Com. v. Strama, Jr., J. ( 2015 )

J-S63043-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY WALTER STRAMA, JR.,
Appellant No. 676 MDA 2014
Appeal from the Judgment of Sentence March 5, 2014
in the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0001483-2013
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 14, 2015
Appellant, Jeffrey Walter Strama, Jr., appeals from the judgment of
sentence imposed following entry of a guilty plea to burglary, intimidation of
witnesses, unlawful restraint, terroristic threats, simple assault (four
counts), criminal mischief, cruelty to animals, and possession of marijuana
(small amount).1 Appellant claims that the sentence imposed on the
summary offense of cruelty to animals is illegal. We agree and affirm the
judgment of sentence, as amended.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3502(a)(1), 4952(a)(1), 2902(a)(1), 2706(a)(1),
2701(a)(1),(a)(3), 3304(a)(5), 5511(c)(1) (summary offense), and 35 P.S.
§ 780-113(a)(31), respectively.
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On December 6, 2013, Appellant entered a guilty plea to the above-
stated offenses, and the trial court ordered preparation of a pre-sentence
investigation (PSI) report. The charges stem from Appellant’s February 9,
2013 assault of his then-girlfriend, during which he punched her, choked
her, and threatened her with a hatchet, after she attempted to stop him
from hitting their dog with a handmade club. On March 5, 2014, the court
sentenced Appellant to an aggregate term of not less than five years and
ninety days nor more than ten years’ incarceration, followed by five years’
probation. The court imposed a flat ninety-day term of incarceration for the
offense of cruelty to animals, rather than a minimum and maximum
sentence. Appellant filed a timely post-sentence motion, which the trial
court denied on March 17, 2014. This timely appeal followed.2
Appellant raises one question for our review:
I. Was [Appellant’s] flat ninety-day sentence for cruelty to
animals illegal, as the [trial] court was required to impose a
minimum and maximum sentence, pursuant to 42 Pa.C.S. §
9756?
(Appellant’s Brief, at 5).3
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2
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on May 12, 2014. See
Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) opinion on June 10,
2014. See Pa.R.A.P. 1925(a).
3
The Commonwealth filed a letter stating its intention not to file a brief.
(See Commonwealth’s Letter, 8/28/14, at 1).
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The scope and standard of review applied to determine the
legality of a sentence are well established. If no statutory
authorization exists for a particular sentence, that sentence is
illegal and subject to correction. An illegal sentence must be
vacated. In evaluating a trial court’s application of a statute, our
standard of review is plenary and is limited to determining
whether the trial court committed an error of law.
Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009)
(citation omitted).
In his sole issue on appeal, Appellant contends that the flat ninety-day
sentence of incarceration for his summary offense of cruelty to animals is
illegal because the court was required to impose a minimum and maximum
sentence for the offense. (See Appellant’s Brief, at 9-11). The trial court
agrees, stating in its Rule 1925(a) opinion that Appellant’s sentence is
illegal. (See Trial Court Opinion, 6/10/14, at 1). We agree that the
sentence is illegal.
Section 5511 of the Pennsylvania Crimes Code, titled “Cruelty to
animals,” provides in pertinent part:
(m.1) Fine for summary offense.—In addition to any other
penalty provided by law, a person convicted of a summary
offense under this section shall pay a fine of not less than $50
nor more than $750 or to imprisonment for not more than 90
days, or both.
18 Pa.C.S.A. § 5511 (m.1); see also id. at (c)(1), (2)(i).
Section 9756(c) of the Sentencing Code, pertaining to sentences of
total confinement for summary offenses, provides in relevant part:
(c) Prohibition of parole for summary offenses.—The court
may impose a sentence to imprisonment without the right to
parole under this subsection only when:
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(1) a summary offense is charged;
(2) sentence is imposed for nonpayment of fines or costs, or
both, in which case the sentence shall specify the number of
days to be served; and
(3) the maximum term or terms of imprisonment imposed on
one or more indictments to run consecutively or concurrently
total less than 30 days.
42 Pa.C.S.A. § 9756(c)(1)-(3).4
Thus, the plain language of subsection (c) authorizes trial courts to
impose flat sentences of incarceration for summary offenses only when the
sentence is imposed for nonpayment of fines and/or costs and the maximum
term of incarceration is less than thirty days. See id. Here, Appellant’s flat
ninety-day sentence for his summary offense of cruelty to animals does not
meet the requirements of subsection (c), and is therefore illegal. See
Mears, supra at 1211. Although the trial court was authorized pursuant to
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4
We note that Appellant relies primarily on section 9756(b)(1) of statute,
(see Appellant’s Brief, at 9-10), which states “[t]he court shall impose a
minimum sentence of confinement which shall not exceed one-half of the
maximum sentence imposed.” 42 Pa.C.S.A. § 9756(b)(1). However,
because “42 Pa.C.S.[A.] § 9756(b) applies to the sentencing of all crimes, it
is a general provision.” Commonwealth v. Klingensmith, 650 A.2d 444,
461 (Pa. Super. 1994), appeal denied, 659 A.2d 986 (Pa. 1995). Subsection
(c) governs summary offenses and implicitly creates a limited exception to
subsection (b)(1) by authorizing trial courts to impose flat sentences for
summary offenses where three specific requirements are met. See 42
Pa.C.S.A. § 9756(c)(1)-(3); Klingensmith, supra at 461 (stating rule that
“[w]here two statutory sections arguably cover the same matter and appear
to be inconsistent, the specific provision will prevail over the general
provision”) (citing 1 Pa.C.S.A. § 1933) (case citation omitted).
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18 Pa.C.S.A. § 5511 (m.1) to impose a ninety-day maximum term of
incarceration, it lacked authority to impose a flat ninety-day sentence, and
was therefore required to impose a minimum term of incarceration. See 42
Pa.C.S.A. § 9756(b)(1).
We are cognizant that the standard remedy for a trial court’s omission
of a minimum sentence is to vacate the judgment of sentence and remand
for resentencing. See Commonwealth v. Duda, 831 A.2d 728, 733 (Pa.
Super. 2003). However, under circumstances “where the sentencing court
clearly intended to impose the maximum sentence this Court can amend the
sentence to include a minimum term equal to one-half of the maximum.”
Id. (amending flat sentence to include minimum term of incarceration where
court imposed maximum possible sentence for summary offense) (citing
Commonwealth v. Cain, 637 A.2d 656, 659 (Pa. Super. 1994) (amending
flat sentence to include minimum term of incarceration equal to one-half
maximum under circumstances where sentencing court clearly intended to
impose maximum sentence)).
Here, because the trial court imposed the maximum possible sentence
of incarceration for Appellant’s summary offense, we are confident that it
intended to impose the maximum sentence. (See N.T. Sentencing, 3/05/14,
at 15 (court stating “[Appellant] committed some heinous crimes here.”));
see also Duda, supra at 733. Therefore, we amend Appellant’s ninety-day
sentence to include a minimum term of forty-five days’ incarceration. See
Duda, supra at 733; Cain, supra at 659.
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Judgment of sentence affirmed as amended.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2015
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