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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
HANE ERNEST RICHARDSON
Appellant
No. 1555 MDA 2022
Appeal from the Judgment of Sentence Entered October 3, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002693-2021
EFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED: MARCH 21, 2023
Shane Ernest Richardson appeals from the October 3, 2022 judgment
of sentence of four and one-half to seventeen years of incarceration imposed
following his convictions for aggravated indecent assault—person less than
sixteen years of age and related charges. After careful review, we vacate the
sentencing order and remand with instructions.
Over a four-year period between 2008 and 2011, Appellant repeatedly
sexually assaulted two sisters, H.M. and K.W., in his home in Lancaster
County. On June 21, 2021, Appellant was charged with aggravated indecent
assault of a person less than sixteen years of age, indecent assault of a person
less than sixteen years of age, and two counts of unlawful contact with a
minor. Following a four-day jury trial at which H.M. and K.W. testified,
Appellant was convicted of all charges but one count of unlawful contact with
a minor. The trial court deferred sentencing so that the Sexual Offender
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Assessment Board (“SOAB”) could evaluate Appellant and a pre-sentence
report could be prepared. The SOAB found that Appellant did not meet the
criteria of a sexually violent predator.1 See N.T. Sentencing Hearing, 10/3/22,
On October 3, 2022, the court imposed an aggregate term of four and
one-half to seventeen years of incarceration.2 Id. at 28. The trial court also
noted that, while it had no control over what conditions the department of
corrections imposed, it recommended that Appellant have no contact with the
victims or their family members. Id. at 29. Finally, the court ordered
Appellant to register as a sex offender for life and to pay $2,834.95 in
restitution. Id. at 16-21, 31. Although the trial court only offered a
recommendation regarding a no-contact condition at the sentencing hearing,
the sentencing order directed that Appellant have no contact with the victims
and their family members, as follows:
____________________________________________
1 Appellant was subjected to lifetime registration requirements under
Subchapter I of the Sex Offender Registration and Notification Act (“SORNA”)
due to his conviction for aggravated indecent assault. See 42 Pa.C.S.
§ 9799.55(b)(2)(i)(A).
Specifically, Appellant received the following sentence: count 1 aggravated
indecent assault (H.M.), three to ten years of incarceration; count 2 corruption
of minors (H.M.), a concurrent term of one to seven years of incarceration;
count 3 corruption of minors (K.W.), a concurrent term of one to seven years
of incarceration; count 4 unlawful contact with a minor (H.M.), one to five
years of incarceration consecutive to count 1; count 6, indecent assault
(H.M.), six months to two years of incarceration consecutive to count one.
See N.T. Sentencing Hearing, 10/3/22, at 28.
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at 21.
No Contact: Defendant to have no contact with the victim
whatsoever.
o Contact – Victim’s Family: Defendant is to have no contact
with the victim’s family.
See Sentencing Order, 10/5/22. Appellant did not file a post-sentence
motion. Instead, this timely appeal followed. Both the trial court and
Appellant have complied with the mandates of Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
id the trial court err in ordering, as a condition of [Appellant’s]
state sentence, that he could have no contact with the victims or
their families, where the court had no jurisdiction to impose this
condition, as the Pennsylvania Department of Corrections has
exclusive authority over state prison conditions, and the
Pennsylvania Department of Probation and Parole has exclusive
authority over state parole conditions?
Appellant’s brief at 5.
Initially, we observe that “[t]he matter of whether the trial court
possesses the authority to impose a particular sentence is a matter of legality
[of the sentence].” Commonwealth v. Dennis, 164 A.3d 503, 510 (Pa.
Super. 2017) (citation and quotation marks omitted). Furthermore,
he 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
plenary and is limited to determining whether the trial court
committed an error of law.
Commonwealth v. Leverette, 911 A.2d 998, 1001–1002 (Pa.Super. 2006)
(internal citations omitted).
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Appellant contends that the trial court did not have the authority to
impose a condition that Appellant have no contact with the victims or their
families. See Appellant’s brief at 9-10. We agree.
This Court has held that where the trial court imposes a maximum
imprisonment sentence of two or more years, the Pennsylvania Board of
Probation and Parole (“PBPP”) has exclusive authority over the terms of the
defendant’s parole. See 61 Pa.C.S. § 6132(a); see also Commonwealth v.
Coulverson, 34 A.3d 135, 141 (Pa.Super. 2011) (recognizing “that ‘the
[PBPP] has exclusive authority to determine parole when the offender is
sentenced to a maximum term of imprisonment of two or more years’”)
(quoting Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa.Super. 2009)).
Further, the authority to impose a non-contact provision as a special condition
of a defendant’s state incarceration rests with the Pennsylvania Department
of Corrections (“DOC”). See Commonwealth v. Olivo-Vazquez, 248 A.3d
463 (Pa.Super. 2021) (non-precedential decision at *4) (finding the trial court
lacked statutory authority to impose a non-contact provision as part of an
appellant’s state incarceration sentence). Therefore, a trial court does not
have statutory authority to impose conditions on a sentence of incarceration
that exceeds two years, and “‘any condition the sentencing court purport[s]
to impose on [a defendant’s] state parole is advisory only.’” Coulverson,
supra at 141-42; see also 61 Pa.C.S. § 6134(b)(1), (2).
Herein, the trial court imposed a sentence of imprisonment greater than
two years, giving the DOC and PBPP exclusive authority over the terms of his
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incarceration and parole. See Coulverson, supra at 141; see also Olivo-
Vazquez, supra at non-precedential decision *4. Therefore, the sentencing
court lacked statutory authority to impose incarceration and parole conditions
upon Appellant. Id. In its Rule 1925(a) opinion, the trial court acknowledges
the illegality of the sentence it issued, explaining that the conditions
referenced by the court during sentencing were intended to be advisory to the
PBPP and that the sentencing order stating otherwise amounted to an
“unfortunate discrepancy.” Trial Court Opinion, 12/7/22, at 5-6. Whatever
the reason, no statutory authority exists for the court to impose such a
condition.
However, the trial court does have the ability to make recommendations
as to the conditions of Appellant’s supervision, and it clearly intended to do so
in this case. See 61 Pa.C.S. § 6134; Trial Court Opinion, 12/7/22, at 5.
Accordingly, we vacate the October 3, 2022 sentencing order and remand for
the trial court to enter an order stating its recommendation to the DOC and
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PBPP.
Sentencing order vacated.
Case remanded with
instructions.
Jurisdiction relinquished.
udgment Entered.
oseph D. Seletyn, Esq.
Prothonotary
ate: 3/21/2023
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