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Commonwealth v. Tann

Superior Court of Pennsylvania

October 7, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SHAWN TANN, Appellant

Appeal from the Judgment of Sentence of March 6, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-1101721-2003.

BEFORE: ALLEN, COLVILLE, *and STRASSBURGER, [*] JJ.

OPINION

STRASSBURGER, J.

Shawn Tann (Appellant) appeals from the judgment of sentence of 5½ to 11 years of imprisonment following revocation of his probation. We affirm.

The trial court summarized the history of the case as follows.

On January 26, 2004, [Appellant] entered into a negotiated guilty plea to [p]ossession [w]ith [i]ntent [t]o [d]eliver (PWID) heroin and crack cocaine, 35 P.S. § 780-113(a)(30). He was sentenced pursuant to the guilty plea [agreement] to 11½ to 23 months [of] incarceration (and to attend a drug treatment program) followed by 24 months [of] reporting probation….
At a [violation of probation (VOP)] hearing on April 8, 2005, [Appellant] pled guilty to prostitution. [Appellant] also testified at the VOP hearing that he did not complete his previously ordered drug program. After the hearing, he was sentenced to 4 to 12 months [of] incarceration for prostitution with immediate parole, and 6 to 12 months [of] incarceration for his PWID VOP (he was ordered to complete the Options Program and [the trial] court authorized work release during the last 3 months of the sentence) followed by 36 months [of] probation (24 months reporting and 12 months non-reporting).
On March 21, 2007, a second VOP [hearing] was held, after which, [the trial] court found [Appellant] in violation of his probation ([Appellant] absconded/never reported to probation, never paid costs and fines, and incurred new arrests). The [trial] court then sentenced [Appellant] to 21 to 48 months [of] state incarceration followed by 36 months [of] reporting probation for his PWID VOP, as well as, 12 months [of] reporting probation for his prostitution VOP…. [Appellant] filed an appeal [from] his VOP sentence on April 19, 2007; the appeal was later "discontinued" by the Superior Court on September 19, 2007.
On November 21, 2011, [the trial] court revoked [Appellant's] probation for technical violations and ordered a PSI. [The trial] court noted in its file … that the Sentencing Guidelines did not reflect a Delaware PWID conviction on July 21, 1999, in New Castle County. Therefore, when [Appellant] originally pled guilty to PWID … in 2003, his sentencing status should have been that of a drug recidivist.
After a VOP sentencing hearing on March 6, 2012, [the trial] court sentenced [Appellant] to 66 to 132 months [of] incarceration for his PWID VOP; his prostitution sentence had expired.

Trial Court Opinion, 7/12/2012, at 1-3 (citations omitted).

Appellant filed a timely notice of appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.[1] Appellant states one question for our review: "[d]id not the lower court impose an illegal sentence of 5½ to 11 years following [A]ppellant's revocation of probation when the maximum penalty that the court could impose was ten years [of] confinement?" Appellant's Brief at 3.

We consider Appellant's challenge to his sentence pursuant to the following standard.

Our review is limited to determining the validity of the probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. Also, upon sentencing following a revocation of probation, the trial court is limited only by the maximum ...

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