J

- S75041

- 18

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

v.
JOWELL FAUNTLEROY,

Appellant : : : : : : : : : 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 plea s 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, [Fa untleroy] was arrested and charged with Receiving Stolen Property ( “ RSP ” ) and related charges (CP

51

- CR

- 0013311

- 2009). On November 11, 2009, [Fauntleroy] was arrested and charged with Criminal Trespass and related charges (CP

- 51

- CR

- 0000173

- 2010). [Fauntl eroy] pled guilty to RSP on January 7, 2010. On February 3, 2010, [Fauntleroy] pled guilty to Criminal Trespass and Conspiracy. Following that plea, [the

_________________ __________ ______ ____ _______ 1 See 18 Pa.C.S.A. §§ 3925(a), 3503, 903.J

- S75041

- 18

- 2

-

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 R S P 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 awa iting a VOP hearing before [the trial court], [Fauntleroy] was arrested and charged with [t]hird[

- d]egree [m] urder and related charges. [Fauntleroy] pled gui l ty 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 sentence d him to 31⁄2 to 7 years in prison for his conviction of RSP. For his convictions of crimina l 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, Fau ntleroy 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

_________________ __________ ______ ____ _______ 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.J

- S75041

- 18

- 3

-

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 f or 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 CP

51

- CR

- 0000173

- 2010[,] when it re

- senten ced [] 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 cour t did not follow the dictates of 42 Pa.C.S.[A.] § 9721(b), which states that in every case following the revocation of p robation, 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
N ovember 27, 2012, 25 days after his probation had expired. Id. FauntleroyJ

- S75041

- 18

- 4

-

concede s 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 positiv e 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 sentenc e 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 sta tutory 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 comm itted 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 questi ons of law is plenary. ” C ommonwealth v. Williams , 868 A.2d 529, 532 (Pa. Super. 2005).J

- S75041

- 18

- 5

-

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]e gree[

- 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 Co urt 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 N otice 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 violat ion 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.J

- S75041

- 18

- 6

-

Williams , 997 A.2d 1205 (Pa. Super. 2010), as barring a probati on 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 de fendant 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 num ber. 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 ye ar 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 fol lowing 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 conviction s of indecent assault and corruption of minors at the second criminal information number. Id. at 1207. O n appeal, this Court vacated the defendant ’ s sentences for one count of indecent assault and one count of corruption of minors, i.e. , the convictionsJ

- S75041

- 18

- 7

-

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 modificatio n 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 tri al 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 th irty

- 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

- further

penalty 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 t o 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

- without

punishment 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 clear ly reflects that the t rial court imposed no penalty forJ

- S75041

- 18

- 8

-

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 (provi ding 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 aspect s 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 d iscretionary 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 sub stantial 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).

_________________ __________ ______ ____ _______ 4 In its appellate brief, the Commonwealth agree s that the trial court lacked the authority to resentence Fauntleroy for his criminal conspiracy conviction. See Brief for the Commonwealth at 7

- 8.J

- S75041

- 18

- 9

-

Here, the PCRA court granted Fauntleroy leave to file a direct appeal, nunc pro tunc

. Fauntleroy p roperly 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 s entence 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 Fa untleroy, “ [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

asser tion that the court failed to consider mitigating factor s — raises a substantial question. ” Commonwealth v. Caldwell , 117 A.3d 763, 770 (Pa. Super. 2015) ( en banc )

. Because Faun t l eroy raises a substantial question, we will address his challenge to the discretionary aspects of his sentence.J

- S75041

- 18

- 10

-

Fauntleroy argues that the trial court abused its discretion by sentencing him to an excessive sentence, outside of the guidelines, without placing adequat e 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 agre e s 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. Cas e remanded for resentencing consistent with this Memorandum. Superior Court jurisdiction is relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/12/19