Appeal from the Judgment of Sentence June 28, 2011, Court of Common Pleas, Allegheny County, Criminal Division at No. CP-02-CR-0011106-1999
The opinion of the court was delivered by: Donohue, J.
BEFORE: DONOHUE, LAZARUS and STRASSBURGER,*fn1 JJ.
Appellant, Todd Eric Schutzues ("Schutzues"), appeals from the trial court's June 28, 2011 judgment of sentence imposing 6½ to 13 years of incarceration after Schutzues violated his probation. We affirm.
The record reflects that the Commonwealth charged Schutzues with one count of rape, two counts of involuntary deviate sexual intercourse ("IDSI"), and one count each of aggravated indecent assault, indecent assault, endangering the welfare of a child, and corruption of minors.*fn2 These charges arose from Schutzues' sexual assault of a young girl who was six years old when the assaults began. N.T., 10/9/01, at 8. The assaults persisted over a four-year period. Id. at 8-9. The charges also arose from Schutzues' repeated attempts to lure a 12-year-old girl into his car, and an incident in which he exposed himself to an adult female. Id. at 9-10. Schutzues pled guilty to rape, one count of IDSI, endangering the welfare of children, and corruption of minors. On October 9, 2001, the trial court sentenced Schutzues to an aggregate 3½ to 7 years of incarceration followed by seven years of probation for the rape conviction. The trial court imposed no further penalty on the remaining counts. Schutzues served the maximum seven-year term of incarceration and then commenced his probation sentence. Less than six months into his probation term, Schutzues violated his probation by having contact with his young nieces.
After a May 1, 2007 hearing, the trial court found Schutzues in violation of his probation and sentenced him to 10 to 20 years of incarceration for rape, a consecutive 10 to 20 years of incarceration for IDSI, a consecutive 2½ to 5 years of incarceration for endangering the welfare of a child, and a consecutive 2½ to 5 years of incarceration for corrupting a minor. In an unpublished memorandum of July 29, 2009, this Court vacated the judgment of sentence. Commonwealth v. Schutzues, 1009 WDA 2007 (Pa. Super. 2009) (Schutzues I). Specifically, we concluded that the trial court failed to consider 42 Pa.C.S.A. § 9771(c) prior to imposing a sentence of incarceration. That section provides as follows:
(c) Limitation on sentence of total confinement. --
The court shall not impose a sentence of total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.
The trial court conducted a new sentencing hearing on February 9, 2010, at which the court sentenced Schutzues to 42 to 84 months of incarceration for rape, a consecutive 10 to 20 years for IDSI, and consecutive 2½ to 5 year sentences for endangering the welfare of a child and corruption of minors. In an unpublished memorandum of March 31, 2011, this Court once again vacated the judgment of sentence.
Commonwealth v. Schutzues, 526 WDA 2010 (Pa. Super. 2011) ("Schutzues II"). In Schutzues II, we held that the sentences for IDSI, endangering the welfare of a child and corruption of a minor were illegal because "[a] probation revocation court does not have the authority to re- sentence an offender on a final guilt without further punishment sentence after the period for altering or modifying the sentence has expired." Id. at 3 (quoting Commonwealth v. Williams, 997 A.2d 1205, 1210 (Pa. Super. 2010). We remanded for re-sentencing on the rape conviction. Id. at 3-4.
The trial court thereafter held another sentencing hearing on June 28, 2011 and entered the sentence currently on appeal. Schutzues raises three issues for our review, which we have edited for clarity:
1. Was [Schutzues] illegally sentenced to a term of imprisonment for having violated his probation, given that imprisonment for a probation violation is only permitted if the Commonwealth proves one of three things [set forth in § 9771(c)]?
2. Was and is Schutzues' 6½ to 13 year probation violation sentence [...] manifestly excessive and unconstitutionally cruel under the totality of the circumstances, given (a) the de minimus nature of his violating conduct; (b) the rehabilitative progress made by him in custody, as evidenced by the certificates of achievement presented by him at his re-sentencing hearing; (c) the fact that he was gainfully employed while on probation; (d) the fact that he reported to his probation agent without fail while on probation; (e) the fact that he attended all sessions of his therapy program, as required; and (f) the fact that he reported to his therapist the de minimus conduct deemed to violate his probation?
3. Was and is [Schutzues'] entitled, by 42 Pa.C.S.A. § 9760, to seven years of presentence confinement credit through August 26, 2006, as well as all confinement time since January 31, 2007[?]
Schutzues' Brief at 3-4.*fn3
Schutzues first argues that the trial court erred in imposing a sentence of incarceration without finding that any of the § 9771(c) factors were applicable to his case. Schutzues admittedly did not include this issue in his Pa.R.A.P. 1925(b) statement, but he argues that it is a challenge to the legality of his sentence that cannot be waived.*fn4 See Commonwealth v. Foster, 609 Pa. 502, 509, 17 A.3d 332, 336 (2011) (plurality) (noting that a challenge to the legality of a sentence presents a non-waivable jurisdictional issue).
On several occasions, however, this Court has noted that a trial court's alleged lack of adherence to § 9771(c) implicates the discretionary aspects of a sentence.*fn5 See Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010);
Commonwealth v. Malovich, 903 A.2d 1247, 1250-51 (Pa. Super. 2006); Commonwealth v. Ferguson, 893 A.2d 735, 736-38 (Pa. Super. 2006), appeal denied, 588 Pa. 788, 906 A.2d 1196 (2006); Commonwealth v. McAfee, 849 A.2d 270 (Pa. Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004). In none of these cases, however, were we presented with an argument that a trial court's failure to comply with § 9771(c) implicated the legality of a sentence.*fn6
In the instant case, Schutzues argues that the record is entirely devoid of any evidence implicating § 9771(c). The trial court made no explicit mention of § 9771(c) during sentencing, and at the conclusion of the sentencing hearing the trial court gave only a brief explanation for its sentence: "My intention from the very beginning was to max him to the most sentence I could give him."
N.T., 6/28/11, at 23.*fn7 The trial court's attempts to give Schutzues the maximum amount of jail time possible have already resulted in two flagrantly illegal sentences and two remands from this Court, as set forth above. Despite our directive to the trial court in Schutzues I to comply with § 9771(c), the trial court has continued to ignore that statute. Prior cases have treated assertions of a trial court's erroneous application of § 9771(c) as a matter implicating the discretionary aspects of a sentence. In the instant case Schutzues argues that the trial court's failure to adhere to § 9771(c) results in an illegal sentence. This Court has never had occasion ...