J-S16015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE MANUEL REYES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1843 MDA 2018

Appeal from the Judgment of Sentence Entered October 24, 2018

In the Court of Common Pleas of Berks County 

Criminal Division at No(s): CP-06-CR-0002973-2018

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED JULY 03, 2019

Jose Manuel Reyes appeals from the amended judgment of sentence 

imposed October 24, 2018, in the Berks County Court of Common Pleas. On 

October 9, 2018, a jury convicted Reyes of firearms not to be carried without 

a license.1 The trial court sentenced Reyes to a term of three years and six 

months to seven years’ incarceration. On appeal, Reyes challenges the 

legality of his sentence. For the reasons below, we affirm the judgment of 

sentence.

The underlying facts are not pertinent to this appeal; therefore, we need 

not recite them herein. As noted above, a jury convicted Reyes of the firearms 

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1

 See 18 Pa.C.S. § 6106(a)(1).
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offense.2 On October 15, 2018, the court sentenced Reyes to a period of not 

less than three years and six months nor more than seven years of 

incarceration to be effective at the expiration of the order imposed on an 

unrelated matter at Criminal Docket No. 684-2015, Count 2, Part 2 (“Docket 

No. 684-2015”). On October 23, 2018, Reyes filed post-sentence motions, 

seeking modification of his sentence and motion for judgment of acquittal 

challenging the sufficiency and weight of the evidence. On October 24, 2018, 

the court granted the modification of sentence to correctly reflect the credit 

for time served and denied the motion for judgment of acquittal. This appeal 

followed.3

In his sole issue on appeal, Reyes argues his sentence is illegal because 

the effective date of the sentence in the present matter was to be imposed 

consecutively to a sentence that had not yet been imposed at Docket No. 684-

2015. See Reyes’ Brief at 10.

By way of background, with respect to Docket No. 684-2015, Reyes was 

convicted of retail theft and receiving stolen property. See N.T., 10/15/2018, 

at 5. He was sentenced to 111⁄2 to 23 months’ incarceration, followed by three 

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2

 The jury found him not guilty of possession of drug paraphernalia. See 35 

P.S. § 780-113(a)(32).

3

 On November 8, 2018, the trial court ordered Reyes to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Reyes filed a concise statement on November 21, 2018. The trial court issued 

an opinion pursuant to Pa.R.A.P. 1925(a) on November 27, 2018.
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years probation. Reyes was then paroled, which expired on November 20, 

2017. Thereafter, at the time of sentencing in the present matter, he was 

serving the probation portion of his sentence. A detainer for a probation 

violation had been entered at Docket No. 684-2015, but a Gagnon II4 hearing 

had not been scheduled.5

Relying on Commonwealth v. Holz, 397 A.2d 407 (Pa. 1979), Reyes 

states:

Here, the sentencing court correctly avers that there was a 

judgment of sentence already imposed at [Docket No. 684-2015] 

since [] Reyes was currently on probation at that docket. Under 

the trial court’s description of the sentence it imposed, the 

sentence was valid because it was made consecutive to a sentence 

of probation that had been previously imposed. Even if it was the 

intent of the court to sentence [] Reyes consecutively to a 

previously imposed sentence of probation, the sentence is 

violative of Pa.R.Crim.P. 705(A) because the date at which the 

sentence is to commence is indefinite, the date was not stated on 

the record as required by R[ule] 705(A), and such a sentence 

ignores the fact (which the court was made aware of) that [] Reyes 

was subject to re-sentencing as a result of the probation violation 

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4

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

5

 Reyes avers: 

On November 2, 2018, the Gagnon II hearing was held in the 

docket at which [] Reyes’ post-verdict sentence was to be made 

consecutive, CP-06-CR-684-2015, for a violation of probation due 

to the new arrest and conviction. The Gagnon II hearing was in 

front of a different judge, the Honorable Judge Benjamin Nevius. 

After hearing, [] Reyes received a sentence of six (6) to twentyfour (24) months in a State Correctional Facility, effective the 

same day, with credit for eighteen (18) days served.

Reyes’ Brief at 7 (footnote omitted).
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detainer lodged against him for a new arrest and subsequent 

conviction (the conviction underlying this docket).

The record evinces that the sentencing court was aware of, 

and intended to fashion its sentence around, the future Gagnon 

II sentence rather than the previously-imposed probationary 

sentence.

...

While [] Reyes disputes that it was the intent of the court to 

sentence consecutively to the previously imposed probation rather 

than the future Gagnon II result, the sentence remains illegal 

under the sentencing court’s formulation because to run a 

sentence of imprisonment consecutive to one of probation creates 

a myriad of issues on its own. Whether the sentence was intended 

to be consecutive to a previous sentence of probation or to a 

future sentence yet to be imposed, the issues culminate in an 

untenable situation for the future sentencing judge at the Gagnon 

II hearing.

Based on Holz and on the plain reading of Pa.R.Crim.P. 705, read 

in conjunction with 42 Pa.C.S. § 9757, there is no authority for a 

sentencing court to impose a sentence consecutive to a sentence 

yet to be determined or consecutively to a term of probation for 

which the defendant is presently subject to violation procedures. 

The Gagnon II hearing was unscheduled at the time of the 

October 15, 2018 sentencing. It was later held on November 2, 

2018 in front of a different judge. At the time [] Reyes’ sentencing 

was imposed on October 15, 2018, it was unknown to all parties 

what the result of the Gagnon II hearing would be (or whether it 

would ultimately be held). Therefore, [] Reyes received an 

indefinite sentence.

...

Under the trial court’s interpretation of the sentence here, 

at the moment of sentencing on October 15, 2018, [] Reyes was 

sentenced to a term of imprisonment consecutive to a term of 

probation. At this point, his credit for time served would cease 

tolling until the unscheduled Gagnon II would be held. While 

overwhelmingly unlikely, it was nevertheless possible that []

Reyes’ detainer would be lifted and the Gagnon II hearing 

cancelled. In that event, [] Reyes would have no longer received 
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credit for time served after his October 15, 2018 sentencing date; 

and his sentence would have been in flux because it would be a 

term of state imprisonment to be served consecutive to a term of 

probation. (To fulfill all of the active sentencing orders, the absurd 

result would be that [] Reyes would have to be released to serve 

out his probation before reporting for State Confinement).

Likewise, if the Gagnon II hearing was delayed for unforeseen 

reasons, [] Reyes would face further uncertainty as to the ultimate 

outcome of his sentence here because of the consecutive nature 

of the sentence.

Reyes’ Brief at 12-16 (citations and footnotes omitted).

With respect to a legality of sentencing argument, our standard of 

review is de novo and our scope of review is plenary. Commonwealth v.

Aikens, 139 A.3d 244, 245 (Pa. Super. 2014). “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).

“When imposing a sentence to imprisonment, the judge shall state the 

date the sentence is to commence. “ Pa.R.Crim.P. 705(A). “When more than 

one sentence is imposed at the same time on a defendant, or when a sentence 

is imposed on a defendant who is sentenced for another offense, the judge 

shall state whether the sentences shall run concurrently or consecutively.” 

Pa.R.Crim.P. 705(B).

In Holz, supra, a jury convicted the defendant of numerous offenses 

related to an incident involving the rape and robbery of a couple at gun-point

in Montgomery County. Holz, 397 A.2d at 407. The court sentenced the 

defendant to two concurrent ten-to-20 year sentences and two concurrent 

two-and-one-half to five year sentences. Id. at 407-408. These sentences 
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were to run consecutively to a probation violation sentence, which the 

defendant was then serving, and consecutively to a sentence in an unrelated

homicide case in Philadelphia County, for which the defendant had been 

convicted but not yet sentenced. Id. A panel of this Court affirmed the 

judgment of sentence. Id. The defendant then filed a petition for allowance 

of appeal, which the Pennsylvania Supreme Court granted. The issue was 

whether “the trial court erred when it sentenced him to serve a term of 

imprisonment to run consecutively with a judgment of sentence which had not 

yet been imposed” in the unrelated homicide case. Id. at 408. 

The Supreme Court interpreted the predecessor to Rule 705, 

Pa.R.Crim.P. 1406 (former), to bar a court from ordering a sentence run 

consecutively to a sentence that had not yet been imposed. Id. The Court 

stated: “If there is no prior sentence, there is nothing for the instant sentence 

to run concurrent with or consecutive to.” Id. The Supreme Court modified 

the judgment of sentence and struck “from it that portion ordering [the 

defendant’s] sentence to run consecutive to the sentence yet to be imposed 

in Philadelphia County.” Id.

Here, the trial court found the following:

[U]nlike in Holz, [Reyes] was sentenced to three years of 

probation at Docket No. 684-2015, which warrants that a 

judgment of sentence was imposed. Also, this Court made clear

that the sentence shall run consecutively as evidenced by this 

Court’s sentencing order and the transcript from [Reyes’] 

sentencing hearing. Whether or not [Reyes] is subject to 

resentencing at Docket No. 684-2015 Count 2, Part 2, in the future

does not change the fact this Court’s sentence was to run 
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consecutively with a previously imposed sentence. As this Court’s 

sentence is warranted by Pa.R.Crim.P. Rule 705(B), this Court did 

not impose an illegal sentence.

Trial Court Opinion, 11/27/2018, at unnumbered 2 (citation omitted).

We agree with the trial court’s conclusion and find Reyes’ argument on 

Holz is misplaced. The Holz Court held that a court could not order a 

sentence to run consecutively to a sentence that had not yet been imposed. 

Here, there was a judgment of sentence with respect to the case at Docket 

No. 684-2015 – he received a term of incarceration and a consecutive term of 

probation. While Reyes was at a juncture in his judgment of sentence at 

Docket No. 684-2015 where he faced the imposition of a re-sentence on the 

probation portion of his sentence because he violated the terms of his 

probation due to the conviction at issue, there was still a judgment of sentence 

that had already been imposed. As such, the consecutive sentence imposed 

in the present matter to the sentence at Docket No. 684-2015 is congruent to 

the decision in Holz. While Reyes would like this Court to analyze otherwise, 

he has not presented any authority that precludes a court from imposing a 

consecutive sentence to a re-sentence on the probation portion of a judgment 

of sentence. Moreover, his hypotheticals regarding the outcome of that resentencing proceeding do not persuade us. Accordingly, we conclude the trial 

court did not impose an illegal sentence and Reyes’ argument fails.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/3/2019