Com. v. Nelson, J.
Com. v. Nelson, J. No. 1121 EDA 2016
| Pa. Super. Ct. | Mar 21, 2017Background
- In May 2015 Nelson pled guilty to identity theft, access device fraud, and theft; initial sentence (Sept. 4, 2015) included 11½–23 months with immediate parole for fraud, 3 years probation for identity theft, and no further penalty for theft.
- In March 2016 Nelson’s parole and probation were revoked; at a March 9, 2016 revocation/resentencing the court resentenced fraud to 1–3 years (new sentence), imposed 2 years’ probation for theft (despite prior ‘no further penalty’), and resentenced identity theft to 2 years’ probation.
- Nelson filed a timely post-sentence motion and a notice of appeal; the trial court later (May–Aug 2016) attempted to vacate and “correct” the March 9 order, holding hearings in July and August and again imposing new terms that continued to treat fraud as a new sentence.
- Nelson appealed to the Superior Court raising illegality of the fraud and theft revocation sentences, the trial court’s jurisdiction to vacate/resentence after appeal/30 days, and an excessive-sentence claim.
- The Superior Court agreed the March 9, 2016 sentences for fraud and theft were illegal (parole recommittal must be service of the balance, and a ‘no further penalty’ sentence is final), found the trial court lacked jurisdiction under 42 Pa.C.S. § 5505 to vacate after 30 days/appeal, and vacated the entire judgment of sentence and remanded for proper resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legality of fraud sentence after parole revocation | Nelson: court illegally imposed a new 1–3 year sentence instead of recommitting to serve the balance | Commonwealth: agreed sentence was illegal; court should have recommitted to balance | Court held the March 9 fraud sentence illegal; remand for service of balance or correct computation |
| Legality of imposing probation for theft after initial ‘no further penalty’ | Nelson: court lacked authority to add 2 years’ probation after final ‘no further penalty’ disposition | Commonwealth: agreed March 9 probation on theft was illegal | Court held the March 9 theft sentence illegal and that ‘no further penalty’ is final |
| Trial court jurisdiction to vacate March 9 order after 30 days and pending appeal | Nelson: §5505 bars modification after 30 days and once a timely appeal is filed | Trial court: asserted inherent power to correct patent errors (citing Holmes/Cole) | Court held trial court lacked §5505 jurisdiction; although inherent power may allow correction of patent error, the attempted corrections remained illegal; vacated judgment and remanded |
| Excessiveness/manifest abuse of discretion for confinement on technical violations | Nelson: sentence was manifestly excessive and court ignored Sentencing Code | Commonwealth: not reached on merits in opinion | Court did not decide this claim due to vacatur/remand (mooted) |
Key Cases Cited
- Commonwealth v. Ware, 737 A.2d 251 (Pa. Super. 1999) (parole revocation requires recommittal to serve balance, not imposition of a new sentence)
- Commonwealth v. Mitchell, 632 A.2d 934 (Pa. Super. 1993) (same principle regarding recommittal)
- Commonwealth v. Carter, 485 A.2d 802 (Pa. Super. 1984) (recommittal is not a new sentence)
- Abraham v. Dep’t of Corr., 615 A.2d 814 (Pa. Cmwlth. 1992) (recommittal characterization of parole revocation)
- Commonwealth v. Fair, 497 A.2d 643 (Pa. Super. 1985) (court’s power after parole violation is to recommit)
- Commonwealth v. Williams, 997 A.2d 1205 (Pa. Super. 2010) (‘no further penalty’ carries an expectation of finality; probation revocation court may not resentence such a disposition after modification period)
- Commonwealth v. Smith, 678 A.2d 1206 (Pa. Super. 1996) (limitations on resentencing after final no-penalty disposition)
- Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007) (trial court may in limited circumstances exercise inherent power to correct patent sentencing errors)
- Commonwealth v. Cole, 263 A.2d 339 (Pa. 1970) (recognition of inherent power to correct certain patent errors)
- Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. Super. 2001) (upon probation revocation the court’s resentencing is limited by the maximum originally possible)