Com. v. Spang, M. ( 2022 )

J-S15024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW JOSEPH SPANG :
:
Appellant : No. 2085 EDA 2021
Appeal from the Judgment of Sentence Entered August 7, 2020
In the Court of Common Pleas of Montgomery County
Criminal Division at CP-46-CR-0004022-2018
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 15, 2022
Matthew Joseph Spang, (Appellant), appeals nunc pro tunc from the
judgment of sentence reimposed by the trial court after it determined
Appellant had violated parole. After careful review, we affirm.
On November 15, 2017, Pennsylvania Trooper Michele Naab
apprehended Appellant for driving under the influence (DUI) of several
controlled substances, including fentanyl and alcohol.1 Appellant entered an
open guilty plea to DUI as a first-degree misdemeanor on December 13, 2018.
On March 14, 2019, with the benefit of a pre-sentence investigation report
(PSI), the trial court sentenced Appellant to 90 days (the mandatory
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1 75 Pa.C.S.A. § 3802(d)(1)(ii).
J-S15024-22
minimum) to five years in prison. Appellant did not file a post-sentence
motion or appeal his 2019 sentence.
On May 31, 2019, the trial court granted Appellant parole. However, on
January 23, 2020, Montgomery County lodged a detainer against Appellant as
a result of his incarceration in Lancaster County. Appellant subsequently
entered a negotiated guilty plea in Lancaster County to one count of simple
assault-victim under 12 years old, defendant 18 or older.2 The Lancaster
County court sentenced Appellant to time served to 23 months in jail.
In Montgomery County, Appellant stipulated to violation of parole (VOP).
On August 7, 2020, the trial court sentenced Appellant to serve the balance
of his 2019 sentence: 4 years, 9 months and 1 day, with parole eligibility
after 198 days. The court imposed the sentence concurrent to Appellant’s
Lancaster County sentence. Appellant did not appeal.
On February 12, 2021, Appellant filed a timely Post Conviction Relief
Act3 (PCRA) petition requesting reinstatement of his direct appeal rights nunc
pro tunc. The PCRA court granted the petition on September 30, 2021.
Appellant filed the instant nunc pro tunc appeal of his August 7, 2020,
judgment of sentence. Appellant and the trial court have complied with
Pa.R.A.P. 1925.
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2 18 Pa.C.S.A. § 2701(b)(2).
3 42 Pa.C.S.A. §§ 9541-9546.
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Appellant presents a single issue for review:
Whether a challenge to the order that Appellant be recommitted
to serve the balance of an illegal sentence after having been found
in violation of parole constitutes a direct attack of the underlying
conviction for which he was on parole?
Appellant’s Brief at 4.
Appellant challenges the legality of his 2019 sentence. Id. at 10.
Appellant asserts that on March 14, 2019, the trial court imposed the
mandatory sentence for a second-offense DUI,4 based on his acceptance of an
Accelerated Rehabilitative Disposition (ARD) in 2010. Id. Appellant argues
this 2019 sentence was rendered illegal by this Court’s decision in
Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020). Id.Appellant claims “the instant appeal of the August 7, 2020, order of
recommitment after the VOP court revoked his parole constitutes a direct
attack of the March 14, 2019, sentence, rather than a collateral attack[.]” Id.
at 14. Appellant acknowledges he filed no post-sentence motions or direct
appeal of the 2019 judgment of sentence. Id. Nevertheless, Appellant argues
he may challenge the 2019 sentence because it was reimposed by the trial
court in the VOP proceedings. Id. Appellant states he
is appealing to this Court to find that an order of recommitment
after a violation of parole hearing constitutes a direct challenge to
the sentence under which the VOP court ordered [Appellant] be
recommitted, which, here, is the March 14, 2019, sentence[.]
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4 See 75 Pa.C.S.A. § 3806(a).
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Id. Appellant quotes Commonwealth v. Stanley, 259 A.3d 989 (Pa. Super.
2021), for the proposition that “punishment imposed upon revocation of
supervised release is punishment for the original crime, not punishment for
the conduct leading to revocation.” Appellant’s Brief at 16 (quoting Stanley,
259 A.3d at 993). Appellant argues this appeal “constitutes a direct challenge
to the court’s authority to punish him for the 2019 sentence.” Id. Appellant’s
argument is contrary to the law.
In parole revocation cases, our standard of review is limited to whether
the revocation court erred, as a matter of law, in revoking parole and
recommitting the defendant to confinement. Commonwealth v. Kalichak,
943 A.2d 285, 291 (Pa. Super. 2008).
[A] parole revocation does not involve the imposition of a new
sentence. Indeed, there is no authority for a parole-revocation
court to impose a new penalty. Rather, the only option for a court
that decides to revoke parole is to recommit the defendant to
serve the already-imposed, original sentence. At some point
thereafter, the defendant may again be paroled.
Id. at 290 (citations omitted).
Appellant focuses on the legality of his 2019 sentence, as opposed to
the propriety of the 2020 revocation proceedings and sentence. As long as
the reviewing court has jurisdiction, a challenge to the legality of sentence is
non-waivable and the court may address it sua sponte. Commonwealth v.
Lee, 260 A.3d 208, 210 (Pa. Super. 2021). However, in addressing a similar
claim of an illegal sentence, this Court explained:
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When, on appeal from a sentence imposed following probation
revocation, an appellant collaterally attacks the legality of the
underlying conviction or sentence,
such an approach is incorrect and inadequate for two
reasons. First, any collateral attack of the underlying
conviction [or sentence] must be raised in a petition
pursuant to the [PCRA]. Second, such an evaluation
ignores the procedural posture of [the] case, where
the focus is on the probation revocation hearing and
the sentence imposed consequent to the probation
revocation, not the underlying conviction and
sentence.
Commonwealth v. Beasley, 570 A.2d 1336, 1338 (Pa. Super.
1990).
The PCRA provides the sole means for obtaining collateral review
of a judgment of sentence. Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007); 42 Pa.C.S.A. § 9542. “[A] court
may entertain a challenge to the legality of the sentence so long
as the court has jurisdiction to hear the claim. … [A] collateral
claim regarding the legality of a sentence can be lost for failure to
raise it in a timely manner under the PCRA. Commonwealth v.
Wojtaszek, 951 A.2d 1169, 1173 n.9 (Pa. Super.2008).
Commonwealth v. Infante, 63 A.3d 358, 363-65 (Pa. Super. 2013)
(emphasis added).5
Here, Appellant challenges the legality of his 2019 sentence, as opposed
to the trial court’s revocation of parole and recommitment to confinement.
Kalichak, 943 A.2d at 291. We lack jurisdiction to review Appellant’s 2019
sentence, as Appellant filed no timely direct appeal or PCRA petition
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5 Like Infante, Appellant alleges intervening case law rendered his sentence
illegal.
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challenging that sentence. See id. Accordingly, we may not grant Appellant
relief.
Judgment of sentence affirmed.
Judge Sullivan joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2022
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