J-S63043-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEFFREY WALTER STRAMA, JR.,

Appellant No. 676 MDA 2014

Appeal from the Judgment of Sentence March 5, 2014

in the Court of Common Pleas of Lancaster County

Criminal Division at No.: CP-36-CR-0001483-2013

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 14, 2015

Appellant, Jeffrey Walter Strama, Jr., appeals from the judgment of 

sentence imposed following entry of a guilty plea to burglary, intimidation of 

witnesses, unlawful restraint, terroristic threats, simple assault (four 

counts), criminal mischief, cruelty to animals, and possession of marijuana 

(small amount).1 Appellant claims that the sentence imposed on the 

summary offense of cruelty to animals is illegal. We agree and affirm the 

judgment of sentence, as amended.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3502(a)(1), 4952(a)(1), 2902(a)(1), 2706(a)(1), 

2701(a)(1),(a)(3), 3304(a)(5), 5511(c)(1) (summary offense), and 35 P.S. 

§ 780-113(a)(31), respectively.
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On December 6, 2013, Appellant entered a guilty plea to the abovestated offenses, and the trial court ordered preparation of a pre-sentence 

investigation (PSI) report. The charges stem from Appellant’s February 9, 

2013 assault of his then-girlfriend, during which he punched her, choked 

her, and threatened her with a hatchet, after she attempted to stop him 

from hitting their dog with a handmade club. On March 5, 2014, the court 

sentenced Appellant to an aggregate term of not less than five years and 

ninety days nor more than ten years’ incarceration, followed by five years’ 

probation. The court imposed a flat ninety-day term of incarceration for the 

offense of cruelty to animals, rather than a minimum and maximum 

sentence. Appellant filed a timely post-sentence motion, which the trial 

court denied on March 17, 2014. This timely appeal followed.2 

Appellant raises one question for our review:

I. Was [Appellant’s] flat ninety-day sentence for cruelty to 

animals illegal, as the [trial] court was required to impose a 

minimum and maximum sentence, pursuant to 42 Pa.C.S. § 

9756?

(Appellant’s Brief, at 5).3

____________________________________________

2

Pursuant to the trial court’s order, Appellant filed a timely concise 

statement of errors complained of on appeal on May 12, 2014. See 

Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) opinion on June 10, 

2014. See Pa.R.A.P. 1925(a). 

3 The Commonwealth filed a letter stating its intention not to file a brief. 

(See Commonwealth’s Letter, 8/28/14, at 1). 
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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. An illegal sentence must be 

vacated. 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. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009) 

(citation omitted). 

In his sole issue on appeal, Appellant contends that the flat ninety-day 

sentence of incarceration for his summary offense of cruelty to animals is 

illegal because the court was required to impose a minimum and maximum 

sentence for the offense. (See Appellant’s Brief, at 9-11). The trial court 

agrees, stating in its Rule 1925(a) opinion that Appellant’s sentence is 

illegal. (See Trial Court Opinion, 6/10/14, at 1). We agree that the 

sentence is illegal. 

Section 5511 of the Pennsylvania Crimes Code, titled “Cruelty to 

animals,” provides in pertinent part: 

(m.1) Fine for summary offense.—In addition to any other 

penalty provided by law, a person convicted of a summary 

offense under this section shall pay a fine of not less than $50 

nor more than $750 or to imprisonment for not more than 90 

days, or both.

18 Pa.C.S.A. § 5511 (m.1); see also id. at (c)(1), (2)(i). 

Section 9756(c) of the Sentencing Code, pertaining to sentences of 

total confinement for summary offenses, provides in relevant part:

(c) Prohibition of parole for summary offenses.—The court 

may impose a sentence to imprisonment without the right to 

parole under this subsection only when:
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(1) a summary offense is charged; 

(2) sentence is imposed for nonpayment of fines or costs, or 

both, in which case the sentence shall specify the number of 

days to be served; and 

(3) the maximum term or terms of imprisonment imposed on 

one or more indictments to run consecutively or concurrently 

total less than 30 days. 

42 Pa.C.S.A. § 9756(c)(1)-(3).4

Thus, the plain language of subsection (c) authorizes trial courts to 

impose flat sentences of incarceration for summary offenses only when the 

sentence is imposed for nonpayment of fines and/or costs and the maximum 

term of incarceration is less than thirty days. See id. Here, Appellant’s flat 

ninety-day sentence for his summary offense of cruelty to animals does not 

meet the requirements of subsection (c), and is therefore illegal. See 

Mears, supra at 1211. Although the trial court was authorized pursuant to 

____________________________________________

4 We note that Appellant relies primarily on section 9756(b)(1) of statute, 

(see Appellant’s Brief, at 9-10), which states “[t]he court shall impose a 

minimum sentence of confinement which shall not exceed one-half of the 

maximum sentence imposed.” 42 Pa.C.S.A. § 9756(b)(1). However, 

because “42 Pa.C.S.[A.] § 9756(b) applies to the sentencing of all crimes, it 

is a general provision.” Commonwealth v. Klingensmith, 650 A.2d 444, 

461 (Pa. Super. 1994), appeal denied, 659 A.2d 986 (Pa. 1995). Subsection 

(c) governs summary offenses and implicitly creates a limited exception to 

subsection (b)(1) by authorizing trial courts to impose flat sentences for 

summary offenses where three specific requirements are met. See 42 

Pa.C.S.A. § 9756(c)(1)-(3); Klingensmith, supra at 461 (stating rule that 

“[w]here two statutory sections arguably cover the same matter and appear 

to be inconsistent, the specific provision will prevail over the general 

provision”) (citing 1 Pa.C.S.A. § 1933) (case citation omitted). 
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18 Pa.C.S.A. § 5511 (m.1) to impose a ninety-day maximum term of 

incarceration, it lacked authority to impose a flat ninety-day sentence, and 

was therefore required to impose a minimum term of incarceration. See 42 

Pa.C.S.A. § 9756(b)(1). 

We are cognizant that the standard remedy for a trial court’s omission 

of a minimum sentence is to vacate the judgment of sentence and remand 

for resentencing. See Commonwealth v. Duda, 831 A.2d 728, 733 (Pa. 

Super. 2003). However, under circumstances “where the sentencing court 

clearly intended to impose the maximum sentence this Court can amend the 

sentence to include a minimum term equal to one-half of the maximum.” 

Id. (amending flat sentence to include minimum term of incarceration where 

court imposed maximum possible sentence for summary offense) (citing 

Commonwealth v. Cain, 637 A.2d 656, 659 (Pa. Super. 1994) (amending 

flat sentence to include minimum term of incarceration equal to one-half 

maximum under circumstances where sentencing court clearly intended to 

impose maximum sentence)). 

Here, because the trial court imposed the maximum possible sentence 

of incarceration for Appellant’s summary offense, we are confident that it 

intended to impose the maximum sentence. (See N.T. Sentencing, 3/05/14, 

at 15 (court stating “[Appellant] committed some heinous crimes here.”)); 

see also Duda, supra at 733. Therefore, we amend Appellant’s ninety-day 

sentence to include a minimum term of forty-five days’ incarceration. See 

Duda, supra at 733; Cain, supra at 659. 
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Judgment of sentence affirmed as amended.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/14/2015