J-S54020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

EDWARD ALLEN LANE

Appellant No. 34 WDA 2017

Appeal from the Judgment of Sentence December 5, 2016

In the Court of Common Pleas of Butler County

Criminal Division at No(s): CP-10-CR-0000626-2009

BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.* MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 17, 2017

Edward Allen Lane appeals from the December 5, 2016 judgment of

sentence entered in the Butler County Court of Common Pleas following

revocation of his probation. We vacate and remand for resentencing. On September 22, 2009, Lane pled guilty to two counts each of indecent

assault – threat of forcible compulsion and corruption of minors.1 On

December 23, 2009, the trial court sentenced Lane to 17 to 34 months’

incarceration followed by two years’ probation for each indecent assault

conviction and 13 to 26 months’ incarceration followed by one year of

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3126(a)(3) and 6301(a)(1)(i), respectively.
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probation for each corruption of minors conviction. The trial court directed

that Lane serve these sentences consecutive to one another.

On June 8, 2014, Lane was paroled by the Pennsylvania Board of

Probation and Parole (“PBPP”). As part of his parole agreement, the PBPP

directed that Lane have no contact with anyone under the age of 18 years old

or “loiter, attend, visit, or participate in events where the primary activity at

such locations involves persons under the age of 18 years without the prior

written approval of probation/parole supervision staff.” Conditions Governing

Parole, 6/6/14, at 3. On October 21, 2016, the PBPP requested that the trial

court lodge a parole detainer on Lane, alleging that he had contact with a

person under the age of 18 and was present at an elementary school. That

same day, the trial court granted the request and ordered Lane detained

pending a hearing.

On December 5, 2016, the trial court held a Gagnon2 hearing, at which

Lane admitted the violation. At the end of the hearing, the trial court revoked

Lane’s probation and resentenced him to one to eight years’ incarceration. On

December 8, 2016, Lane filed a post-sentence motion to modify sentence,

which the trial court denied on February 6, 2017. On December 29, 2016,

Lane timely filed a notice of appeal.3

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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

3 Lane’s notice of appeal is timely because the filing of motion to modify

sentence imposed after a revocation of probation does “not toll the 30-day

appeal period.” Pa.R.Crim.P. 708(E).
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Lane raises one issue on appeal: “Whether the sentencing court abused

its discretion by reaching a manifestly unreasonable conclusion, or erred as a

matter of law, when it revoked [Lane]’s probation and resentenced him to

serve a period of incarceration of not less than 12 months nor more than eight

years?” Lane’s Br. at 6 (full capitalization omitted).

Preliminarily, we must address an issue regarding the legality of Lane’s

sentence. Although legality is not raised in his Pennsylvania Rule of Appellate

Procedure 1925(b) statement or his statement of questions involved, Lane

argues that the trial court’s sentence exceeded the statutory maximum for

each of his convictions. Lane asserts that the trial court improperly sentenced

him to one to eight years’ incarceration on each conviction, which is greater

than the 5-year maximum sentence for first-degree misdemeanors. This

assertion – that the sentence was imposed on each conviction, rather than in

the aggregate across all convictions – is supported by both the trial court

docket and the DC-300B forms sent to the Pennsylvania Department of

Corrections. The legality of a particular sentence is a non-waivable issue. Commonwealth v. Kline, 166 A.3d 337, 340 (Pa. Super. 2017). “If no

statutory authorization exists for a particular sentence, that sentence is illegal

and subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915

(Pa.Super. 2014) (quoting Commonwealth v. Mears, 972 A.2d 1210, 1211

(Pa.Super. 2009)). “An illegal sentence is one that exceeds the statutory

limits.” Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003)
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(quoting Commonwealth v. Hunter, 768 A.2d 1136, 1144 n.3 (Pa.Super.

2001)).

With respect to sentencing orders, this Court has stated:

The only sentence known to the law is the sentence or

judgment entered upon the records of the court. [A]

sentence . . . is to be construed so as to give effect to the

intention of the sentencing judge. To determine this

intention the reviewing court limits itself to the language of

the written judgment, despite oral statements of the

sentencing judge not incorporated into it.

Commonwealth v. Kennedy, 868 A.2d 582, 591-92 (Pa.Super. 2005)

(quoting Commonwealth v. Johnson, 860 A.2d 146, 152 (Pa.Super. 2004)).

“Additionally, ‘[w]hatever sentence is imposed can only be imposed upon a

named, specific crime. Where there is more than one, each should be named

of record and for each a specific sentence should be imposed according to the

penalty prescribed for that offense.’” Id. at 592 (quoting Commonwealth v.

Hitchcock, 565 A.2d 1159, 1162 (Pa. 1989)).

Here, the trial court entered the following sentencing order:

NOW, this 5th day of December, 2016, [Lane] appeared

and the Court heard testimony from Chris McAndrew of the

[PBPP]. [Lane] has acknowledged that he violated the

terms of his probation supervision by being present at an

elementary school and by having contact with minors.

[Lane]’s probation is therefore revoked. He shall be

resentenced to serve a period of incarceration of not less

than 12 months nor more than eight years. All other terms

and conditions of the former sentence shall remain in effect.

[Lane] shall receive credit for time served which is not used

for his parole violation.
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Trial Ct. Order, 12/5/16. This sentencing order does not tie the sentence

imposed to any particular conviction, and as set out in the docket exceeds the

maximum for each of Lane’s convictions.4 Accordingly, we are constrained to

vacate the judgment of sentence and remand for resentencing.5

Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2017

____________________________________________

4 As noted above, the trial court docket and the DC-300B forms sent to

the Pennsylvania Department of Corrections interpret the sentencing order as

revoking Lane’s probation and imposing one to eight years’ incarceration on

each conviction, to be served concurrent to one another. If the trial court’s

sentencing order intended to revoke probation and sentence Lane at each

conviction to an additional one to eight years’ incarceration, the sentence is

illegal. See 18 Pa.C.S. § 1104(a) (limiting maximum sentence for first-degree

misdemeanor conviction to five years). While we understand that the trial

court was attempting to sentence Lane so that he would be “supervised by

the [PBPP] as part of parole conditions rather than probation,” N.T, 12/5/16,

at 12, in so doing the trial court appears to have inadvertently imposed an

illegal sentence of one to eight years’ incarceration on each conviction, which

exceeds the maximum sentence of five years’ incarceration for a first-degree

misdemeanor conviction. We recognize that on remand the trial court could

achieve the same result, should it choose to do so, by apportioning the

sentence among multiple convictions.

5

In light of our disposition, we decline to address Lane’s discretionary

aspects of sentencing claim.