J-S78006-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RANDY P. HARTZFELD,

Appellant No. 1356 WDA 2015

Appeal from the Judgment of Sentence Entered July 1, 2015

In the Court of Common Pleas of Jefferson County

Criminal Division at No(s): CP-33-CR-0000645-2014

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 29, 2016

Randy P. Hartzfeld, Appellant, appeals nunc pro tunc from the 

judgment of sentence of 21⁄2 to 5 years’ incarceration, imposed after he was 

convicted of endangering the welfare of a child (EWOC). On appeal, 

Appellant contends that the court imposed an illegal sentence by directing 

that Appellant may not have contact with the minor victim, or the victim’s 

mother. After careful review, we vacate in part and affirm in part.

Appellant’s conviction stemmed from an incident that occurred when 

he was caring for the infant child of his fiancé while she was at work. While 

watching the child, Appellant struck the infant’s face, causing injuries to the 

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*

Former Justice specially assigned to the Superior Court.
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baby. Appellant claimed that he had hit the child by accident while he was 

swinging his hand at a cat that was close to the baby. 

At the close of Appellant’s jury trial, he was found guilty of EWOC. On 

July 1, 2015, the court sentenced Appellant to the term of incarceration 

stated, supra. Notably, as will be relevant to our discussion herein, 

Appellant was not sentenced to any term of probation. Also pertinent to 

Appellant’s issue on appeal, in the court’s sentencing order, it directed that 

Appellant “shall have NO CONTACT with the victim and victim’s mother.” 

Sentencing Order, 7/1/15 (single page). Appellant filed a timely postsentence motion, which the court denied. Appellant did not file an appeal 

within 30 days of the court’s order denying his post-sentence motion; 

however, he did file a “Motion for Leave to File Notice of Appeal Nunc Pro 

Tunc,” which the court granted.1 Appellant then filed a nunc pro tunc notice 

of appeal, as well as a timely, court-ordered Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. The court subsequently filed a 

Rule 1925(a) opinion.

Herein, Appellant presents one issue for our review: 

[I]. Whether the trial court erred as a matter of law by 

exceeding its statutory sentencing authority where it imposed a 

period of incarceration, the maximum of which was over two 

years, and, as a special condition of sentence, [the court] 

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1 We point out that Appellant’s motion should have been considered as a 

timely-filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541-9546.
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ordered that Appellant have no contact with the victim and the 

victim’s mother.

Appellant’s Brief at 4 (unnecessary capitalization omitted).2

Initially, Appellant’s issue essentially challenges the authority of the 

court to impose the no-contact provision of his sentence; thus, he is 

attacking the legality of his sentence. See Commonwealth v. Mears, 972 

A.2d 1210, 1211 (Pa. Super. 2009) (“Because we conclude that [Mears’] 

issue ultimately concerns the statutory authority for the imposition of a 

condition of sentence, this is a challenge to the legality of the sentence.”) 

(citing Commonwealth v. Pinko, 811 A.2d 576 (Pa. Super. 2002) (stating

that the issue of whether the trial court possessed the authority to impose a 

particular sentence implicates the legality of the sentence)).

Challenges to an illegal sentence cannot be waived and may be 

reviewed sua sponte by this Court. Commonwealth v. Merolla,

909 A.2d 337, 347 (Pa. Super. 2006).

The scope and standard of review applied to determine the 

legality of a sentence are well established. If no statutory 

authorization exists for a particular sentence, that 

sentence is illegal and subject to correction. An illegal 

sentence must be vacated. In evaluating a trial court's 

application of a statute, our standard of review is plenary 

and is limited to determining whether the trial court 

committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001–1002 (Pa. 

Super. 2006) (internal citations omitted).

Mears, 972 A.2d at 1211.

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2 We note that the Commonwealth informed this Court that it would not be 

filing a brief in this case.
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Here, Appellant contends that the ‘no-contact’ component of the trial 

court’s sentencing order is illegal. He notes that the ‘no-contact’ condition is 

not part of any probationary sentence. Appellant also avers that the trial 

court cannot lawfully impose a no-contact condition as a term of his parole. 

Finally, Appellant contends that the trial court lacked statutory authority to 

impose the no-contact condition as a term of his incarceration.

After carefully reviewing Appellant’s arguments and the applicable 

legal authority, we are compelled to agree with him that the no-contact 

condition of his sentence is illegal. First, a “sentencing court can order a nocontact condition on probation,” as long as “that condition is reasonably 

calculated to aid in the defendant’s rehabilitation.” Commonwealth v. 

Koren, 646 A.2d 1205, 1209 (Pa. Super. 1994) (citing 42 Pa.C.S. § 

9754(b)). Here, however, the court did not impose a term of probation; 

therefore, the no-contact order cannot be construed as a valid condition of a 

sentence of probation.

Second, the trial court imposed a sentence of 21⁄2 to 5 years’ 

imprisonment in a state correctional institution; thus, if Appellant is paroled, 

the Pennsylvania Board of Probation and Parole will have exclusive authority 

to determine the conditions of his parole. See 61 Pa.C.S. § 6132; 

Commonwealth v. Coulverson, 34 A.3d 135, 141 (Pa. Super. 2011) 

(recognizing “that ‘the Pennsylvania Board of Probation and Parole has 

exclusive authority to determine parole when the offender is sentenced to a 

maximum term of imprisonment of two or more years’”) (quoting Mears, 
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972 A.2d at 1211). In other words, the trial court lacked authority to set the 

terms of Appellant’s parole, and “any condition the sentencing court 

purported to impose on Appellant’s state parole is advisory only.” 

Coulverson, 34 A.3d at 141-42 (quoting Mears, 972 A.2d at 1211); see 

also 61 Pa.C.S. § 6134(b)(1), (2) (“A recommendation made by a judge 

under paragraph (1) respecting parole or terms of parole of a person shall 

be advisory only. No order in respect to the recommendation made or 

attempted to be made as a part of a sentence shall be binding upon the 

board in performing the duties and functions conferred on it by this 

chapter.”). Accordingly, to the extent that the no-contact order could be 

construed as a condition of Appellant’s future parole, the court exceeded its 

sentencing authority in imposing that condition. Therefore, we must vacate 

the no-contact order in that regard. Coulverson, 34 A.3d at 142.

Third, we can find no statutory or other legal authority to support the 

court’s imposition of the no-contact order as a special condition of 

Appellant’s sentence of incarceration.3 No provision of the Sentencing Code 

authorizes a trial court to impose conditions on a term of incarceration. The 

Legislature’s silence on this issue is significant, especially considering its 

enactment of a statute that explicitly provides the court with authority to 

impose conditions on terms of probation. See 42 Pa.C.S. § 9754(b). We 

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3 The no-contact provision is clearly a component of Appellant’s sentence, as 

it is set forth in the court’s sentencing order. 
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reiterate that “[i]f no statutory authorization exists for a particular sentence, 

that sentence is illegal and subject to correction.” Mears, 972 A.2d at 

1211; see also Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. 

Super. 2003) (quoting Commonwealth v. Alexander, 811 A.2d 1064, 

1065 (Pa. Super. 2002) (citation omitted)). 

Because no statute provides the trial court with the authority to 

impose a no-contact condition on Appellant’s sentence of incarceration, that 

provision of Appellant’s sentence is illegal. Therefore, we vacate, in its 

entirety, the no-contact condition of Appellant’s sentence. As our disposition 

does not in any way impact the term of incarceration imposed by the court, 

we need not remand for resentencing. See Commonwealth v. Thur, 906 

A.2d 552, 569-70 (Pa. Super. 2006) (“If our disposition upsets the overall 

sentencing scheme of the trial court, we must remand so that the court can 

restructure its sentence plan.”).

Judgment of sentence vacated in part, affirmed in part. Jurisdiction 

relinquished.

Justice Fitzgerald joins this memorandum.

Judge Ott files a concurring/dissenting memorandum.
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Judgment Entered

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016