J-S94036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                      v.

WALTER MARTIN HEINBACH

                             Appellant                   No. 1145 MDA 2016


             Appeal from the Judgment of Sentence April 27, 2016
      in the Court of Common Pleas of Wyoming County Criminal Division
                       at No(s): CP-66-CR-0000479-2013

BEFORE: LAZARUS, RANSOM, AND FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED JANUARY 04, 2017

        Appellant, Walter Martin Heinbach, appeals from the judgment of

sentence entered in the Wyoming County Court of Common Pleas after the

trial court purported to revoke his state intermediate punishment (“SIP”).

Appellant claims he is entitled to discharge because the trial court erred in

failing to hold a revocation hearing, the court’s new sentence violated double

jeopardy, and the court improperly calculated credit for time served.              We

vacate the judgment of sentence and remand for further proceedings.

        A   summary    of   the   facts   underlying    Appellant’s   conviction   is

unnecessary to this appeal.       Appellant pleaded guilty to possession of a

prohibited offensive weapon and driving under the influence on April 4,




*
    Former Justice specially assigned to the Superior Court.
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2014. On October 3, 2014, the trial court sentenced him to serve twenty-

four months’ SIP, with 189 days’ credit for time served.

      On April 13, 2016, the SIP program administrator authored a letter

informing Appellant that he was “expelled due to [his] Lack of Meaningful

Participation in the program.”         Letter, Terri A. Sommers to Appellant,

4/13/16.      The administrator stated Appellant “returned to substance use

several times while in SIP” and most recently failed a breathalyzer test on

March 19, 2016.         Id.     The administrator informed the trial court of

Appellant’s    expulsion      and   requested   resentencing   before   Appellant’s

maximum release date of April 29, 2016.              Letter, Terri A. Somers to

President Judge Russell Shurtleff, 4/13/16.

      On April 27, 2016, the trial court convened a hearing at which counsel

for the Commonwealth and Appellant were present. Appellant participated

by videoconferencing.      The court stated that it was notified of Appellant’s

expulsion and that a presentence investigation report was completed. The

court heard arguments on sentencing, as well as a statement by Appellant.

The court sentenced Appellant to an aggregate nineteen to sixty-six months’

imprisonment with 403 days’ credit for time served.            This timely appeal

followed.

      Appellant presents the three questions for review, which we have

reordered as follows:

           Did the [trial] court’s failure to hold a revocation hearing,
           in accordance with 42 Pa.C.S.[ ] § 9774(b) constitute an


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          error of law such that it deprived [Appellant] of due
          process of law?

          Upon resentencing [Appellant], did the [trial] court’s
          failure to vacate the original sentence implicate the
          protections against double jeopardy such that the
          resentencing orders are void ab initio?

          Did the [trial] court commit an error of law when it failed
          to properly calculate [Appellant’s] time served credit?


Appellant’s Brief at vii.

      Appellant first argues that the trial court erred in failing to conduct a

revocation hearing.     The Commonwealth agrees.      Our review reveals that

relief is due.

      Section 9774 of the Judicial Codes provides:

          (a) General rule.—The court may at any time terminate a
          sentence of State intermediate punishment pursuant to 61
          Pa.C.S.  Ch.    41    (relating to   State  intermediate
          punishment).

          (b) Revocation.—The court shall revoke a sentence of
          State intermediate punishment if after a hearing it
          determines that the participant was expelled from or failed
          to complete the program.

          (c) Proceedings upon revocation.—Upon revocation of
          a State intermediate punishment sentence, the sentencing
          alternatives available to the court shall be the same as the
          alternatives available at the time of initial sentencing. The
          attorney for the Commonwealth must file notice, at any
          time prior to resentencing, of the Commonwealth’s
          intention to proceed under an applicable provision.

42 Pa.C.S. § 9774.      Additionally, Pennsylvania Rule of Criminal Procedure

708 provides, in relevant part:



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         Whenever a defendant has been sentenced to probation or
         intermediate punishment, or placed on parole, the judge
         shall not revoke such probation, intermediate punishment,
         or parole as allowed by law unless there has been:

         (1) a hearing held as speedily as possible at which the
         defendant is present and represented by counsel; and

         (2) a finding of record that the defendant violated a
         condition of probation, intermediate punishment, or parole.

Pa.R.Crim.P. 708(B).

      This Court has recognized that “expulsion and revocation are separate

and distinct by statute.” Commonwealth v. Kuykendall, 2 A.3d 559, 562

(Pa. Super. 2010) (citation omitted).     The Pennsylvania Department of

Corrections is vested with the authority to expel a defendant from a SIP

program. Id. However, it is for a court to revoke the underlying sentence.

Id.   In the context of probation, the failure to hold a revocation hearing

requires the vacation of the new sentence and a remand so that a hearing

may be held.    Commonwealth v. Harrison, 398 A.2d 1057, 1059 (Pa.

Super. 1979).

      Instantly, the trial court proceeded immediately to resentencing

without conducting a revocation hearing or entering a “finding of record that

the defendant violated a condition of . . . intermediate punishment.”    See

Pa.R.Crim.P. 708(b).   Therefore, we must vacate the new sentence and

remand for a hearing. See Harrison, 398 A.2d at 1059.

      Appellant, in his next two arguments, challenges the legality of his

sentence under double jeopardy principles and the failure to award credit for


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time served.     See Kuykendall, 2 A.3d at 563; Commonwealth v.

Heredia, 97 A.3d 392, 395 (Pa. Super. 2014). He claims that because the

trial court did not revoke or vacate the prior SIP sentence, the instant

sentencing order constitutes a second punishment for the same offense and

must be stricken. Appellant’s Brief at 4-5. He further contends that because

the prior SIP sentence expired on April 29, 2015, he is now entitled to

discharge. Id. at 5-6. Appellant also claims the trial court did not explain

the discrepancy between the 189 days’ credit, relating back to April 29,

2014, awarded at the initial sentencing proceeding, and the 403 days’ credit,

relating back to August 27, 2015. Id. at 6. We conclude that these issues

are either meritless or moot.

      In Kuykendall, this Court observed:

             Once the sentencing court determined that Appellant
         had not successfully completed the SIP program, by law it
         was required to revoke the SIP sentence. 42 Pa.C.S. §
         9774(b). Additionally, much like a probation revocation,
         the court had the same sentencing alternatives available to
         it as it had at the time of the original sentence. 42 Pa.C.S.
         § 9774(c). We have consistently held that a revocation of
         probation does not violate double jeopardy.

Kuykendall, 2 A.3d at 564 (some citations omitted).        The “SIP sentence

requires successful completion of the program through a systematic

satisfaction of all phases of the SIP program.” Id. at 563. “Revocation of

SIP and the subsequent re-sentencing does not implicate double jeopardy

since the ‘revocation is not a second punishment for the original conviction,




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but rather is an integral element of the original conditional sentence[.]’” Id.

at 564 (citations omitted).

      Thus, a new sentence imposed following the revocation of Appellant’s

SIP sentence would not violate double jeopardy.       See id. at 564.    As to

Appellant’s further contention that he is entitled to discharge because his

maximum sentence on the SIP charge expired, we reiterate a SIP sentence

requires successful completion of the SIP program.          See id. at 563.

Because Appellant has not successfully completed the program, we disagree

with his proposed remedy of discharge. See id.

      As to Appellant’s contention that the trial court erred in awarding 403

days’ credit for time served,1 we conclude that this issue is moot in light of

our decision to vacate and remand for a revocation hearing.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/4/2017




1
 We note that Appellant, in his Pa.R.A.P. 1925(b) statement asserted he
was entitled to twenty-seven-and-one-half months’ credit.



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