# Commonwealth v. Foster

> Supreme Court of Pennsylvania · March 29, 2011 · 609 Pa. 502

URL: https://www.frixlaw.com/law-library/cases/9770074

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant v. Oliver FOSTER, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 29, 2011
- **Citations:** 609 Pa. 502; 17 A.3d 332; 2011 Pa. LEXIS 681
- **Precedential status:** Published
- **Opinion:** Concurrence by Eakin
- **Judges:** Castille, Saylor, Eakin, Baer, Todd, McCaffery, Melvin, Announcing
- **Cited by:** 128 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770074

## How later opinions describe it (automated extraction)

- stating that, when a trial court’s “inherent, discretionary authority to wield its statutorily prescribed sentencing powers [has been] supplanted, abrogated, or otherwise limited,” a defendant’s challenge to a mandated sentencing feature implicates the legality of that sentence
- stating that a challenge to the imposition of a mandatory -4- J-A32029-17 minimum sentence constitutes a challenge to the legality of a sentence
- explaining that at least “[a] classic claim of sentencing ‘legality’ . . . may be raised sua sponte”

## Opinion text

Justice EAKIN,
concurring.
There is a difference between something that is wrong, and something that is illegal. For the reasons expressed in my dissent in Commonwealth v. Dickson, 591 Pa. 364 , 918 A.2d 95, 113 (2007), I disagree with the lead opinion’s holding that appellee’s challenge implicates the legality of his sentence and thus cannot be waived. “An illegal sentence is one that exceeds the statutory limits.” Commonwealth v. Bradley, 575 Pa. 141 , 834 A.2d 1127, 1131 (2003) (citation omitted). Appellee was sentenced to five to 10 years imprisonment for robbery; the maximum sentence for this first degree felony is 20 years. See 18 Pa.C.S. § 1103(1). As the sentence appellee *542 received was within the statutory maximum, it is simply not a sentence that is illegal.
The trial court believed it had to impose a five-year minimum sentence, which may in post -Dickson hindsight make the sentence erroneous, or based on erroneous considerations. However, this makes the claim worthy of relief — it does not make the sentence illegal. The court retained, retains today, and will retain tomorrow, the discretion to impose any maximum term up to 20 years — it may legally sentence appellee to five to 10 years again. Dickson holds that a five-year minimum is not mandatory in cases such as this — it does not say a five-year minimum is illegal.
Wrestling the plain language of our jurisprudence to force this round peg of lack of discretion into the square hole of illegality is pointless and wrong. As long as it remained within the lawful range, the sentence was not illegal, no matter how incorrect later cases find the reasoning behind imposing a five-year minimum to be.
I agree with Mr. Chief Justice Castille’s view that this case concerns retroactivity, and the lead opinion has needlessly redefined illegality in order to ensure application of Dickson to the present matter. I do not object to retroactive application of the result in Dickson , but let us grant relief without twisting plain words into something they are not.
Chief Justice Castille joins this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770074. Public record. Not legal advice.