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Commonwealth v. Mears

May 4, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
GREGORY MEARS, APPELLANT



Appeal from the Judgment of Sentence Entered March 18, 2008, Court of Common Pleas, Philadelphia County, Criminal Division, at No. CP-51-CR-0010314-2007.

The opinion of the court was delivered by: Shogan, J.

BEFORE: KLEIN, SHOGAN, JJ. and McEWEN, P.J.E.

OPINION

¶ 1 Appellant, Gregory Mears, appeals from the judgment of sentence entered on March 18, 2008, in the Philadelphia County Court of Common Pleas. After careful review, we vacate in part and affirm in part.

¶ 2 The trial court set forth the relevant facts and procedural history of this matter as follows.

Appellant Gregory Mears appeared before this court on January 8, 2008 for a waiver trial. Following the trial, Appellant was found guilty of Violation of the Uniform Firearms Act §§ 6105, 6106, and 6108. The Appellant was sentenced to incarceration for [a] term of thirty (30) to sixty (60) months for count one (less one day) and twenty four (24) to forty eight (48) months for count two.

The court ordered that the Appellant seek and maintain employment and ordered the Appellant to undergo a drug evaluation. The court conditioned the Appellant's parole or probation on his consent to random searches by the Gun Violence Task Force.

Trial Court Opinion, 5/15/08, at 1.

¶ 3 At sentencing, Appellant objected to that portion of the sentence that added the condition that Appellant be subject to random searches by the Gun Violence Task Force. Subsequently, Appellant filed a post-sentence motion challenging the random searches imposed as part of Appellant's sentence. The trial court denied the motion, and Appellant timely appealed.

¶ 4 On appeal, Appellant raises one issue:

Is not the trial court's sentencing order, authorizing random searches of [A]ppellant's residence as a condition of parole, contrary to statutory law and state and federal constitutional protections?

Appellant's Brief at 3. Because we conclude that this issue ultimately concerns the statutory authority for the imposition of a condition of sentence, this is a challenge to the legality of the sentence.*fn1 Challenges to an illegal sentence cannot be waived and may be reviewed sua sponte by this Court. Commonwealth v. Merolla, 909 A.2d 337, 347 (Pa. Super. 2006).

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 ...


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