J-S17026-16 

2016 PA Super 78 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellant 

v. 

ROBERT JAMES FINLEY, 

 Appellee No. 1174 WDA 2015 

Appeal from the Order July 14, 2015 

In the Court of Common Pleas of Butler County 

Criminal Division at No(s): CP-10-CR-0001949-2013 

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ. 

OPINION BY SHOGAN, J.: FILED APRIL 5, 2016 

 Appellant, the Commonwealth of Pennsylvania (“the 

Commonwealth”),1 appeals from the order entered on July 14, 2015, that 

granted Appellee, Robert James Finley, early parole. After careful review, 

we reverse the order and remand for further proceedings consistent with this 

Opinion. 

____________________________________________ 

*

 Former Justice specially assigned to the Superior Court. 

1

 On January 25, 2016, Attorney William T. Fullerton filed a motion to 

withdraw his appearance as counsel for the Commonwealth due to his 

separation from the Butler County District Attorney’s Office. In that same 

motion, Assistant District Attorney Mark A. Lope moved to enter his 

appearance on behalf of the Commonwealth in this matter. The motion is 

granted. Attorney Fullerton is hereby permitted to withdraw, and Attorney 

Lope’s appearance is entered on behalf of the Commonwealth. 
J-S17026-16 

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The record reveals that at 3:14 a.m., on August 3, 2013, Sergeant 

Timothy Clark of the Butler Township Police Department responded to the 

report of an unconscious person sitting behind the wheel of a gray vehicle in 

a McDonald’s parking lot. Affidavit of Probable Cause, 10/18/13, at 1. 

When Sergeant Clark, who was assisted by Officer Tedeski of the Butler City 

Police Department, arrived at the scene, they approached the gray vehicle 

and saw an individual unconscious in the driver’s seat. Id. Officer Tedeski 

noticed an empty bottle of Smirnoff Ice on the floor of the suspect’s car. Id. 

Sergeant Clark knocked on the driver’s window and woke the driver. Id. 

Sergeant Clark asked the driver to open the window and asked him if he had 

been drinking. Id. The driver, who had glassy, bloodshot eyes, opened the 

window, but he denied consuming alcohol. Id. Sergeant Clark then directed 

the driver to exit the vehicle. Id. Rather than alight from the car, the driver 

closed the window and revved the engine. Id. Sergeant Clark grabbed the 

driver’s door handle, but the driver shifted the car into gear and fled. Id. 

Sergeant Adam of the Butler City Police responded as back-up, and pursued 

the fleeing vehicle. Id. During this pursuit, Sergeant Adam had the lights 

and siren on his police vehicle activated. Id. Despite the pursuit, the police 

officers lost sight of the gray car. Id. at 2. However, during his 

investigation, Sergeant Clark learned that the vehicle was registered to 

Samantha Sekura from West Mifflin, Pennsylvania. Id. After discussions 
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with the West Mifflin Police Department, Sergeant Clark determined that 

Appellee was the driver of the gray vehicle. Id. 

 Appellee was subsequently arrested and charged with recklessly 

endangering another person (“REAP”) and numerous violations of the 

Pennsylvania Motor Vehicle Code. On September 12, 2014, Appellee 

entered guilty pleas to one count each of fleeing/attempting to elude police,2

REAP,3 habitual offender,4 driving while operating privileges were 

suspended-DUI related,5 and reckless driving.6 On October 29, 2014, the 

trial court sentenced Appellee to a term of ninety to 180 days of 

incarceration followed by twenty-four months of probation for 

fleeing/attempting to elude police, six to twelve months of incarceration for 

REAP, thirty to sixty days of incarceration for habitual offenders, a flat 

sentence of ninety days for driving while operating privileges were 

suspended-DUI related,7 and a fine for reckless driving. The trial court 

____________________________________________ 

2

 75 Pa.C.S. § 3733(a). 

3

 18 Pa.C.S. § 2705. 

4

 75 Pa.C.S. § 6503.1. 

5

 75 Pa.C.S. § 1543(b)(1). 

6

 75 Pa.C.S. § 3736. 

7

 The flat sentence of ninety days is an exception to the minimum and 

maximum sentencing requirements set forth in 42 Pa.C.S. § 9756. See 

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

(Footnote Continued Next Page) 
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ordered the sentences to be served consecutively. Thus, as for the felony 

and the misdemeanor offenses, the trial court imposed an aggregate 

sentence of ten to twenty months of incarceration. As for the summary 

offense of driving while operating privileges were suspended-DUI related, 

the trial court imposed a consecutive term of ninety days of incarceration. 

Therefore, the aggregate sentence was thirteen to twenty months of 

incarceration. The trial court deferred commitment until November 23, 

2014. However, because of a credit for time served of two days, the 

effective date of commitment was November 21, 2014. Post-sentence 

motions were filed and denied; Appellee did not file a direct appeal. 

 On June 26, 2015, Appellee filed a motion for early parole. Following a 

hearing, which was held on July 13, 2015, the trial court granted Appellee 

early parole in an order filed on July 14, 2015. On July 28, 2015, the 

Commonwealth filed a timely appeal. 

On August 12, 2015, the trial court directed the Commonwealth to file 

a statement of errors complained of on appeal within twenty-one days 

pursuant to Pa.R.A.P. 1925(b). The Commonwealth complied, and on 

September 18, 2015, the trial court filed its Pa.R.A.P. 1925(a) opinion.8

(Footnote Continued) _______________________ 

(discussing the relationship between 42 Pa.C.S. § 9756 and 75 Pa.C.S. 

§ 1543(b)). 

8

 We conclude that this Court has jurisdiction in this matter. See 42 

Pa.C.S. § 9781(a) (stating that the defendant or the Commonwealth may 

(Footnote Continued Next Page) 
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 On appeal, the Commonwealth presents one question for this Court’s 

consideration: 

Whether the court of common pleas committed an error of law 

by granting a motion for early parole without legal authority? 

Commonwealth’s Brief at 7 (full capitalization omitted). 

 We recognize that “[w]hen an offender is sentenced to a maximum 

term of imprisonment of less than two years, the common pleas court 

retains authority to grant and revoke parole[.]” Commonwealth v. 

Hanson, 856 A.2d 1254, 1258 (Pa. Super. 2004) (citation omitted). 

Additionally, when the defendant is eligible for parole, the trial court’s 

decision to grant parole is a discretionary act, and it is subject to appellate 

review under an abuse of discretion standard. Commonwealth v. 

Romolini, 557 A.2d 1073, 1077 (Pa. Super. 1989). 

However, in the case at bar, we are not faced with a challenge to an 

order granting early parole to an eligible defendant. Rather, the issue in 

the instant case concerns the authority of the trial court to grant early parole 

to a defendant prior to that defendant completing his minimum sentence, 

i.e, an ineligible defendant. This determination requires an examination 

of the requirements for sentences of total confinement and parole eligibility 

(Footnote Continued) _______________________ 

appeal as of right the legality of a sentence); and see Commonwealth v. 

Hall, 652 A.2d 858 (Pa. Super. 1995) (reversing an order granting parole 

and addressing a Commonwealth appeal from a trial court’s illegal grant of 

parole) and Commonwealth v. Jamison, 652 A.2d 862 (Pa. Super. 1995) 

(same). 
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set forth in 42 Pa.C.S. § 9756. Therefore, our examination of this issue is 

one of statutory interpretation, which is a question of law. Accordingly, as 

with all questions of law, our scope of review is plenary and our standard of 

review is de novo. Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa. 

Super. 2011). 

 The Pennsylvania Sentencing Code provides, in relevant part, as 

follows: 

Sentence of total confinement 

(a) General rule.--In imposing a sentence of total confinement 

the court shall at the time of sentencing specify any maximum 

period up to the limit authorized by law and whether the 

sentence shall commence in a correctional or other appropriate 

institution. 

(b) Minimum sentence.--

(1) The court shall impose a minimum sentence of 

confinement which shall not exceed one-half of the 

maximum sentence imposed. 

(2) The minimum sentence imposed under this 

section may not be reduced through parole 

prior to the expiration of the minimum 

sentence unless otherwise authorized by this 

section or other law.

(3) Except where the maximum sentence imposed is 

two years or more, and except where a mandatory 

minimum sentence of imprisonment or total 

confinement is required by law, the court shall, at 

the time of sentencing, state whether or not 

the defendant is eligible to participate in a 

reentry plan at any time prior to the expiration 

of the minimum sentence or at the expiration of 

a specified portion of the minimum sentence.

For maximum sentences of less than two years as 
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defined under section 9762(f) (relating to sentencing 

proceeding; place of confinement), a court may 

parole a defendant prior to the expiration of 

the minimum sentence only if the defendant 

was made eligible to participate in a reentry 

plan at the time of sentencing. The court shall 

provide at least ten days’ written notice and an 

opportunity to be heard, pursuant to section 9776 

(relating to judicial power to release inmates), to the 

prosecuting attorney before granting parole pursuant 

to this subsection. The reentry plan eligibility shall 

be considered a part of the sentence and subject to

the requirements relating to the entry, recording and 

reporting of sentences. 

42 Pa.C.S. § 9756(a) and (b) (emphases added). 

 As noted above, when the trial court imposed sentence, Appellee was 

not eligible for parole on the felony and misdemeanor convictions until his 

minimum sentence expired on September 21, 2015. If paroled on that date, 

Appellee would then have to serve his flat ninety-day sentence on the 

summary offense conviction. Nothing in the record or in the sentencing 

order provided that Appellee was eligible for an early reentry program that 

would allow for parole prior to Appellee serving his minimum sentence. Yet, 

when the trial court granted Appellee parole on July 14, 2015, Appellee had 

served less than nine months. 

Appellee contends that the trial court did not err in granting early 

parole. Appellee’s Brief at 11. He avers that “he was essentially made 

eligible for reentry when the [s]entencing order specifically state[d] that the 

county will retain parole jurisdiction.” Id. We disagree. As discussed, in 

order to be eligible for early parole, the trial court is required to make an 
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early reentry determination on the record at the time of sentencing. 42 

Pa.C.S. § 9756(b)(3). A trial court’s imposition of a county sentence and 

retention of parole authority does not satisfy section 9756(b)(3) and make a 

defendant eligible for parole prior to the expiration of his minimum sentence. 

Accordingly, due to the fact that the trial court had not made Appellee 

eligible for early parole at the time of sentencing, and because Appellee had 

not served his minimum sentence, Appellee was not parole eligible. 

Therefore, the trial court was without authority to grant Appellee’s motion 

for early parole.9 42 Pa.C.S. § 9756(b). For these reasons, the July 14, 

2015 order that granted Appellee early parole is reversed, and we remand 

this case for further proceedings consistent with this decision. 

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished. 

P.J. Gantman joins the Opinion. 

Justice Fitzgerald concurs in the result. 

____________________________________________ 

9

 The trial court conceded that it erred in granting Appellee early parole, 

and it requested this matter be remanded in order for that error to be 

corrected. Trial Court Opinion, 9/18/15, at 1. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/5/2016