Com. v. Perry, K. ( 2022 )

J-A04023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KENNETH E. PERRY : No. 1069 EDA 2021
Appeal from the Order Entered April 27, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008775-2017
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 18, 2022
The Commonwealth appeals from the order terminating Appellee
Kenneth E. Perry’s probation. We vacate the judgment of sentence and
remand for resentencing.
A previous panel of this Court summarized the factual and procedural
history as follows:
On December 7, 2018, [Appellee] entered into a negotiated, nolo
contendere plea . . . to the charges of endangering the welfare of
children, as a felony in the third degree, and corruption of minors,
as a misdemeanor in the first degree. The negotiated sentence
was a total of ten years of reporting probation, to be supervised
by the Sex Offender’s Unit. [Appellee’s] probationary sentence
included a provision that “admitting guilt during supervision is not
a condition of probation,” and that [Appellee] would be taking a
polygraph test, in lieu of that admission. If [Appellee] passed the
polygraph test he would not have to enter treatment.
On December 19, 2018, a hearing was held before th[e trial] court
to clarify the conditions of [Appellee’s] probation should he fail the
polygraph test. Defense counsel articulated that it was never
[Appellee’s] understanding of the plea negotiations that he would
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need to admit guilt, despite the results of the polygraph. Defense
counsel argued that treatment would have to make
accommodations for [Appellee] to receive treatment without
admitting guilt. Probation Officer Johnson testified to clarify that,
should an individual fail the polygraph test and enter . . . sex
offender treatment, such treatment would not be possible without
continued accountability by the participant. At this time, th[e
trial] court offered [Appellee] the opportunity to withdraw the
negotiated plea due to the apparent confusion around its
conditions. [Appellee] declined this opportunity and elected to
move forward with the polygraph under the original conditions of
his sentence.
On December 31, 2018, [Appellee] failed his polygraph. On
January 7, 2019, [Appellee] appeared before th[e trial] court for
a violation of probation hearing, at which time next steps for
[Appellee’s] sentence were discussed. Th[e trial] court again
offered [Appellee] the opportunity to withdraw his plea,
acknowledging the facial contradictions in the agreed-upon
sentence. [Appellee] did not wish to withdraw his plea, and
indicated an understanding that he had to go to treatment due to
the failed polygraph test. At this time, again, [Appellee’s]
probation officer made clear in his testimony that treatment would
be impossible if [Appellee] refused to disclose his offense in a
rehabilitative setting, resulting in a probation violation. [Appellee]
indicated an understanding of this risk.
* * *
[The trial court held several hearings regarding Appellee’s
compliance with the sex offender treatment conditions of his
probation.] On December 17, 2019, [Appellee] appeared before
th[e trial] court for its decision as to his probation revocation.
[Appellee’s] probation was revoked and he was sentenced to one
to two years of state incarceration with no probation tail. Th[e
trial] court further specified that [Appellee] must complete sex
offender treatment to be eligible for parole.
Commonwealth v. Perry, 302 EDA 2020, 2021 WL 1502194, at *1-2 (Pa.
Super. filed Apr. 16, 2021) (unpublished mem.) (citations omitted and
formatting altered).
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On April 16, 2021, this Court vacated Appellee’s judgment of sentence,
explaining that
the trial court abused its discretion by refusing to specifically
enforce the non-admission condition of [Appellee’s] plea. The
court reasoned that its revocation of [Appellee’s] probation was
appropriate because it repeatedly offered to allow him to withdraw
his plea, and he “was fully cognizant of [the] treatment condition
at the outset of his plea . . . .” However, as discussed supra, the
record supports [Appellee’s] position — and the Commonwealth’s
concession — that the parties contemplated that [Appellee] would
not have to admit his guilt, even if treatment were required.
Moreover, [Appellee] had no obligation to move to withdraw a plea
that is favorable to him. The Commonwealth entered into the plea
agreement fully understanding the terms thereof, and the court
not only accepted the plea, but failed to vacate it when the
Commonwealth notified the court that the plea contained
contradictory conditions. Thus, the court abused its discretion by
revoking [Appellee’s] probation based on his failure to admit guilt.
Id. at *5 (citation omitted). This Court then remanded the matter “for the
[trial] court to reinstate [Appellee’s] prior sentence of probation, with credit
given for the time [Appellee] served on his revocation sentence. The [trial]
court shall also rescind the treatment condition of [Appellee’s] probationary
sentence.” Id. This Court did not remand the record to the trial court until
May 21, 2021. See Docket, 302 EDA 2020.
The trial court held a resentencing hearing on April 27, 2021. At that
hearing, the following occurred:
THE COURT: . . . . In fashioning a sentence here today on this
remand on the endangering the welfare of a child as an F3, I am
going to sentence you to one year of reporting probation,
concurrent period of one year of reporting probation on the
corrupting the morals of a minor. I’m going to continue the stay
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away order from the complainant as well as the [complainant’s]
brother. . . .
* * *
Additionally, if my recollection is correct, and, please, [Appellee’s
counsel] and [the Commonwealth], correct me at any point, I’m
relying on my file, there will be no Megan’s Law requirement given
the original negotiation.
[Appellee’s counsel]: That’s correct.
[The Commonwealth]: Right. That’s correct.
THE COURT: I am going to currently order for this to be supervised
by the Sex Offender Unit. . . .
[Appellee’s counsel]: Your Honor, as far as credit.
THE COURT: Of course. Credit for time served. Immediate parole.
[Appellee’s counsel]: Just so I’m correct, did you impose one year
reporting probation?
THE COURT: Correct.
[Appellee’s counsel]: So he has more than a [year’s] credit?
THE COURT: Correct. I see where you’re coming from. In that
case, frankly, at this point I’m going to terminate it. Why don’t
we do that? We’re going to terminate all supervision at this time.
[Appellee’s counsel]: Your Honor, I did want to make sure the
state prison gets the short order.
THE COURT: Absolutely. We’ll get you a short order to fax up
yourself and we’ll also make sure it goes out.
[Appellee’s counsel]: Thank you, Your Honor.
THE COURT: Thank you.
[The Commonwealth]: Would Your Honor just note my objection
for the record?
THE COURT: Absolutely.
N.T. Resentencing Hr’g, 4/27/21, at 16-18.
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The Commonwealth timely appealed and filed a Pa.R.A.P. 1925(b)
statement. The trial court issued a Rule 1925(a) opinion addressing the
Commonwealth’s claim.
On appeal, the Commonwealth raises the following issue for our review:
“Did the lower court err on remand by terminating [Appellee’s] probation,
where this Court’s order vacated the previous revocation sentence and
remanded ‘for the court to reinstate [Appellee’s] prior sentence of probation,
with credit given for the time [Appellee] served on his revocation sentence?’”
Commonwealth’s Brief at 4.
Trial Court’s Jurisdiction
Before reaching the merits of this appeal, we must address the
Commonwealth’s claim that the trial court lacked jurisdiction to conduct
Appellee’s resentencing hearing before this Court remanded the record to the
trial court. Id. at 13 n.1.
A challenge to subject-matter jurisdiction presents a question of law, so
our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Salley, 957 A.2d 320, 322 (Pa. Super. 2008). “An
objection to lack of subject matter jurisdiction can never be waived . . . .”
Commonwealth v. Little, 314 A.2d 270, 272 (Pa. 1974) (citations omitted).
Rule of Appellate Procedure 1701 governs the trial court’s jurisdiction
after an appeal has been taken, providing, in part:
(a) General rule.—Except as otherwise prescribed by these
rules, after an appeal is taken . . . the trial court . . . may no
longer proceed further in the matter.
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* * *
(b) Authority of a trial court or other government unit after
appeal.—After an appeal is taken, the trial court . . . may: . . .
[t]ake any action directed or authorized on application by the
appellate court.
Pa.R.A.P. 1701(a), (b)(5).
Rule 2572 provides that, absent any application affecting the appellate
court’s order, the record shall be remanded to the originating court no sooner
than thirty days after an appellate court enters judgment or a final order.
Pa.R.A.P. 2572(a)(2). Further, the “prothonotary of the appellate court shall
note on the docket the date on which the record is remanded and give written
notice to all parties of the date of remand.” Pa.R.A.P. 2572(e). Rule 2572
“[e]nsures that the Superior Court Prothonotary does not unnecessarily
remand a record to the trial court when the losing party appeals the decision
to the Supreme Court. The rule was not enacted to force the Prothonotary of
the Superior Court to remand the record on the thirty-first day.” Salley, 957
A.2d at 323 (citation omitted). “[U]nder Appellate Rules 1701 and 2572, a
trial court has no jurisdiction over a case until an appellate court returns the
record to it with instructions for the trial court to proceed.” Commonwealth
v. Harris, 230 A.3d 1124, 1127 (Pa. Super. 2020).
In Salley, a panel of this Court issued an order vacating the defendant’s
judgment of sentence and remanding the matter for resentencing. Id., 957
A.2d at 325. Before the record was remanded to the trial court, the trial court
held a resentencing hearing. Id. On appeal, this Court concluded that the
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trial court lacked jurisdiction to resentence the defendant before it received
the record, and therefore, the trial court’s sentencing order was a legal nullity.
Id. The Salley Court vacated the judgment of sentence and again remanded
for resentencing, noting that the trial court should not resentence the
defendant until after this Court had remanded the record. Id.; see also
Pa.R.A.P. 2572.
Instantly, although a panel of this Court vacated Appellee’s judgment of
sentence on April 16, 2021, this Court did not remand the record to the trial
court until May 21, 2021. See Docket, 302 EDA 2020. On April 27, 2021,
twenty-four days before this Court remanded the record, the trial court
resentenced Appellee and terminated his probation. See N.T. Resentencing
Hr’g, 4/27/21, at 16-18; see also Docket, 302 EDA 2020.
Because the trial court resentenced Appellee before this Court had
remanded the record, we are constrained to conclude that the trial court acted
without jurisdiction. See Harris, 230 A.3d at 1127; Salley, 957 A.2d at 325.
Therefore, both the April 27, 2021 judgment of sentence and the order
terminating Appellee’s probation are legal nullities. See Harris, 230 A.3d at
1127; Salley, 957 A.2d at 325. Accordingly, we vacate both orders and
remand the matter for resentencing consistent with this Court’s prior remand
in Commonwealth v. Perry, 302 EDA 2020, 2021 WL 1502194, at *5 (Pa.
Super. filed Apr. 16, 2021), which shall occur after this Court has remanded
the record to the trial court. See Salley, 957 A.2d at 325.
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Order and judgment of sentence vacated. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2022
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