J-S48032-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

v. :

:

ROBERT LEVELLE TAYLOR, :

 :

Appellant : No. 1936 WDA 2015 

Appeal from the Judgment of Sentence November 12, 2015 

in the Court of Common Pleas of Allegheny County, 

Criminal Division, No(s): CP-02-CR-0009408-2012 

BEFORE: BOWES, DUBOW and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED JULY 25, 2016 

 Robert Levelle Taylor (“Taylor”) appeals from the judgment of 

sentence imposed following the revocation of his probation. We vacate and 

remand for resentencing. 

 On December 6, 2012, Taylor entered a negotiated guilty plea to one 

count each of simple assault and terroristic threats.1 That same day, the 

trial court sentenced Taylor to two years of probation on the simple assault 

conviction, and no further penalty on the terroristic threats conviction. 

Taylor did not file a direct appeal. 

On September 14, 2015, a detainer was issued against Taylor. 

Following a probation violation hearing on November 12, 2015, the trial 

court found Taylor had violated his probation. The trial court sentenced 

Taylor to one and one-half to three years in prison on the simple assault 

 

1

 18 Pa.C.S.A. §§ 2701(a)(3); 2706(a)(1). 
J-S48032-16 

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conviction, and issued no further penalty on the terroristic threats 

conviction. On November 18, 2015, Taylor filed a Motion for Reconsideration 

of Sentence, which the trial court subsequently denied. Taylor filed a timely 

Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement. 

 On appeal, Taylor raises the following question for our review: 

I. Must the illegal sentence of 11⁄2 to 3 years of incarceration 

for an M2 [second degree misdemeanor] offense (simple 

assault), which is more than the lawful maximum for that 

crime, be vacated on appeal? 

II. Irrespective of the illegal sentence issue noted above, is 

the sentence of 11⁄2 to 3 years of incarceration for a

probation violation on a simple assault charge manifestly 

excessive and an abuse of the sentencing court’s discretion 

in that the court failed to consider, as it must, all required 

sentencing factors set forth in the sentencing code, 

specifically, 42 Pa.C.S.[A.] § 9721, including a recognition 

of the sentencing guidelines, the defendant’s mental health 

issues and potential for rehabilitation, and society’s need 

for deterrence? 

Brief for Appellant at 6. 

In his first claim, Taylor challenges the legality of his sentence and 

argues that his sentence for simple assault exceeds the lawful maximum 

sentence. Id. at 10-11. Taylor asserts that his conviction was graded as a 

misdemeanor of the second degree, which has a maximum sentence 

permitted by law of not more than two years. Id. The Commonwealth 

agrees. See Brief for the Commonwealth at 9-10. 

Initially, “any claim, which asserts that a sentence exceeds the lawful 

maximum, implicates the legality of the sentence.” Commonwealth v. 
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Foster, 17 A.3d 332, 336 (Pa. 2011). A challenge to the legality of a 

sentence can be raised as a matter of right and is non-waivable. 

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013). 

Whether a sentence is illegal presents a question of law, and our standard of 

review is plenary. Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super. 

2014). 

As a general rule, upon revocation of probation, the sentencing 

alternatives available shall be the same as the alternatives available at the 

time of sentencing. Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. 

Super. 2013). “[T]he trial court is limited only by the maximum sentence 

that it could have imposed originally at the time of the probationary 

sentence.” Id. (citation omitted). 

Here, Taylor was convicted of simple assault, which is a misdemeanor 

of the second degree. See 18 Pa.C.S.A. § 2702(b). A misdemeanor of the 

second degree has a statutory maximum sentence of not more than two 

years. Id. § 1104(2). Thus, Taylor’s maximum prison sentence of three 

years exceeds the statutory maximum. See id.2 

 

2

 The trial court appears to opine that Taylor’s three-year sentence was legal 

because the maximum sentence for terroristic threats is seven years. See

Trial Court Opinion, 3/7/16, at 3. Since the trial court issued no further 

penalty for the terroristic threats charge at sentencing, the trial court cannot 

revisit that sentence at the revocation hearing. See Commonwealth v. 

Williams, 997 A.2d 1205, 1210 (Pa. Super. 2010) (stating that “a probation 

revocation court does not have the authority to re-sentence an offender on a 

final guilty-without-punishment sentence after the period for altering or 

modifying the sentence has expired.”). 
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Because Taylor’s sentence exceeds the statutory maximum for this 

offense, this sentence must be vacated and the case remanded for 

resentencing.3 

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/25/2016 

 

3

 Because we are remanding for resentencing, we will not address Taylor’s 

challenge to the discretionary aspects of his sentence claim.