J-A05021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRICK WILLIAMS,
Appellant
No. 947 EDA 2013
Appeal from the Judgment of Sentence June 15, 2010
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009354-2007
BEFORE: ALLEN, J., JENKINS, J., and FITZGERALD, J.*
MEMORANDUM BY JENKINS, J.
FILED JUNE 20, 2014
Tyrick Williams appeals from an order dated June 15, 2010 in which
the court revoked his probation at CP-51-CR-0009354-2007 (“the 2007
case”) and imposed sentences of 2-4 years imprisonment on each of two
misdemeanors, simple assault1 and recklessly endangering another person2.
These sentences ran concurrently with one another but consecutively to
Williams’ sentence in another case (CP-51-CR-0011069-2008) (“the 2008
case”).
*
Former Justice specifically assigned to the Superior Court.
1
18 Pa.C.S. § 2701.
2
18 Pa.C.S. § 2705.
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Williams’ June 15, 2010 sentence is illegal for several reasons. First,
Williams’ sentence of 2-4 years’ imprisonment for simple assault was twice
the legal maximum for this second degree misdemeanor.
Second, since
Williams’ original sentence for simple assault in the 2007 case was a term of
imprisonment, the court should have revoked Williams’ parole for simple
assault instead of his “probation” and sentenced him to serve the
uncompleted portion of his sentence.
Third, his sentence of 2-4 years’
imprisonment on the reckless endangerment conviction was twice the legal
maximum for this second degree misdemeanor.
For these reasons, we
vacate Williams’ judgment of sentence and remand for resentencing3.
In the 2007 case, Williams was charged with simple assault and
reckless endangerment.
Each charge was graded as a second degree
misdemeanor4 carrying a maximum sentence of 1-2 years’ imprisonment.
Williams entered an open guilty plea on both charges. On January 30, 2008,
the
trial
court
sentenced
Williams
to
time
served
to
23
months’
imprisonment for simple assault followed by two years’ probation for
3
On March 27, 2014, we quashed this appeal as untimely. Both parties filed
motions for reconsideration asserting that the appeal was timely. On April
29, 2014, we granted the parties’ motions and agreed to review this appeal
on the merits.
4
Simple assault is a first degree misdemeanor when committed by a person
18 years or older against a child under 12 years of age, 18 Pa.C.S. §
2701(b)(2), and is a third degree misdemeanor in the case of a fight or
scuffle entered into by mutual consent, 18 Pa.C.S. § 2701(b)(1). Neither of
these circumstances is present here.
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reckless endangerment.
The court paroled Williams immediately on the
simple assault charge.
On April 5, 2010, Williams entered into a negotiated guilty plea in the
2008 case for possession with intent to deliver a controlled substance
(“PWID”) and possession of an instrument of crime (a gun).
The court
sentenced him to 3-6 years’ imprisonment plus 4 years’ probation for PWID
and 5 years’ probation for possession of an instrument of crime consecutive
to his sentence of imprisonment for PWID.
On June 15, 2010, based on Williams’ guilty plea in the 2008 case, the
trial court purported to revoke Williams’ “probation” on his simple assault
conviction instead of his parole. The court also revoked Williams’ probation
on his reckless endangerment conviction. On the simple assault conviction,
the court re-sentenced Williams to 2-4 years’ imprisonment to run
consecutively
to
his
sentence
in
the
2008
case.
On
the
reckless
endangerment conviction, the court re-sentenced Williams to 2-4 years’
imprisonment to run consecutively to his sentence in the 2008 case but
concurrently to his simple assault sentence.
See Revocation Order,
6/15/10.
On June 25, 2010, Williams filed a timely motion to modify his
sentence in which he contended that the court failed to take into account the
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sentencing factors required by 42 Pa.C.S. § 9721(b)5 or the sentencing
alternatives provided under 42 Pa.C.S. § 9771(c)6.
5
Despite this motion
42 Pa.C.S. § 9721(b) provides:
(b) General standards.--In selecting from the alternatives set forth
in subsection (a), the court shall 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. The court shall also consider any
guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing and taking effect under
section 2155 (relating to publication of guidelines for sentencing,
resentencing and parole and recommitment ranges following
revocation). In every case in which the court imposes a sentence for a
felony or misdemeanor, modifies a sentence, resentences an offender
following revocation of probation, county intermediate punishment or
State intermediate punishment or resentences following remand, the
court shall make as a part of the record, and disclose in open court at
the time of sentencing, a statement of the reason or reasons for the
sentence imposed. In every case where the court imposes a sentence
or resentence outside the guidelines adopted by the Pennsylvania
Commission on Sentencing under sections 2154 (relating to adoption
of guidelines for sentencing), 2154.1 (relating to adoption of guidelines
for county intermediate punishment), 2154.2 (relating to adoption of
guidelines for State intermediate punishment), 2154.3 (relating to
adoption of guidelines for fines), 2154.4 (relating to adoption of
guidelines for resentencing) and 2154.5 (relating to adoption of
guidelines for parole) and made effective under section 2155, the
court shall provide a contemporaneous written statement of the reason
or reasons for the deviation from the guidelines to the commission, as
established under section 2153(a)(14) (relating to powers and duties).
Failure to comply shall be grounds for vacating the sentence or
resentence and resentencing the defendant.
6
42 Pa.C.S. § 9771(c) provides:
(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
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(which the court did not decide), the 30-day appeal period continued to run
unabated7. Williams did not file a notice of appeal, causing the direct appeal
period to expire on July 15, 2010.
On August 19, 2010, Williams filed a timely pro se petition under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., seeking
reinstatement of his right to file a direct appeal nunc pro tunc. On July 9,
2012, counsel for Williams filed an amended PCRA petition, again requesting
leave to file a direct appeal nunc pro tunc.
On March 22, 2013, the trial
court granted Williams leave to appeal nunc pro tunc8. On March 27, 2013,
Williams filed the present appeal.
Williams filed a timely concise statement of matters complained of on
appeal in which he raised the following issues:
(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.
See Pa.R.Crim.P. 708(e) (following revocation of probation, “the filing of a
motion to modify sentence will not toll the 30-day appeal period”).
7
There is no question that the trial court had jurisdiction to grant Williams’
petition in 2013. Trial courts do not lose jurisdiction to grant PCRA relief
until the defendant’s sentence expires. Commonwealth v. Ahlborn, 699
A.2d 718, 720 (Pa.1997).
As of March 22, 2013, Williams had not
completed his 2-4 year sentences, since less than three years had passed
after his June 15, 2010 revocation hearing.
8
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1. The trial court erred in denying the defendant the right to file post
sentence motions nunc pro tunc9.
2. The trial court abused its discretion in the sentence it imposed and
the sentence was unreasonable. The trial court did not take into
consideration all the factors required by 42 Pa.C.S. § 9721(b). The
trial court did not take into consideration the defendant's age,
family history and rehabilitative needs in imposing the sentence.
3. The trial court's sentence did not comply with the requirements of
42 Pa.C.S. § 9771(c) and the trial court failed to state the reasons
for its sentence.
4. The defendant reserves the right to modify, amend, or supplement
this statement.
Although Williams does not argue that his sentences are illegal, we
may raise this defect sua sponte.
Commonwealth v. Mears, 972 A.2d
1210, 1211 (Pa.Super.2009) (citing Commonwealth v. Merolla, 909 A.2d
337, 347 (Pa.Super.2006)).
We detect that Williams’ June 15, 2010
sentence for simple assault is illegal on its face. In January 2008, the trial
court sentenced Williams to 6-23 months’ imprisonment on the simple
assault charge with immediate parole. During the June 15, 2010 revocation
hearing, however, the court purported to revoke Williams’ “probation” and
impose a new sentence with a new minimum and maximum.
The only
available remedy is to revoke Williams’ parole and order him to serve his full
9
We do not understand the basis for this argument, since the record reflects
that Williams filed timely post-sentence motions on June 25, 2010. In any
event, this issue is moot in view of our order directing resentencing. After
resentencing, Williams will have another opportunity to raise post-sentence
motions with the proviso that post-sentence motions following revocation of
parole or probation do not toll the time for appeal. Pa.R.Crim.P. 708(e).
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backtime. Commonwealth v. Ware, 737 A.2d 251, 253 (Pa.Super.1999)
(“upon revocation of parole, the only sentencing option available is
recommitment to serve the balance of the term initially imposed”).
No
authority exists for giving a new sentence with a minimum and maximum.
Id. (citing Commonwealth v. Fair, 497 A.2d 643, 645 (1985)).
Williams’ June 15, 2010 sentence for reckless endangerment also is
illegal. The maximum term for second degree misdemeanors is 1-2 years’
imprisonment.
18 Pa.C.S. § 1104(2).
Williams’ sentence was 2-4 years’
imprisonment, twice the legal maximum.
Therefore, we remand for resentencing on both charges.
As to the
simple assault conviction, it is unclear from the certified record precisely how
much time Williams has served to date, so we leave it to the trial court to
determine the length of Williams’ backtime and whether he has already
served his entire backtime. These calculations are relevant to determine the
maximum available length of time remaining on his reckless endangerment
sentence.
The court’s job is more complex when it imposes a new sentence for
Williams’ violation of probation for reckless endangerment. Williams argues
in the present appeal that the trial court failed to comply with 42 Pa.C.S. §§
9721(b) and 9771(c) during the June 15, 2010 revocation hearing.
Statement of Matters Complained Of On Appeal, ¶¶ 2-3. We offer several
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instructions relative to sections 9721(b) and 9771(c) that the court should
implement at resentencing for Williams’ reckless endangerment conviction.
When revoking probation, the court has available the full panoply of
sentencing alternatives that it had at the time of Williams’ original sentence,
including a sentence of imprisonment. Commonwealth v. Tann, 79 A.3d
1130, 1132-33 (Pa.Super.2013).
Moreover, this Court recently held that
“this Court's scope of review in an appeal from a revocation sentencing
includes
discretionary
sentencing
challenges.”
Commonwealth
Cartrette, 83 A.3d 1030, 1034 (Pa.Super.2013) (en banc).
v.
Cartrette
clearly conveys that the trial court is duty-bound under section 9721(b) to
weigh discretionary factors when fashioning the appropriate sentence in a
probation revocation hearing. These factors include, but are not limited to,
the defendant’s age, family history and rehabilitative needs -- criteria that
Williams claims the trial court ignored during his June 15, 2010 hearing.
Statement of Matters Complained Of On Appeal, ¶ 2.
We direct the trial
court to weigh these criteria on the record during Williams’ resentencing.
Furthermore, section 9771(c) mandates that in order to sentence
Williams to imprisonment for violating his probation, the court must find at
least one of three factors on the record: (1) the defendant has been
convicted of another crime; (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. During
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the June 15, 2010 hearing, the court found that Williams met the first and
third factors, because he stood convicted of other crimes and imprisonment
was necessary to vindicate the authority of the court. See N.T., 6/15/10,
pp. 5-6 (court’s remark that “I’m sure that [the sentencing judge] wanted
you to stay out of trouble when you were under her supervision. Obviously,
you didn’t listen to her. . .”). While we have no quarrel with this analysis,
we caution that the court is not bound by this analysis at resentencing but
instead should perform the section 9771(c) analysis anew.
If Williams
meets any of the three criteria, the court has the authority, if it so chooses,
to impose a sentence of imprisonment10.
Judgment of sentence vacated.
Case remanded for resentencing in
accordance with the directives in this memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2014
10
Furthermore, regardless of whether it imposes a sentence of imprisonment
or another type of sentence, the court must “state on the record the reasons
for the sentence imposed.” Pa.R.Crim.P. 708(D)(2).
9