J-S80027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 GERMAINE MCBRIDE                       :
                                        :
                   Appellant            :   No. 946 EDA 2017

         Appeal from the Judgment of Sentence October 22, 2015
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0007248-2013


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                      FILED FEBRUARY 22, 2019

     Germaine McBride appeals from the judgment of sentence of two-and-

one-half to five years of incarceration followed by two years of probation,

imposed following the revocation of his parole and/or probation. We affirm.

     The instant appeal stems from Appellant’s guilty plea entered on April

3, 2014, to receiving stolen property (“RSP”), a third-degree felony.     In

exchange for Appellant’s guilty plea, the parties negotiated a sentence of

eleven-and-one-half to twenty-three months of incarceration followed by two
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years of probation, with immediate parole and credit for time served.1 The

trial court imposed the agreed-upon sentence, directed Appellant to follow the

conditions of parole and probation, and ordered Appellant to pay $2,000.00 in

restitution.

       On April 15, 2015, the trial court received notification that Appellant had

violated the terms of supervision by refusing to report to his probation officer

and for failing to pay any amount of restitution.2 Following his Gagnon I3


____________________________________________


1 The amount of time served with which Appellant was credited has not been
made part of the certified record. The record reveals that Appellant was
arrested on May 17, 2013, in SCI Graterford while on a state detainer.
Appellant was then returned from state custody, and bail was set at this case
on October 21, 2013. Therefore, it appears that Appellant would have been
entitled to five months and 13 days of credit at his April 3, 2014 sentencing.
However, Appellant states that he has served 23 months of incarceration.
Appellant’s brief, 8. The Commonwealth’s brief does not provide any clarity,
as it is unsure what time credit petitioner received, admitting that “based on
the certified record, it is difficult to determine whether defendant’s claim is
accurate.” The Commonwealth’s brief, 7. In its 1925(b) opinion, the trial
court does not state the amount of time credit that Appellant received at
sentencing.

2 While everyone appears to agree that Appellant violated the terms of his
probation, it is impossible from the certified record to determine if Appellant
also violated the terms of his parole. In his brief, Appellant states that his
probation was revoked. In its brief, the Commonwealth refers to probation
and parole interchangeably without making any meaningful distinction
between the two. Similarly, the trial court oscillates between the usage of
probation or parole, appearing to conclude that Appellant violated both.

3 Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court determined
a two-step procedure was required before a parole or probation may be
revoked:




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hearing on October 22, 2015, where Appellant conceded to violating the terms

of his supervision, the court revoked Appellant’s parole and/or probation. Trial

Court Opinion, 2.4 After waiving his right to a Gagnon II hearing, the trial

court immediately resentenced Appellant to two to five years of incarceration

followed by two years of probation, with credit for time served.5

       Appellant filed a post-sentence motion for reconsideration, which was

denied. Although Appellant failed to file a notice of appeal within thirty days,

as required for violation of parole and probation sentences, he successfully

sought restoration of his appellate rights nunc pro tunc through a PCRA

petition. Appellant filed a timely notice of appeal and complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) statement, and raises the following

issue for our review: “Can the [trial court] impose a sentence for a violation


____________________________________________


       [A] parolee [or probationer] is entitled to two hearings, one a
       preliminary hearing [Gagnon I] at the time of his arrest and
       detention to determine whether there is probable cause to believe
       that he has committed a violation of his parole [or probation], and
       the other a somewhat more comprehensive hearing [Gagnon II]
       prior to the making of a final revocation decision.

Id. at 781-82.

4The probation violation hearing transcript was not made a part of the certified
record. The trial court states in its opinion that Appellant conceded to violating
the terms of his supervision and that it revoked Appellant’s probation and
parole sentences.

5 The resentencing order does not calculate the amount of time credit; instead,
leaving the determination up to the Philadelphia prison system. However,
Appellant is serving a state sentence. Therefore, any time credit due would
be determined by the state prison system.

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of probation that, when totaling the original time served in prison, the

maximum sentence of incarceration for the violation and the probationary tail

for the violation exceed the maximum sentence for the crime committed?”

Appellant’s brief at 7.

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

de novo. Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa.Super. 2016).

In support of his claim, Appellant argues that his new sentence, when

combined with the twenty-three months he previously served, exceeds the

statutory maximum.        The Commonwealth responds that the trial court

imposed a legal sentence within the statutory maximum, as it awarded credit

for time served.

      Appellant was       originally ordered to   serve   a split   sentence   of

incarceration followed by probation. If Appellant had completed parole at the

time of the violation, and was serving his probationary sentence, then the

court had the same sentencing options available that existed at the time that

the original sentence was imposed. Commonwealth v. Wallace, 870 A.2d

838, 843 (Pa. 2005); 42 Pa.C.S. § 9771(b). Additionally, the new sentence

was within the statutory maximum for a third degree felony, with the time

credit award; therefore, this Court would affirm Appellant’s judgment of

sentence on this basis.

      The record is unclear as to whether petitioner was still on parole, or if

he had begun serving probation when the violation occurred. That point is


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significant, as 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. Holmes, 933 A.2d 57, 59, n.5 (Pa.

2007).    Therefore, if Appellant was still serving parole at the time of his

violation, the trial court imposed an illegal sentence, as it was limited to

imposing the balance of the original parole sentence, followed by a separate

sentence for the probation revocation.

        However, this Court has addressed potentially analogous circumstances

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

Ware was incarcerated in a county facility on unrelated charges when she pled

guilty to a felony of the third degree. She received 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 of incarceration. Thus, Ware was not ordered

to serve the remainder of her parole sentence, which, according to Ware,

rendered the sentence illegal. We disagreed.




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

sentence and anticipatorily revoking 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 therefore apply the same

logic, and hold that the trial court was authorized to anticipatorily revoke

Appellant’s parole and probation, and impose the maximum sentence

allowable by law.




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      Ultimately, whether Appellant was still serving parole and probation

sentences, or just the probation at the time of violation, his sentence did not

exceed the statutory maximum. Therefore, as we held in Ware, we see no

reason to remand for the pointless and formalistic repetition of sentencing

procedures in order to reach a foregone conclusion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




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