Nonetheless, a sentencing court cannot impose a new split sentence of incarceration and probation where the period of incarceration and period of probation together exceed the statutory maximum. Commonwealth v. Perkins, 448 A.2d 70, 72 (Pa. Super. 1982); Commonwealth v. Crump, 995 A.2d 1280, 1283-84 (Pa. Super. 2010). As long as the new sentence does not exceed the statutory maximum when factoring in the time the defendant has already served, the sentence will not be deemed illegal.
When determining the lawful maximum allowable on a split sentence, the time originally imposed cannot exceed the statutory maximum. See 42 Pa.C.S. § 9754; 42 Pa.C.S. § 9756; Commonwealth v. Nickens, 259 Pa.Super. 143, 393 A.2d 758, 759 (1978); Commonwealth v. Perkins, 302 Pa.Super. 12, 448 A.2d 70 (1982). Thus, where the maximum is ten years, a defendant cannot receive a term of incarceration of three to six years followed by five years probation.
Accordingly, for penalty purposes, the conspiracy conviction is tantamount to a conviction for retail theft. See Commonwealth v. Perkins, 448 A.2d 70, 72 (Pa. Super. 1982) (explaining that "criminal conspiracy in any one particular criminal incident is the same grade offense as the most serious offense which is the object of the conspiracy"). Furthermore, we agree with the Commonwealth and the trial court that Commonwealth v. Gibson, 668 A.2d 552 (Pa. Super. 1995), is supportive of this determination.
¶ 13 When determining the lawful maximum allowable on a split sentence, the time originally imposed cannot exceed the statutory maximum. See 42 Pa.C.S. § 9754; 42 Pa.C.S. 9756; Commonwealthv. Nickens, 259 Pa.Super. 143, 393 A.2d 758, 759 (1978); Commonwealth v. Perkins, 302 Pa.Super. 12, 448 A.2d 70 (1982). Thus, where the maximum is ten years, a defendant cannot receive a term of incarceration of three to six years followed by five years probation.
(a) Grading. — Except as otherwise provided in this title, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. As the Commonwealth itself concedes (Brief for Commonwealth, at 13-14), the two cases cited by the trial court to support its conclusion — Commonwealth v. Major, 377 Pa. Super. 282, 547 A.2d 370 (1988) and Commonwealth v. Perkins, 302 Pa. Super. 12, 448 A.2d 70 (1982) — do not address the precise situation presented herein. ¶ 24 The conspiracy count of the information, which we have quoted above, appears to encompass both underlying crimes as objects of the conspiracy.
Criminal conspiracy is the same grade offense as the most serious offense which is the object of the conspiracy. 18 Pa.C.S.A. § 905. Commonwealthv. Perkins, 302 Pa. Super. 12, 17, 448 A.2d 70, 72-3 (1982). Judgment of Sentence is affirmed.
Commonwealth v. Hodge, 246 Pa. Super. 71, 82, 369 A.2d 815, 820 (1977), quoting Commonwealth v. Foster, 229 Pa. Super. 269, 271, 324 A.2d 538, 539 (1974). Accord: Commonwealth v. Perkins, 302 Pa. Super. 12, 18-19, 448 A.2d 70, 73 (1982); Commonwealth v. Gallagher, 296 Pa. Super. 382, 442 A.2d 820 (1982); Commonwealth v. Evans, 254 Pa. Super. 93, 96, 385 A.2d 540, 542 (1978); Commonwealth v.Green, 232 Pa. Super. 555, 557-558, 335 A.2d 392, 393 (1975); See also: Commonwealth v. Thomas, 219 Pa. Super. 22, 28, 280 A.2d 651, 654 (1971). In the instant case, the sentencing judge initially pronounced concurrent judgments of sentence of imprisonment of four (4) to ten (10) years on all bills. After defense counsel suggested that the sentences as imposed on the convictions for assault and battery and aggravated assault and battery were in excess of the statutory maximums, the sentencing judge agreed to "put [appellant] on probation on the other bills for a period of three years."