J.A21011/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

KEVIN JACKSON, :

:

Appellant : No. 87 EDA 2014

Appeal from the Judgment of Sentence December 6, 2013

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0008089-2010

BEFORE: ALLEN, MUNDY, and FITZGERALD,*JJ.

JUDGMENT ORDER BY FITZGERALD, J.: FILED JULY 24, 2015

Appellant, Kevin Jackson, appeals from the judgment of sentence 

entered on December 6, 2013 in the Philadelphia County Court of Common 

Pleas. Appellant contends his violation of probation sentence was illegal and 

the court lacked jurisdiction to correct the illegal sentence. We vacate and 

remand for resentencing.

We adopt the procedural history set forth in the trial court opinion. 

See Trial Ct. Op., 1/28/15, at 1-2. Appellant raises the following issue for 

our review: “Did not the trial court err by attempting to correct an illegal 

sentence more than 30 days after the imposition of sentence and after an 

 

*

Former Justice specially assigned to the Superior Court.
J.A21011/15

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appeal was filed in violation of 42 Pa.C.S.[ ] § 5505[1]and Pa.R.A.P. 

1701(b)(3),[2]as it lacked jurisdiction to do so? Appellant’s Brief at 2.

Instantly, the notice of appeal was filed on January 6, 2014. On 

January 17th, the court granted Appellant’s motion to modify sentence. The 

 

1 Section 5505 provides:

Except as otherwise provided or prescribed by law, a court 

upon notice to the parties may modify or rescind any order 

within 30 days after its entry, notwithstanding the prior 

termination of any term of court, if no appeal from such 

order has been taken or allowed.

42 Pa.C.S. § 5505.

2 Rule 1701(b)(3) provides:

(3) Grant reconsideration of the order which is the subject 

of the appeal or petition, if:

(i) an application for reconsideration of the order is 

filed in the trial court or other government unit 

within the time provided or prescribed by law; and 

(ii) an order expressly granting reconsideration of 

such prior order is filed in the trial court or other 

government unit within the time prescribed by these 

rules for the filing of a notice of appeal or petition for 

review of a quasijudicial order with respect to such 

order, or within any shorter time provided or 

prescribed by law for the granting of reconsideration. 

A timely order granting reconsideration under this 

paragraph shall render inoperative any such notice of 

appeal or petition for review of a quasijudicial order 

theretofore or thereafter filed or docketed with respect to 

the prior order. . . .

Pa.R.A.P. 1703(b)(3).
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court corrected the sentence from three years to two years of reporting 

probation. Order, 1/17/14. The trial court amended the sentence on May 

28, 2014, “to run consecutive to MC-51-CR-0034788-2013.” Amended 

Sentence, 5/28/14. 

Pursuant to Rule 1701(a), “after an appeal is taken or review of a 

quasijudicial order is sought, the trial court or other government unit may no 

longer proceed further in the matter.” Pa.R.A.P. 1701(a); see also 42 

Pa.C.S. § 5505; Commonwealth v. Martz, 926 A.2d 514, 525 (Pa. Super. 

2007) (holding trial court without jurisdiction to amend sentence after notice 

of appeal filed, unless mistake is patent or obvious, e.g., correction of credit 

for time served). Instantly, we find the trial court lacked jurisdiction to 

modify the December 6th sentence. See 42 Pa.C.S. § 5505; Pa.R.A.P. 

1701(a); Martz, 926 A.2d at 525.

Accordingly, we remand for resentencing.3

Sentence vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015

 

3 We note that the Commonwealth does not oppose resentencing. 

Commonwealth’s Brief at 5.
Reconsider Illegal Sentence. Defense counsel's motion asserted the back time would amount to 

backtime to be served. On November 7, 2013, defense counsel filed a Petition to Vacate and 

months to thirty (30) months incarceration followed by three (3) years reporting probation, 

revoked defendant's probation and terminated parole. Defendant was resentenced to fifteen (15) 

On October 28, 2013, defendant appeared for a violation of probation hearing. The Court 

anger management, participate in anger management counseling, and stay away from the victim. 

three (3) years reporting probation. Additionally, the Court required the defendant to attend 

defendant was sentenced to fifteen (15) months to thirty (30) months incarceration followed by 

the Court and prepared on April 20, 2011. On June 28, 2011, following a sentencing hearing 

Recklessly Endangering Another Person (18 §3925 §§A). A Pre-sentence Report was ordered by 

Mischief- Tampering with Property (18 §3304 §§A2), Simple Assault (18 §2701 §§A), and 

Trespass ( 18 §3503 § §A), Possession of an Instrument of Crime (18 §907 §§A), Criminal 

On April 20, 2011, following a waiver trial, the defendant was found guilty of Criminal 

PROCEDURAL HISTORY 

II I I I II /Ill II II I II IIII Ill 

7250464081 

COVINGTON, J. 

CP-51-CR-0008089--201? Comm.\/. Jackson, KeV!n 

Opinion 

OPINION 

KEVIN JACKSON 

'i7 £MW/ '( v. -'64 ~DA 20W 

COMMON\VEALTH OF PENNSYLVANIA CP-Sl-CR-0008089-2010 

IN THE COURT OF COMMON PLEAS JAN 2 8 2015 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL SECTION Criminal ;~ppeals UnH 

l=t·,·~,,t- 11 rdf"i,:\t P:~tri~11· "t, pi1. t V1o. VC.\....,\;~1.,,.-... 1~'-· . ~\...., ~..,: M 

F~LED 

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2 

Following Defendant's sentencing on June 28, 2011, Defendant was incarcerated until 

March 2, 2013. See Gagnon II Hearing, 10/25/2013. Probation Officer Renee Waters discussed 

Defendant's probation with Defendant's counselor prior to his release, informing the counselor 

that Defendant would have to report for probation until March 2, 2016. Id. Officer Waters sent 

two contact letters, but Defendant failed to report for probation on March 11, 2013, March 21, 

2013, March 22, 2013, and April 1, 2013. Id. On March 12, 2013, Defendant left a voice 

message for Officer Waters saying he would report to probation on April 15, 2013. Id. 

Defendant failed to ever report to probation, and wanted cards were issued on April 30, 2013. 

id. On September 6, 2013, Defendant was arrested for Intentional Possession of a Controlled 

Substance. N.T. 10/29/2013, p. 9. Defendant plead guilty for the Possession charge before the 

court at the Violation of Probation hearing on October 29, 2013. Id. Defendant waived his right 

FACTUAL HISTORY 

an aggregate state sentence incompatible with his county probation. On December 6, 2013, the 

court heard argument for defense counsel's motion and the defendant was resentenced to fifteen 

(15) months to thirty (30) months incarceration followed by three (3) years reporting probation, 

removing the condition ofbacktime. On December 9, 2013, defense counsel filed a Motion to 

Correct Sentence. Based on the time Defendant had already spent incarcerated on the instant 

case, the court's sentence imposed on December 6, 2013, was one year longer than the statutory 

maximum for a third-degree felony. A motion hearing was held on January 17, 2014, and 

Defendant's motion was granted. The Court modified Defendant's sentence to fifteen (15) 

months to thirty (30) months incarceration followed by two (2) years reporting probation. 

On January 6, 2014, the defendant filed a timely notice of appeal of his re sentence. 

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followed by two (2) years reporting probation aggregates to fifty-four (54) months. As the 

Pursuant to the 1925(b) Statement of Errors Complained of on Appeal, the defendant 

asserts that despite correcting the illegal sentence, the court ens in imposing an illegal sentence. 

L The Court's Sentence Was Legal and Justified 

Defendant was convicted of Criminal Trespass graded as a third degree felony. The 

statutory maximum supervision for a third degree felony is seven (7) years or eighty-four (84) 

months. At the time of resentencing Defendant had served thirty (30) months of incarceration on 

the instant case, thus the Court could not impose a sentence of supervision above fifty-four (54) 

months. The Court's sentence of fifteen (15) months to thirty (30) months incarceration 

DISCUSSION 

"When reviewing sentencing matters, [ an appellate court] must accord the sentencing 

court great weight as it is in the best position to view defendant's character, displays or remorse, 

defiance or indifferences, and the overall nature of the crime." Commonwealth v. Cappellini, 690 

A.2d 1220, 1225 (Pa. Super. 1997) (quoting Commonwealth v. Viera, 659 A.2d 1024, 1030 

(Pa.Super. 1995). The sentencing function is vested in the sound discretion of the trial court, 

whose judgment will not be disturbed by an appellate court in the absence of an abuse of 

discretion. Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007). 

STANDARD OF REVIE\V 

to a Presentence Investigative Report. Id. at 10. The Court issued its sentence based on 

defendant's technical violations of non-reporting and defendant's direct violation of the guilty 

plea to possession. 

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BY THE COURT: 

For the foregoing reasons, it ts respectfully requested the Trial Court's sentence be 

affirmed. 

CONCLUSION 

Court's sentence is within the statutory maximum, was imposed after a direct violation of 

probation, and the court considered the totality of the circumstances at the sentencing hearing, 

the sentence is legal. 

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