J-S83026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHE DONTE KING,

Appellant No. 466 WDA 2016

Appeal from the Judgment of Sentence February 18, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0006852-2015

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHE DONTE KING,

Appellant No. 467 WDA 2016

Appeal from the Judgment of Sentence February 18, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0016587-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 23, 2016

Appellant, Che Donte King, appeals from the judgments of sentence 

entered on February 18, 2016, at trial court docket numbers CP-02-CR-

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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0006852-2015 and CP-02-CR-0016587-2014. After careful review, we are 

constrained to vacate the judgments of sentence and remand for 

resentencing.

At trial court docket number CP-02-CR-0016587-2014, the 

Commonwealth charged Appellant with one count of possession with intent 

to deliver a controlled substance (“PWID”) and two counts of possession of a 

controlled substance. At trial court docket number CP-02-CR-0006852-

2015, Appellant was charged with one count each of accidents involving 

death or personal injury, accidents involving death or personal injury (not 

properly licensed), driving while operating privileges are suspended or 

revoked, careless driving (unintentional death), driving without a license, 

operating a vehicle without required financial responsibility, and vehicle 

registration suspended.

On November 23, 2015, Appellant pled guilty to all charges, and on 

February 18, 2016, the trial court sentenced Appellant at both docket 

numbers. On the drug offenses at CP-02-CR-0016587-2014, the trial court 

imposed a sentence of two to four years of incarceration followed by three 

years of probation on the PWID count.1 N.T., 2/18/16, at 26. At CP-02-

CR-0006852-2015, the trial court imposed a sentence of five to ten years of 

incarceration followed by probation on the accidents involving death or 

____________________________________________

1 The possession charges merged for purposes of sentencing.
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personal injury conviction.2 Id. at 27. The duration of probation was not 

specified in the transcript from the sentencing hearing, but the written 

sentencing order reveals that the sentence of probation at CP-02-CR0006852-2015 was for three years and was consecutive to the term of total 

confinement. Sentencing Order, 2/18/16, at 1. The trial court ordered the 

sentences at CP-02-CR-0016587-2014 and CP-02-CR-0006852-2015 to be 

served concurrently, and ordered 180 days of credit for time served. Id. at 

1-2. On February 26, 2016, Appellant filed a timely post-sentence motion to 

withdraw his guilty plea, and on March 7, 2016, the trial court denied the 

motion.

Appellant filed a pro se notice of appeal at both CP-02-CR-0016587-

2014 and CP-02-CR-0006852-2015 on March 23, 2016. Counsel was 

appointed, and on April 1, 2016, counsel filed a timely notice of appeal at 

each docket number. On April 15, 2016, this Court granted Appellant’s 

motion to consolidate the appeals at 466 WDA 2016 (CP-02-CR-0006852-

2015) and 467 WDA 2016 (CP-02-CR-0016587-2014).

The trial court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on or before April 

29, 2016. On that date, Appellant filed a motion for an extension of time in 

which to file his Pa.R.A.P. 1925(b) statement. The trial court granted 

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2 The court made a determination of guilt without further penalty on the 

balance of the charges at CP-02-CR-0006852-2015.
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Appellant’s motion and directed Appellant to file his Pa.R.A.P. 1925(b) 

statement on or before June 2, 2016. Appellant timely complied.

In the Pa.R.A.P. 1925(b) statement, counsel averred that an appeal 

would be frivolous and sought to withdraw representation of Appellant on 

appeal pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). However, counsel 

appears to have subsequently recognized a meritorious issue concerning the 

legality of Appellant’s sentence, because in his brief to this Court, Appellant 

raises the following issue:

Whether the Appellant was given an illegal sentence when the 

sentencing court imposed a sentence of five (5) to (10) years of 

confinement followed by a three (3) year term of probation for a 

second-degree felony which the statutory maximum penalty 

permitted is ten (10) years?

Appellant’s Brief at 7. Despite this issue not appearing in Appellant’s 

Pa.R.A.P. 1925(b) statement, it is properly before our Court. See 

Commonwealth v. Melvin, 103 A.3d 1, 52 (Pa. Super. 2014) (noting that 

challenges to an illegal sentence cannot be waived for failing to present the 

issue before the trial court).

It is well-settled that a sentence is illegal when it is not statutorily 

authorized or it exceeds the maximum sentence permitted by statute. 

Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009). 

Herein, Appellant was convicted of accidents involving death or personal 

injury in violation of 75 Pa.C.S. § 3742(a). The record reveals that the 
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victim in this matter, Albert Dale Kruszka, died from the injuries caused by 

Appellant. N.T. Guilty Plea, 11/23/15, at 4. The statute provides that if the 

victim dies as a result of the traffic accident, the offense shall be graded as a 

felony of the second degree. 75 Pa.C.S. § 3742(b)(3)(i). A felony of the 

second degree carries a statutory maximum penalty of ten years. 18 

Pa.C.S. § 1103(2).

This Court has previously addressed this issue as follows:

When determining the lawful maximum allowable on a split 

sentence, the time originally imposed cannot exceed the 

statutory maximum. See 42 Pa.C.S. § 9754; 42 Pa.C.S. § 9756; 

Commonwealth v. Nickens, 259 Pa.Super. 143, 393 A.2d 758, 

759 (1978); Commonwealth v. Perkins, 302 Pa.Super. 12, 

448 A.2d 70 (1982). Thus, where the maximum is ten years, a 

defendant cannot receive a term of incarceration of three to six 

years followed by five years probation.

Commonwealth v. Crump, 995 A.2d 1280, 1283-1284 (Pa. Super. 2010). 

As set forth above, in the case at bar, the trial court sentenced 

Appellant to a split sentence of five to ten years of incarceration followed by 

three years of probation. That amounts to a combined thirteen years of 

incarceration and probation, and as this Court noted in Crump, such a 

sentence is illegal.3 Accordingly, we vacate Appellant’s sentence in its 

entirety and remand for resentencing at each count at trial court docket 

numbers CP-02-CR-0006852-2015 and CP-02-CR-0016587-2014. See 

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3 We note with appreciation the Commonwealth’s candor in this matter as it 

concedes that the sentence at issue is illegal. Commonwealth’s Brief at 11.
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Commonwealth v. Williams, 997 A.2d 1205, 1210-1211 (Pa. Super. 

2010) (holding that it is appropriate to vacate a sentence in its entirety 

where the correction of one portion of the original sentence may alter the 

trial court’s sentencing scheme as a whole).

Judgments of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016