J-S62026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NICHOLAS LEE POTTER

Appellant No. 534 WDA 2015

Appeal from the Judgment of Sentence September 15, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0015710-2013

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 16, 2015

Appellant Nicholas Lee Potter appeals from the September 15, 2014 

judgment of sentence entered in the Allegheny County Court of Common 

Pleas. We find the sentence imposed for indecent assault (complainant less 

than 13 years of age)1of 18 to 60 months’ incarceration and 5 years’ 

probation is illegal because it provides for a maximum sentence of 10 years,2

which exceeds the statutory maximum of 7 years. We vacate the judgment 

of sentence and remand for re-sentencing.

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3126(a)(7).

2

 The sentencing order provided that Appellant was to begin serving both 

the incarceration and probation portion of his sentence on the date of 

sentencing. 
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On September 15, 2014, Appellant entered a negotiated guilty plea. 

He pled guilty to indecent assault (complainant less than 13 years of age), 

graded as a third-degree felony, corruption of a minor,3and unlawful contact 

with a minor.4 N.T., 9/15/2014, at 3-6. The Commonwealth withdrew an 

involuntary deviate sexual intercourse count.5 Id. at 2. The negotiated 

sentence was 18 to 60 months’ incarceration, followed by an unspecified 

period of probation. Id. at 3.

The trial court sentenced Appellant that same day to 18 to 60 months’ 

incarceration and 5 years’ probation at the indecent assault count. N.T., 

9/15/2014, at 6-7; Order of Sentence, 9/15/2014. The court imposed no 

further penalty at the other counts. Appellant filed a post-sentence motion, 

which the trial court denied on February 26, 2015. On March 27, 2015, 

Appellant filed a timely notice of appeal. Both Appellant and the trial court 

complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant raises the following issue on appeal:

1. Whether [Appellant’s] September 15, 2014 judgment of 

sentence at Count 3 is illegal as the concurrent terms of 

1.5 to 5 years’ incarceration and 5 years’ probation 

exceed[] the lawful maximum of 7 years and violates his 

rights against being placed twice in jeopardy – under 

Article 1, section 10 of the Pennsylvania Constitution 

____________________________________________

3 18 Pa.C.S. § 6301(a)(1)(i).

4 18 Pa.C.S. § 6318(a)(1).

5 18 Pa.C.S. § 3123(b).
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and/or the Fifth and Fourteenth Amendments to the United 

States Constitution – and/or violated other law?

Appellant’s Brief at 3. Appellant maintains his sentence is illegal because the 

maximum imposed by the trial court, 5 years of incarceration and 5 years of 

probation, exceeds the maximum penalty permitted for an indecent assault 

conviction. Id. at 8. Although the Commonwealth disagrees with 

Appellant’s analysis, it agrees we should remand for re-sentencing. Appellee 

Brief at 11, 14-15.6

Appellant challenges the legality of his sentence, which is a question of 

law. Our standard of review is de novo and our scope of review is plenary. 

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super.2012).

“When determining the lawful maximum allowable on a split sentence, 

the time originally imposed cannot exceed the statutory maximum,” i.e., the 

maximum term of incarceration plus the maximum term of probation cannot 

exceed the statutory maximum. Commonwealth v. Crump, 995 A.2d 

1280, 1283-84 (Pa.2010). The Pennsylvania Rules of Criminal Procedure 

provide:

When more than one sentence is imposed at the same 

time on a defendant, or when a sentence is imposed on a 

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6 Appellant claims that “[e]ven though the sentences may be concurrent 

with one another (since the effective dates are the same and there is no 

express indication that the sentences run consecutive), concurrent sentences 

are considered cumulative for” constitutional purposes. Appellant’s Brief at 

7 (internal citation omitted). The Commonwealth maintains a term of 

probation cannot be imposed concurrently to a term of incarceration and, 

therefore, the sentence is improper. Appellee’s Brief at 14-15.
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defendant who is sentenced for another offense, the judge 

shall state whether the sentences shall run concurrently or 

consecutively. If the sentence is to run concurrently, the 

sentence shall commence from the date of imposition 

unless otherwise ordered by the judge.

Pa.R.Crim.P. 705. No rule permits a trial court to order the probation and 

incarceration imposed as a split sentence for one count to run concurrent to 

each other.7 

Appellant was sentenced for indecent assault (person less than 13 

years of age), a third-degree felony. 18 Pa.C.S. § 3126(b)(3). The 

maximum penalty for a third-degree felony conviction is 7 years. 18 Pa.C.S. 

§ 1103(3). The trial court sentenced Appellant to 18-to-60 months’ 

imprisonment and 5 years’ probation at the indecent assault count. 

Therefore, the maximum sentence imposed at the indecent assault count is 

10 years, which exceeds the maximum allowed for the crime. 18 Pa.C.S. § 

1103(3). Accordingly, the sentence is illegal.

We will vacate the sentence imposed at the indecent assault count. 

Further, we will remand for resentencing, as this determination disrupts the 

trial court’s sentencing scheme. See Commonwealth v. Williams, 871 

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7

Further, this Court has stated that “we find 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.” 

Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa.Super.2011). In 

Allhouse, the appellant argued his probation for a sentence imposed in 

Clearfield County began immediately following his term of incarceration, 

even though he remained incarcerated in a state correctional facility on a 

sentence imposed on an unrelated matter in Jefferson County. Id. at 33, 

35-26.
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A.2d 254 (Pa.Super.2005) (re-sentencing required where order from 

Superior Court disrupts sentencing scheme).

Judgment of sentence vacated. Case remanded to the trial court for 

re-sentencing. Jurisdiction relinquished.

President Judge Gantman joins in the memorandum.

Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2015