Com. v. Nelson, R.

J-S42024-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ROBERT LUGENE NELSON :

:

Appellant : No. 750 MDA 2025

Appeal from the Judgment of Sentence Entered April 9, 2025

In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP-22-CR-0003328-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ROBERT LUGENE NELSON :

:

Appellant : No. 751 MDA 2025

Appeal from the Judgment of Sentence Entered April 9, 2025

In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP-22-CR-0003329-2022

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY KING, J.: FILED: FEBRUARY 19, 2026

Appellant, Robert Lugene Nelson, appeals from the judgment of

sentence entered in the Dauphin County Court of Common Pleas, following his

jury trial convictions for multiple counts of possession of a controlled

substance with the intent to deliver (“PWID”), possession of a small amount

of marijuana, possession of drug paraphernalia, persons not to possess

J-S42024-25

firearms, and carrying firearms without a license.1 We affirm in part and

vacate in part.

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

On March 23, 2022, Harrisburg Bureau of Police Officer Farida Kingsboro

observed Appellant driving a blue Buick on Market Street. After Appellant

failed to utilize a signal when turning onto South 13th Street, Officer Kingsboro

initiated a traffic stop. As she approached Appellant’s vehicle, the officer

observed Appellant making furtive movements. Officer Kingsboro ordered

Appellant to exit the vehicle, and she conducted a pat-down search to ensure

her own safety. During the pat-down search, Officer Kingsboro felt what she

believed to be crack cocaine in the left pocket of Appellant’s pants. The officer

then retrieved three bags of crack cocaine from Appellant’s pocket and placed

Appellant under arrest. Appellant subsequently consented to a search of his

vehicle, which yielded two firearms, multiple bags of marijuana, and drug

paraphernalia.2

On April 23, 2022, Officer Kingsboro again observed Appellant driving

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1 35 P.S. § 780-113(a)(30)-(32), 18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1),

respectively.

2 At trial, Officer Kingsboro explained that she did not immediately file charges

against Appellant. Instead, police gave Appellant the opportunity “to possibly

cooperate with [Harrisburg’s] Drug Task Force for further work.” (N.T. Trial,

1/27-28/25, at 65). Thereafter, Appellant did not cooperate. Officer

Kingsboro filed the initial criminal complaint against Appellant on April 20,

2022, and an arrest warrant was issued.

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the same Buick on 13th Street. Aware of the active warrant for Appellant’s

arrest, Officer Kingsboro initiated another traffic stop. During the stop,

Appellant was cooperative. After Appellant exited his vehicle, Officer

Kingsboro conducted a search of Appellant’s person incident to arrest. The

search revealed a clear bag containing ten individually wrapped baggies of

cocaine. A search of Appellant’s vehicle yielded additional cocaine, marijuana,

and drug paraphernalia.

At No. 3328 of 2022, the Commonwealth filed a criminal information

charging Appellant with offenses related to the April 23, 2022 traffic stop. At

No. 3329 of 2022, the Commonwealth filed a criminal information charging

Appellant with offenses related to the March 23, 2022 traffic stop. On August

27, 2024, the Commonwealth filed a motion for joinder. The court granted

the joinder motion, and Appellant proceeded to a jury trial on January 27,

2025. On January 28, 2025, the jury found Appellant guilty on all counts.

After the jury issued its verdict, the court ordered a presentence investigation

(“PSI”) report and scheduled the matter for sentencing.

With the benefit of the PSI report, the court conducted Appellant’s

sentencing hearing on April 9, 2025. At the conclusion of the hearing, the

court sentenced Appellant to an aggregate term of fourteen (14) to twenty-

eight (28) years’ imprisonment. The sentencing order included the following

conditions for Appellant’s supervision:

Order no drugs, no alcohol, full-time employment. Order

that the defendant take advantage of any programming at

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the state prison, including drug and alcohol and mental

health counseling.

Defendant is not to possess a firearm or other dangerous

weapons, nor may one be kept in the approved residence.

Must notify the assigned probation and parole office of any

change in address or employment within 72 hours of said

change. Must report as directed to meetings with the

assigned probation and parole office, submit to random and

scheduled drug abuse screenings, pay on his fines and

costs, receive an O.R.A.S. Assessment, and attend all

recommended sessions. Must only reside at an approved

residence and impose restrictions due to drug trafficking.

(Order, entered 4/9/25, at 2) (unnumbered). On Monday, April 21, 2025,

Appellant timely filed a post-sentence motion challenging the discretionary

aspects of his sentence. The court denied Appellant’s post-sentence motion

on May 14, 2025.

Appellant timely filed a notice of appeal on June 6, 2025. On June 10,

2025, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. In response, Appellant’s

attorney provided notice of his intention to withdraw representation, pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Counsel subsequently discovered meritorious issues to be raised on appeal,

and he filed an advocate’s brief with this Court on August 19, 2025.

Appellant now raises one issue for this Court’s review:

Did the trial court impose illegal conditions of sentencing

when it imposed conditions of parole when the sentences

exceeded two years and were subject to the Board of Prisons

and Parole’s jurisdiction?

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(Appellant’s Brief at 5).

On appeal, Appellant contends that the trial court erred by including any

conditions on his state sentence. Appellant cites 61 Pa.C.S.A. § 6132 for the

proposition that Pennsylvania’s Board of Probation and Parole (“PBPP”) “has

the exclusive authority to determine the terms of parole” when a sentence is

two years or more. (Id. at 11). Appellant acknowledges that a trial judge

may make recommendations regarding terms of parole, but he insists that

any such terms are merely advisory if the sentence is two years or more.

If the sentence is above two years, the [PBPP] determines

the conditions. This does not mean that the [PBPP] may not

ultimately adopt the conditions suggested by the trial court.

However, they remain just that, suggestions.

(Id. at 13). Appellant concludes that the conditions of supervision in his

sentencing order are illegal, and this Court must vacate the conditions. We

agree.

“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.

Infante, 63 A.3d 358, 363 (Pa.Super. 2013). “When reviewing the legality

of a sentence, our standard of review is de novo, and our scope of review is

plenary.” Commonwealth v. McGraw, 344 A.3d 813, 818 (Pa.Super. 2025)

(quoting Commonwealth v. Strouse, 308 A.3d 879, 884 (Pa.Super. 2024)).

A claim that implicates the fundamental legal authority of

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the court to impose a particular sentence constitutes a

challenge to the legality of the sentence. If no statutory

authorization exists for a particular sentence, that sentence

is illegal and subject to correction. An illegal sentence must

be vacated. Likewise, a sentence that exceeds the statutory

maximum is illegal. 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.

Infante, supra at 363 (internal citations and quotation marks omitted).

“Where the trial court imposes a maximum imprisonment sentence of

two or more years, the [PBPP] has exclusive authority over the terms of the

defendant’s parole.” Commonwealth v. Merced, 308 A.3d 1277, 1283

(Pa.Super. 2024), appeal denied, ___ Pa. ___, 326 A.3d 394 (2024). The

Prisons and Parole Code elaborates on this authority as follows:

§ 6132. Specific powers of board involving offenders

(a) General rule.—The board shall have exclusive

power:

* * *

(3) To establish special conditions of supervision for

paroled offenders. Conditions of supervision must be based

on the risk presented by and the rehabilitative needs of the

offender. Conditions may be modified pursuant to section

6171 (relating to powers and duties of department) or if the

board or its designee consents to such modification.

61 Pa.C.S.A. § 6132(a)(3).

“A judge may make at any time a recommendation to the board

respecting the offender sentenced and the term of imprisonment the judge

believes that offender should be required to serve before parole is granted ….”

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61 Pa.C.S.A. § 6134(1). “A recommendation made by a judge under

paragraph (1) respecting the parole or terms of parole of an offender shall be

advisory only.” 61 Pa.C.S.A. § 6134(2). “No order in respect to the

recommendation made or attempted to be made as a part of a sentence shall

be binding upon the board or the department….” Id. “Therefore, trial courts

do not have statutory authority to impose conditions on a state sentence, and

‘any condition the sentencing court purports to impose on a defendant’s state

parole is advisory only.’” Merced, supra at 1284 (quoting Commonwealth

v. Coulverson, 34 A.3d 135, 141-42 (Pa.Super. 2011)).

Instantly, the trial court crafted an aggregate sentence with a maximum

term of twenty-eight (28) years of imprisonment. Considering the relevant

statutes and caselaw, the trial court lacked authority to include parole

conditions with Appellant’s sentence. See 61 Pa.C.S.A. § 6132; Merced,

supra. While the Prisons and Parole Code permitted the trial court to

recommend these conditions, the trial court could not impose the conditions

as a matter of law. See 61 Pa.C.S.A. § 6134. Accordingly, we vacate that

portion of the sentence that imposed conditions upon Appellant’s parole, and

we affirm the sentence in all other respects. See Commonwealth v. Mears,

972 A.2d 1210, 1212 (Pa.Super. 2009) (vacating portion of sentence imposing

conditions upon appellant’s parole; affirming balance of sentence, which

appellant did not challenge on appeal; and declining to remand for

resentencing where this Court did not disturb appellant’s aggregate

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sentence).3

Judgment of sentence vacated in part and affirmed in part. Jurisdiction

relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 02/19/2026

____________________________________________

3 We observe that the circumstances of the current appeal differ slightly from

what occurred in Merced, supra. In Merced, this Court determined that the

trial court lacked authority to impose certain parole conditions. Further, we

held that the trial court imposed illegal sentences for the appellant’s

convictions for corruption of minors. Thus, we remanded the matter for

resentencing on those convictions. We added that, upon remand, the trial

court could suggest the implementation of parole conditions.

Unlike Merced, the current appeal does not involve a challenge to any aspect

of Appellant’s sentence other than the imposition of parole conditions.

Consequently, we need not order further proceedings where our holding is

limited to vacating the portion of the sentence imposing the conditions. See

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super. 2006), appeal

denied, 596 Pa. 745, 946 A.2d 687 (2008) (reiterating that there is no need

for remand if Superior Court’s decision does not alter overall sentencing

scheme).

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