J-S78006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RANDY P. HARTZFELD,

                            Appellant                 No. 1356 WDA 2015


          Appeal from the Judgment of Sentence Entered July 1, 2015
              In the Court of Common Pleas of Jefferson County
             Criminal Division at No(s): CP-33-CR-0000645-2014


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED NOVEMBER 29, 2016

        Randy P. Hartzfeld, Appellant, appeals nunc pro tunc from the

judgment of sentence of 2½ to 5 years’ incarceration, imposed after he was

convicted of endangering the welfare of a child (EWOC).            On appeal,

Appellant contends that the court imposed an illegal sentence by directing

that Appellant may not have contact with the minor victim, or the victim’s

mother. After careful review, we vacate in part and affirm in part.

        Appellant’s conviction stemmed from an incident that occurred when

he was caring for the infant child of his fiancé while she was at work. While

watching the child, Appellant struck the infant’s face, causing injuries to the



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*
    Former Justice specially assigned to the Superior Court.
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baby. Appellant claimed that he had hit the child by accident while he was

swinging his hand at a cat that was close to the baby.

       At the close of Appellant’s jury trial, he was found guilty of EWOC. On

July 1, 2015, the court sentenced Appellant to the term of incarceration

stated, supra.       Notably, as will be relevant to our discussion herein,

Appellant was not sentenced to any term of probation.         Also pertinent to

Appellant’s issue on appeal, in the court’s sentencing order, it directed that

Appellant “shall have NO CONTACT with the victim and victim’s mother.”

Sentencing Order, 7/1/15 (single page).          Appellant filed a timely post-

sentence motion, which the court denied. Appellant did not file an appeal

within 30 days of the court’s order denying his post-sentence motion;

however, he did file a “Motion for Leave to File Notice of Appeal Nunc Pro

Tunc,” which the court granted.1 Appellant then filed a nunc pro tunc notice

of appeal, as well as a timely, court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The court subsequently filed a

Rule 1925(a) opinion.

       Herein, Appellant presents one issue for our review:

       [I]. Whether the trial court erred as a matter of law by
       exceeding its statutory sentencing authority where it imposed a
       period of incarceration, the maximum of which was over two
       years, and, as a special condition of sentence, [the court]
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1
  We point out that Appellant’s motion should have been considered as a
timely-filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546.



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       ordered that Appellant have no contact with the victim and the
       victim’s mother.

Appellant’s Brief at 4 (unnecessary capitalization omitted).2

       Initially, Appellant’s issue essentially challenges the authority of the

court to impose the no-contact provision of his sentence; thus, he is

attacking the legality of his sentence. See Commonwealth v. Mears, 972

A.2d 1210, 1211 (Pa. Super. 2009) (“Because we conclude that [Mears’]

issue ultimately concerns the statutory authority for the imposition of a

condition of sentence, this is a challenge to the legality of the sentence.”)

(citing Commonwealth v. Pinko, 811 A.2d 576 (Pa. Super. 2002) (stating

that the issue of whether the trial court possessed the authority to impose a

particular sentence implicates the legality of the sentence)).

       Challenges to an illegal sentence cannot be waived and may be
       reviewed sua sponte by this Court. Commonwealth v. Merolla,
       909 A.2d 337, 347 (Pa. Super. 2006).

          The scope and standard of review applied to determine the
          legality of a sentence are well established. If no statutory
          authorization exists for a particular sentence, that
          sentence is illegal and subject to correction. An illegal
          sentence must be vacated. In evaluating a trial court's
          application of a statute, our standard of review is plenary
          and is limited to determining whether the trial court
          committed an error of law.

       Commonwealth v. Leverette, 911 A.2d 998, 1001–1002 (Pa.
       Super. 2006) (internal citations omitted).

Mears, 972 A.2d at 1211.

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2
   We note that the Commonwealth informed this Court that it would not be
filing a brief in this case.



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      Here, Appellant contends that the ‘no-contact’ component of the trial

court’s sentencing order is illegal. He notes that the ‘no-contact’ condition is

not part of any probationary sentence.     Appellant also avers that the trial

court cannot lawfully impose a no-contact condition as a term of his parole.

Finally, Appellant contends that the trial court lacked statutory authority to

impose the no-contact condition as a term of his incarceration.

      After carefully reviewing Appellant’s arguments and the applicable

legal authority, we are compelled to agree with him that the no-contact

condition of his sentence is illegal. First, a “sentencing court can order a no-

contact condition on probation,” as long as “that condition is reasonably

calculated to aid in the defendant’s rehabilitation.”     Commonwealth v.

Koren, 646 A.2d 1205, 1209 (Pa. Super. 1994) (citing 42 Pa.C.S. §

9754(b)).   Here, however, the court did not impose a term of probation;

therefore, the no-contact order cannot be construed as a valid condition of a

sentence of probation.

      Second, the trial court imposed a sentence of 2½ to 5 years’

imprisonment in a state correctional institution; thus, if Appellant is paroled,

the Pennsylvania Board of Probation and Parole will have exclusive authority

to determine the conditions of his parole.         See 61 Pa.C.S. § 6132;

Commonwealth v. Coulverson, 34 A.3d 135, 141 (Pa. Super. 2011)

(recognizing “that ‘the Pennsylvania Board of Probation and Parole has

exclusive authority to determine parole when the offender is sentenced to a

maximum term of imprisonment of two or more years’”) (quoting Mears,

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972 A.2d at 1211). In other words, the trial court lacked authority to set the

terms of Appellant’s parole, and “any condition the sentencing court

purported     to   impose    on   Appellant’s    state   parole   is   advisory   only.”

Coulverson, 34 A.3d at 141-42 (quoting Mears, 972 A.2d at 1211); see

also 61 Pa.C.S. § 6134(b)(1), (2) (“A recommendation made by a judge

under paragraph (1) respecting parole or terms of parole of a person shall

be advisory only.       No order in respect to the recommendation made or

attempted to be made as a part of a sentence shall be binding upon the

board in performing the duties and functions conferred on it by this

chapter.”).    Accordingly, to the extent that the no-contact order could be

construed as a condition of Appellant’s future parole, the court exceeded its

sentencing authority in imposing that condition. Therefore, we must vacate

the no-contact order in that regard. Coulverson, 34 A.3d at 142.

       Third, we can find no statutory or other legal authority to support the

court’s imposition of the no-contact order as a special condition of

Appellant’s sentence of incarceration.3 No provision of the Sentencing Code

authorizes a trial court to impose conditions on a term of incarceration. The

Legislature’s silence on this issue is significant, especially considering its

enactment of a statute that explicitly provides the court with authority to

impose conditions on terms of probation. See 42 Pa.C.S. § 9754(b).                  We

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3
  The no-contact provision is clearly a component of Appellant’s sentence, as
it is set forth in the court’s sentencing order.



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reiterate that “[i]f no statutory authorization exists for a particular sentence,

that sentence is illegal and subject to correction.”      Mears, 972 A.2d at

1211; see also Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa.

Super. 2003) (quoting Commonwealth v. Alexander, 811 A.2d 1064,

1065 (Pa. Super. 2002) (citation omitted)).

      Because no statute provides the trial court with the authority to

impose a no-contact condition on Appellant’s sentence of incarceration, that

provision of Appellant’s sentence is illegal.    Therefore, we vacate, in its

entirety, the no-contact condition of Appellant’s sentence. As our disposition

does not in any way impact the term of incarceration imposed by the court,

we need not remand for resentencing. See Commonwealth v. Thur, 906

A.2d 552, 569-70 (Pa. Super. 2006) (“If our disposition upsets the overall

sentencing scheme of the trial court, we must remand so that the court can

restructure its sentence plan.”).

      Judgment of sentence vacated in part, affirmed in part.        Jurisdiction

relinquished.

      Justice Fitzgerald joins this memorandum.

      Judge Ott files a concurring/dissenting memorandum.




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Judgment Entered




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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