J-A13004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee

                  v.

DORIAN PETERSON,

                       Appellant                   No. 924 WDA 2015


         Appeal from the Judgment of Sentence of May 14, 2015
           In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0001812-2008

BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.:                     FILED SEPTEMBER 09, 2016

     Appellant, Dorian Peterson, appeals from the judgment of sentence

entered on May 14, 2015. We vacate the judgment of sentence.

     As our resolution is based upon the procedural posture of this case, we

focus on the relevant procedural history. On November 4, 2009, Appellant

was convicted of, inter alia, first-degree murder and attempted murder;

crimes he committed while he was a juvenile.        On February 1, 2010,

Appellant was sentenced to a mandatory term of life imprisonment on the

first-degree murder charge and a consecutive 10 to 20 years’ imprisonment

on the attempted murder charge.      After this Court affirmed Appellant’s

judgment of sentence, the Supreme Court of the United States declared that

mandatory life imprisonment for juveniles violates the Eighth Amendment.

Miller v. Alabama, 132 S.Ct. 2455 (2012). Our Supreme Court thereafter
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granted Appellant’s petition for allowance of appeal solely on the question

relating to the legality of Appellant’s first-degree murder sentence, vacated

the   first-degree   murder   sentence,    and   remanded    for   re-sentencing.

Commonwealth v. Peterson, 67 A.3d 789 (Pa. 2013) (per curiam).

      Upon remand, the trial court sentenced Appellant to 40 years to life

imprisonment    on    the   first-degree   murder   charge   and   ordered   that

Appellant’s attempted murder sentence run consecutively to his first-degree

murder sentence. This timely appeal followed.

      Appellant, the Commonwealth, and the trial court now agree that the

trial court lacked jurisdiction to order Appellant’s attempted murder sentence

to run consecutively to his first-degree murder sentence. The trial court’s

jurisdiction is a question of law, therefore our standard of review is de novo

and our scope of review is plenary.        Annechino v. Joire, 946 A.2d 121,

123 n.3 (Pa. Super. 2008) (citation omitted).

      In this case, Appellant’s petition for allowance of appeal with respect

to his attempted murder conviction was denied.         As such, the trial court

lacked jurisdiction to re-sentence Appellant on the attempted murder

conviction. See 42 Pa.C.S.A. § 5505; cf. Commonwealth v. Sepulveda,

2016 WL 4273590, *6-7 (Pa. Aug. 15, 2016) (citations omitted) (courts lack

authority to expand our Supreme Court’s remand order); Graziani v.




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Randolph, 887 A.2d 1244, 1248 (Pa. Super. 2005) (citations omitted)

(same).1

      Pursuant to Pennsylvania Rule of Criminal Procedure 705(B),

      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. If the sentence is to run
      concurrently, the sentence shall commence from the date of
      imposition unless otherwise ordered by the judge.

Pa.R.Crim.P. 705(B).    Our Supreme Court interpreted the predecessor to

Rule 705 to prohibit a trial court from ordering a sentence previously

imposed to run consecutively to a sentence it is imposing. Commonwealth

v. Holz, 397 A.2d 407, 408 (Pa. 1979).      That is exactly what occurred in

this case.   The trial court ordered Appellant’s attempted murder sentence,

imposed in 2010, to run consecutively to his first-degree murder sentence,




1
  As the Commonwealth notes, our Supreme Court could have determined
that vacating Appellant’s first-degree murder sentence upset the overall
sentencing scheme.    Therefore, it could have also vacated Appellant’s
attempted murder sentence and remanded for re-sentencing on both
charges. Our Supreme Court, however, chose not to utilize that option.

Our learned colleague cites Commonwealth v. Bartrug, 732 A.2d 1287
(Pa. Super. 1999), appeal denied, 747 A.2d 896 (Pa. 1999), for the
proposition that an appellate court must determine that vacatur of one
sentence in a multi-count case upsets the overall sentencing scheme. This
Court, however, has often held that vacatur does not ipso facto upset the
overall sentencing scheme. E.g., Commonwealth v. Lomax, 8 A.3d 1264,
1268 (Pa. Super. 2010); Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.
Super. 2006), appeal denied, 946 A.2d 687 (Pa. 2008). When the appellate
court determines that it does not upset the overall sentencing scheme, as
was done in this case, the trial court lacks jurisdiction to re-sentence the
defendant on the remaining counts.



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imposed in 2015. Thus, the trial court effectively re-sentenced Appellant for

his attempted murder conviction, which it lacked jurisdiction to do.

      As the trial court lacked jurisdiction to re-sentence Appellant on the

attempted murder conviction, we vacate the May 14, 2015 sentence for

attempted murder. This vacatur re-instates the February 1, 2010 sentence

for attempted murder. This vacatur also requires that Appellant’s sentence

for first-degree murder imposed on May 14, 2015 run concurrently with his

sentence for attempted murder.

      Judgment of sentence vacated. Jurisdiction relinquished.

      Musmanno, J., joins this memorandum.

      Stabile, J., files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2016




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