Commonwealth v. Milhomme
35 A.3d 1219
| Pa. Super. Ct. | 2011Background
- Appellant Robert Milhomme pled guilty on July 25, 2007 to Delivery of a Controlled Substance and received two years' probation with four months' CCJ confinement.
- He violated probation on June 9, 2008 and was resentenced to two years' probation with forty days' CCJ confinement.
- He violated probation again and was resentenced on July 14, 2008 to two years' probation with sixty days' CCJ confinement.
- On January 11, 2010, he violated probation once more and was resentenced to 60 days to one year in CCJ plus two years' probation.
- Milhomme failed to appear for a revocation hearing on May 10, 2010; a bench warrant issued, and after a revocation hearing he was sentenced on August 2, 2010 to 24 months to four years' incarceration.
- Milhomme filed a post-sentence motion on August 11, 2010 arguing the underlying sentence was illegal; the trial court denied, and he appealed challenging the legality of the sentence under Commonwealth v. Basinger.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the revocation sentence is illegal due to an illegal underlying sentence | Milhomme asserts the 2007 sentence was illegal per Basinger, rendering the revocation sentence illegal. | Milhomme contends Basinger applies; the original sentence was not illegal when imposed, so revocation sentence stands. | Original sentence illegal; revocation sentence vacated and remanded for resentencing. |
Key Cases Cited
- Commonwealth v. Basinger, 982 A.2d 121 (Pa. Super. 2009) (probation conditions may not include imprisonment; impact on legality of sentence)
- Commonwealth v. Cain, 432 Pa. Super. 47 (Pa. Super. 1994) (minimum/maximum sentencing requirements; illegal if not specified)
- Commonwealth v. Robinson, 7 A.3d 868 (Pa. Super. 2010) (illegal sentence vacates corresponding conviction/sentence)
- Commonwealth v. Everett, 419 A.2d 793 (Pa. Super. 1980) (if the original probation/alternative sentence is illegal, related imprisonment is illegal)
- Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007) (non-waivable challenge to legality of sentence)
- Commonwealth v. Brougher, 978 A.2d 373 (Pa. Super. 2009) (scope of review for legality of sentence is plenary and de novo)