J-S06042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RAYMOND A. JONES                        :
                                         :
                   Appellant             :   No. 1994 EDA 2016

         Appeal from the Judgment of Sentence November 13, 2015
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0013045-2013


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                         FILED OCTOBER 18, 2018

     Raymond Jones appeals from the judgment of sentence of three to

seven years incarceration, plus a flat sentence of eighty-nine days

incarceration, imposed by the violation of probation (“VOP”) court following

Appellant’s arrest on new charges. We find that the sentence of three to seven

years was lawfully imposed and did not constitute an abuse of discretion;

however, we find that the flat sentence is illegal.   Accordingly, we vacate

judgment of sentence and remand for further proceedings consistent with this

memorandum.

     The instant appeal traces to Appellant’s guilty plea on March 20, 2014,

to, inter alia, fleeing and eluding a police officer and DUI.     The parties

negotiated a sentence of four to twenty-three months incarceration followed

by three years probation, which the trial court conditionally agreed to impose

pending a pre-sentence investigation.
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       On June 14, 2014, the trial court imposed the agreed-upon negotiated

sentence. Critically, the order stated that the sentence was to commence on

September 11, 2014, which was a report date generously granted to Appellant

so that he could take care of some personal affairs. Appellant failed to report

as required, resulting in a bench warrant. He remained at liberty until July

23, 2015, when he was arrested for an unrelated offense.1

       The Commonwealth thereafter filed a motion to revoke Appellant’s

parole/probation, which the court granted on September 9, 2015.            Order,

9/9/15, at 1 (“Motion to Revoke Parole/Probation is GRANTED. [Appellant]

found in violation of sentence for failing to appear on Surrender Date.”).

Sentencing was deferred until November 13, 2015. On that date, Appellant

was sentenced to three to seven years incarceration for fleeing and eluding,

plus a flat sentence of eighty-nine days incarceration for DUI.

       Appellant filed a motion for reconsideration, which the trial court did not

act upon. Appellant mistakenly failed to file a notice of appeal within thirty

days as required for VOP sentences, and successfully sought restoration nunc

pro tunc through a PCRA petition. Appellant complied with the order to file a

Pa.R.A.P. 1925(b) statement, and raises the following points of error.

       1. Is the sentence of 3 to 7 years incarceration on a felony of the
       third degree an illegal sentence where there remains a sentence
____________________________________________


1A review of the publicly-available docketing sheets indicates that a Raymond
Jones, with the same date of birth as that listed on the instant docket, was
arrested on July 23, 2015, for, inter alia, possession of an instrument of crime
and terroristic threats. Those charges were withdrawn on November 9, 2015.


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      of 4 to 23 months on the same charge which is not vacated and
      must still be served?

      2. Was the sentence of 3 to 7 years of incarceration unreasonable,
      manifestly excessive and an abuse of discretion where the court
      failed to conduct an individualized sentencing, did not properly
      consider the sentencing factors under 42 Pa.C.S. § 9721, ignored
      whether the sentence was the least stringent to protect the
      community, did not consider appellant's rehabilitative needs, did
      not sufficiently place its reasons for its sentence on the record,
      and violated the Sentencing Code as the actions were not
      necessary to vindicate the authority of the lower court?

Appellant’s brief at 3.

      Appellant’s first claim concerns the legality of his sentence, which we

review de novo. Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa.Super.

2016). The dispute between the parties concerns the proper characterization

of the November 13, 2015 proceeding. The Commonwealth and the trial court

both view this sentence as a revocation sentence, while Appellant asserts that

the trial court illegally modified his sentence after the applicable thirty-day

period.

      Appellant acknowledges that a revocation is not a modification of the

original sentence.        He maintains that the instant sentence cannot be

characterized as such, because “upon [Appellant]’s arrest in July of 2015, he

started serving his county sentence. That sentence could not be vacated.”

Appellant’s brief at 19. Therefore, Appellant maintains that he is currently

serving the originally-imposed sentence, to be followed by a three and one-

half to seven year term, which exceeds the statutory maximum. 18 Pa.C.S.

§ 106(b)(4) (setting maximum of seven years for felony of the third degree).



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      Additionally, Appellant states that the VOP court illegally modified his

original sentence in violation of 42 Pa.C.S. § 5505, which states that a court

may modify any order within thirty days after its entry. Appellant maintains

that § 5505 applies herein, because he was sentenced on June 12, 2014, and

the trial court could not revisit that sentence after it became final. “There is

no law which permits a court to rescind a sentence of county incarceration

after it becomes final other than via the Post Conviction Relief Act[.]”

Appellant’s brief at 18.

      This characterization results, in part, from his own concise statement

and the trial court’s responsive Pa.R.A.P. 1925(a) opinion. Appellant alleged

in his statement that the three to seven year sentence is illegal because “there

remains a sentence of 4 to 23 months on the same charge which [was] not

vacated and must still be served[.]”        Concise Statement, 8/15/16, at

unnumbered 3. The trial court’s opinion responded as follows. “[T]he Order

of Sentence appears to be silent concerning this [c]ourt’s original intention to

remove the previously lodged detainer and to formally vacate the original

sentence that had never been served by [Appellant].” Trial Court Opinion,

8/8/17, at 6. Since the trial court accepted that it could lawfully vacate the

original sentence, Appellant maintains that § 5505 applies.

      We reject Appellant’s core contention that § 5505 applies. The court

accepted Appellant’s plea and the sentence negotiated by the parties, and

therefore could not sua sponte modify the sentence even within the thirty-day

timeframe. More importantly, the VOP court, despite its conclusions in the

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Rule 1925(a) opinion, did not modify his original sentence.              Instead,

Appellant’s sentence was revoked. It is well-settled that a trial court may

revoke parole and probation on an anticipatory basis.

      Under Pennsylvania law, an order of probation can be changed or
      revoked “if, at any time before the defendant has completed the
      maximum period of probation, or before he has begun service of
      his probation” the defendant commits offenses or otherwise
      demonstrates he is unworthy of probation. Commonwealth v.
      Miller, 358 Pa.Super. 219, 516 A.2d 1263, 1265 (1986), appeal
      denied, 515      Pa.   599,   528    A.2d    956    (1987). See
      also Commonwealth v. Hoover, 909 A.2d 321 (Pa.Super.2006)
      (affirming judgment of sentence following revocation of
      defendant's probation, which he violated before his probation
      service had even begun; although defendant had not committed
      new criminal offenses, defendant demonstrated he was unworthy
      of probation and probation would not serve ends of justice or
      public interest).

Commonwealth v. Mitchell, 955 A.2d 433, 435 n.2 (Pa.Super. 2008).

      It is self-evident that Appellant demonstrated that he was “unworthy of

probation” by failing to report for commencement of his sentence. Thus, the

VOP court lawfully revoked probation despite the fact the sentence had yet to

technically commence. There was thus no need to vacate the sentence. It

ceased to exist upon revocation.

      Next, we address the fact that Appellant was originally ordered to serve

a split sentence of incarceration followed by probation. That point is significant

because a trial court cannot revoke a parole sentence and impose a new

sentence; rather, the court is obligated to order recommitment for the balance

of the term. See Commonwealth v. Fair, 497 A.2d 643 (Pa.Super. 1985).



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Therefore, there is merit to the position that while the trial court was

authorized to revoke parole on an anticipatory basis, it was limited to imposing

the balance of the original sentence, followed by a separate sentence for the

probation revocation.    Thus, the instant sentence of three to seven years

would be illegal.

      Our     Court     addressed   highly    analogous     circumstances     in

Commonwealth v. Ware, 737 A.2d 251, 252 (Pa.Super. 1999), and

concluded that common sense prevails in a situation such as this. Therein,

the offender was incarcerated in a county facility on unrelated charges when

she pleaded guilty to a felony of the third degree. She accepted a sentence

of eight to twenty-three months of incarceration, followed by two years of

probation. With time credit, Ware had already served the minimum and was

immediately paroled. Approximately six weeks later, Ware committed a new

crime, pled guilty, and was sentenced.           The Commonwealth sought

revocation, asserting that Ware violated a condition of her probation and

parole. At the time of the revocation hearing, Ware had approximately five

months left on her parole term. The trial court imposed a new sentence of

thirty-two and one-half months to seventy-four months incarceration. Thus,

Ware was not technically ordered to serve the remainder of her parole

sentence, which, according to Ware, rendered the sentence illegal.          We

disagreed.

      It is obvious, based on our careful review of the entire record in
      this matter, that the court's sentencing scheme, upon revocation

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      of probation, was to impose the statutory maximum penalty of
      incarceration. The court was, of course, empowered to do so.
      Nonetheless, appellant suggests that the “proper procedure in this
      case would have been to [recommit] Ware to a determinate
      balance of her parole on the 8 to 23 month sentence, then
      sentence Ware to a certain term of imprisonment on the probation
      revocation[,]” and urges us to find illegality in the court's failure
      to explicitly do so. We will not.

      In this case, the procedure the court employed was to sentence
      appellant directly on the revocation of probation to the legal
      statutory maximum term of incarceration. The wiser procedural
      course may have included a specific articulation that the sentence
      imposed required appellant to serve the remainder of her back
      time on the parole violation, followed by a consecutive sentence
      for revocation of probation which, when added to the back time
      remainder of the original sentence, would equal the statutory
      maximum. Nonetheless, it is clear that the outcome, in any event
      and under either procedure, given the court's clear sentencing
      scheme, would have been the imposition of the statutory
      maximum sentence of imprisonment, a legal sentence which the
      court was clearly authorized to impose. Thus, we see no reason
      to remand for the pointless and formalistic repetition of sentencing
      procedures, the outcome of which would be a foregone conclusion.

Id. at 254.

      Ware demonstrates that there is no impediment to anticipatorily

revoking the parole sentence and probation. Moreover, as in Ware, it is clear

that the procedure selected by the trial court herein was designed to sentence

Appellant to the statutory maximum. We thus apply the same logic, and hold

that the trial court was authorized to anticipatorily revoke Appellant’s parole

and probation.

      Simultaneously, we agree with Appellant that there is a possibility that

he will serve a sentence in excess of the statutory maximum. We find that

the appropriate solution is to vacate and remand for further proceedings as

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requested by the trial court. As indicated by the Rule 1925 opinion, the trial

judge did not vacate the original sentence. Normally, this would not pose a

problem for the reasons set forth supra, insofar as revocation serves to nullify

the previous sentence and the offender will receive time credit for any portion

of the sentence that had already been served.

       Here, however, Appellant may or may not have commenced his

sentence immediately upon arrest for the unrelated matters.                   The county

facility may have treated his arrest on the new charges as “reporting” for

commencement of the originally-imposed sentence. Alternatively, it may be

that Appellant was incarcerated on the basis of a detainer or for failing to post

bond on the new charges.          The trial court stated that its intention was to

“remove the previously lodged detainer and to formally vacate the original

sentence that had never been served by [Appellant].” Trial Court Opinion,

8/8/17, at 6. Under this set of circumstances, we find that the proper course

is to remand for application of time credit as needed.2

       Appellant’s    second     claim    is   that   the    aggregate     sentence     was

unreasonable      and    manifestly      excessive.         This   claim   implicates   the

discretionary aspects of sentence, which are not appealable as of right.


____________________________________________


2 At the sentencing hearing, the court indicated that Appellant was in
contempt. N.T., 11/13/15, at 6 (“[T]he notes and memory say I found him in
contempt. I did. So I found him formally in contempt.”). However, the
sentencing order dated November 13, 2015, properly indicated a revocation
sentence and did not impose any separate sentence for contempt.


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      [W]e conduct a four-part analysis to determine: (1) whether
      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 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. Bebout, 186 A.3d 462, 470 (Pa.Super. 2018) (quoting

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

      All four requirements have been met, as Appellant filed a timely appeal,

preserved his claim in a post-sentence motion, and his brief includes the

required statement. Finally, a claim that the sentence is manifestly excessive,

when paired with an allegation that the court failed to consider mitigating

factors   and   rehabilitative   needs,   presents   a   substantial   question.

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015).                  We

therefore address the merits of his claim, to which we apply the following

standard of review.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014)

(citing Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)).




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      Two sentencing statutes are at issue herein. First, 42 Pa.C.S. § 9721

sets forth the general sentencing considerations; in particular, subsection (b)

instructs the court to “follow the general principle that the sentence imposed

should call for confinement that is consistent with the protection of the public,

the gravity of the offense as it relates to the impact on the life of the victim

and on the community, and the rehabilitative needs of the defendant.” 42

Pa.C.S. § 9721(b). Separately, 42 Pa.C.S. § 9771 governs the trial court’s

ability to impose total confinement following revocation of probation.       The

court may do so only if it finds one of three conditions has been met:

      (c) Limitation on sentence of total confinement.—The court shall
      not impose a sentence of total confinement upon revocation
      unless it finds that:

            (1) the defendant has been convicted of another
            crime; or

            (2) the conduct of the defendant indicates that it is
            likely that he will commit another crime if he is not
            imprisoned; or

            (3) such a sentence is essential to vindicate the
            authority of the court.

42 Pa.C.S. § 9771(c).

      Thus, § 9771(c) governs only the court’s ability to impose total

confinement at all, while § 9721(b) dictates the length of confinement.

However, § 9721(b) instructs the court to “consider any guidelines for

sentencing and resentencing[.]” The guidelines do not apply to revocation of

probation sentences, 204 Pa.Code 303.1(b), thus suggesting that the


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directives appear to operate independently, with the VOP court having

unfettered discretion to impose any length of confinement in revocation

proceedings.

      However, we have held that these statutes must be applied in tandem.

In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc),

we held that in a revocation proceeding the court must follow § 9771 in

conjunction with § 9721(b). Thus, this Court's scope of review in appeals from

revocation sentences encompasses the discretionary aspects of the sentence.

“Such issues should not escape review merely because a defendant's

revocation sentence falls within the statutory limits.” Id. at 1038.

      In Commonwealth v. Derry, 150 A.3d 987 (Pa.Super. 2016), we

examined Cartrette in light of Commonwealth v. Pasture, 107 A.3d 21 (Pa.

2014), which reversed our decision vacating a revocation sentence on the

grounds that we gave “insufficient deference to the revocation court's

imposition   of   the   sentence   following   the   revocation   of   [appellant]'s

probation[.]” Id. at 22. Derry explained that

      Section 9771(c) mandates a VOP court's consideration of
      additional factors at sentencing not addressed by Section 9721(b).
      Consequently, a VOP court is not confined to only consider the
      factors set forth in Section 9721(b), that is, it is not cabined by
      Section 9721(b). Instead, a VOP court must also consider the
      dictates of Section 9771(c), given the unique aspects of VOP
      sentences not applicable when a court issues the initial sentence.
      In addition to issuing a sentence that is “consistent with the
      protection of the public, the gravity of the offense as it relates to
      the impact on the life of the victim and on the community, and
      the rehabilitative needs of the defendant [,]” a VOP court must
      also consider, for example, whether the sentence imposed is

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      “essential to vindicate the authority of the court[,]” and must give
      “due consideration ... to the time spent serving the order of
      probation.” 42 Pa.C.S. § 9771(c). Both of these concerns are
      unique to VOP sentencing hearings and may, in the end, weigh
      heavily on a court's consideration of an appropriate VOP sentence.
      But such additional considerations do not, as a necessary
      consequence, render the Section 9721(b) factors inapplicable for
      purposes of VOP sentences.

Id. at 994 (emphases in original).

      As illustrated by this passage, the VOP court “must also consider, for

example, whether the sentence imposed is essential to vindicate the authority

of the court[.]” Id. (quotation marks omitted). Thus, the need to vindicate

the court’s authority is not limited only to the whether confinement was

warranted, but extends to the length of the sentence as well. Derry cautioned

that these additional considerations do not render the other factors

inapplicable.

      With that admonishment in mind, we examine Appellant’s argument.

He asserts that (1) incarceration was not warranted, and (2) that the length

of incarceration imposed was excessive as the court failed to consider anything

other than his failure to appear. As discussed, the two inquiries are related,

and Appellant does not claim that confinement was unwarranted for his failure

to appear. At the initial revocation hearing, he asserted that the proper action

was to simply order him to serve the original sentence, with a short period of

incarceration for contempt.

      I think it’s a contempt case. I think that – I would think – a
      sentence of ten to twelve days for contempt would be sufficient
      punishment for this matter. And, of course, he would still have to

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      serve the entire sentence he has with you and be on Your Honor’s
      probation. And, you know, if he doesn’t walk a straight line, I
      don’t have any doubt that you would hesitate to violate him.

N.T., 9/9/15, at 5-6.

      According to Appellant, a defendant can refuse to report, remain at

liberty for years, and is entitled to the original sentence upon apprehension

with little consequence.    We disagree.         The common-sense approach is to

permit trial judges to grant report dates at their discretion, with the

understanding that severe consequences can and will befall those foolish

enough to make a mockery of the judge’s mercy. We therefore do not doubt

that confinement was necessary to vindicate the court’s authority.

      That leaves the question of whether the length of confinement

constituted an abuse of discretion. At sentencing, the Commonwealth asked

the   VOP   court   to   impose   the    statutory    maximum   sentence.     The

Commonwealth noted that Appellant had nine prior convictions, including

possession with intent to deliver, forgery, simple assault.          Additionally,

Appellant was on probation for unauthorized use of a vehicle at the time of

the instant crimes.

      Then and now, Appellant argued that the instant sentence was

manifestly excessive in consideration of the original plea offer. “Your Honor,

I noticed the Commonwealth thought it was appropriate to offer him a

sentence of 23 months with immediate parole. At the time, [his history] was

all known. None of that was new information. All we have today is a failure


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to surrender.” N.T., 11/13/15, at 13. Appellant continues this argument on

appeal, and complains that the lengthy sentence was an abuse of discretion.

      Obviously, the court had no authority to originally impose anything other

than the negotiated sentence. Appellant’s emphasis of that point, however,

gives little if any weight to the unique considerations involved in a revocation

proceeding.    Mindful of the applicable standard of review, we find that

Appellant’s failure to appear for his report date cannot per se justify a

statutory maximum sentence. However, not all failures to report are alike,

and Appellant’s attempt to diminish the severity of his failure to report is

unavailing. This is not a situation where Appellant missed his reporting date

by days, as he remained at liberty for over ten months. Nor did Appellant

voluntarily turn himself in to serve his sentence. By all objective indicia, but

for his arrest on new charges, Appellant would have continued to ignore his

obligation to appear.

      The record demonstrates that the VOP court did not reflexively punish

Appellant with the harshest allowable sentence solely because of that failure

to appear.     Rather, the court properly considered the length of his

noncompliance as a contributing factor. “[Appellant] . . . defied the [court’s]

authority for a lengthy period of time. This [c]ourt quite clearly identified this

lengthy period of defiance as a factor substantiating the revocation and

imposition of confinement. These were stated contributing factors underlying




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the   revocation   determinations    and   for   the   subsequent   sentence   of

confinement imposed.” Trial Court Opinion, 8/8/17, at 10-11.

      Moreover, Appellant’s criminal history was a permissible consideration,

and the record demonstrates that the court reviewed a pre-sentence report.

N.T., 11/13/15, at 9 (“For the record, I have the PSI now so I’m going over

that.”). Finally, the trial court’s opinion notes an “apparent lack of remorse”

as a factor. Trial Court Opinion, 8/8/17, at 12. We agree that the court could

properly consider that facet in fashioning its sentence.      At the sentencing

proceeding, Appellant did not address his failure to appear when asked to

speak directly to the VOP court, and instead averred that he did not deserve

additional jail time for the underlying crime. N.T., 11/13/15, at 14 (“I made

a bad decision by getting behind the wheel and driving home. To be honest

with you, I really don’t believe I need to be in jail because I do things right on

the street. Like I said, I made a bad decision that day.”). The VOP court was

entrusted with the discretion to consider Appellant’s downplaying not only his

failure to appear, but the severity of the underlying criminal conduct.

      In sum, the VOP court was required to balance its interest in vindicating

its authority when considering what sentence to impose on a recalcitrant

recidivist like Appellant. The judge was not required to sit idly by and tolerate

Appellant’s flagrant disrespect for its order and its mercy in letting Appellant

commence his incarceration months after the sentence was formally imposed

with a slap on the wrist for contempt. While this sentence is doubtlessly harsh,


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we cannot find an abuse of discretion. See Commonwealth v. Sierra, 752

A.2d 910 (Pa.Super. 2000) (statutory maximum sentence following revocation

based on technical violations was not an abuse of discretion).

       Finally, we may address illegality of sentence issues sua sponte, and we

find that the trial court imposed an illegal sentence by ordering Appellant to

serve a flat eighty-nine day sentence at the DUI count. With rare statutory

exceptions that do not appear to apply herein, a sentence that fails to specify

a minimum and maximum is illegal. See 42 Pa.C.S. § 9756(b)(1); see also

Commonwealth v. Cain, 637 A.2d 656, 658 (Pa.Super. 1994) (“Cain's

sentence is technically illegal because the court imposed a flat one year of

imprisonment       without      specifying     any   minimum   sentence.”);     cf.

Commonwealth v. Klingensmith, 650 A.2d 444 (Pa.Super. 1994) (holding

flat sentence of ninety days confinement not illegal where the statute

specifically called for that sentence, thus overriding general rule of § 9756).

       Here, the original sentence as negotiated correctly included a minimum

and maximum. “THE COURT: The sentence I originally gave him was three to

90 days on his DUI.         Right? [COMMONWEALTH]: That’s correct.” 3         N.T.,

____________________________________________


3 Appellant was convicted of one count of 75 Pa.C.S. § 3802(a)(1), as an
ungraded misdemeanor.        As set forth at the guilty plea hearing, Appellant
refused breath testing, thereby triggering 75 Pa.C.S. § 3804(c)(1), which sets
the penalties for DUI. That subsection states that an individual who violates
§ 3802(a)(1) as a first offense and refused testing of breath must be
imprisoned for a minimum of seventy-two hours.




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11/13/15, at 16. However, the judge then stated, “DUI is flat sentence of 89

days to run consecutive[.]” Id. Therefore, this sentence is illegal as it fails

to specify a minimum and maximum, and we vacate and remand for

resentencing at that count. 4

       Judgment of sentence at count one remanded for application of time

credit as needed. Judgment of sentence at count two vacated. Judgment of

sentence affirmed in all other respects. Jurisdiction relinquished.


       Judge Musmanno joins the memorandum.

       Judge McLaughlin concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/18




____________________________________________


4 We do not vacate the sentence at fleeing and eluding, as Appellant was
sentenced to the statutory maximum and we have found no abuse of
discretion nor illegality in its imposition.


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