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, t hat granted Appellee, Robert James Finley, early parole . After careful review, we reverse the order and remand for further proceed ings consistent with this Opinion.

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* Former Justice specially assigned to the Superior Court.

1 On January 25, 2016, Attorney William T. Fullerto n filed a motion to withdraw his appearance as counsel for the Commonwe alth due to his separation from the Butler County District Attorney ’s Office. In that same motion, Assistant District Attorney Mark A. Lope mo ved to enter his appearance on behalf of the Commonwealth in this ma tter. The motion is granted. Attorney Fullerton is hereby permitted to withdraw, and Attorney Lope’s appearance is entered on behalf of the Commo nwealth.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 Departm ent 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 Ca use, 10/18/13, at 1. When Sergeant Clark, who was assisted by Officer Te deski of the Butler City Police Department, arrived at the scene, they appro ached the gray vehicle and saw an individual unconscious in the driver’s s eat. Id . Officer Tedeski noticed an empty bottle of Smirnoff Ice on the floo r of the suspect’s car. Id

. Sergeant Clark knocked on the driver’s window and w oke 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, open ed 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 ca r into gear and fled. Id

. Sergeant Adam of the Butler City Police responded a s back-up, and pursued the fleeing vehicle. Id . During this pursuit, Sergeant Adam had the light s 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 vehi cle was registered to Samantha Sekura from West Mifflin, Pennsylvania. Id . After discussionsJ-S17026-16

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with the West Mifflin Police Department, Sergeant C lark determined that Appellee was the driver of the gray vehicle. Id

. Appellee was subsequently arrested and charged wit h recklessly endangering another person (“REAP”) and numerous vi olations of the Pennsylvania Motor Vehicle Code. On September 12, 2014, Appellee entered guilty pleas to one count each of fleeing/a ttempting 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 pro bation for fleeing/attempting to elude police, six to twelve m onths of incarceration for REAP, thirty to sixty days of incarceration for hab itual 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)J-S17026-16

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ordered the sentences to be served consecutively. Thus, as for the felony and the misdemeanor offenses, the trial court impos ed 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 ninet y days of incarceration. Therefore, the aggregate sentence was thirteen to t wenty 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 fil e a direct appeal. On June 26, 2015, Appellee filed a motion for earl y 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. O n July 28, 2015, the Commonwealth filed a timely appeal. On August 12, 2015, the trial court directed the Co mmonwealth to file a statement of errors complained of on appeal withi n twenty-one days pursuant to Pa.R.A.P. 1925(b). The Commonwealth co mplied, 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. § 9 756 and 75 Pa.C.S. § 1543(b)).

8 We conclude that this Court has jurisdiction in t his matter. See 42 Pa.C.S. § 9781(a) (stating that the defendant or th e Commonwealth may (Footnote Continued Next Page)J-S17026-16

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On appeal, the Commonwealth presents one question for this Court’s consideration: Whether the court of common pleas committed an erro r of law by granting a motion for early parole without legal authority? Commonwealth’s Brief at 7 (full capitalization omit ted). We recognize that “[w]hen an offender is sentenced to a maximum term of imprisonment of less than two years, the co mmon pleas court retains authority to grant and revoke parole[.]” Commonwealth v.
Hanson , 856 A.2d 1254, 1258 (Pa. Super. 2004) (citation o mitted). Additionally, when the defendant is eligible for pa role, the trial court’s decision to grant parole is a discretionary act, an d 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 tria l court to grant early parole to a defendant prior to that defendant completing h is minimum sentence, i.e , an ineligible defendant . This determination requires an examination of the requirements for sentences of total confinem ent 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 orde r granting parole and addressing a Commonwealth appeal from a trial c ourt’s illegal grant of parole) and Commonwealth v. Jamison , 652 A.2d 862 (Pa. Super. 1995) (same).J-S17026-16

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set forth in 42 Pa.C.S. § 9756. Therefore, our exa mination of this issue is one of statutory interpretation, which is a questio n of law. Accordingly, as with all questions of law, our scope of review is p lenary 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 rele vant 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 a ny maximum period up to the limit authorized by law and whethe r 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 asJ-S17026-16

- 7 - defined under section 9762(f) (relating to sentenci ng 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 pursuan t to this subsection. The reentry plan eligibility s hall be considered a part of the sentence and subject to the requirements relating to the entry, recording a nd reporting of sentences. 42 Pa.C.S. § 9756(a) and (b) (emphases added). As noted above, when the trial court imposed sente nce, Appellee was not eligible for parole on the felony and misdemean or convictions until his minimum sentence expired on September 21, 2015. If paroled on that date, Appellee would then have to serve his flat ninety-d ay sentence on the summary offense conviction. Nothing in the record or in the sentencing order provided that Appellee was eligible for an ea rly reentry program that would allow for parole prior to Appellee serving hi s minimum sentence. Yet, when the trial court granted Appellee parole on Jul y 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 sp ecifically state[d] that the county will retain parole jurisdiction.” Id . We disagree. As discussed, in order to be eligible for early parole, the trial co urt is required to make anJ-S17026-16

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early reentry determination on the record at the ti me of sentencing. 42 Pa.C.S. § 9756(b)(3). A trial court’s imposition o f a county sentence and retention of parole authority does not satisfy sect ion 9756(b)(3) and make a defendant eligible for parole prior to the expirati on of his minimum sentence. Accordingly, due to the fact that the trial court h ad not made Appellee eligible for early parole at the time of sentencing , and because Appellee had not served his minimum sentence, Appellee was not p arole 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 Jul y 14, 2015 order that granted Appellee early parole is re versed, and we remand this case for further proceedings consistent with t his decision. Order reversed. Case remanded for further proceedi ngs. Jurisdiction relinquished. P.J. Gantman joins the Opinion. Justice Fitzgerald concurs in the result.

____________________________________________ 9 The trial court conceded that it erred in grantin g Appellee early parole, and it requested this matter be remanded in order f or that error to be corrected. Trial Court Opinion, 9/18/15, at 1.J-S17026-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/5/2016