencing in the present matter, he was

serving the probation portion of his sentence.      A detainer for a probation

violation had been entered at Docket No. 684-2015, but a Gagnon II4 hearing

had not been scheduled.5

       Relying on Commonwealth v. Holz, 397 A.2d 407 (Pa. 1979), Reyes

states:

              Here, the sentencing court correctly avers that there was a
       judgment of sentence already imposed at [Docket No. 684-2015]
       since [] Reyes was currently on probation at that docket. Under
       the trial court’s description of the sentence it imposed, the
       sentence was valid because it was made consecutive to a sentence
       of probation that had been previously imposed. Even if it was the
       intent of the court to sentence [] Reyes consecutively to a
       previously imposed sentence of probation, the sentence is
       violative of Pa.R.Crim.P. 705(A) because the date at which the
       sentence is to commence is indefinite, the date was not stated on
       the record as required by R[ule] 705(A), and such a sentence
       ignores the fact (which the court was made aware of) that [] Reyes
       was subject to re-sentencing as a result of the probation violation


____________________________________________


4   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

5   Reyes avers:

       On November 2, 2018, the Gagnon II hearing was held in the
       docket at which [] Reyes’ post-verdict sentence was to be made
       consecutive, CP-06-CR-684-2015, for a violation of probation due
       to the new arrest and conviction. The Gagnon II hearing was in
       front of a different judge, the Honorable Judge Benjamin Nevius.
       After hearing, [] Reyes received a sentence of six (6) to twenty-
       four (24) months in a State Correctional Facility, effective the
       same day, with credit for eighteen (18) days served.

Reyes’ Brief at 7 (footnote omitted).

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     detainer lodged against him for a new arrest and subsequent
     conviction (the conviction underlying this docket).

           The record evinces that the sentencing court was aware of,
     and intended to fashion its sentence around, the future Gagnon
     II sentence rather than the previously-imposed probationary
     sentence.

                                      …

     While [] Reyes disputes that it was the intent of the court to
     sentence consecutively to the previously imposed probation rather
     than the future Gagnon II result, the sentence remains illegal
     under the sentencing court’s formulation because to run a
     sentence of imprisonment consecutive to one of probation creates
     a myriad of issues on its own. Whether the sentence was intended
     to be consecutive to a previous sentence of probation or to a
     future sentence yet to be imposed, the issues culminate in an
     untenable situation for the future sentencing judge at the Gagnon
     II hearing.

     Based on Holz and on the plain reading of Pa.R.Crim.P. 705, read
     in conjunction with 42 Pa.C.S. § 9757, there is no authority for a
     sentencing court to impose a sentence consecutive to a sentence
     yet to be determined or consecutively to a term of probation for
     which the defendant is presently subject to violation procedures.
     The Gagnon II hearing was unscheduled at the time of the
     October 15, 2018 sentencing. It was later held on November 2,
     2018 in front of a different judge. At the time [] Reyes’ sentencing
     was imposed on October 15, 2018, it was unknown to all parties
     what the result of the Gagnon II hearing would be (or whether it
     would ultimately be held). Therefore, [] Reyes received an
     indefinite sentence.

                                      …

            Under the trial court’s interpretation of the sentence here,
     at the moment of sentencing on October 15, 2018, [] Reyes was
     sentenced to a term of imprisonment consecutive to a term of
     probation. At this point, his credit for time served would cease
     tolling until the unscheduled Gagnon II would be held. While
     overwhelmingly unlikely, it was nevertheless possible that []
     Reyes’ detainer would be lifted and the Gagnon II hearing
     cancelled. In that event, [] Reyes would have no longer received

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      credit for time served after his October 15, 2018 sentencing date;
      and his sentence would have been in flux because it would be a
      term of state imprisonment to be served consecutive to a term of
      probation. (To fulfill all of the active sentencing orders, the absurd
      result would be that [] Reyes would have to be released to serve
      out his probation before reporting for State Confinement).
      Likewise, if the Gagnon II hearing was delayed for unforeseen
      reasons, [] Reyes would face further uncertainty as to the ultimate
      outcome of his sentence here because of the consecutive nature
      of the sentence.

Reyes’ Brief at 12-16 (citations and footnotes omitted).

      With respect to a legality of sentencing argument, our standard of

review is de novo and our scope of review is plenary. Commonwealth v.

Aikens, 139 A.3d 244, 245 (Pa. Super. 2014). “If 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).

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

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

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

      In Holz, supra, a jury convicted the defendant of numerous offenses

related to an incident involving the rape and robbery of a couple at gun-point

in Montgomery County. Holz, 397 A.2d at 407. The court sentenced the

defendant to two concurrent ten-to-20 year sentences and two concurrent

two-and-one-half to five year sentences. Id. at 407-408. These sentences

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were to run consecutively to a probation violation sentence, which the

defendant was then serving, and consecutively to a sentence in an unrelated

homicide case in Philadelphia County, for which the defendant had been

convicted but not yet sentenced.      Id.    A panel of this Court affirmed the

judgment of sentence. Id. The defendant then filed a petition for allowance

of appeal, which the Pennsylvania Supreme Court granted.          The issue was

whether “the trial court erred when it sentenced him to serve a term of

imprisonment to run consecutively with a judgment of sentence which had not

yet been imposed” in the unrelated homicide case. Id. at 408.

      The   Supreme    Court   interpreted    the   predecessor   to   Rule   705,

Pa.R.Crim.P. 1406 (former), to bar a court from ordering a sentence run

consecutively to a sentence that had not yet been imposed. Id. The Court

stated: “If there is no prior sentence, there is nothing for the instant sentence

to run concurrent with or consecutive to.” Id. The Supreme Court modified

the judgment of sentence and struck “from it that portion ordering [the

defendant’s] sentence to run consecutive to the sentence yet to be imposed

in Philadelphia County.” Id.

      Here, the trial court found the following:

      [U]nlike in Holz, [Reyes] was sentenced to three years of
      probation at Docket No. 684-2015, which warrants that a
      judgment of sentence was imposed. Also, this Court made clear
      that the sentence shall run consecutively as evidenced by this
      Court’s sentencing order and the transcript from [Reyes’]
      sentencing hearing.    Whether or not [Reyes] is subject to
      resentencing at Docket No. 684-2015 Count 2, Part 2, in the future
      does not change the fact this Court’s sentence was to run

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      consecutively with a previously imposed sentence. As this Court’s
      sentence is warranted by Pa.R.Crim.P. Rule 705(B), this Court did
      not impose an illegal sentence.

Trial Court Opinion, 11/27/2018, at unnumbered 2 (citation omitted).

      We agree with the trial court’s conclusion and find Reyes’ argument on

Holz is misplaced.    The Holz Court held that a court could not order a

sentence to run consecutively to a sentence that had not yet been imposed.

Here, there was a judgment of sentence with respect to the case at Docket

No. 684-2015 – he received a term of incarceration and a consecutive term of

probation.   While Reyes was at a juncture in his judgment of sentence at

Docket No. 684-2015 where he faced the imposition of a re-sentence on the

probation portion of his sentence because he violated the terms of his

probation due to the conviction at issue, there was still a judgment of sentence

that had already been imposed. As such, the consecutive sentence imposed

in the present matter to the sentence at Docket No. 684-2015 is congruent to

the decision in Holz. While Reyes would like this Court to analyze otherwise,

he has not presented any authority that precludes a court from imposing a

consecutive sentence to a re-sentence on the probation portion of a judgment

of sentence. Moreover, his hypotheticals regarding the outcome of that re-

sentencing proceeding do not persuade us. Accordingly, we conclude the trial

court did not impose an illegal sentence and Reyes’ argument fails.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2019




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