J-S22012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KARL ERNST ROMINGER,

Appellant No. 1710 MDA 2016

Appeal from the Judgment of Sentence August 17, 2016

In the Court of Common Pleas of Cumberland County

Criminal Division at No(s): CP-21-CR-0000884-2015

BEFORE: SHOGAN, MOULTON, and PLATT,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED MAY 11, 2017

Appellant, Karl Ernst Rominger, appeals from the judgment of 

sentence entered on August 17, 2016, in the Cumberland County Court of 

Common Pleas. After careful review, we are constrained to vacate the 

judgment of sentence and remand for resentencing.

The relevant facts and procedural history of this matter are straight 

forward. On February 20, 2015, Appellant was arrested and charged with 

numerous crimes involving theft, dealing in proceeds of unlawful activities, 

and misapplication of entrusted property. Additional similar crimes were 

subsequently charged. On May 12, 2016, the information was amended to 

include eighteen charges of misapplication of entrusted property. Appellant 

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*

 Retired Senior Judge assigned to the Superior Court.
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then entered an open guilty plea to one count of theft by deception1 graded 

as a felony of the first degree at count seven, and eighteen charges of 

misapplication of entrusted property2 graded as second-degree 

misdemeanors at count ten. N.T., Guilty Plea, 5/12/16, at 2-3. The 

remaining counts were dismissed. Id. at 3. 

On August 17, 2016, the trial court imposed sentences of 

incarceration, concurrent probation, fines, and restitution.3 The specifics of 

these sentences will be discussed in detail below. Post-sentence motions 

were filed and denied, and this timely appeal followed. Both Appellant and 

the trial court have complied with Pa.R.A.P. 1925. 

In this appeal, Appellant presents the following issues for our 

consideration:

A. Whether Appellant’s sentence was illegal because the court, 

as it explained in denying the post-sentence motion, imposed 

sentences of probation on the count 10 convictions (18 offenses) 

while aggregating the intended incarceration on each separate 

count conviction into a single sentence on count 7 (1 offense) in 

order to permit the probationary sentences and retain local 

supervision of such sentence for the collection of restitution, 

which it may not do?

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1 18 Pa.C.S. § 3922(a). 

2 18 Pa.C.S. § 4113(a). 

3 The amount of restitution was set at $767,337.05 at the guilty plea 

colloquy. N.T., 5/12/16, at 9. However, in the sentencing order, the 

amount of restitution totaled $788,418.95. Order, 8/17/16, at unnumbered 

2. On remand this amount will need to be settled. 
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B. Whether Appellant’s sentence is manifestly excessive, too 

harsh a punishment and unconstitutional because, according to 

the clerk of courts’ docket sheets, the sentence of 5.5 to 18 

years’ incarceration for theft was close to thrice the outer end of 

the applicable aggravated range under the guidelines, and the 

court ignored significant factors of mitigation?

C. Whether Appellant’s sentence is manifestly excessive, too 

harsh a punishment and unconstitutional because, according to 

the court’s order denying the post-sentence motion, the theft 

sentence of 12 months’ imprisonment - which was outside the 

guidelines - was run consecutively to 18 consecutive 3-month 

aggravated range minimum sentences for misappropriation of 

funds, thereby resulting in a clearly unreasonable application of 

the sentencing guidelines?

Appellant’s Brief at 8 (full capitalization omitted).

In Appellant’s first issue, he alleges that the sentence imposed by the 

trial court was illegal. “[A] claim that implicates the fundamental legal 

authority of the court to impose a particular sentence constitutes a challenge 

to the legality of the sentence. If no statutory authorization exists for a 

particular sentence, that sentence is illegal and subject to correction.” 

Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013) (citation 

omitted). Moreover, “[i]ssues relating to the legality of sentence are 

questions of law, and thus, our standard of review is de novo and our scope 

of review is plenary.” Id.

The sentence imposed by the trial court is as follows:

In light of the information contained in that background, 

the Court will sentence in the standard guideline -- I’m sorry --

will sentence in the guideline range. In order to accomplish the 

Court’s goal of having local supervision over [Appellant] to 

ensure payment of restitution, the Court will impose all 

sentences of incarceration in aggregated form on the sentence 
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imposed on Count 7; however, the total minimum of the 

sentence imposed on Count 7 is an aggregate number for each 

of the nineteen charges for which [Appellant] has been convicted 

taking into account the sentencing guidelines.

In essence on each of the eighteen counts, [Appellant] will 

be sentenced to not less than 3 months nor more than 12 

months; however, as indicated, that sentence will be aggregated 

on Count 7. Accordingly, the sentence of the Court on Count 7 is 

the [Appellant] shall serve no less than 66 months nor more 

than 18 years in confinement at the State Correctional 

Institution designated by the State Department of Corrections.

The Cumberland County Sheriff is directed to take 

[Appellant] into custody forthwith and transport him to the State 

Correctional Institution at Camp Hill for purposes of classification 

and effectuation of this sentence. 

The sentence of the Court on Count 10 is on each count 

[Appellant] is sentenced to 12 months probation. On each count 

the sentence shall run consecutive to each other for a total 

supervision on Count 10 of eighteen years. That sentence shall 

run concurrent to the sentence imposed on Count 7.

As a condition of [Appellant’s] sentence, he is directed to 

pay restitution consistent with the presentence investigation. ...

N.T., 8/17/16, at 29-30. In the order denying Appellant’s post-sentence 

motions, the trial court expounded upon its rationale for the sentences it 

imposed:

[Appellant’s] sentences were structured to account for the 

seriousness of [Appellant’s] conduct while permitting continued 

Court supervision of [Appellant] for purposes of monitoring the 

payment of restitution. This was accomplished by imposing 

sentences of probation on the Count 10 convictions while 

aggregating the intended incarceration on each separate count 

conviction into a single sentence on Count 7 in order to permit 

the probationary sentences. As such, [Appellant’s] Count 7 

sentence is technically outside the guidelines, however, in 

application, it is the total of a standard guideline sentence of 12 

months for Count 7 and 18 consecutive 3-month aggravated 
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range minimum sentences for each of the 18 separate 

convictions in Count 10 (18 x 3 months + 12 months = 66 

months). The sentences were structured in this manner to 

permit local supervision for a sufficient time for the collection of 

restitution as imposing a sentence of no less than 3 months nor 

more than 12 months on each of the 18 convictions at Count 10 

would aggregate under statutory law into a state supervised 

sentence. See 42 Pa.C.S.A. § 9762 (aggregate maximum 

sentences of two years or more shall be committed to the 

Department of Corrections except in limited circumstances). ...

Order, 9/23/16, at 1. 

As noted above, the trial court sentenced Appellant to eighteen 

separate consecutive sentences of three to twelve months of incarceration 

for the misapplication of entrusted property charges, and it subdivided the 

single theft conviction into eighteen separate consecutive sentences of 

twelve months of probation to run concurrently with the sentences for 

misapplication of entrusted property. This sentence results in a fifty-four 

month to eighteen-year term of incarceration, to be served concurrently with 

eighteen separate consecutive twelve-month terms of county probation. 

However, the trial court states that the sentence results in a sentence of 

sixty-six months to eighteen years and explains its calculation as follows: 

“Twelve months + eighteen x three months equals 66 months.” Trial Court 

Opinion, 12/2/16, at 5, n.5. After review, we conclude that the trial court 

lacked the authority to impose these sentences.

Despite the trial court’s arithmetic explanation, we cannot uncover 

where the additional twelve-month prison term was imposed. The only 

sentences of total confinement are the eighteen sentences of three months 
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to twelve months for misapplication of entrusted funds.4 N.T., Sentencing, 

8/17/16, at 30; Sentencing Order, 8/17/16, at unnumbered 1-3. Moreover, 

even if we assume that the twelve-month sentence was imposed for the one 

count of theft by deception, there was no authority for the trial court to 

order a flat, twelve-month sentence of incarceration in the case at bar. See 

Commonwealth v. Mitchell, 986 A.2d 1241, 1244 (Pa. Super. 2009) 

(stating that flat sentences are generally illegal); 42 Pa.C.S. § 9756. 

Finally, we are also constrained to conclude that there is no authority 

allowing the trial court to direct that county (or state) probation is to be 

served at the same time as a state sentence of incarceration. We are 

cognizant that sentences may be ordered to be served consecutively or 

concurrently: 

(a) General rule.--In determining the sentence to be imposed 

the court shall, except as provided in subsection (a.1), consider 

and select one or more of the following alternatives, and may 

impose them consecutively or concurrently:

(1) An order of probation.

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4 Additionally, there is a discrepancy in the trial court opinion as to which 

sentences are for which crimes. The record reflects that theft was graded as 

a first-degree felony, and misapplication of entrusted funds was graded as a 

second-degree misdemeanor. Information, 6/23/15; N.T., Guilty Plea 

(amendment to information), 5/12/16, at 2. At sentencing, the trial court 

imposed incarceration for the theft graded as a first-degree felony and 

probation for the misapplication of entrusted funds graded as a seconddegree misdemeanor. N.T., Sentencing, 8/17/16, at 30; Sentencing Order, 

8/17/16, at unnumbered 1-3. However, in its opinion, the trial court stated 

that it imposed probation for the felony and incarceration for the 

misdemeanors. Trial Court Opinion, 12/2/16, at 5.
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(2) A determination of guilt without further penalty.

(3) Partial confinement.

(4) Total confinement.

(5) A fine.

(6) County intermediate punishment.

(7) State intermediate punishment.

42 Pa.C.S. § 9721(a). In Commonwealth v. Pierce, 441 A.2d 1218, 1219 

(Pa. 1982), our Supreme Court held that 18 Pa.C.S. § 1321(a), the 

precursor to 42 Pa.C.S. § 9721, empowered a sentencing court to impose 

the sentencing alternatives consecutively or concurrently. However, in 

Pierce, the appellant’s probation was consecutive to incarceration, and 

Pierce does not specifically address the situation in the case at bar where 

county probation was ordered to be served concurrently with a state prison 

sentence. Conversely, Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa. 

Super. 2011),5confronted this issue directly and stated: “Moreover, we find 

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5 The Commonwealth attempts to distinguish Allshouse by claiming that it 

dealt with a situation where the defendant was attempting to obtain a 

windfall by having time spent incarcerated count toward a concurrent 

sentence of probation. The Commonwealth’s Brief at 15. The 

Commonwealth’s argument is misplaced. Indeed, Appellant’s subjective 

intent or desire to have time spent incarcerated count toward a probationary 

sentence is not presently at issue. Rather, we are concerned with the more 

prefatory question answered in Allshouse, where this Court held that 

defendants cannot serve a term of probation and state incarceration 

simultaneously. 

(Footnote Continued Next Page)
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no support in the Pennsylvania statutes that the General Assembly intended 

to permit defendants to serve a term of probation and a term of state 

incarceration simultaneously.”6 

In conclusion, the sentence that the trial court imposed contains a 

computation error and/or a portion of the sentence that is not clearly 

explained in the record. More importantly, because there was no authority 

for the trial court to impose the sentence in its current form pursuant to 

Allshouse, it is illegal, and it must be corrected. Clarke, 70 A.3d at 1284.7 

For these reasons, we vacate Appellant’s sentence and remand for 

resentencing in accordance with this memorandum.8

(Footnote Continued) _______________________

6 Allshouse does not cite 42 Pa.C.S. § 9721(a); however, it specifically 

addresses the issue at hand, and we are bound by prior panel decisions of 

the Superior Court. Commonwealth v. Prout, 814 A.2d 693, 695 n.2 (Pa. 

Super. 2002). 

7 The trial court’s citation to Commonwealth v. Mitchell, 955 A.2d 433 

(Pa. Super. 2008), Trial Court Opinion, 12/2/16, at 9, is of little import 

because that case discussed probationary “tails,” which are terms of 

probation following incarceration, violations of probation, and the 

supervisory responsibilities of the courts of common pleas versus the 

Pennsylvania Board of Probation and Parole. Here, we do not reach the 

issue of supervision, as we are faced with the preliminary question 

concerning the legality of the sentence imposed. 

8

In light of our disposition and order remanding this matter for 

resentencing, we do not reach Appellant’s remaining issues challenging the 

discretionary aspects of the sentences imposed. However, we point out that 

there is no specific authority permitting the trial court to parcel out eighteen 

separate sentences for the single theft conviction. Yet, Appellant has not 

directed our attention to any authority making this portion of Appellant’s 

(Footnote Continued Next Page)
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Vacate and remand for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/2017

(Footnote Continued) _______________________

sentence illegal. We conclude that this issue may be better addressed in a 

challenge to the discretionary aspects of Appellant’s sentence should the trial 

court impose this aberrant disposition upon resentencing, and we would then 

expect the trial court to explain and defend its actions.