J-S06042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RAYMOND A. JONES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1994 EDA 2016

Appeal from the Judgment of Sentence November 13, 2015

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0013045-2013

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 18, 2018

Raymond Jones appeals from the judgment of sentence of three to 

seven years incarceration, plus a flat sentence of eighty-nine days 

incarceration, imposed by the violation of probation (“VOP”) court following 

Appellant’s arrest on new charges. We find that the sentence of three to seven 

years was lawfully imposed and did not constitute an abuse of discretion; 

however, we find that the flat sentence is illegal. Accordingly, we vacate 

judgment of sentence and remand for further proceedings consistent with this 

memorandum.

The instant appeal traces to Appellant’s guilty plea on March 20, 2014, 

to, inter alia, fleeing and eluding a police officer and DUI. The parties 

negotiated a sentence of four to twenty-three months incarceration followed 

by three years probation, which the trial court conditionally agreed to impose 

pending a pre-sentence investigation. 
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On June 14, 2014, the trial court imposed the agreed-upon negotiated 

sentence. Critically, the order stated that the sentence was to commence on 

September 11, 2014, which was a report date generously granted to Appellant 

so that he could take care of some personal affairs. Appellant failed to report

as required, resulting in a bench warrant. He remained at liberty until July 

23, 2015, when he was arrested for an unrelated offense.1

The Commonwealth thereafter filed a motion to revoke Appellant’s 

parole/probation, which the court granted on September 9, 2015. Order, 

9/9/15, at 1 (“Motion to Revoke Parole/Probation is GRANTED. [Appellant] 

found in violation of sentence for failing to appear on Surrender Date.”). 

Sentencing was deferred until November 13, 2015. On that date, Appellant 

was sentenced to three to seven years incarceration for fleeing and eluding, 

plus a flat sentence of eighty-nine days incarceration for DUI. 

Appellant filed a motion for reconsideration, which the trial court did not

act upon. Appellant mistakenly failed to file a notice of appeal within thirty 

days as required for VOP sentences, and successfully sought restoration nunc 

pro tunc through a PCRA petition. Appellant complied with the order to file a 

Pa.R.A.P. 1925(b) statement, and raises the following points of error.

1. Is the sentence of 3 to 7 years incarceration on a felony of the 

third degree an illegal sentence where there remains a sentence 

____________________________________________

1 A review of the publicly-available docketing sheets indicates that a Raymond 

Jones, with the same date of birth as that listed on the instant docket, was 

arrested on July 23, 2015, for, inter alia, possession of an instrument of crime 

and terroristic threats. Those charges were withdrawn on November 9, 2015.
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of 4 to 23 months on the same charge which is not vacated and 

must still be served?

2. Was the sentence of 3 to 7 years of incarceration unreasonable,

manifestly excessive and an abuse of discretion where the court 

failed to conduct an individualized sentencing, did not properly 

consider the sentencing factors under 42 Pa.C.S. § 9721, ignored 

whether the sentence was the least stringent to protect the 

community, did not consider appellant's rehabilitative needs, did 

not sufficiently place its reasons for its sentence on the record, 

and violated the Sentencing Code as the actions were not 

necessary to vindicate the authority of the lower court?

Appellant’s brief at 3.

Appellant’s first claim concerns the legality of his sentence, which we 

review de novo. Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa.Super.

2016). The dispute between the parties concerns the proper characterization 

of the November 13, 2015 proceeding. The Commonwealth and the trial court 

both view this sentence as a revocation sentence, while Appellant asserts that 

the trial court illegally modified his sentence after the applicable thirty-day 

period. 

Appellant acknowledges that a revocation is not a modification of the 

original sentence. He maintains that the instant sentence cannot be 

characterized as such, because “upon [Appellant]’s arrest in July of 2015, he 

started serving his county sentence. That sentence could not be vacated.” 

Appellant’s brief at 19. Therefore, Appellant maintains that he is currently 

serving the originally-imposed sentence, to be followed by a three and onehalf to seven year term, which exceeds the statutory maximum. 18 Pa.C.S. 

§ 106(b)(4) (setting maximum of seven years for felony of the third degree). 
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Additionally, Appellant states that the VOP court illegally modified his 

original sentence in violation of 42 Pa.C.S. § 5505, which states that a court 

may modify any order within thirty days after its entry. Appellant maintains 

that § 5505 applies herein, because he was sentenced on June 12, 2014, and 

the trial court could not revisit that sentence after it became final. “There is 

no law which permits a court to rescind a sentence of county incarceration 

after it becomes final other than via the Post Conviction Relief Act[.]” 

Appellant’s brief at 18. 

This characterization results, in part, from his own concise statement 

and the trial court’s responsive Pa.R.A.P. 1925(a) opinion. Appellant alleged 

in his statement that the three to seven year sentence is illegal because “there 

remains a sentence of 4 to 23 months on the same charge which [was] not 

vacated and must still be served[.]” Concise Statement, 8/15/16, at 

unnumbered 3. The trial court’s opinion responded as follows. “[T]he Order 

of Sentence appears to be silent concerning this [c]ourt’s original intention to 

remove the previously lodged detainer and to formally vacate the original 

sentence that had never been served by [Appellant].” Trial Court Opinion, 

8/8/17, at 6. Since the trial court accepted that it could lawfully vacate the 

original sentence, Appellant maintains that § 5505 applies. 

We reject Appellant’s core contention that § 5505 applies. The court

accepted Appellant’s plea and the sentence negotiated by the parties, and 

therefore could not sua sponte modify the sentence even within the thirty-day 

timeframe. More importantly, the VOP court, despite its conclusions in the 
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Rule 1925(a) opinion, did not modify his original sentence. Instead, 

Appellant’s sentence was revoked. It is well-settled that a trial court may 

revoke parole and probation on an anticipatory basis. 

Under Pennsylvania law, an order of probation can be changed or 

revoked “if, at any time before the defendant has completed the 

maximum period of probation, or before he has begun service of 

his probation” the defendant commits offenses or otherwise 

demonstrates he is unworthy of probation. Commonwealth v. 

Miller, 358 Pa.Super. 219, 516 A.2d 1263, 1265 (1986), appeal 

denied, 515 Pa. 599, 528 A.2d 956 (1987). See 

also Commonwealth v. Hoover, 909 A.2d 321 (Pa.Super.2006) 

(affirming judgment of sentence following revocation of 

defendant's probation, which he violated before his probation 

service had even begun; although defendant had not committed 

new criminal offenses, defendant demonstrated he was unworthy 

of probation and probation would not serve ends of justice or 

public interest).

Commonwealth v. Mitchell, 955 A.2d 433, 435 n.2 (Pa.Super. 2008).

It is self-evident that Appellant demonstrated that he was “unworthy of 

probation” by failing to report for commencement of his sentence. Thus, the 

VOP court lawfully revoked probation despite the fact the sentence had yet to 

technically commence. There was thus no need to vacate the sentence. It 

ceased to exist upon revocation. 

Next, we address the fact that Appellant was originally ordered to serve 

a split sentence of incarceration followed by probation. That point is significant 

because a trial court cannot revoke a parole sentence and impose a new 

sentence; rather, the court is obligated to order recommitment for the balance 

of the term. See Commonwealth v. Fair, 497 A.2d 643 (Pa.Super. 1985). 
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Therefore, there is merit to the position that while the trial court was 

authorized to revoke parole on an anticipatory basis, it was limited to imposing 

the balance of the original sentence, followed by a separate sentence for the 

probation revocation. Thus, the instant sentence of three to seven years 

would be illegal. 

Our Court addressed highly analogous circumstances in 

Commonwealth v. Ware, 737 A.2d 251, 252 (Pa.Super. 1999), and 

concluded that common sense prevails in a situation such as this. Therein, 

the offender was incarcerated in a county facility on unrelated charges when 

she pleaded guilty to a felony of the third degree. She accepted a sentence 

of eight to twenty-three months of incarceration, followed by two years of 

probation. With time credit, Ware had already served the minimum and was 

immediately paroled. Approximately six weeks later, Ware committed a new 

crime, pled guilty, and was sentenced. The Commonwealth sought 

revocation, asserting that Ware violated a condition of her probation and 

parole. At the time of the revocation hearing, Ware had approximately five 

months left on her parole term. The trial court imposed a new sentence of 

thirty-two and one-half months to seventy-four months incarceration. Thus, 

Ware was not technically ordered to serve the remainder of her parole 

sentence, which, according to Ware, rendered the sentence illegal. We 

disagreed.

It is obvious, based on our careful review of the entire record in 

this matter, that the court's sentencing scheme, upon revocation 
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of probation, was to impose the statutory maximum penalty of 

incarceration. The court was, of course, empowered to do so. 

Nonetheless, appellant suggests that the “proper procedure in this 

case would have been to [recommit] Ware to a determinate 

balance of her parole on the 8 to 23 month sentence, then 

sentence Ware to a certain term of imprisonment on the probation 

revocation[,]” and urges us to find illegality in the court's failure 

to explicitly do so. We will not.

In this case, the procedure the court employed was to sentence 

appellant directly on the revocation of probation to the legal 

statutory maximum term of incarceration. The wiser procedural 

course may have included a specific articulation that the sentence 

imposed required appellant to serve the remainder of her back 

time on the parole violation, followed by a consecutive sentence 

for revocation of probation which, when added to the back time 

remainder of the original sentence, would equal the statutory 

maximum. Nonetheless, it is clear that the outcome, in any event 

and under either procedure, given the court's clear sentencing 

scheme, would have been the imposition of the statutory 

maximum sentence of imprisonment, a legal sentence which the 

court was clearly authorized to impose. Thus, we see no reason 

to remand for the pointless and formalistic repetition of sentencing 

procedures, the outcome of which would be a foregone conclusion.

Id. at 254.

Ware demonstrates that there is no impediment to anticipatorily 

revoking the parole sentence and probation. Moreover, as in Ware, it is clear 

that the procedure selected by the trial court herein was designed to sentence 

Appellant to the statutory maximum. We thus apply the same logic, and hold 

that the trial court was authorized to anticipatorily revoke Appellant’s parole 

and probation.

Simultaneously, we agree with Appellant that there is a possibility that 

he will serve a sentence in excess of the statutory maximum. We find that 

the appropriate solution is to vacate and remand for further proceedings as 
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requested by the trial court. As indicated by the Rule 1925 opinion, the trial 

judge did not vacate the original sentence. Normally, this would not pose a 

problem for the reasons set forth supra, insofar as revocation serves to nullify 

the previous sentence and the offender will receive time credit for any portion 

of the sentence that had already been served. 

Here, however, Appellant may or may not have commenced his 

sentence immediately upon arrest for the unrelated matters. The county 

facility may have treated his arrest on the new charges as “reporting” for 

commencement of the originally-imposed sentence. Alternatively, it may be 

that Appellant was incarcerated on the basis of a detainer or for failing to post 

bond on the new charges. The trial court stated that its intention was to 

“remove the previously lodged detainer and to formally vacate the original 

sentence that had never been served by [Appellant].” Trial Court Opinion, 

8/8/17, at 6. Under this set of circumstances, we find that the proper course 

is to remand for application of time credit as needed.2

Appellant’s second claim is that the aggregate sentence was 

unreasonable and manifestly excessive. This claim implicates the 

discretionary aspects of sentence, which are not appealable as of right. 

____________________________________________

2 At the sentencing hearing, the court indicated that Appellant was in 

contempt. N.T., 11/13/15, at 6 (“[T]he notes and memory say I found him in 

contempt. I did. So I found him formally in contempt.”). However, the 

sentencing order dated November 13, 2015, properly indicated a revocation 

sentence and did not impose any separate sentence for contempt. 
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[W]e conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief 

has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Bebout, 186 A.3d 462, 470 (Pa.Super. 2018) (quoting 

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010)).

All four requirements have been met, as Appellant filed a timely appeal, 

preserved his claim in a post-sentence motion, and his brief includes the 

required statement. Finally, a claim that the sentence is manifestly excessive, 

when paired with an allegation that the court failed to consider mitigating 

factors and rehabilitative needs, presents a substantial question. 

Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.Super. 2015). We 

therefore address the merits of his claim, to which we apply the following 

standard of review.

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) 

(citing Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)).
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Two sentencing statutes are at issue herein. First, 42 Pa.C.S. § 9721 

sets forth the general sentencing considerations; in particular, subsection (b)

instructs the court to “follow the general principle that the sentence imposed 

should call for confinement that is consistent with the protection of the public, 

the gravity of the offense as it relates to the impact on the life of the victim 

and on the community, and the rehabilitative needs of the defendant.” 42 

Pa.C.S. § 9721(b). Separately, 42 Pa.C.S. § 9771 governs the trial court’s 

ability to impose total confinement following revocation of probation. The 

court may do so only if it finds one of three conditions has been met:

(c) Limitation on sentence of total confinement.—The court shall 

not impose a sentence of total confinement upon revocation 

unless it finds that:

(1) the defendant has been convicted of another 

crime; or

(2) the conduct of the defendant indicates that it is 

likely that he will commit another crime if he is not 

imprisoned; or

(3) such a sentence is essential to vindicate the 

authority of the court.

42 Pa.C.S. § 9771(c).

Thus, § 9771(c) governs only the court’s ability to impose total 

confinement at all, while § 9721(b) dictates the length of confinement. 

However, § 9721(b) instructs the court to “consider any guidelines for 

sentencing and resentencing[.]” The guidelines do not apply to revocation of 

probation sentences, 204 Pa.Code 303.1(b), thus suggesting that the 
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directives appear to operate independently, with the VOP court having 

unfettered discretion to impose any length of confinement in revocation 

proceedings. 

However, we have held that these statutes must be applied in tandem. 

In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc), 

we held that in a revocation proceeding the court must follow § 9771 in 

conjunction with § 9721(b). Thus, this Court's scope of review in appeals from 

revocation sentences encompasses the discretionary aspects of the sentence. 

“Such issues should not escape review merely because a defendant's 

revocation sentence falls within the statutory limits.” Id. at 1038.

In Commonwealth v. Derry, 150 A.3d 987 (Pa.Super. 2016), we 

examined Cartrette in light of Commonwealth v. Pasture, 107 A.3d 21 (Pa. 

2014), which reversed our decision vacating a revocation sentence on the 

grounds that we gave “insufficient deference to the revocation court's 

imposition of the sentence following the revocation of [appellant]'s 

probation[.]” Id. at 22. Derry explained that

Section 9771(c) mandates a VOP court's consideration of 

additional factors at sentencing not addressed by Section 9721(b). 

Consequently, a VOP court is not confined to only consider the 

factors set forth in Section 9721(b), that is, it is not cabined by 

Section 9721(b). Instead, a VOP court must also consider the 

dictates of Section 9771(c), given the unique aspects of VOP 

sentences not applicable when a court issues the initial sentence. 

In addition to issuing a sentence that is “consistent with the 

protection of the public, the gravity of the offense as it relates to 

the impact on the life of the victim and on the community, and 

the rehabilitative needs of the defendant [,]” a VOP court must 

also consider, for example, whether the sentence imposed is 
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“essential to vindicate the authority of the court[,]” and must give 

“due consideration ... to the time spent serving the order of 

probation.” 42 Pa.C.S. § 9771(c). Both of these concerns are 

unique to VOP sentencing hearings and may, in the end, weigh 

heavily on a court's consideration of an appropriate VOP sentence. 

But such additional considerations do not, as a necessary 

consequence, render the Section 9721(b) factors inapplicable for 

purposes of VOP sentences.

Id. at 994 (emphases in original). 

As illustrated by this passage, the VOP court “must also consider, for 

example, whether the sentence imposed is essential to vindicate the authority 

of the court[.]” Id. (quotation marks omitted). Thus, the need to vindicate 

the court’s authority is not limited only to the whether confinement was 

warranted, but extends to the length of the sentence as well. Derry cautioned 

that these additional considerations do not render the other factors 

inapplicable.

With that admonishment in mind, we examine Appellant’s argument. 

He asserts that (1) incarceration was not warranted, and (2) that the length 

of incarceration imposed was excessive as the court failed to consider anything 

other than his failure to appear. As discussed, the two inquiries are related, 

and Appellant does not claim that confinement was unwarranted for his failure 

to appear. At the initial revocation hearing, he asserted that the proper action 

was to simply order him to serve the original sentence, with a short period of 

incarceration for contempt. 

I think it’s a contempt case. I think that – I would think – a 

sentence of ten to twelve days for contempt would be sufficient 

punishment for this matter. And, of course, he would still have to 
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serve the entire sentence he has with you and be on Your Honor’s 

probation. And, you know, if he doesn’t walk a straight line, I 

don’t have any doubt that you would hesitate to violate him.

N.T., 9/9/15, at 5-6. 

According to Appellant, a defendant can refuse to report, remain at 

liberty for years, and is entitled to the original sentence upon apprehension 

with little consequence. We disagree. The common-sense approach is to 

permit trial judges to grant report dates at their discretion, with the 

understanding that severe consequences can and will befall those foolish 

enough to make a mockery of the judge’s mercy. We therefore do not doubt 

that confinement was necessary to vindicate the court’s authority. 

That leaves the question of whether the length of confinement 

constituted an abuse of discretion. At sentencing, the Commonwealth asked 

the VOP court to impose the statutory maximum sentence. The

Commonwealth noted that Appellant had nine prior convictions, including 

possession with intent to deliver, forgery, simple assault. Additionally, 

Appellant was on probation for unauthorized use of a vehicle at the time of 

the instant crimes. 

Then and now, Appellant argued that the instant sentence was 

manifestly excessive in consideration of the original plea offer. “Your Honor, 

I noticed the Commonwealth thought it was appropriate to offer him a 

sentence of 23 months with immediate parole. At the time, [his history] was 

all known. None of that was new information. All we have today is a failure 
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to surrender.” N.T., 11/13/15, at 13. Appellant continues this argument on 

appeal, and complains that the lengthy sentence was an abuse of discretion. 

Obviously, the court had no authority to originally impose anything other 

than the negotiated sentence. Appellant’s emphasis of that point, however, 

gives little if any weight to the unique considerations involved in a revocation 

proceeding. Mindful of the applicable standard of review, we find that 

Appellant’s failure to appear for his report date cannot per se justify a 

statutory maximum sentence. However, not all failures to report are alike, 

and Appellant’s attempt to diminish the severity of his failure to report is 

unavailing. This is not a situation where Appellant missed his reporting date 

by days, as he remained at liberty for over ten months. Nor did Appellant 

voluntarily turn himself in to serve his sentence. By all objective indicia, but 

for his arrest on new charges, Appellant would have continued to ignore his 

obligation to appear. 

The record demonstrates that the VOP court did not reflexively punish 

Appellant with the harshest allowable sentence solely because of that failure 

to appear. Rather, the court properly considered the length of his 

noncompliance as a contributing factor. “[Appellant] . . . defied the [court’s] 

authority for a lengthy period of time. This [c]ourt quite clearly identified this 

lengthy period of defiance as a factor substantiating the revocation and 

imposition of confinement. These were stated contributing factors underlying 
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the revocation determinations and for the subsequent sentence of 

confinement imposed.” Trial Court Opinion, 8/8/17, at 10-11.

Moreover, Appellant’s criminal history was a permissible consideration, 

and the record demonstrates that the court reviewed a pre-sentence report. 

N.T., 11/13/15, at 9 (“For the record, I have the PSI now so I’m going over 

that.”). Finally, the trial court’s opinion notes an “apparent lack of remorse” 

as a factor. Trial Court Opinion, 8/8/17, at 12. We agree that the court could 

properly consider that facet in fashioning its sentence. At the sentencing 

proceeding, Appellant did not address his failure to appear when asked to 

speak directly to the VOP court, and instead averred that he did not deserve

additional jail time for the underlying crime. N.T., 11/13/15, at 14 (“I made 

a bad decision by getting behind the wheel and driving home. To be honest 

with you, I really don’t believe I need to be in jail because I do things right on 

the street. Like I said, I made a bad decision that day.”). The VOP court was 

entrusted with the discretion to consider Appellant’s downplaying not only his 

failure to appear, but the severity of the underlying criminal conduct.

In sum, the VOP court was required to balance its interest in vindicating

its authority when considering what sentence to impose on a recalcitrant 

recidivist like Appellant. The judge was not required to sit idly by and tolerate 

Appellant’s flagrant disrespect for its order and its mercy in letting Appellant 

commence his incarceration months after the sentence was formally imposed

with a slap on the wrist for contempt. While this sentence is doubtlessly harsh, 
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we cannot find an abuse of discretion. See Commonwealth v. Sierra, 752 

A.2d 910 (Pa.Super. 2000) (statutory maximum sentence following revocation 

based on technical violations was not an abuse of discretion).

Finally, we may address illegality of sentence issues sua sponte, and we 

find that the trial court imposed an illegal sentence by ordering Appellant to 

serve a flat eighty-nine day sentence at the DUI count. With rare statutory 

exceptions that do not appear to apply herein, a sentence that fails to specify 

a minimum and maximum is illegal. See 42 Pa.C.S. § 9756(b)(1); see also

Commonwealth v. Cain, 637 A.2d 656, 658 (Pa.Super. 1994) (“Cain's 

sentence is technically illegal because the court imposed a flat one year of 

imprisonment without specifying any minimum sentence.”); cf.

Commonwealth v. Klingensmith, 650 A.2d 444 (Pa.Super. 1994) (holding 

flat sentence of ninety days confinement not illegal where the statute 

specifically called for that sentence, thus overriding general rule of § 9756). 

Here, the original sentence as negotiated correctly included a minimum 

and maximum. “THE COURT: The sentence I originally gave him was three to 

90 days on his DUI. Right? [COMMONWEALTH]: That’s correct.”3 N.T., 

____________________________________________

3 Appellant was convicted of one count of 75 Pa.C.S. § 3802(a)(1), as an 

ungraded misdemeanor. As set forth at the guilty plea hearing, Appellant 

refused breath testing, thereby triggering 75 Pa.C.S. § 3804(c)(1), which sets 

the penalties for DUI. That subsection states that an individual who violates 

§ 3802(a)(1) as a first offense and refused testing of breath must be 

imprisoned for a minimum of seventy-two hours. 
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11/13/15, at 16. However, the judge then stated, “DUI is flat sentence of 89 

days to run consecutive[.]” Id. Therefore, this sentence is illegal as it fails 

to specify a minimum and maximum, and we vacate and remand for 

resentencing at that count. 4

Judgment of sentence at count one remanded for application of time 

credit as needed. Judgment of sentence at count two vacated. Judgment of 

sentence affirmed in all other respects. Jurisdiction relinquished. 

Judge Musmanno joins the memorandum.

Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/18

____________________________________________

4 We do not vacate the sentence at fleeing and eluding, as Appellant was 

sentenced to the statutory maximum and we have found no abuse of 

discretion nor illegality in its imposition.