J-S28023-23
2023 PA Super 192
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTIAN ALEXANDER LOWE :
:
Appellant : No. 868 WDA 2022
Appeal from the Judgment of Sentence Entered July 1, 2022
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001885-2020,
CP-63-CR-0002772-2019
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
OPINION BY OLSON, J.: FILED: September 29, 2023
Appellant, Christian Alexander Lowe, appeals from the judgment of
sentence entered on July 1, 2022. We vacate Appellant’s judgment of
sentence and remand for resentencing.
On January 19, 2022, Appellant entered an open guilty plea to the
following crimes: 1) at docket number CP-63-CR-0002772-2019 (hereinafter
“Docket Number 2772-19”), possession of a controlled substance with the
intent to deliver (“PWID”), possession of a controlled substance (cocaine), and
possession of a controlled substance (MDMA)1 and 2) at docket number CP-
63-CR-0001885-2020 (hereinafter “Docket Number 1185-20”), PWID
(cocaine), possession of a controlled substance (cocaine), and possession of
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30) and (16), respectively.
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drug paraphernalia.2 On April 22, 2022, the trial court sentenced Appellant to
serve an aggregate term of 87 to 178 months in prison. N.T. Sentencing,
4/22/22, at 49-50. As the trial court explained, it sentenced Appellant as
follows:
At [Docket Number 2772-19,] on Count 1 – [PWID,
Appellant] was sentenced to [27 to 54 months in prison].
Count 2 – possession of cocaine merged with Count 1 and no
penalty was assessed. For the charge of possession of
MDMA, Count 3, [Appellant] was sentenced to [six to 16
months in prison] to run consecutively to Count 1. . . .
At [Docket Number 1885-20,] on Count 1 – [PWID,
Appellant] was sentenced to [54 to 108 months in prison, to
run consecutively to Docket Number 2772-19]. At Count 2 –
possession of a controlled substance cocaine, [Appellant] was
sentenced to [12 to 32 months in prison, to run concurrently
to] Count 1. Finally, at Count 3 – possession of drug
paraphernalia, [Appellant] was sentenced to [six to 12
months in prison,] also running concurrently with Counts 1
and 2.
Trial Court Opinion, 10/5/22, at 1-2. At sentencing, the parties stipulated that
Appellant’s prior convictions rendered him ineligible to participate in
Pennsylvania’s Recidivism Risk Reduction Incentive (“RRRI”) program. N.T.
Sentencing, 4/22/22, at 28-29.
Appellant filed a timely post-sentence motion, where he claimed that his
aggregate sentence was manifestly excessive. See Appellant’s Post-Sentence
Motion, 5/2/22, at 1-2. On July 1, 2022, the trial court granted, in part, and
denied, in part, Appellant’s post-sentence motion. In particular, the trial
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2 35 P.S. §§ 780-113(a)(30), (16), and (32), respectively.
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court amended its sentence at both docket numbers to declare that Appellant
“shall be eligible for early parole after serving [60] months.” Amended
Sentencing Order, 7/1/22, at 1-2 (emphasis omitted). Appellant filed timely
notices of appeal and, on appeal, Appellant challenges the discretionary
aspects of his sentence. See Appellant’s Brief at 9. We conclude that
Appellant’s sentence is illegal. Therefore, we must vacate Appellant’s
judgment of sentence and remand for resentencing.
“[C]hallenges to an illegal sentence can never be waived and may be
raised sua sponte by this Court.” Commonwealth v. Simmons, 262 A.3d
512, 515 n.3 (Pa. Super. 2021) (en banc) (quotation marks and citations
omitted). Generally, “an illegal sentence [is] one that was imposed without
authority.” Commonwealth v. Prinkey,
277 A.3d 554, 561-564 (Pa. 2022)
(“the inquiry is whether, assuming the appellant's claim prevails, the result
would be that the trial court lacked authority to impose the sentence at issue.
If so, then the appellant's challenge implicates the legality of his sentence.
Conversely, if the challenge is not to the existence of certain authority but to
the exercise of that authority, then the challenge goes to the discretionary
aspects of a sentence, not to its legality”) (footnote omitted); see also
Commonwealth v. Barnes,
151 A.3d 121, 127 (Pa. 2016). “Because the
legality of a sentence presents a pure question of a law, our scope of review
is plenary, and our standard of review is de novo.” Commonwealth v. Pi
Delta Psi, Inc.,
211 A.3d 875, 889 (Pa. Super. 2019).
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As explained above, the trial court originally sentenced Appellant to
serve an aggregate term of 87 to 178 months in prison for his convictions.
Appellant then filed a post-sentence motion, where he claimed that his
aggregate sentence was manifestly excessive. On July 1, 2022, the trial court
granted, in part, and denied, in part, Appellant’s post-sentence motion.
Specifically, the trial court amended its sentence to declare that Appellant
“shall be eligible for early parole after serving [60] months.” The trial court’s
amended sentencing order reads, in relevant part:
[Appellant’s] aggregate sentence is to be confined to a State
Correctional Institution for a period of no less than [87]
months to no more than [178 months]. . . . [Appellant]
shall be eligible for early parole after serving [60]
months. All other provisions of the April [22,] 2022
sentencing order are hereby reimposed.
Amended Sentencing Order, 7/1/22, at 2 (emphasis in original).
The above sentence is illegal, as the trial court lacked statutory authority
to declare that Appellant was eligible for parole after serving only 60 months
of his 87-month minimum sentence.
42 Pa.C.S.A. § 9756 provides, in part:
(b) Minimum sentence.--
(1) The court shall impose a minimum sentence of
confinement which shall not exceed one-half of the
maximum sentence imposed.
(2) The minimum sentence imposed under this section
may not be reduced through parole prior to the expiration
of the minimum sentence unless otherwise authorized by
this section or other law.
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(3) Except where the maximum sentence imposed is two
years or more, and except where a mandatory minimum
sentence of imprisonment or total confinement is required
by law, the court shall, at the time of sentencing, state
whether or not the defendant is eligible to participate in a
reentry plan at any time prior to the expiration of the
minimum sentence or at the expiration of a specified
portion of the minimum sentence. For maximum
sentences of less than two years as defined under section
9762(f) (relating to sentencing proceeding; place of
confinement), a court may parole a defendant prior to the
expiration of the minimum sentence only if the defendant
was made eligible to participate in a reentry plan at the
time of sentencing. The court shall provide at least ten
days' written notice and an opportunity to be heard,
pursuant to section 9776 (relating to judicial power to
release inmates), to the prosecuting attorney before
granting parole pursuant to this subsection. The reentry
plan eligibility shall be considered a part of the sentence
and subject to the requirements relating to the entry,
recording and reporting of sentences.
(b.1) Recidivism risk reduction incentive minimum
sentence.--The court shall determine if the defendant is
eligible for a recidivism risk reduction incentive minimum
sentence under 61 Pa.C.S. Ch. 45 (relating to recidivism risk
reduction incentive). If the defendant is eligible, the court
shall impose a recidivism risk reduction incentive minimum
sentence in addition to a minimum sentence and maximum
sentence except, if the defendant was previously sentenced
to two or more recidivism risk reduction incentive minimum
sentences, the court shall have the discretion to impose a
sentence with no recidivism risk reduction incentive
minimum.
42 Pa.C.S.A. § 9756.
Thus, unless otherwise allowed, a defendant’s minimum sentence of
confinement “may not be reduced through parole prior to the expiration of the
minimum sentence.” 42 Pa.C.S.A. § 9756(b)(2). Here, Appellant’s maximum
sentence was “two years or more” and Appellant was not RRRI eligible. See
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42 Pa.C.S.A. § 9756(b)(3) and (b.1). Therefore, the exceptions to the general
rule do not apply to Appellant’s case and the trial court simply lacked statutory
authority to declare that Appellant was eligible for parole “prior to the
expiration of [Appellant’s] minimum sentence.”3 42 Pa.C.S.A. § 9756(b)(2).
Appellant’s sentence is thus illegal.
From all appearances, when the trial court entered its amended
sentencing order and declared that Appellant “shall be eligible for early parole
after serving [60] months,” the trial court was attempting to implicitly reduce
Appellant’s minimum sentencing term, without expressly doing so. See
Martin v. Pa. Bd. of Probation and Parole, 840 A.2d 299, 302 (Pa. 2003)
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3 Judge Kunselman wrote a concurrence in Simmons, where she succinctly
explained:
For confinement, a maximum term of five years or more, shall be
served in a state prison; a maximum term of two but less than
five years, may be served in either the state prison or the county
jail, and a maximum of less than two years shall be served in
county jail. 42 Pa.C.S.A. § 9762(b). If confinement is served in
a state prison, then the State Board of Probation and Parole has
the exclusive authority to determine if, and when, the inmate may
be granted parole. 61 Pa.C.S.A. § 6132. For these inmates, the
trial court may give only a recommendation regarding parole to
the State Parole Board. [61 Pa.C.S.A.] § 6134(b). If the sentence
is served in county jail, however, the trial court has the authority
to determine if, and when, the inmate may be granted parole. [61
Pa.C.S.A.] § 6134.1; 42 Pa.C.S.A § 9775; Commonwealth v.
McDermott, 547 A.2d 1236 (Pa. Super. 1988) (common pleas
court retains authority to grant and revoke parole for offender
sentenced to maximum term of imprisonment of less than two
years).
Simmons, 262 A.3d at 529 (Kunselman, J. concurring) (footnotes omitted).
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(“the maximum term [of confinement] represents the sentence imposed for a
criminal offense, with the minimum term merely setting the date after which
a prisoner may be paroled”). Since we have held that this particular
component of Appellant’s sentence is illegal, our disposition has potentially
altered the trial court’s sentencing scheme. Therefore, we must vacate
Appellant's entire judgment of sentence and remand for resentencing. 4, 5, 6
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4 Given our disposition, Appellant’s discretionary aspects of sentencing claim
is moot.
5 Appellant’s sentence also appears to be illegal because, at Docket Number
1885-20, the trial court failed to merge Appellant’s conviction for simple
possession of cocaine with Appellant’s conviction for PWID. See Affidavit of
Probable Cause at Docket Number 1885-20, dated 10/14/20, at 1 (declaring
that one plastic baggie of cocaine formed the basis for all charges at Docket
Number 1885-20); see also Commonwealth’s Information, 11/13/20, at 1.
6 Since we are remanding for resentencing, we also note that the trial court
apparently believed it was sentencing Appellant in the standard guideline
range when it sentenced Appellant, at Docket Number 1885-20, to a term of
54 to 108 months in prison for PWID. See N.T. Sentencing, 4/22/22, at 49.
Seemingly, the trial court arrived at this belief by observing that Appellant’s
“basic standard range” for PWID was 27 to 33 months in prison – but that
application of 35 P.S. § 780-115 doubled the standard range and created a
“new standard guideline range” of 54 to 66 months in prison. See id. at 10.
This was also a mistake.
35 P.S. § 780-115 declares:
Any person convicted of a second or subsequent offense under
clause (30) of subsection (a) of section 13 of this act or of a similar
offense under any statute of the United States or of any state may
be imprisoned for a term up to twice the term otherwise
authorized, fined an amount up to twice that otherwise
authorized, or both.
(Footnote Continued Next Page)
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35 P.S. § 780-115(a).
Section 780-115 “doubles the statutory maximum penalty upon proof of a
prior conviction for” PWID. Commonwealth v. Aponte, 855 A.2d 800, 802
(Pa. 2004). The Section, however, does not alter the guideline ranges,
so that a standard guideline range of 27 to 33 months in prison may become
a “new” standard range of 54 to 66 months upon application of Section
780-115. Indeed, in Commonwealth v. Warren,
84 A.3d 1092 (Pa. Super.
2014), we explained that – while a trial court is, within its discretion, free to
use Section 780-115 “to double the standard guideline sentence . . . to arrive
at [a defendant’s] minimum sentenc[ing term]” – the application of Section
780-115 does not affect the sentencing guideline ranges. Warren,
84 A.3d
at 1094 and 1096-1097.
In Warren, Warren pleaded guilty to PWID, which had a standard range
sentence of 21-27 months.
Id. at 1094. The trial court then sentenced
Warren to serve a term of 54 to 120 months in prison. “In doing so, [the trial
court] employed [Section 780–115] and doubled the high end of the
standard-range sentence (27 months) to arrive at the minimum sentence” of
54 months in prison.
Id. On appeal, we held that the trial court was free,
within reason, to use Section 780-115 and “double the standard guideline
sentence (27 months) to arrive at [Warren’s] minimum sentence (54
months).”
Id. at 1094-1095. We, however, held that Section 780-115 did
not alter the sentencing guideline ranges and that the trial court erred at
sentencing, in that it mistakenly believed that it was sentencing Warren to a
standard range sentence – when, in actuality, it was sentencing Warren
outside of the guidelines. We explained:
the Sentencing Guideline Form in this case indicated a mitigated
sentence of 15 months, standard sentence range of 21–27
months, and an aggravated sentence of 33 months. As Warren
was sentenced to 54–120 months of incarceration, he was
sentenced beyond the guideline ranges, and so the trial court was
required to state its reasons for deviating from the guidelines on
the record. When imposing this sentence, the trial court set forth
the terms of Warren's sentence and then stated only the following:
“Reasons for sentence, the defendant's relevant prior criminal
record. The sentence is within the sentencing guidelines and any
lesser of a sentence would depreciate the serious nature of the
defendant's actions.” These remarks by the trial court do not
evince an awareness of the sentencing guidelines or explain the
(Footnote Continued Next Page)
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See Commonwealth v. Deshong, 850 A.2d 712, 714 (Pa. Super. 2004)
(“[w]hen a disposition by an appellate court alters the sentencing scheme, the
entire sentence should be vacated and the matter remanded for
resentencing”).
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2023
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trial court's decision to deviate therefrom, as was required. It
appears that the trial court was under the impression that it
sentenced Warren within the sentencing guidelines; this would
explain why it did not state the factual basis and reasons for
deviation from the guidelines. . . . For this reason, we must vacate
the judgment of sentence and remand for resentencing.
Id. at 1097-1098 (citations omitted).
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