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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CLIFTON BUSH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 741 EDA 2018

Appeal from the Judgment of Sentence March 29, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-1205191-2005

COMMONWEALTH OF PENNSYLVANIA

v.

CLIFTON BUSH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1232 EDA 2018

Appeal from the Judgment of Sentence March 29, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-1205191-2005

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 17, 2019

Appellant, Clifton Bush, appeals from the judgment of sentence imposed 

following revocation of his probation.1 He claims that he was not actually on 

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1 We have changed the captions at Dockets 741 EDA 2018 and 1232 EDA 2018 

to reflect the date the trial court modified the judgment of sentence in 

accordance with its granting of Appellant’s motion to reconsider sentence. We 

have also sua sponte consolidated these matters on appeal for ease of 

disposition.
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probation because during a violation of probation hearing in 2013, despite 

revoking his probation, the trial court deferred sentencing him and failed to 

do so thereafter. Upon review, we agree that Appellant was not sentenced to 

any further term of incarceration or probation following revocation of his 

probation in this case in 2013. Therefore, we conclude that all sentences later 

imposed for violating such probation are illegal. Accordingly, we vacate those 

sentences.

Briefly, we set forth the factual and procedural history in this matter. In 

2007, Appellant pleaded guilty to possession with intent to deliver and was 

sentenced to not more than two nor less than four years of incarceration, 

followed by two years of probation. In June 2011, he was found in violation of 

his probation and sentenced to not less than eleven and one-half nor more 

than twenty-three months of incarceration, followed by three years of 

probation.

On September 12, 2013, the trial court found Appellant in technical 

violation, and revoked his probation. See N.T. Hearing, 9/12/13, at 8. The 

court deferred sentencing on the probation violation until October 2, 2013. 

See id. at 9. The docket then reflects that the October 2, 2013 hearing was 

continued repeatedly without sentence being imposed.

On November 6, 2015, the trial court conducted a violation of probation 

hearing during which it found Appellant in violation of the probation 

purportedly ordered following the September 12, 2013 revocation of his 

probation. The court imposed a sentence of not less than eleven and one-half 
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nor more than twenty-three months of incarceration, followed by five years of 

probation. 

On February 16, 2018, the trial court found Appellant in violation of the 

probation imposed on November 6, 2015. The court revoked probation and 

sentenced Appellant to not less than two nor more than four years of 

incarceration, followed by two years of probation. On March 29, 2018, after a 

hearing, the court modified its sentence to not less than one nor more than 

two years of incarceration as it found the original sentence exceeded the 

statutory maximum.

2 See Trial Court Opinion, 10/5/18, at 3. 

Appellant, while represented by counsel, filed two pro se notices of 

appeal, one prior to the court’s ruling on his motion for reconsideration and 

one after the court’s ruling. Because counsel never filed a notice of appeal on 

Appellant’s behalf, we do not deem the pro se notices nullities. See 

Commonwealth v. Cooper, 27 A.3d 994, 1007 (Pa. 2011). Instead, we 

consider the first notice of appeal premature because it was filed prior to the 

entry of the order disposing of the motion for reconsideration and, pursuant 

to Pa.R.A.P. 905(a) treat it as filed after the court granted the motion for 

reconsideration. See Pa.R.A.P. 905(a). As such, the second pro se notice of 

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2 The trial court lacked jurisdiction to address Appellant’s motion to reconsider 

sentence as it did not explicitly grant reconsideration within thirty days of the 

original sentence. See Pa.R.Crim.P. 708(E); see also Commonwealth v. 

Swope, 123 A.3d 333, 337 n.16 (Pa. Super. 2015). However, we conclude 

the court had jurisdiction to modify the patent and obvious illegality of the 

sentence extending beyond the statutory maximum. See Commonwealth v. 

Holmes, 933 A.2d 57, 66 (Pa. 2007). 
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appeal, which Appellant filed following the court granting the motion for 

reconsideration, is duplicative. Accordingly, we quash the appeal at 1232 EDA 

2018.

Appellant raises one issue on appeal: “Was not the sentence on the 

purported violation of probation illegal, insofar as [Appellant’s] probation was 

revoked in 2013, and no new sentence was ever imposed following that 

violation for this case, and therefore there was no probation sentence to 

actually violate?” Appellant’s Brief, at 3.3

Our scope and standard of review for a challenge to the legality of a 

sentence are well settled.

Following probation violation proceedings, this Court’s scope of 

review is limited to verifying the validity of the proceeding and the 

legality of the sentence imposed. The defendant or the 

Commonwealth may appeal as of right the legality of the 

sentence. As long as the reviewing court has jurisdiction, a 

challenge to the legality of the sentence is non-waivable and the 

court can even raise and address it sua sponte. Issues relating to 

the legality of a sentence are questions of law. . . . As with all 

questions of law on appeal, our standard of review is de novo and 

our scope of review is plenary.

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (citations 

and quotation marks omitted).

Revocation of probation proceedings are governed by Section 9771, 

which provides, in part: 

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3 Neither of Appellant’s appeals concern his sentence arising from docket 

number CP-51-CR-0012068-2010. See Appellant’s Brief (741 EDA 2018), at 

9; see also Appellant’s Brief (1232 EDA 2018), at 9.
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The court may revoke an order of probation upon proof of the 

violation of specified conditions of the probation. Upon revocation 

the sentencing alternatives available to the court shall be the 

same as were available at the time of initial sentencing, due 

consideration being given to the time spent serving the order of 

probation. 

42 Pa.C.S.A. § 9771(b) (emphasis added). Our Supreme Court has recently 

reiterated that “a court may find a defendant in violation of probation only if 

the defendant has violated one of the ‘specific conditions’ of probation included 

in the probation order or has committed a new crime[.]” Commonwealth v. 

Foster, ___ A.3d ___, No. 21 EAP 2018, (Aug. 20, 2019).

Here, the court did not immediately impose sentence on Appellant 

following revocation of his probation at the September 12, 2013 hearing. On 

July 25, 2015, the docket reveals that a “Status of Probation” was held, but 

there is no indication that Appellant received a new sentence of probation.

Under these circumstances, we can only conclude that Appellant was 

not serving a probationary sentence pursuant to docket number CP-51-CR1205191-2005 when the court purported to find him in violation of probation 

during the November 6, 2015 hearing. Accordingly, the court did not have the 

authority to revoke the non-existent probation and impose a sentence for a 

violation. Therefore, we vacate the November 6, 2015 sentence imposed on 

Appellant for purportedly violating probation. We also vacate the court’s March 

29, 2018 modified sentence, which had been imposed for violating the 

probation attached to the (now vacated) November 6, 2015 sentence. 

Appeal at docket 1232 EDA 2018 quashed. Judgments of sentence 

imposed on November 6, 2015 and March 29, 2018 vacated.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/17/19