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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, 2 015 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 pr obation. We vacate and remand for resentencing. On December 6, 2012, Taylor entered a negotiated g uilty plea to one count each of simple assault and terroristic threat s. 1 That same day, the trial court sentenced Taylor to two years of probat ion on the simple assault conviction, and no further penalty on the terrorist ic threats conviction. Taylor did not file a direct appeal. On September 14, 2015, a detainer was issued agains t 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 te rroristic threats conviction. On November 18, 2015, Taylor filed a M otion for Reconsideration of Sentence, which the trial court subsequently den ied. 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 fo r our review:

I. Must the illegal sentence of 11⁄2 to 3 years of incarc eration for an M2 [second degree misdemeanor] offense (simp le assault), which is more than the lawful maximum for that crime, be vacated on appeal?

II. Irrespective of the illegal sentence issue noted ab ove, is the sentence of 11⁄2 to 3 years of incarceration for a probation violation on a simple assault charge mani festly excessive and an abuse of the sentencing court’s di scretion in that the court failed to consider, as it must, a ll required sentencing factors set forth in the sentencing code , specifically, 42 Pa.C.S.[A.] § 9721, including a re cognition of the sentencing guidelines, the defendant’s menta l health issues and potential for rehabilitation, and societ y’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 g raded as a misdemeanor of the second degree, which has a maxim um 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 sentenc e exceeds the lawful maximum, implicates the legality of the sentence.” Commonwealth v.J-S48032-16

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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 o f 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, th e sentencing

alternatives available shall be the same as the alt ernatives available at the time of sentencing. Commonwealth v. Infante , 63 A.3d 358, 365 (Pa. Super. 2013). “[T]he trial court is limited only b y the maximum sentence that it could have imposed originally at the time o f 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 n ot 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 thr ee-year sentence was legal because the maximum sentence for terroristic threat s 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 sente ncing, the trial court cannot revisit that sentence at the revocation hearing. See Commonwealth v. Williams , 997 A.2d 1205, 1210 (Pa. Super. 2010) (stating th at “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.”).J-S48032-16

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Because Taylor’s sentence exceeds the statutory max imum for this offense, this sentence must be vacated and the case remanded for resentencing. 3 Judgment of sentence vacated. Case remanded for re sentencing. 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 sente nce claim.