Com. v. Lowe, C.

J-S28023-23

2023 PA Super 192

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

CHRISTIAN ALEXANDER LOWE :

:

Appellant : No. 868 WDA 2022

Appeal from the Judgment of Sentence Entered July 1, 2022

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

No(s): CP-63-CR-0001885-2020,

CP-63-CR-0002772-2019

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

OPINION BY OLSON, J.: FILED: September 29, 2023

Appellant, Christian Alexander Lowe, appeals from the judgment of

sentence entered on July 1, 2022. We vacate Appellant’s judgment of

sentence and remand for resentencing.

On January 19, 2022, Appellant entered an open guilty plea to the

following crimes: 1) at docket number CP-63-CR-0002772-2019 (hereinafter

“Docket Number 2772-19”), possession of a controlled substance with the

intent to deliver (“PWID”), possession of a controlled substance (cocaine), and

possession of a controlled substance (MDMA)1 and 2) at docket number CP-

63-CR-0001885-2020 (hereinafter “Docket Number 1185-20”), PWID

(cocaine), possession of a controlled substance (cocaine), and possession of

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(30) and (16), respectively.

J-S28023-23

drug paraphernalia.2 On April 22, 2022, the trial court sentenced Appellant to

serve an aggregate term of 87 to 178 months in prison. N.T. Sentencing,

4/22/22, at 49-50. As the trial court explained, it sentenced Appellant as

follows:

At [Docket Number 2772-19,] on Count 1 – [PWID,

Appellant] was sentenced to [27 to 54 months in prison].

Count 2 – possession of cocaine merged with Count 1 and no

penalty was assessed. For the charge of possession of

MDMA, Count 3, [Appellant] was sentenced to [six to 16

months in prison] to run consecutively to Count 1. . . .

At [Docket Number 1885-20,] on Count 1 – [PWID,

Appellant] was sentenced to [54 to 108 months in prison, to

run consecutively to Docket Number 2772-19]. At Count 2 –

possession of a controlled substance cocaine, [Appellant] was

sentenced to [12 to 32 months in prison, to run concurrently

to] Count 1. Finally, at Count 3 – possession of drug

paraphernalia, [Appellant] was sentenced to [six to 12

months in prison,] also running concurrently with Counts 1

and 2.

Trial Court Opinion, 10/5/22, at 1-2. At sentencing, the parties stipulated that

Appellant’s prior convictions rendered him ineligible to participate in

Pennsylvania’s Recidivism Risk Reduction Incentive (“RRRI”) program. N.T.

Sentencing, 4/22/22, at 28-29.

Appellant filed a timely post-sentence motion, where he claimed that his

aggregate sentence was manifestly excessive. See Appellant’s Post-Sentence

Motion, 5/2/22, at 1-2. On July 1, 2022, the trial court granted, in part, and

denied, in part, Appellant’s post-sentence motion. In particular, the trial

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2 35 P.S. §§ 780-113(a)(30), (16), and (32), respectively.

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court amended its sentence at both docket numbers to declare that Appellant

“shall be eligible for early parole after serving [60] months.” Amended

Sentencing Order, 7/1/22, at 1-2 (emphasis omitted). Appellant filed timely

notices of appeal and, on appeal, Appellant challenges the discretionary

aspects of his sentence. See Appellant’s Brief at 9. We conclude that

Appellant’s sentence is illegal. Therefore, we must vacate Appellant’s

judgment of sentence and remand for resentencing.

“[C]hallenges to an illegal sentence can never be waived and may be

raised sua sponte by this Court.” Commonwealth v. Simmons, 262 A.3d

512, 515 n.3 (Pa. Super. 2021) (en banc) (quotation marks and citations

omitted). Generally, “an illegal sentence [is] one that was imposed without

authority.” Commonwealth v. Prinkey, 277 A.3d 554, 561-564 (Pa. 2022)

(“the inquiry is whether, assuming the appellant's claim prevails, the result

would be that the trial court lacked authority to impose the sentence at issue.

If so, then the appellant's challenge implicates the legality of his sentence.

Conversely, if the challenge is not to the existence of certain authority but to

the exercise of that authority, then the challenge goes to the discretionary

aspects of a sentence, not to its legality”) (footnote omitted); see also

Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa. 2016). “Because the

legality of a sentence presents a pure question of a law, our scope of review

is plenary, and our standard of review is de novo.” Commonwealth v. Pi

Delta Psi, Inc., 211 A.3d 875, 889 (Pa. Super. 2019).

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J-S28023-23

As explained above, the trial court originally sentenced Appellant to

serve an aggregate term of 87 to 178 months in prison for his convictions.

Appellant then filed a post-sentence motion, where he claimed that his

aggregate sentence was manifestly excessive. On July 1, 2022, the trial court

granted, in part, and denied, in part, Appellant’s post-sentence motion.

Specifically, the trial court amended its sentence to declare that Appellant

“shall be eligible for early parole after serving [60] months.” The trial court’s

amended sentencing order reads, in relevant part:

[Appellant’s] aggregate sentence is to be confined to a State

Correctional Institution for a period of no less than [87]

months to no more than [178 months]. . . . [Appellant]

shall be eligible for early parole after serving [60]

months. All other provisions of the April [22,] 2022

sentencing order are hereby reimposed.

Amended Sentencing Order, 7/1/22, at 2 (emphasis in original).

The above sentence is illegal, as the trial court lacked statutory authority

to declare that Appellant was eligible for parole after serving only 60 months

of his 87-month minimum sentence.

42 Pa.C.S.A. § 9756 provides, in part:

(b) Minimum sentence.--

(1) The court shall impose a minimum sentence of

confinement which shall not exceed one-half of the

maximum sentence imposed.

(2) The minimum sentence imposed under this section

may not be reduced through parole prior to the expiration

of the minimum sentence unless otherwise authorized by

this section or other law.

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J-S28023-23

(3) Except where the maximum sentence imposed is two

years or more, and except where a mandatory minimum

sentence of imprisonment or total confinement is required

by law, the court shall, at the time of sentencing, state

whether or not the defendant is eligible to participate in a

reentry plan at any time prior to the expiration of the

minimum sentence or at the expiration of a specified

portion of the minimum sentence. For maximum

sentences of less than two years as defined under section

9762(f) (relating to sentencing proceeding; place of

confinement), a court may parole a defendant prior to the

expiration of the minimum sentence only if the defendant

was made eligible to participate in a reentry plan at the

time of sentencing. The court shall provide at least ten

days' written notice and an opportunity to be heard,

pursuant to section 9776 (relating to judicial power to

release inmates), to the prosecuting attorney before

granting parole pursuant to this subsection. The reentry

plan eligibility shall be considered a part of the sentence

and subject to the requirements relating to the entry,

recording and reporting of sentences.

(b.1) Recidivism risk reduction incentive minimum

sentence.--The court shall determine if the defendant is

eligible for a recidivism risk reduction incentive minimum

sentence under 61 Pa.C.S. Ch. 45 (relating to recidivism risk

reduction incentive). If the defendant is eligible, the court

shall impose a recidivism risk reduction incentive minimum

sentence in addition to a minimum sentence and maximum

sentence except, if the defendant was previously sentenced

to two or more recidivism risk reduction incentive minimum

sentences, the court shall have the discretion to impose a

sentence with no recidivism risk reduction incentive

minimum.

42 Pa.C.S.A. § 9756.

Thus, unless otherwise allowed, a defendant’s minimum sentence of

confinement “may not be reduced through parole prior to the expiration of the

minimum sentence.” 42 Pa.C.S.A. § 9756(b)(2). Here, Appellant’s maximum

sentence was “two years or more” and Appellant was not RRRI eligible. See

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42 Pa.C.S.A. § 9756(b)(3) and (b.1). Therefore, the exceptions to the general

rule do not apply to Appellant’s case and the trial court simply lacked statutory

authority to declare that Appellant was eligible for parole “prior to the

expiration of [Appellant’s] minimum sentence.”3 42 Pa.C.S.A. § 9756(b)(2).

Appellant’s sentence is thus illegal.

From all appearances, when the trial court entered its amended

sentencing order and declared that Appellant “shall be eligible for early parole

after serving [60] months,” the trial court was attempting to implicitly reduce

Appellant’s minimum sentencing term, without expressly doing so. See

Martin v. Pa. Bd. of Probation and Parole, 840 A.2d 299, 302 (Pa. 2003)

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3 Judge Kunselman wrote a concurrence in Simmons, where she succinctly

explained:

For confinement, a maximum term of five years or more, shall be

served in a state prison; a maximum term of two but less than

five years, may be served in either the state prison or the county

jail, and a maximum of less than two years shall be served in

county jail. 42 Pa.C.S.A. § 9762(b). If confinement is served in

a state prison, then the State Board of Probation and Parole has

the exclusive authority to determine if, and when, the inmate may

be granted parole. 61 Pa.C.S.A. § 6132. For these inmates, the

trial court may give only a recommendation regarding parole to

the State Parole Board. [61 Pa.C.S.A.] § 6134(b). If the sentence

is served in county jail, however, the trial court has the authority

to determine if, and when, the inmate may be granted parole. [61

Pa.C.S.A.] § 6134.1; 42 Pa.C.S.A § 9775; Commonwealth v.

McDermott, 547 A.2d 1236 (Pa. Super. 1988) (common pleas

court retains authority to grant and revoke parole for offender

sentenced to maximum term of imprisonment of less than two

years).

Simmons, 262 A.3d at 529 (Kunselman, J. concurring) (footnotes omitted).

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J-S28023-23

(“the maximum term [of confinement] represents the sentence imposed for a

criminal offense, with the minimum term merely setting the date after which

a prisoner may be paroled”). Since we have held that this particular

component of Appellant’s sentence is illegal, our disposition has potentially

altered the trial court’s sentencing scheme. Therefore, we must vacate

Appellant's entire judgment of sentence and remand for resentencing. 4, 5, 6

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4 Given our disposition, Appellant’s discretionary aspects of sentencing claim

is moot.

5 Appellant’s sentence also appears to be illegal because, at Docket Number

1885-20, the trial court failed to merge Appellant’s conviction for simple

possession of cocaine with Appellant’s conviction for PWID. See Affidavit of

Probable Cause at Docket Number 1885-20, dated 10/14/20, at 1 (declaring

that one plastic baggie of cocaine formed the basis for all charges at Docket

Number 1885-20); see also Commonwealth’s Information, 11/13/20, at 1.

6 Since we are remanding for resentencing, we also note that the trial court

apparently believed it was sentencing Appellant in the standard guideline

range when it sentenced Appellant, at Docket Number 1885-20, to a term of

54 to 108 months in prison for PWID. See N.T. Sentencing, 4/22/22, at 49.

Seemingly, the trial court arrived at this belief by observing that Appellant’s

“basic standard range” for PWID was 27 to 33 months in prison – but that

application of 35 P.S. § 780-115 doubled the standard range and created a

“new standard guideline range” of 54 to 66 months in prison. See id. at 10.

This was also a mistake.

35 P.S. § 780-115 declares:

Any person convicted of a second or subsequent offense under

clause (30) of subsection (a) of section 13 of this act or of a similar

offense under any statute of the United States or of any state may

be imprisoned for a term up to twice the term otherwise

authorized, fined an amount up to twice that otherwise

authorized, or both.

(Footnote Continued Next Page)

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35 P.S. § 780-115(a).

Section 780-115 “doubles the statutory maximum penalty upon proof of a

prior conviction for” PWID. Commonwealth v. Aponte, 855 A.2d 800, 802

(Pa. 2004). The Section, however, does not alter the guideline ranges,

so that a standard guideline range of 27 to 33 months in prison may become

a “new” standard range of 54 to 66 months upon application of Section

780-115. Indeed, in Commonwealth v. Warren, 84 A.3d 1092 (Pa. Super.

2014), we explained that – while a trial court is, within its discretion, free to

use Section 780-115 “to double the standard guideline sentence . . . to arrive

at [a defendant’s] minimum sentenc[ing term]” – the application of Section

780-115 does not affect the sentencing guideline ranges. Warren, 84 A.3d

at 1094 and 1096-1097.

In Warren, Warren pleaded guilty to PWID, which had a standard range

sentence of 21-27 months. Id. at 1094. The trial court then sentenced

Warren to serve a term of 54 to 120 months in prison. “In doing so, [the trial

court] employed [Section 780–115] and doubled the high end of the

standard-range sentence (27 months) to arrive at the minimum sentence” of

54 months in prison. Id. On appeal, we held that the trial court was free,

within reason, to use Section 780-115 and “double the standard guideline

sentence (27 months) to arrive at [Warren’s] minimum sentence (54

months).” Id. at 1094-1095. We, however, held that Section 780-115 did

not alter the sentencing guideline ranges and that the trial court erred at

sentencing, in that it mistakenly believed that it was sentencing Warren to a

standard range sentence – when, in actuality, it was sentencing Warren

outside of the guidelines. We explained:

the Sentencing Guideline Form in this case indicated a mitigated

sentence of 15 months, standard sentence range of 21–27

months, and an aggravated sentence of 33 months. As Warren

was sentenced to 54–120 months of incarceration, he was

sentenced beyond the guideline ranges, and so the trial court was

required to state its reasons for deviating from the guidelines on

the record. When imposing this sentence, the trial court set forth

the terms of Warren's sentence and then stated only the following:

“Reasons for sentence, the defendant's relevant prior criminal

record. The sentence is within the sentencing guidelines and any

lesser of a sentence would depreciate the serious nature of the

defendant's actions.” These remarks by the trial court do not

evince an awareness of the sentencing guidelines or explain the

(Footnote Continued Next Page)

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See Commonwealth v. Deshong, 850 A.2d 712, 714 (Pa. Super. 2004)

(“[w]hen a disposition by an appellate court alters the sentencing scheme, the

entire sentence should be vacated and the matter remanded for

resentencing”).

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2023

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trial court's decision to deviate therefrom, as was required. It

appears that the trial court was under the impression that it

sentenced Warren within the sentencing guidelines; this would

explain why it did not state the factual basis and reasons for

deviation from the guidelines. . . . For this reason, we must vacate

the judgment of sentence and remand for resentencing.

Id. at 1097-1098 (citations omitted).

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