J-S17026-16


                                   2016 PA Super 78

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                              Appellant

                       v.

ROBERT JAMES FINLEY,

                              Appellee                     No. 1174 WDA 2015


                      Appeal from the Order July 14, 2015
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0001949-2013


BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

OPINION BY SHOGAN, J.:                                      FILED APRIL 5, 2016

       Appellant,       the       Commonwealth        of     Pennsylvania      (“the

Commonwealth”),1 appeals from the order entered on July 14, 2015, that

granted Appellee, Robert James Finley, early parole.          After careful review,

we reverse the order and remand for further proceedings consistent with this

Opinion.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   On January 25, 2016, Attorney William T. Fullerton filed a motion to
withdraw his appearance as counsel for the Commonwealth due to his
separation from the Butler County District Attorney’s Office. In that same
motion, Assistant District Attorney Mark A. Lope moved to enter his
appearance on behalf of the Commonwealth in this matter. The motion is
granted. Attorney Fullerton is hereby permitted to withdraw, and Attorney
Lope’s appearance is entered on behalf of the Commonwealth.
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      The record reveals that at 3:14 a.m., on August 3, 2013, Sergeant

Timothy Clark of the Butler Township Police Department responded to the

report of an unconscious person sitting behind the wheel of a gray vehicle in

a McDonald’s parking lot.     Affidavit of Probable Cause, 10/18/13, at 1.

When Sergeant Clark, who was assisted by Officer Tedeski of the Butler City

Police Department, arrived at the scene, they approached the gray vehicle

and saw an individual unconscious in the driver’s seat. Id. Officer Tedeski

noticed an empty bottle of Smirnoff Ice on the floor of the suspect’s car. Id.

Sergeant Clark knocked on the driver’s window and woke the driver.         Id.

Sergeant Clark asked the driver to open the window and asked him if he had

been drinking. Id. The driver, who had glassy, bloodshot eyes, opened the

window, but he denied consuming alcohol. Id. Sergeant Clark then directed

the driver to exit the vehicle. Id. Rather than alight from the car, the driver

closed the window and revved the engine. Id. Sergeant Clark grabbed the

driver’s door handle, but the driver shifted the car into gear and fled. Id.

Sergeant Adam of the Butler City Police responded as back-up, and pursued

the fleeing vehicle. Id. During this pursuit, Sergeant Adam had the lights

and siren on his police vehicle activated. Id. Despite the pursuit, the police

officers lost sight of the gray car.       Id. at 2.    However, during his

investigation, Sergeant Clark learned that the vehicle was registered to

Samantha Sekura from West Mifflin, Pennsylvania.       Id.   After discussions




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with the West Mifflin Police Department, Sergeant Clark determined that

Appellee was the driver of the gray vehicle. Id.

       Appellee was subsequently arrested and charged with recklessly

endangering another person (“REAP”) and numerous violations of the

Pennsylvania Motor Vehicle Code.                On September 12, 2014, Appellee

entered guilty pleas to one count each of fleeing/attempting to elude police,2

REAP,3    habitual     offender,4     driving    while    operating    privileges   were

suspended-DUI related,5 and reckless driving.6             On October 29, 2014, the

trial court sentenced Appellee to a term of ninety to 180 days of

incarceration     followed       by   twenty-four        months   of    probation    for

fleeing/attempting to elude police, six to twelve months of incarceration for

REAP, thirty to sixty days of incarceration for habitual offenders, a flat

sentence of ninety days for driving while operating privileges were

suspended-DUI related,7 and a fine for reckless driving.                The trial court

____________________________________________


2
    75 Pa.C.S. § 3733(a).
3
    18 Pa.C.S. § 2705.
4
    75 Pa.C.S. § 6503.1.
5
    75 Pa.C.S. § 1543(b)(1).
6
    75 Pa.C.S. § 3736.
7
  The flat sentence of ninety days is an exception to the minimum and
maximum sentencing requirements set forth in 42 Pa.C.S. § 9756. See
Commonwealth v. Klingensmith, 650 A.2d 444 (Pa. Super. 1994)
(Footnote Continued Next Page)


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ordered the sentences to be served consecutively. Thus, as for the felony

and the misdemeanor offenses, the trial court imposed an aggregate

sentence of ten to twenty months of incarceration.         As for the summary

offense of driving while operating privileges were suspended-DUI related,

the trial court imposed a consecutive term of ninety days of incarceration.

Therefore, the aggregate sentence was thirteen to twenty months of

incarceration.    The trial court deferred commitment until November 23,

2014.     However, because of a credit for time served of two days, the

effective date of commitment was November 21, 2014.              Post-sentence

motions were filed and denied; Appellee did not file a direct appeal.

        On June 26, 2015, Appellee filed a motion for early parole. Following a

hearing, which was held on July 13, 2015, the trial court granted Appellee

early parole in an order filed on July 14, 2015.         On July 28, 2015, the

Commonwealth filed a timely appeal.

        On August 12, 2015, the trial court directed the Commonwealth to file

a statement of errors complained of on appeal within twenty-one days

pursuant to Pa.R.A.P. 1925(b).              The Commonwealth complied, and on

September 18, 2015, the trial court filed its Pa.R.A.P. 1925(a) opinion.8

                       _______________________
(Footnote Continued)

(discussing the relationship between 42 Pa.C.S. § 9756 and 75 Pa.C.S.
§ 1543(b)).
8
   We conclude that this Court has jurisdiction in this matter. See 42
Pa.C.S. § 9781(a) (stating that the defendant or the Commonwealth may
(Footnote Continued Next Page)


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      On appeal, the Commonwealth presents one question for this Court’s

consideration:

      Whether the court of common pleas committed an error of law
      by granting a motion for early parole without legal authority?

Commonwealth’s Brief at 7 (full capitalization omitted).

      We recognize that “[w]hen an offender is sentenced to a maximum

term of imprisonment of less than two years, the common pleas court

retains authority to grant and revoke parole[.]”           Commonwealth v.

Hanson, 856 A.2d 1254, 1258 (Pa. Super. 2004) (citation omitted).

Additionally, when the defendant is eligible for parole, the trial court’s

decision to grant parole is a discretionary act, and it is subject to appellate

review under an abuse of discretion standard.              Commonwealth v.

Romolini, 557 A.2d 1073, 1077 (Pa. Super. 1989).

      However, in the case at bar, we are not faced with a challenge to an

order granting early parole to an eligible defendant. Rather, the issue in

the instant case concerns the authority of the trial court to grant early parole

to a defendant prior to that defendant completing his minimum sentence,

i.e, an ineligible defendant. This determination requires an examination

of the requirements for sentences of total confinement and parole eligibility
                       _______________________
(Footnote Continued)

appeal as of right the legality of a sentence); and see Commonwealth v.
Hall, 652 A.2d 858 (Pa. Super. 1995) (reversing an order granting parole
and addressing a Commonwealth appeal from a trial court’s illegal grant of
parole) and Commonwealth v. Jamison, 652 A.2d 862 (Pa. Super. 1995)
(same).



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set forth in 42 Pa.C.S. § 9756. Therefore, our examination of this issue is

one of statutory interpretation, which is a question of law. Accordingly, as

with all questions of law, our scope of review is plenary and our standard of

review is de novo.    Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa.

Super. 2011).

      The Pennsylvania Sentencing Code provides, in relevant part, as

follows:

      Sentence of total confinement

      (a) General rule.--In imposing a sentence of total confinement
      the court shall at the time of sentencing specify any maximum
      period up to the limit authorized by law and whether the
      sentence shall commence in a correctional or other appropriate
      institution.

      (b) Minimum sentence.--

           (1) The court shall impose a minimum sentence of
           confinement which shall not exceed one-half of the
           maximum sentence imposed.

           (2) The minimum sentence imposed under this
           section may not be reduced through parole
           prior to the expiration of the minimum
           sentence unless otherwise authorized by this
           section or other law.

           (3) Except where the maximum sentence imposed is
           two years or more, and except where a mandatory
           minimum sentence of imprisonment or total
           confinement is required by law, the court shall, at
           the time of sentencing, state whether or not
           the defendant is eligible to participate in a
           reentry plan at any time prior to the expiration
           of the minimum sentence or at the expiration of
           a specified portion of the minimum sentence.
           For maximum sentences of less than two years as

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            defined under section 9762(f) (relating to sentencing
            proceeding; place of confinement), a court may
            parole a defendant prior to the expiration of
            the minimum sentence only if the defendant
            was made eligible to participate in a reentry
            plan at the time of sentencing. The court shall
            provide at least ten days’ written notice and an
            opportunity to be heard, pursuant to section 9776
            (relating to judicial power to release inmates), to the
            prosecuting attorney before granting parole pursuant
            to this subsection. The reentry plan eligibility shall
            be considered a part of the sentence and subject to
            the requirements relating to the entry, recording and
            reporting of sentences.

42 Pa.C.S. § 9756(a) and (b) (emphases added).

      As noted above, when the trial court imposed sentence, Appellee was

not eligible for parole on the felony and misdemeanor convictions until his

minimum sentence expired on September 21, 2015. If paroled on that date,

Appellee would then have to serve his flat ninety-day sentence on the

summary offense conviction.      Nothing in the record or in the sentencing

order provided that Appellee was eligible for an early reentry program that

would allow for parole prior to Appellee serving his minimum sentence. Yet,

when the trial court granted Appellee parole on July 14, 2015, Appellee had

served less than nine months.

      Appellee contends that the trial court did not err in granting early

parole.   Appellee’s Brief at 11. He avers that “he was essentially made

eligible for reentry when the [s]entencing order specifically state[d] that the

county will retain parole jurisdiction.”   Id. We disagree. As discussed, in

order to be eligible for early parole, the trial court is required to make an

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early reentry determination on the record at the time of sentencing.         42

Pa.C.S. § 9756(b)(3).        A trial court’s imposition of a county sentence and

retention of parole authority does not satisfy section 9756(b)(3) and make a

defendant eligible for parole prior to the expiration of his minimum sentence.

       Accordingly, due to the fact that the trial court had not made Appellee

eligible for early parole at the time of sentencing, and because Appellee had

not served his minimum sentence, Appellee was not parole eligible.

Therefore, the trial court was without authority to grant Appellee’s motion

for early parole.9     42 Pa.C.S. § 9756(b).     For these reasons, the July 14,

2015 order that granted Appellee early parole is reversed, and we remand

this case for further proceedings consistent with this decision.

       Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

       P.J. Gantman joins the Opinion.

       Justice Fitzgerald concurs in the result.




____________________________________________


9
   The trial court conceded that it erred in granting Appellee early parole,
and it requested this matter be remanded in order for that error to be
corrected. Trial Court Opinion, 9/18/15, at 1.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/2016




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