Commonwealth v. Infante

• Decision Date: 06 March 2013
• Citation: 63 A.3d 358,2013 PA Super 46
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Pablo INFANTE, Appellant.
• Court: Pennsylvania Superior Court

63 A.3d 358

2013 PA Super 46

COMMONWEALTH of Pennsylvania, Appellee

v.Pablo INFANTE, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 14, 2013.

Filed March 6, 2013.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., GANTMAN, J., and LAZARUS, J.

OPINION BY GANTMAN, J.:

Appellant, Pablo Infante, appeals from the order entered in the Philadelphia County Court of Common Pleas, denying his petition for a writ of certiorari, following the second revocation of his probation and re-sentencing in Municipal Court. We reverse the order denying Appellant's petition for writ of certiorari, vacate the sentence imposed following probation revocation and remand for re-sentencing.

The relevant facts and procedural history of this appeal are as follows.

On February 26, 2008, [Appellant] was arrested in Philadelphia for suspicion of driving under the influence of marijuana [ (“DUI”) ]. A subsequent blood test showed that [Appellant's] blood had traces of marijuana. Roughly eight months later, on October 16, 2008, [Appellant] was again arrested for suspicion of [DUI]. A subsequent blood test showed that [Appellant's] blood had traces of marijuana.

On April 13, 2009, [Appellant] appeared before the ... Philadelphia Municipal Court. [Appellant] appeared at this hearing to plead guilty to both the February 26th and October 16th DUI offenses. [Appellant] entered into a negotiated plea deal in which his February 26th DUI would be sentenced as a “first offense” under [75 Pa.C.S.A. § 3804(c)(1) ], and his October 16th DUI would be sentenced as a “second offense” under [75 Pa.C.S.A. § 3804(c)(2) ].¹

[The court] carried out a verbal colloquy with [Appellant] to assure that he entered the pleas of guilty knowingly, voluntarily, and intelligently. [The court] accepted both guilty pleas. Defense then agreed to proceed to sentencing. With regards to the February 26th DUI, [at No. 9955 of 2008, Appellant] was sentenced as a “first offense” to three to six months' incarceration, eligible for parole after three days, along with other fines, costs, and conditions. With regards to the October 16th DUI, [at No. 51648 of 2008, Appellant] was sentenced as a “second offense” to 90 days to 12 months' incarceration, various fines, costs, and conditions, as well as a concurrent 24–month reporting probation. [Appellant] was advised of his right to file an appeal on this matter. No direct appeal on this matter was ever filed.

Six months subsequent to [Appellant's] sentencing, the decision in Commonwealth v. Haag [603 Pa. 46, 981 A.2d 902 (2009) ] was handed down on October 23, 2009. Haag was a statutory interpretation case that essentially interpreted 75 Pa.C.S.A. §§ 3804 and 3806 as requiring a conviction on a first DUI offense prior to the commission of a second DUI offense, in order to sentence the second DUI as a “second offense” under § 3804(b)(2).

* * *

Following the April 13, 2009 hearing, [Appellant] did not follow the terms and conditions of his sentence, including the 24–month reporting probation he received for the October 16th DUI. Numerous violations of [Appellant's] probation occurred, and several bench warrants had been issued with respect to this matter. [Appellant's] own counsel recognized [Appellant's] problems with drug abuse and his “ups and downs” in the DUI Treatment Court Program.

On June 27, 2011, [Appellant's] original 24–month probation from the October 16th DUI was revoked by [the Municipal Court], and [Appellant] was sentenced to an additional 24 months of reporting probation.

* * *

Again, no direct appeal of the judgment of sentence at this hearing was filed.

Despite [the Municipal Court's] leniency in only sentencing [Appellant] to an additional 24–month probation period at the June 27, 2011 hearing, [Appellant] continued to violate the terms of his new probation. On December 19, 2011, [Appellant] again appeared before [the Municipal Court] in a violation of probation hearing. This was the first point at which the defense acknowledged [Haag ], yet they did not argue that it should have been applied retroactively to find [Appellant's] original sentence illegal. Despite the help and numerous opportunities given to [Appellant] to reform his drug abuse problem, he failed to do so, and [the Municipal Court] sentenced him at [No. 51648 of 2008] to six to [twenty-three months and fifteen days'] incarceration.

[Appellant] filed a timely petition for writ of certiorari to Common Pleas Court, contesting the December 19, 2011 re-sentencing.

Instead of arguing that [the Municipal Court's] decision in the December 19th hearing was in some way incorrect, [Appellant], for the first time, argued that [Haag ] should be applied retroactively to his original April 13, 2009 guilty plea, thus negating his sentence on the October 16th DUI on the grounds of illegality. [Following a March 15, 2012] hearing, [the court] denied [Appellant's] petition for writ of certiorari.

(Trial Court Opinion, filed August 2, 2012, at 2–5) (internal footnotes and citations to the record omitted) (emphasis in original). Contrary to the last paragraph of the court's opinion, the record reveals counsel did in fact argue, both in the petition for writ of certiorari and at the March 15, 2012 hearing, that the December 19th sentence was the one that was illegal. Counsel did not attempt a direct or collateral attack on the original sentence imposed on April 13, 2009. In the petition, counsel informed the court of Haag, supra and called into question the December 19, 2011 sentence as violative of Haag and therefore illegal. Likewise, the following illustrates counsel's argument at the March 15, 2012 hearing on Appellant's petition for writ of certiorari:

COUNSEL: ... Judge Meehan sentenced [Appellant] again, and this time he sentenced [Appellant] to [6–23 1/2] months.

It's our contention that that's our illegal sentence. We believe that the petition should be granted and [Appellant] should be sentenced to [3–6] months. It's our contention that Your Honor does have the authority to rule on this and correct the sentence.

(N.T. Hearing, 3/15/12, at 4). Counsel also cited Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57 (2007) for the proposition that the court had the power to correct patent mistakes in sentencing following revocation of probation, even in the absence of traditional jurisdiction (argued in anticipation of the Commonwealth's position that Appellant's appeal to the Court of Common Pleas was untimely). The court ruled the appeal was timely but denied the relief requested.

Appellant timely filed a notice of appeal on March 28, 2012. On June 21, 2012, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on July 11, 2012.

Appellant raises one issue for our review:

DID NOT THE COURT ERR IN DENYING APPELLANT'S WRIT OF CERTIORARI TO THE PHILADELPHIA COURT OF COMMON PLEAS FROM THE JUDGMENT OF SENTENCE IMPOSED BY THE PHILADELPHIA MUNICIPAL COURT AS THE SENTENCE WAS ILLEGAL PURSUANT TO [Haag ... ]?

(Appellant's Brief at 3).

Notwithstanding the position presented at the December 19, 2011 sentencing and iterated at the March 15, 2012 hearing, in his Rule 1925(b) statement and on appeal, Appellant now challenges the legality of both the 2009 sentence and the 2011 sentence following revocation of probation.² Appellant relies on Haag to arguethe sentencing court imposed an illegal sentence on April 13, 2009, because his first DUI conviction did not occur before the commission of his second DUI. Appellant reasons the 2009 sentence was illegal; therefore, the revocation sentence imposed on December 19, 2011 was likewise illegal. Appellant concludes this Court should reverse and remand for re-sentencing. We agree that the December 19, 2011 sentence is illegal, but do so on other grounds.

This case implicates a number of legal principles, the first of which is: Following probation violation proceedings, this Court's scope of review is limited to verifying the validity of the proceeding and the legality of the sentence imposed. Commonwealth v. Heilman, 876 A.2d 1021 (Pa.Super.2005). “The defendant or the Commonwealth may appeal as of right the legality of the sentence.” 42 Pa.C.S.A. § 9781(a). As long as the reviewing court has jurisdiction, a challenge to the legality of the sentence is non-waivable and the court can even raise and address it sua sponte. Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super.2001). See also Commonwealth v. Robinson, 931 A.2d 15, 19–20 (Pa.Super.2007). “Issues relating to the legality of a sentence are questions of law....” Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super.2008), appeal denied,598 Pa. 755, 955 A.2d 356 (2008). As with all questions of law on appeal, our “standard of review is de novo and our scope of review is plenary.” Id.

“A claim that implicates the fundamental legal authority of the court to impose a particular sentence constitutes a challenge to the legality of the sentence.” Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa.Super.2010) ( en banc ). “If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated.” Id. (quoting Commonwealth v. Watson, 945 A.2d 174, 178–79 (Pa.Super.2008)). Likewise, a sentence that exceeds the statutory maximum is illegal. Commonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127 (2003). If a court “imposes a sentence outside of the legal parameters prescribed by the applicable statute, the sentence is illegal and should be remanded for correction.” Commonwealth v. Vasquez, 560 Pa. 381, 388, 744 A.2d 1280, 1284 (2000).

The sentencing statute in question in this case is Section 3806 of the Motor Vehicle Code which states:

§ 3806. Prior offenses

(a)...