Commonwealth Of Pa. v. Williams

• Decision Date: 21 June 2010
• Citation: 997 A.2d 1205
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Demingo Lamar WILLIAMS, Appellant.
• Court: Pennsylvania Superior Court

997 A.2d 1205

COMMONWEALTH of Pennsylvania, Appelleev.Demingo Lamar WILLIAMS, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 1, 2009.

Filed June 21, 2010.

Suzanne M. Swan, Scott B. Rudolf, Asst. Public Defender, and Michael Machen, Allegheny County Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, and Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: MUSMANNO, BENDER and BOWES, JJ.

OPINION BY MUSMANNO, J.:

¶ 1 Demingo Lamar Williams (“Williams”) appeals from the judgment of sentence imposed following the trial court's revocation of his probation. We reverse in part, vacate in part, and remand for further proceedings.

¶ 2 In January 2005, the Commonwealth charged Williams, in two separate informations, after he had allegedly sexually assaulted his eleven-year-old step-daughter and six-year-old son. Each information charged Williams with three separate counts, including rape of a child as to his step-daughter and endangering the welfare of children as to his son.¹ Williams entered a negotiated guilty plea, and the Commonwealth withdrew these two counts. Williams pled guilty to the four remaining offenses ( i.e., two counts each of indecent assault and corruption of minors).² On January 10, 2006, the trial court imposed a prison sentence of one year less a day to two years less two days, plus a three-year probationary term, on Williams's conviction of corruption of minors in one information, and imposed an identical, concurrent sentence as to his conviction of indecent assault in the other information. ³ Regarding the two remaining convictions, the trial court imposed no further penalty (collectively “the NFP Sentences”).

¶ 3 Approximately two years later, Williams again appeared before the same trial court judge after having violated the conditions of his probation. ⁴ After considering argument from the Commonwealth and Williams's prior counsel at a probation violation hearing, the trial court revoked Williams's probation,⁵ and sentenced him to an aggregate prison term of ten to twenty years. Specifically, as to the two underlying convictions on which Williams had originally received probationary sentences, the court re-sentenced Williams to two consecutive prison terms of two-and-one-half to five years. Significantly to this appeal, the court also sentenced Williams to two additional, consecutive prison terms of two-and-one-half to five years (collectively “the Contested Sentences”) on the previously imposed NFP Sentences.

¶ 4 Williams timely filed a Notice of appeal. Williams subsequently filed a Motion to vacate the Contested Sentences, asserting that they were patently illegal.⁶ The trial court denied this Motion.

¶ 5 On appeal, Williams raises the following issues for our review:

1. Did the probation violation court sentence illegally when it not only sentenced [Williams] to two consecutive terms of 2 1/2-to-5 years of confinement on two counts for which terms of probation were originally imposed two years earlier, [but] it also sentenced [Williams] to two additional consecutive terms of 2 1/2-to-5 years of confinement each on two other counts for which sentences of guilt-without-punishment had originally been imposed?

2. Were [Williams's] due process rights violated (A) when the probation violation court considered, as evidence at his probation violation hearing, notes of testimony from a civil case held in another county, notwithstanding the fact that said notes of testimony were never introduced as evidence at the probation violation hearing, and (B) when the probation violation court relied solely upon the aforementioned out-of-county notes of testimony in deciding if [Williams] had violated a “no contact” order (notwithstanding the fact that [Williams] denied having violated that “no contact” order, and even though the notes of testimony that contradicted him came from a civil case to which he was not a party and from a hearing at which he was not present, was not represented by counsel, and was not provided with the opportunity to present evidence or cross-examine witnesses)?

3. Was [Williams] left constructively without counsel at his probation violation hearing, given the failure of his attorney (A) to object to the probation violation court['s] considering as evidence a document-specifically, notes of testimony from [ ] a Mercer County contempt of court hearing-that was not admitted into evidence at the probation violation hearing; (B) to object to the probation violation court['s] deciding whether [Williams] had violated a “no contact” order based entirely on the aforementioned document (such reliance being impermissible since [Williams] was not a party to the Mercer County proceeding and was not present, was not represented by counsel, and was not provided a chance to present evidence or cross-examine witnesses at the Mercer County hearing); and (C) to object to the probation violation court ['s] imposing illegal probation violation sentences on [Williams] on counts on which [he] had originally received 42 Pa.C.S. § 9721(a)( [2] ) guilt-without-punishment sentences?

Brief for Appellant at 5-6 (some capitalization omitted).

In considering an appeal from a sentence imposed following the revocation of probation, our review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. Revocation of a probation sentence is a matter committed to the sound discretion of the trial court and that court's decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion.

Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa.Super.2008) (citations, footnotes, brackets, and quotation marks omitted); see also

Commonwealth v. Williams, 868 A.2d 529, 532 (Pa.Super.2005), (noting that “the determination as to whether the trial court imposed an illegal sentence is a question of law; our standard of review in cases dealing with questions of law is plenary.”).

¶ 6 In his first claim, Williams argues that the Contested Sentences are illegal ⁷ and must be vacated since the trial court did not have the authority to re-sentence him on the NFP Sentences. See Brief for Appellant at 18-20. According to Williams, the disposition in this case is directly controlled by this Court's decision in Commonwealth v. Smith, 451 Pa.Super. 192, 678 A.2d 1206, 1208 (1996) (holding that after the time period for modification of a defendant's original sentence has expired, upon revocation of the defendant's probation, the trial court cannot legally re-sentence on an underlying conviction for which the defendant had originally received a guilt-without-punishment sentence). See Brief for Appellant at 21-23.

¶ 7 Likewise, the Commonwealth agrees that the Contested Sentences are illegal and that Smith is controlling. See Brief for the Commonwealth at 8-13. The trial court, however, determined that the Contested Sentences are valid and that Smith has been overruled by later case law, discussed in detail below. See Trial Court Opinion, 2/29/08, at 2-3. After a thorough review, we conclude that the trial court imposed an illegal sentence.

¶ 8 In Smith, the appellant had previously pled guilty to simple assault and possession of an instrument of crime (“PIC”). Smith, 678 A.2d at 1207. The trial court convicted the appellant of both counts, imposing a probationary sentence on the simple assault conviction and no further penalty on the PIC conviction. Id. Thereafter, the appellant violated the terms of her probation. Id. After revoking the appellant's probation, the trial court imposed a prison sentence on the underlying simple assault conviction, followed by a probationary sentence imposed on the PIC conviction. Id.

¶ 9 On appeal, the appellant in Smith argued that (1) the trial court did not have the statutory authority to re-sentence her on the PIC conviction, and (2) this sentence violated her double jeopardy rights. Id. The Smith panel agreed with the appellant on both grounds, stating as follows:

A determination of guilt without further imposition of penalty constitutes a final, appealable order. Commonwealth v. Rubright, 489 Pa. 356, 414 A.2d 106 (1980). A trial court may alter or modify a final order within thirty days after its entry, if no appeal is taken. 42 Pa.C.S.A. § 5505; Commonwealth v. Quinlan,[433 Pa.Super. 111, 639 A.2d 1235, 1238 (Pa.Super.1994) ]. Once the thirty-day period for altering or modifying sentence is over, the trial court loses power to alter its orders. Commonwealth v. Dasilva [,] 440 Pa.Super. 291, 655 A.2d 568 (1995); Commonwealth v. Quinlan, supra. Furthermore, a modification of sentence imposed on a criminal defendant which increases his punishment constitutes double jeopardy. Commonwealth v. Coleman, 271 Pa.Super. 581, 414 A.2d 635 (1979); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (197[1] ).

Although the trial court acted within its power when it revoked appellant's probation and resentenced her for the simple assault conviction, the trial court erred when it resentenced appellant for the PIC conviction. First, the trial court had already issued a final sentence for the PIC conviction in the form of a guilt determination without further penalty. The thirty-day period in which it could have altered the sentence expired, and the appellant did not appeal. Therefore, the trial court did not have the power to alter or modify the no-further-penalty sentence it had initially imposed upon appellant. See Commonwealth v. Dasilva, supra; Commonwealth v. Quinlan, supra. Thus, the increased punishment appellant received for her PIC conviction following her resentencing for violating her probation for the simple assault conviction constituted a denial of appellant's constitutional right not to be subject to double jeopardy. See

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