J-S75041-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOWELL FAUNTLEROY, 

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 411 EDA 2018

Appeal from the Judgment of Sentence November 4, 2014

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000173-2010, 

CP-51-CR-0013311-2009

BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 12, 2019

Jowell Fauntleroy (“Fauntleroy”) appeals, nunc pro tunc, from the 

judgment of sentence entered following the revocation of the probationary 

sentences that were imposed following his guilty pleas to theft by receiving 

stolen property, trespass, and criminal conspiracy.1 We vacate the judgment 

of sentence and remand for resentencing.

The trial court summarized the relevant history underlying the instant 

appeal as follows:

On August 19, 2009, [Fauntleroy] was arrested and charged 

with Receiving Stolen Property (“RSP”) and related charges (CP51-CR-0013311-2009). On November 11, 2009, [Fauntleroy] was 

arrested and charged with Criminal Trespass and related charges 

(CP-51-CR-0000173-2010). [Fauntleroy] pled guilty to RSP on 

January 7, 2010. On February 3, 2010, [Fauntleroy] pled guilty 

to Criminal Trespass and Conspiracy. Following that plea, [the 

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1 See 18 Pa.C.S.A. §§ 3925(a), 3503, 903. 
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trial court] sentenced [Fauntleroy] on both dockets. [Fauntleroy] 

was sentenced to three to twenty[-]three (23) months of 

confinement with immediate parole, followed by one year of 

probation for both RSP and Criminal Trespass, to run concurrently. 

Conspiracy merged for the purposes of sentencing.[2]

[Fauntleroy] tested positive for THC multiple times between 

July 12, 2012, and November 7, 2012. As a result of the positive 

urinalysis results, a Violation of Probation (“VOP”) hearing was 

scheduled before [the trial court], thus extending [Fauntleroy’s] 

probation beyond its natural date. While awaiting a VOP hearing 

before [the trial court], [Fauntleroy] was arrested and charged 

with [t]hird[-d]egree [m]urder and related charges. [Fauntleroy] 

pled guilty to [t]hird[-d]egree [m]urder and related charges ... on 

September 8, 2014....

Trial Court Opinion, 5/10/18, at 2 (footnote added). 

On November 4, 2014, following a VOP hearing, [the trial court] found 

Faunlteroy to be in violation of his probation and sentenced him to 31⁄2 to 7 

years in prison for his conviction of RSP. For his convictions of criminal 

trespass and criminal conspiracy, the trial court imposed prison terms of 5 to 

10 years, to be served consecutive to each other and to Fauntleroy’s RSP 

sentence. Fauntleroy filed no direct appeal from his judgment of sentence. 

On November 5, 2015, Fauntleroy filed a Petition for relief pursuant to 

the Post Conviction Relief Act (“PCRA”),

3 seeking the reinstatement of his 

direct appeal rights, nunc pro tunc. The PCRA court subsequently granted 

Fauntleroy’s Petition. On January 29, 2018, Fauntleroy filed the instant nunc 

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2 The trial court’s determination that Fauntleroy’s conviction of criminal 

conspiracy merged for sentencing purposes will be discussed in detail, infra.

3 See 42 Pa.C.S.A. §§ 9541-9551. 
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pro tunc appeal of his judgment of sentence, followed by a court-ordered 

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

Fauntleroy presents the following claims for our review:

A. Did the sentencing court violate [] Fauntleroy’s probation 

without legal authority where [] Fauntleroy’s probation had 

naturally expired before the commission of the offenses which 

[led] to the instant violation?

B. Did the trial court impose an illegal sentence on transcript CP51-CR-0000173-2010[,] when it re-sentenced [] Fauntleroy to 

5-10 years[’] incarceration[,] on count 2, where[,] at the time 

of the original sentence[,] the count merged and no penalty 

was assessed?

C. Did the trial court abuse its discretion when it sentenced [] 

Fauntleroy to an aggregate sentence of 131⁄2-27 years[’] 

incarceration[,] where the trial court did not follow the dictates 

of 42 Pa.C.S.[A.] § 9721(b), which states that in every case 

following the revocation of probation, the [c]ourt shall make 

part of the record, and disclose in open court at the time of 

sentencing, a statement of the reason or reasons for the 

sentence impose[d,] nor did it follow the limitations set forth 

in 42 Pa.C.S.[A.] § 9771 when imposing a sentence of total 

confinement?

Brief for Appellant at 5.

Fauntleroy first claims that the trial court imposed an illegal sentence, 

because his probationary sentence had expired prior to his commission of the 

offense giving rise to his instant VOP. Id. at 13. Fauntleroy states that on 

February 3, 2010, he was sentenced to 3-23 months’ confinement with 

immediate parole, followed by one year of reporting probation. Id. at 14. 

Fauntleroy states that the conduct forming the basis of his VOP occurred on 

November 27, 2012, 25 days after his probation had expired. Id. Fauntleroy 
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concedes that he had “a series of positive drug tests from July through 

October, immediately preceding the expiration of his probation, but the court 

never acted upon these positive drug tests.” Id. at 15. Fauntleroy asserts 

that because the sentencing court had failed to act on his positive drug tests, 

before his probation expired, the court lacked the authority to revoke his 

probation and impose a new sentence. Id. at 16. 

“[I]n an appeal from a sentence imposed after the court has revoked 

probation, we can review the validity of the revocation proceedings, the 

legality of the sentence imposed following revocation, and any challenge to 

the discretionary aspects of the sentence imposed.” Commonwealth v. 

Wright, 116 A.3d 133, 136 (Pa. Super. 2015). Fauntleroy’s first claim 

challenges the legality of his sentence. 

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. 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. Karth, 994 A.2d 606, 607 (Pa. Super. 2010) (citation 

omitted). “[T]he determination as to whether the trial court imposed an illegal 

sentence is a question of law; our standard of review in cases dealing with 

questions of law is plenary.” Commonwealth v. Williams, 868 A.2d 529, 

532 (Pa. Super. 2005).
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In its Opinion, the trial court disputes Fauntleroy’s assertion that no VOP 

took place prior to the natural expiration of his probationary sentence. 

Specifically, the trial court found that 

[Fauntleroy] tested positive for THC multiple times between July 

12, 2012, and November 7, 2017. As a result of the positive 

urinalysis results, a [VOP] hearing was scheduled before this 

[c]ourt, thus extending [Fauntleroy’s] probation beyond its 

natural end date. While awaiting a VOP hearing before this 

[c]ourt, [Fauntleroy] was arrested and charged with [t]hird[-

d]egree[-m]urder and related charges. [Fauntleroy] pled guilty 

to [t]hird[-d]egree[-m]urder and related charges before [the trial 

court] on September 8, 2014....

Trial Court Opinion, 5/10/18, at 1-2. 

Our review of the record discloses that on October 22, 2012, during

Fauntleroy’s probationary period, the trial court issued a VOP hearing Notice 

to Fauntleroy. See Trial Court Docket, 10/22/12. Thus, the trial court issued 

its Notice prior to the expiration of Fauntleroy’s probationary sentence, and 

Fauntleroy is not entitled to relief on this claim. See Wright, 116 A.3d at 137 

(stating that “a sentence for a violation of the terms of probation can be 

imposed after the expiration of the probationary period if the revocation is 

based on a violation which occurred within the probationary period.”).

In his second claim, Fauntleroy argues that the trial court imposed an 

illegal sentence when it sentenced him to five to ten years in prison for his 

conviction of criminal conspiracy when, “at the time of the original sentence[,] 

the count merged and no penalty was assessed.” Brief for Appellant at 16. 

Fauntleroy directs our attention to this Court’s decision in Commonwealth v. 
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Williams, 997 A.2d 1205 (Pa. Super. 2010), as barring a probation revocation 

court from resentencing an offender, who previously had been subject to a 

“guilt without punishment” sentence, after the period for altering or modifying 

the sentence has expired. Brief for Appellant at 17. 

In Williams, the defendant entered a negotiated plea whereby he pled 

guilty to one count each of corruption of minors and indecent assault at one 

criminal information number, and one count each of corruption of minors and

indecent assault at a second criminal information number. Williams, 997 

A.2d at 1206. For his conviction of corruption of minors at the first criminal 

information number, and the conviction of indecent assault at the second 

criminal information number, the trial court imposed concurrent sentences of 

one year less a day to two years less two days in prison, followed by three 

years of probation. Id. For his remaining convictions, the trial court imposed 

“no further penalty.” Id. Subsequently, the defendant violated his probation. 

Id. At resentencing following the VOP hearing, the trial court sentenced the 

defendant to consecutive terms of 21⁄2 to 5 years in prison for his convictions 

of indecent assault and corruption of minors at the first criminal information 

number, and consecutive prison terms of 21⁄2 to 5 years for his convictions of 

indecent assault and corruption of minors at the second criminal information 

number. Id. at 1207. 

On appeal, this Court vacated the defendant’s sentences for one count 

of indecent assault and one count of corruption of minors, i.e., the convictions 
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that previously were subject to a guilt with “no further penalty” sentence. Id.

at 1210. This Court explained that

[a] determination of guilt without further imposition of penalty 

constitutes a final, appealable order. A trial court may alter or 

modify a final order within thirty days after its entry, if no appeal 

is taken. Once the thirty-day period for altering or modifying 

sentence is over, the trial court loses power to alter its orders.

Furthermore, a modification of sentence imposed on a criminal 

defendant which increases his punishment constitutes double 

jeopardy. 

Although the trial court acted within its power when it revoked 

appellant’s probation and resentenced her for the simple assault 

conviction, the trial court erred when it resentenced appellant for 

the PIC conviction. First, the trial court had already issued a final 

sentence for the [possession of an instrument of crime] conviction 

in the form of a guilt determination without further penalty. The 

thirty-day period in which it could have altered the sentence 

expired, and the appellant did not appeal. Therefore, the trial 

court did not have the power to alter or modify the no-furtherpenalty sentence it had initially imposed upon appellant. Thus, 

the increased punishment appellant received for her [possession 

of an instrument of crime] conviction[,] following her resentencing 

for violating her probation for the simple assault conviction[,]

constituted a denial of appellant’s constitutional right not to be 

subject to double jeopardy.

Id. at 1209. Thus, this Court concluded that “a probation revocation court 

does not have the authority to re-sentence an offender on a final guilt-withoutpunishment sentence after the period for altering or modifying the sentence 

has expired.” Id.

In this case, the trial court did not expressly impose a “guilt without 

further penalty” sentence, mistakenly believing that Fauntleroy’s conspiracy 

conviction merged at sentencing. Regardless of the trial court’s intention,

however, the record clearly reflects that the trial court imposed no penalty for 
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Fauntleroy’s conspiracy conviction. Applying the reasoning of this Court in 

Williams, we conclude that the trial court’s imposition of no penalty for 

Fauntleroy’s conspiracy conviction constituted a final sentence. Because the 

trial court did not amend or modify that sentence within 30 days, it cannot 

now do so under the guise of resentencing upon a probation violation.4 See 

42 Pa.C.S.A. § 5505 (providing that a trial court may amend or modify a final 

order within 30 days of its entry). We therefore vacate the trial court’s 

sentence for Fauntleroy’s conviction of criminal conspiracy. 

In his third claim, Fauntleroy challenges the discretionary aspects of his 

sentence. Brief for Appellant at 18. “A challenge to the discretionary aspects 

of sentencing is not automatically reviewable as a matter of 

right.” Commonwealth v. Grays, 167 A.3d 793, 815 (Pa. Super. 2017). 

Prior to reaching the merits of a discretionary sentencing issue,

[w]e conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, see

[Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate under 

the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Grays, 167 A.3d at 815-16 (citation omitted).

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4

In its appellate brief, the Commonwealth agrees that the trial court lacked 

the authority to resentence Fauntleroy for his criminal conspiracy conviction. 

See Brief for the Commonwealth at 7-8.
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Here, the PCRA court granted Fauntleroy leave to file a direct appeal, 

nunc pro tunc. Fauntleroy properly preserved his claim in a post-sentence 

Motion, and included in his brief a Statement of Reasons relied upon for 

allowance of appeal, in accordance with Pa.R.A.P. 2119(f). Consequently, we 

next determine whether Fauntleroy has raised a substantial question that his 

sentence is appropriate under the Sentencing Code. 

In his Statement of Reasons relied upon for allowance of appeal, 

Fauntleroy argues that the trial court’s sentence is manifestly excessive. Brief 

for Appellant at 12. Fauntleroy further asserts that “the record is silent as to 

whether the [trial] court fully considered the factors under 42 Pa.C.S.[A.] 

§ 9721(b)[.]” Brief for Appellant at 11. According to Fauntleroy, “[t]he 

sentencing court merely sentenced [] Fauntleroy to the statutory minimum 

and maximum for each offense, not even taking into consideration the time 

previously served on each offense.” Id. 

A claim that the trial court failed to state adequate reasons on the record

for imposing a sentence outside of the sentencing guidelines presents a 

substantial question. Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. 

Super. 2014). Further, “an excessive sentence claim—in conjunction with an 

assertion that the court failed to consider mitigating factors—raises a 

substantial question.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. 

Super. 2015) (en banc). Because Fauntleroy raises a substantial question, we 

will address his challenge to the discretionary aspects of his sentence.
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Fauntleroy argues that the trial court abused its discretion by sentencing 

him to an excessive sentence, outside of the guidelines, without placing 

adequate reasons for that sentence on the record. Brief for Appellant at 18. 

In its Opinion, the trial court agrees, stating that, “[h]aving reviewed 

[Fauntleroy’s] statement and the record, this [c]ourt agrees that it erred in 

failing to state adequate reasons for its sentence on the record.” Trial Court 

Opinion, 5/10/18, at 2. Our review of the record confirms the trial court’s 

assessment. Therefore, we vacate Fauntleroy’s judgment of sentence and 

remand for resentencing. 

Judgment of sentence vacated. Case remanded for resentencing 

consistent with this Memorandum. Superior Court jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/12/19