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2021 PA Super 166
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID SIMMONS :
:
Appellant : No. 2461 EDA 2018
Appeal from the Judgment of Sentence Entered July 18, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004160-2017
BEFORE: BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
OPINION BY OLSON, J.: FILED AUGUST 18, 2021
Appellant, David Simmons, appeals from the judgment of sentence
entered on July 18, 2018. We vacate Appellant’s judgment of sentence and
remand.
Appellant pleaded guilty to firearms not to be carried without a license
and carrying firearms on the public streets of Philadelphia.1 On December 18,
2017, the trial court sentenced Appellant to serve a term of six to 23 months
in jail, followed by three years of probation, for his convictions. Sentencing
Order, 12/18/17, at 1.
On February 19, 2018, Appellant was arrested and charged, at a
separate docket number, with firearms not to be carried without a license and
possession of a controlled substance.2 See Docket Number:
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1 18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.
2 18 Pa.C.S.A. § 6106(a)(1) and 35 P.S. § 780-113(a)(16), respectively.
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CP-51-CR-0003561-2018 (“3561-2018”). The arrest occurred while Appellant
was on parole in this case and before the term of probation in this case had
begun. See N.T. Resentencing Hearing, 7/18/18, at 27.
On July 18, 2018, Appellant pleaded guilty to firearms not to be carried
without a license and possession of a controlled substance at docket number
3561-2018 and the trial court sentenced Appellant to serve six to 23 months
in jail, followed by three years of probation, for those convictions. N.T.
Sentencing Hearing, 7/18/18, at 24.
As a result of Appellant’s convictions at docket number 3561-2018, the
trial court in the case at bar revoked Appellant’s parole, anticipatorily revoked
Appellant’s probation, and resentenced Appellant to serve a term of two and
one-half to five years in prison. N.T. Resentencing Hearing, 7/18/18, at 27
and 35; Sentencing Order, 7/18/18, at 1. Appellant filed a timely notice of
appeal and, after we initially affirmed Appellant’s judgment of sentence,
Appellant filed an application for reargument en banc. We granted Appellant’s
application, withdrew the prior panel decision, and listed the case for en banc
consideration. Appellant now raises the following claim to this Court:
When the [trial] court revoked parole for a violation [resulting
from new convictions,] did not the court lack authority under
Pennsylvania law to also revoke a consecutive sentence of
probation that [Appellant] had not yet begun to serve?
Appellant’s Brief at 4.
“[I]n an appeal from a sentence imposed after the court has revoked
probation, we can review the validity of the revocation proceedings, the
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legality of the sentence imposed following revocation, and any challenge to
the discretionary aspects of the sentence imposed.” Commonwealth v.
Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (citation omitted). On appeal,
Appellant claims that the trial court erred when it found he violated a condition
of an order of probation that, by its terms, had not yet commenced.
Intertwined with this claim, Appellant also argues that, to the extent the trial
court amended his original order of probation to run concurrently, rather than
consecutively, the trial court illegally modified his sentence, as the trial court
did not have jurisdiction to modify his sentence more than 30 days after
imposition. Appellant’s Brief at 10-25; see also Commonwealth v. Bischof,
616 A.2d 6, 10 (Pa. Super. 1992) (“a modification of a sentence imposed on
a criminal defendant which increases the punishment constitutes further or
double jeopardy”) (quotations and citations omitted); Commonwealth v.
Everett,
419 A.2d 793, 794 (Pa. Super. 1980) (“[s]ince the original [order
of] probation was illegal, the sentence of imprisonment imposed for violation
of that probation was illegal”). Appellant’s claims fall within our scope of
review, as they contend that the trial court lacked statutory authority to
revoke his probation, that the trial court illegally modified his underlying
sentence, and that his resulting sentence is illegal. We may thus consider the
merits of Appellant’s claims.3
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3Within his Pennsylvania Rule of Appellate Procedure 1925(b) statement,
Appellant raised discretionary aspects of sentencing claims. A three-judge
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Resolution of Appellant’s claims require that we interpret various
statutes. “Statutory interpretation is a question of law and therefore our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Peck, 242 A.3d 1274, 1278 (Pa. 2020). Regarding our
principles of statutory interpretation, our Supreme Court has explained:
Our task is guided by the sound and settled principles set
forth in the Statutory Construction Act, including the primary
maxim that the object of statutory construction is to ascertain
and effectuate legislative intent. 1 Pa.C.S. § 1921(a). In
pursuing that end, we are mindful that “[w]hen the words of
a statute are clear and free from all ambiguity, the letter of
it is not to be disregarded under the pretext of pursuing its
spirit.” 1 Pa.C.S. § 1921(b). Indeed, as a general rule, the
best indication of legislative intent is the plain language of a
statute. In reading the plain language, “[w]ords and phrases
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panel held that the claims failed and affirmed Appellant’s judgment of
sentence. Appellant then filed an application for reargument, where he
claimed that the trial court did not have statutory authority to revoke a
consecutive order of probation before it began and, to the extent the trial
court changed the original order of probation from “consecutive” to
“concurrent,” the trial court illegally modified his sentence. Further, Appellant
argued that, since his claim concerned the legality of his sentence, he did not
need to preserve the issue below. See Appellant’s Application for
Reargument, 11/25/19, at 3-14. The Commonwealth filed a response to the
application and did not claim that Appellant waived any portion of his issues.
Commonwealth’s Letter in Lieu of Answer, 11/26/19, at 1. We then granted
reargument and, in its substituted brief, the Commonwealth does not claim
that Appellant waived his issues. See Commonwealth’s Brief at 1-31.
As previously noted, Appellant’s claims before this Court are necessarily
intertwined and, together, challenge the legality of his sentence. Although
Appellant did not raise his claims before the trial court, we may consider these
claims on appeal, as “challenges to an illegal sentence can never be waived
and may be raised sua sponte by this Court.” Commonwealth v. Tanner,
61 A.3d 1043, 1046 (Pa. Super. 2013) (quotations and citations omitted).
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shall be construed according to rules of grammar and
according to their common and approved usage,” while any
words or phrases that have acquired a “peculiar and
appropriate meaning” must be construed according to that
meaning. 1 Pa.C.S. § 1903(a). However, when interpreting
non-explicit statutory text, legislative intent may be gleaned
from a variety of factors, including, inter alia: the occasion
and necessity for the statute; the mischief to be remedied;
the object to be attained; the consequences of a particular
interpretation; and the contemporaneous legislative history.
1 Pa.C.S. § 1921(c). Moreover, while statutes generally
should be construed liberally, penal statutes are always to be
construed strictly, 1 Pa.C.S. § 1928(b)(1), and any ambiguity
in a penal statute should be interpreted in favor of the
defendant.
Notwithstanding the primacy of the plain meaning doctrine as
best [representation] of legislative intent, the rules of
construction offer several important qualifying precepts. For
instance, the Statutory Construction Act also states that, in
ascertaining legislative intent, courts may apply, inter alia,
the following presumptions: that the legislature does not
intend a result that is absurd, impossible of execution, or
unreasonable; and that the legislature intends the entire
statute to be effective and certain. 1 Pa.C.S. § 1922(1), (2).
Most importantly, the General Assembly has made clear that
the rules of construction are not to be applied where they
would result in a construction inconsistent with the manifest
intent of the General Assembly. 1 Pa.C.S. § 1901.
Commonwealth v. Shiffler, 879 A.2d 185, 189-190 (Pa. 2005) (some
quotations, citations, and corrections omitted).
The statutes that govern the imposition and revocation of an order of
probation are penal in nature and, as such, “must be strictly construed.” 1
Pa.C.S.A. § 1928(b)(1); see also Commonwealth v. Hudson, 231 A.3d
974, 978 (Pa. Super. 2020) (“[s]ince [the statute governing imposition of an
order of probation] is a penal statute, we must strictly construe this
provision”); Commonwealth v. Harner,
617 A.2d 702, 704 (Pa. 1992) (“an
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order placing a defendant on probation must be regarded as punishment for
double jeopardy purposes”); Commonwealth v. Nicely, 638 A.2d 213, 217
(Pa. 1994) (“[i]f there is a judicial determination that a probation violation has
occurred, a sentence may be imposed and judgment at that point becomes
final”); see also Nesbit v. Clark,
116 A. 404, 407 (Pa. 1922) (“[a] penal
statute is one which imposes a penalty or forfeiture for transgressing its
provisions, or for doing a thing prohibited, and it is none the less a penal
statute [even though] it is also remedial”) (quotations and citations omitted).
As our Supreme Court has explained, the principle of strict construction
“does not require that [we] give the words of a statute their ‘narrowest
possible meaning,’ nor does it override the general principle that the words of
a statute must be construed according to their common and approved usage.”
Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011) (some quotations and
citations omitted). “Rather, where doubt exists concerning the proper scope
of a penal statute, it is the accused who should receive the benefit of such
doubt.”
Id. (quotations and citations omitted).
We initially set forth the statutes governing the imposition and
revocation of an order of probation, as those statutes existed at the time
Appellant’s probation was imposed and revoked. To this end, we recite the
relevant portions of Sections 9721, 9754, and 9771 of the Sentencing Code,
prior to their amendments in December 2019.
Section 9721 of the Sentencing Code is entitled “[s]entencing
generally.” Section 9721(a) declares:
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(a) General rule.--In determining the sentence to be imposed
the court shall . . . consider and select one or more of the
following alternatives, and may impose them consecutively
or concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine. . . .
42 Pa.C.S.A. § 9721(a) (effective September 4, 2012 to December 17, 2019).
Section 9754, entitled “[o]rder of probation,” goes on to declare that,
“[i]n imposing an order of probation the court shall specify at the time of
sentencing the length of any term during which the defendant is to be
supervised, which term may not exceed the maximum term for which the
defendant could be confined, and the authority that shall conduct the
supervision.” 42 Pa.C.S.A. § 9754(a) (effective to December 17, 2019).
Regarding the conditions of probation, Section 9754(b) and (c) declare:
(b) Conditions generally.--The court shall attach such of the
reasonable conditions authorized by subsection (c) of this
section as it deems necessary to insure or assist the
defendant in leading a law-abiding life.
(c) Specific conditions.--The court may as a condition of its
order require the defendant:
(1) To meet his family responsibilities.
(2) To devote himself to a specific occupation or
employment.
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(2.1) To participate in a public or nonprofit community
service program unless the defendant was convicted of
murder, rape, aggravated assault, arson, theft by
extortion, terroristic threats, robbery or kidnapping.
(3) To undergo available medical or psychiatric treatment
and to enter and remain in a specified institution, when
required for that purpose.
(4) To pursue a prescribed secular course of study or
vocational training.
(5) To attend or reside in a facility established for the
instruction, recreation, or residence of persons on
probation.
(6) To refrain from frequenting unlawful or disreputable
places or consorting with disreputable persons.
(7) To have in his possession no firearm or other
dangerous weapon unless granted written permission.
(8) To make restitution of the fruits of his crime or to
make reparations, in an amount he can afford to pay, for
the loss or damage caused thereby.
(9) To remain within the jurisdiction of the court and to
notify the court or the probation officer of any change in
his address or his employment.
(10) To report as directed to the court or the probation
officer and to permit the probation officer to visit his
home.
(11) To pay such fine as has been imposed.
(12) To participate in drug or alcohol treatment programs.
(13) To satisfy any other conditions reasonably related to
the rehabilitation of the defendant and not unduly
restrictive of his liberty or incompatible with his freedom
of conscience.
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(14) To remain within the premises of his residence
during the hours designated by the court.
42 Pa.C.S.A. § 9754 (effective to December 17, 2019).
Finally, Section 9771 sets forth the rules for “[m]odification or
revocation of [an] order of probation.” It declares:
(a) General rule.--The court may at any time terminate
continued supervision or lessen or increase the conditions
upon which an order of probation has been imposed.
(b) Revocation.--The court may revoke an order of probation
upon proof of the violation of specified conditions of the
probation. Upon revocation the sentencing alternatives
available to the court shall be the same as were available at
the time of initial sentencing, due consideration being given
to the time spent serving the order of probation.
(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.
(d) Hearing required.--There shall be no revocation or
increase of conditions of sentence under this section except
after a hearing at which the court shall consider the record of
the sentencing proceeding together with evidence of the
conduct of the defendant while on probation. Probation may
be eliminated or the term decreased without a hearing.
42 Pa.C.S.A. § 9771 (effective to December 17, 2019).
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As is relevant to the current appeal, the following principles may be
gleaned from both the plain language of the above statutes and from our
Supreme Court’s interpretation of the statutes. First, when sentencing a
defendant, the trial court is authorized to enter an “order of probation” and
the court may impose this order of probation “consecutively or concurrently.”
42 Pa.C.S.A. § 9721(a).
Second, the trial court “may as a condition of its order” require the
defendant to comply with certain, specific conditions of probation. 42
Pa.C.S.A. § 9754. Further, the Pennsylvania Supreme Court has held that a
“general condition” of any order of probation is “that the defendant lead a
law-abiding life, i.e., that the defendant refrain from committing another
crime.” Commonwealth v. Foster, 214 A.3d 1240, 1250 (Pa. 2019)
(quotations and citations omitted).
Third, the trial court “may at any time terminate continued supervision
or lessen or increase the conditions upon which an order of probation has been
imposed.” 42 Pa.C.S.A. § 9771(a). However, the trial court may only “revoke
an order of probation upon proof of the violation of specified conditions of the
probation.” 42 Pa.C.S.A. § 9771(b). Thus, as our Supreme Court has
explained, under the plain language of the statute:
[o]nly upon the violation of any of the ‘specified conditions’
in the probation order (general or specific) may a court
revoke the defendant's probation. In other words, a court
may find a defendant in violation of probation only if the
defendant has violated one of the ‘specific conditions’ of
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probation included in the probation order or has committed a
new crime.
Foster, 214 A.3d at 1250.
The question in this case concerns when “the ‘specified conditions’ in
the probation order” become active and enforceable against the defendant.
For over forty years, three-judge panels of this Court have held that a
defendant may prospectively violate the conditions of a probationary order by
committing a new crime after sentencing, but before the commencement of
their probationary period. This line of precedent began with Commonwealth
v. Wendowski, 420 A.2d 628 (Pa. Super. 1980).
In Wendowski, Mr. Wendowski was convicted of a variety of crimes
and sentenced to serve a term of imprisonment, followed by a term of
probation. When Mr. Wendowski was on parole, he pleaded guilty to a new
offense. As a result, the trial court revoked Mr. Wendowski’s probation, even
though his probationary term had not yet begun. Id. at 629. Mr. Wendowski
appealed to this Court and claimed that, “since he was not actually serving
the probation . . . on the day it was revoked, the revocation was an
unconstitutional augmentation of [his] sentence.”
Id. We held that Mr.
Wendowski’s claim failed.
In analyzing Mr. Wendowski’s claim, we held that, “for revocation
purposes,” the phrase “term of probation” must “include[e] the term
beginning at the time probation is granted.” Id. at 630, quoting Wright v.
United States,
315 A.2d 839, 841-842 (D.C.App. 1974). The Wendowski
Court did not cite any statutory language to support this proposition. Instead,
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we held that public policy required this broad definition because, “[o]therwise,
having been granted probation a defendant could commit criminal acts with
impunity – as far as revocation of probation is concerned – until he
commenced actual service of the probationary period.” Wendowski, 420
A.2d at 630, quoting Wright,
315 A.2d at 841-842.
The Wendowski Court then quoted a concurring opinion from Judge
Curtis Waller, of the United States Court of Appeals for the Fifth Circuit, and
held:
If, at any time before the defendant has completed the
maximum period of probation, or before he has begun service
of his probation, he should commit offenses of such nature
as to demonstrate to the court that he is unworthy of
probation and that the granting of the same would not be in
subservience to the ends of justice and the best interests of
the public, or the defendant, the court could revoke or change
the order of probation. A defendant on probation has no
contract with the court. He is still a person convicted of
crime, and the expressed intent of the Court to have him
under probation beginning at a future time does not change
his position from the possession of a privilege to the
enjoyment of a right.
Wendowski, 420 A.2d at 630, quoting James v. United States,
140 F.2d
392, 394 (5th Cir. 1944) (Waller, J., concurring) (quotations and citations
omitted).
The Wendowski Court thus held that the trial court properly revoked
Mr. Wendowski’s probation for committing a new crime, even though Mr.
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Wendowski’s probationary period had not yet commenced at the time he
committed the crime.4 Wendowski, 420 A.2d at 630.
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4 In support of its holding, the Wendowski Court cited the Pennsylvania
Supreme Court’s opinion in Commonwealth v. Vivian,
231 A.2d 301 (Pa.
1967). In Vivian, Mr. Vivian was sentenced to serve five years of probation
in one case and “one year’s probation in each [of four other cases, with] . . .
[a]ll periods of probation [] run consecutively.”
Id. at 305. One of the
conditions of Mr. Vivian’s probation “was that [he] would be examined
immediately by a psychiatrist and that [the psychiatrist] recommend that
probation was a proper and safe procedure.”
Id. at 306. Nine days later, Mr.
Vivian again appeared before the trial court. At this hearing, the trial court
received reports from psychiatrists who “strongly opposed” probation for Mr.
Vivian. “After a consideration of these findings,” the trial court concluded that
Mr. Vivian had failed to meet the condition that a psychiatrist “recommend
that probation [is] a proper and safe procedure.”
Id. at 306. Therefore, the
trial court “change[d] its order of probation and impose[d] a prison sentence”
on all of Mr. Vivian’s probationary terms.
Id.
Mr. Vivian appealed and claimed that his new sentence violated “the
proscription against double jeopardy included in the Fifth Amendment to the
United States Constitution.”
Id. The Pennsylvania Supreme Court held that,
since Mr. Vivian failed to meet the initial condition that “a psychiatrist . . .
recommend that probation was a proper and safe procedure . . . , the trial
court in its discretion had the right to change its order of probation and impose
a prison sentence without violating the proscription against double jeopardy.”
Id.
It is true that, in Vivian, the trial court revoked a term of probation that Mr.
Vivian was then serving and four other probationary terms that Mr. Vivian had
not yet begun to serve. Further, the Pennsylvania Supreme Court affirmed
Mr. Vivian’s judgment of sentence. However, our Supreme Court’s opinion in
Vivian did not compel Wendowski’s holding, nor does it compel ours. To be
sure, Mr. Vivian did not raise – and the Supreme Court did not review – any
specific claim related to whether the trial court had the authority to revoke a
probationary term that not yet commenced. The issue was simply not before
the Court. See Thomas Jefferson Univ. Hosps., Inc. v. Pa. Dep’t of
Labor & Indus.,
162 A.3d 384, 394 (Pa. 2017) (“what is actually decided and
controlling is the law applicable to the particular facts of that particular case”)
(quotations and citations omitted). Certainly, the Wendowski Court was well
(Footnote Continued Next Page)
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This Court followed Wendowski’s holding in the intervening years. See
Commonwealth v. Dickins, 475 A.2d 141, 144 (Pa. Super. 1984) (following
Wendowski and holding that “[t]he fact that appellant had not commenced
serving probation when the new [criminal] offense occurred did not prevent
the court from revoking its prior order placing appellant on probation. . . . If
the new offense is committed at any time before the maximum period of
probation has been completed, probation may be revoked”); Commonwealth
v. Miller,
516 A.2d 1263, 1265 (Pa. Super. 1986) (holding that Wendowski
and Dickens were correctly decided because “[t]o suggest, as appellant does,
that a defendant is free to commit unlimited additional crimes without in any
way impairing or endangering a previously imposed sentence of probation
merely because the probationary period has not commenced is to suggest an
absurdity in the statute which this Court is not prepared to create”), appeal
denied,
528 A.2d 956 (Pa. 1987); Commonwealth v. Ware,
737 A.2d 251,
253 (Pa. Super. 1999) (following Wendowski and Dickens and holding “the
court had the authority to revoke appellant's probation despite the fact that,
at the time of revocation of probation, appellant had not yet begun to serve
the probationary portion of her split sentence and even though the [criminal]
offense upon which revocation of probation was based occurred during the
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aware of the fact that Vivian did not bind its hands – the Wendowski Court
specifically declared that the issue of whether a court may anticipatorily
revoke a defendant’s probation “has not been directly dealt with by our
appellate courts.” Wendowski,
420 A.2d at 630.
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parole period and not the probationary period”), appeal denied, 747 A.2d 900
(Pa. 1999); Commonwealth v. Castro,
856 A.2d 178, 180 n.1 (Pa. Super.
2004) (“[the defendant] was found in violation of his parole, which he was
serving at the time of his arrest, and in anticipatory violation of his probation,
which had not yet begun to run. Such a finding is proper”); Commonwealth
v. Mitchell,
955 A.2d 433, 435 n.2 (Pa. Super. 2008) (“[u]nder Pennsylvania
law, an order of probation can be changed or revoked if, at any time before
the defendant has completed the maximum period of probation, or before he
has begun service of his probation the defendant commits offenses or
otherwise demonstrates he is unworthy of probation. . . . Here, [the
defendant] had not yet begun to serve his probationary sentence when he
committed new criminal offenses. Nevertheless, these new offenses rendered
[the defendant] subject to revocation of probation and re-sentencing”), appeal
denied,
964 A.2d 894 (Pa. 2009).
To the extent any of the above cases cited to the relevant statutes, the
statutory discussion and interpretation was minimal – which is, obviously,
understandable, given that Wendowski constituted clear, binding precedent
for all of the petite panels adjudicating the foregoing appeals.
Commonwealth v. Taggert, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010)
(“one three-judge panel of [the Superior] Court cannot overrule another”
three-judge panel).
We further note that, in Commonwealth v. Hoover, 909 A.2d 321 (Pa.
Super. 2006), this Court expanded Wendowski’s holding to cover a situation
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where the trial court prospectively revoked the defendant’s probation for “a
violation of a work release rule” – and not for the commission of a new crime.
Hoover, 909 A.2d at 324. Hoover held that the trial court acted properly
because:
[a]lthough [the defendant] herein did not, strictly speaking,
violate the law by becoming intoxicated, he clearly violated
the terms of his work release and “demonstrate[d] to the
court that he is unworthy of probation and that the granting
of the same would not be in subservience to the ends of
justice [or] the best interests of the public.”
Id.;5 see also Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super.
2000) (declaring: “we note that [the defendant] does not dispute that the
sentencing court had the authority to revoke her probation despite the fact
that she was on parole at the time [she committed the alleged technical
probation violations] and had not yet begun her probationary term. Indeed,
it is clear that the court has this power”); Commonwealth v. Allshouse,
33
A.3d 31, 39 (Pa. Super. 2011) (holding that the trial court was authorized to
prospectively revoke the defendant’s probation for “a technical violation”
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5 In holding that revocation is proper where a defendant “demonstrate[s] to
the court that he is unworthy of probation,” the Hoover Court further
departed from the relevant statutory text. Simply stated, a probation violation
can only occur where the defendant violates the “specified conditions” of his
or her probation. 42 Pa.C.S.A. § 9771(b) (“[t]he court may . . . revoke an
order of probation upon proof of the violation of specified conditions of
the probation”) (emphasis added); Foster, 214 A.3d at 1250 (“[w]e find the
language of the pertinent statutory provisions to be clear and unambiguous.
. . . Only upon the violation of any of the ‘specified conditions’ in the probation
order (general or specific) may a court revoke the defendant's probation”).
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because, “[a]s in Wendowski, [the defendant’s] probation was revoked prior
to its commencement on the basis that [the defendant] was a danger to
society and, therefore, unworthy of probation”), appeal denied, 49 A.3d 441
(Pa. 2012).
On appeal, Appellant asks this Court to overrule Wendowski and its
progeny, as those cases “cannot bear scrutiny when examined in light of the
relevant statutes that are controlling on the issue of whether a consecutively
imposed term of probation may be revoked for conduct while the defendant is
not on probation.” Appellant’s Brief at 11. Of note, Appellant argues that, at
sentencing, 42 Pa.C.S.A. § 9721(a) authorized the trial court to enter an order
of probation and to impose that order “consecutively or concurrently.” See
Appellant’s Brief at 16. Appellant points out, however, “[t]here is no authority
to impose a sentence that is both concurrent and consecutive to another
sentence.” Id. at 17 (emphasis omitted).
In this case, the trial court specifically imposed Appellant’s order of
probation consecutive to a term of imprisonment. Further, Appellant
committed new criminal offenses, and was convicted of the new criminal
charges, while he was on parole in this case and before his term of probation
commenced. Appellant argues that, under the plain language of our statutes,
he could not have violated a “specified condition” of his probation before his
probationary period actually began. For this reason, Appellant asserts that
the trial court lacked statutory authority to revoke his probation. Appellant
also argues that, to the extent the trial court amended his original order of
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probation to run concurrently, rather than consecutively, his resulting
sentence is illegal, as the trial court did not have jurisdiction to modify his
sentence beyond 30 days after imposition. Id. at 24-25.
The Commonwealth, on the other hand, argues that Wendowski was
properly decided. Specifically, the Commonwealth argues, Wendowski
correctly concluded that the term “probation,” as used in the revocation
statute, was ambiguous and that, “for revocation purposes, ‘probation’ had
been defined through practice and persuasive authority as beginning when the
probationary term is imposed, not when it begins to run.” Commonwealth’s
Brief at 12.
The Commonwealth also argues that the doctrine of stare decisis and
the presumption of legislative acquiescence support upholding Wendowski.
With respect to the doctrine of stare decisis, the Commonwealth notes that
this Court has followed Wendowski for over forty years and we should,
obviously, “hesitate to overturn forty years of settled case law.” Id. at 18.
Further, as to the presumption of legislative acquiescence, the Commonwealth
notes that, during the forty years following Wendowski, the General
Assembly has amended the probation revocation statute twice, “with no
rejection of [Wendowski’s] interpretation” of the statute. Thus, the
Commonwealth claims, there is a statutory presumption that Wendowski’s
interpretation “was in accordance with the legislative intent; otherwise the
General Assembly would have changed the law in a subsequent amendment.”
Id. at 16 (quotations and citations omitted).
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We conclude that the holding of Wendowski and its progeny
contravene the plain language of the relevant statutes. As such, Wendowski
and its progeny are overruled.
As noted above, when sentencing a defendant, Section 9721(a)
authorizes a trial court to enter an “order of probation;” the section declares
that the court may impose this order of probation “consecutively or
concurrently.” 42 Pa.C.S.A. § 9721(a). During sentencing in the case at bar,
the trial court entered an order of probation and imposed that order
consecutively to a term of total confinement. See Sentencing Order,
12/18/17, at 1-2. The word “consecutive” plainly means “one after the other.”
See 6 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 26.3(f). Thus, under the
plain language of the sentencing order, Appellant was required to serve his
entire term of total confinement before he began to serve his probationary
term. Yet, when Appellant committed the new crimes that served as the basis
for his probation revocation, he was still on parole and had not yet begun to
serve his period of probation. See Hudson v. Pa. Bd. of Prob. & Parole,
204 A.3d 392, 396 (Pa. 2019) (“the actual sentence of a prisoner subject to
total confinement is his maximum sentence, and his minimum sentence
merely sets the time after which he is eligible to serve the remainder of his
sentence on parole”).
Section 9771(b) permits revocation of an order of probation “upon proof
of the violation of specified conditions of the probation.” 42 Pa.C.S.A.
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§ 9771(b). However, the “specified conditions” of Appellant’s probation did
not commence before Appellant began to serve his probationary sentence.
With respect to the conditions of probation, Section 9754 declares that
the trial court “may as a condition of its order” of probation require the
defendant to comply with certain, specific conditions of probation. 42
Pa.C.S.A. § 9754. Under our Supreme Court’s precedent, a “general
condition” of any order of probation is “that the defendant lead a law-abiding
life, i.e., that the defendant refrain from committing another crime.” Foster,
214 A.3d at 1250 (quotations and citations omitted). Thus, under Section
9754, every condition of probation – whether “specific” or “general” – attaches
to, or is a part of, the order of probation. See id. (“[o]nly upon the violation
of any of the ‘specified conditions’ in the probation order (general or
specific) may a court revoke the defendant’s probation”) (emphasis added).
And, if the “order of probation” is imposed “consecutively” to a term of
imprisonment, the “order of probation” and the conditions of that order cannot
take effect until the term of imprisonment ends. This view is mandated by
the plain language of the statutes. Indeed, any other view is statutorily
untenable.
First, it cannot be argued that the “specified conditions” in an order of
probation attach to a term of imprisonment. To be sure, the plain terms of
Section 9754 only permit the trial court to attach “conditions of probation” to
an “order of probation.” See 42 Pa.C.S.A. § 9754(c) (“[t]he court may as a
condition of its order require the defendant . . .”) (emphasis added).
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Nothing in the Sentencing Code permits a trial court to attach conditions of
probation to a term of total confinement. See 42 Pa.C.S.A. § 9756 (imposition
of a sentence of total confinement); see also Commonwealth v. Thier, 663
A.2d 225 (Pa. Super. 1995) (holding that the trial court could not impose a
condition of probation upon the defendant, as “[n]o probationary sentence
was imposed in the present case”). Further, as to the “general condition” that
the defendant “refrain from committing another crime,” our Supreme Court
has declared that this, too, is a part of the order of probation. Foster, 214
A.3d at 1250 (“[o]nly upon the violation of any of the ‘specified conditions’ in
the probation order (general or specific) may a court revoke the defendant's
probation”) (emphasis added).
Second, under our statutes, no part of the trial court’s order of probation
could have commenced during Appellant’s term of imprisonment or parole.
Certainly, Section 9721(a) declares that a trial court may enter an “order of
probation” at sentencing and may impose this “order of probation”
“consecutively or concurrently.” 42 Pa.C.S.A. § 9721(a). Under the plain
language of Section 9721(a), when the trial court imposed Appellant’s order
of probation consecutively, the entirety of Appellant’s order of probation was
imposed consecutively.
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Moreover, nothing in the Sentencing Code permits a consecutive order
of probation to be aggregated with a sentence of total confinement.6 Rather,
42 Pa.C.S.A. § 9757 – regarding aggregation of sentences – only applies to
“consecutive sentences of total confinement.” 42 Pa.C.S.A. § 9757 (emphasis
added).7 An order of probation is, obviously, not a sentence of “total
confinement.” See 42 Pa.C.S.A. § 9721(a) (distinguishing between “[a]n
order of probation” and “[t]otal confinement”); see also Commonwealth v.
Kates, 305 A.2d 701, 708 (Pa. 1973) (“the basic objective of probation is to
provide a means to achieve rehabilitation without resorting to incarceration”);
____________________________________________
6 Aggregation of sentences is:
the combining of multiple consecutive sentences of total
confinement and treating them as if they were a single
sentence. The minimum sentences are added together to
arrive at an aggregated minimum sentence while the
maximum sentences are added together to arrive at an
aggregated maximum sentence.
12 West's Pa. Prac., Law of Probation & Parole § 4:9 (3d ed.).
7 42 Pa.C.S.A. § 9757, entitled “[c]onsecutive sentences of total confinement
for multiple offenses,” declares:
Whenever the court determines that a sentence should be
served consecutively to one being then imposed by the court,
or to one previously imposed, the court shall indicate the
minimum sentence to be served for the total of all offenses
with respect to which sentence is imposed. Such minimum
sentence shall not exceed one-half of the maximum sentence
imposed.
42 Pa.C.S.A. § 9757.
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Commonwealth v. Ostrosky, 866 A.2d 423, 430 (Pa. Super. 2005) (“[t]he
maxim, expressio unius est exclusio alterius, establishes the inference that,
where certain things are designated in a statute, all omissions should be
understood as exclusions”) (quotations and citations omitted). Therefore,
under the Sentencing Code, a sentence of total confinement and a consecutive
order of probation may not be aggregated and viewed as one.
Simply stated, Wendowski was incorrect in holding that a trial court
may anticipatorily revoke an order of probation and in reasoning that “a term
of probation may and should be construed for revocation purposes as including
the term beginning at the time probation is granted.” Wendowski, 420 A.2d
at 630 (quotations omitted). No statutory authority exists to support this
understanding. Rather, the plain language of the relevant statutes provides
that: a trial court may only revoke an order of probation “upon proof of the
violation of specified conditions of the probation;” the “specified conditions” of
an order of probation are attached to, or are a part of, the order of probation;
and, when the trial court imposes an “order of probation” consecutively to
another term, the entirety of the “order of probation” – including the “specified
conditions” – do not begin to commence until the prior term ends.8
____________________________________________
8 Our plain reading of the statute is bolstered by the definitions of “violation,”
“technical violation,” and “conviction violation” in the Resentencing Guidelines.
The Resentencing Guidelines define these terms as follows:
(Footnote Continued Next Page)
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____________________________________________
“Violation.” A finding by a court of record, following a hearing,
that the offender failed to comply with terms and
conditions of an order of probation.
“Technical violation.” Failure to comply with the terms
and conditions of an order of probation, other than
by the commission of a new offense of which the offender
is convicted in a court of record.
“Conviction violation.” Commission of a new offense
during the period of probation, resulting in a
conviction for a misdemeanor or felony in a court of
record, whether or not [judgment] of sentence has been
imposed.
204 Pa.Code § 307.1 (emphasis added) (effective January 1, 2021).
The Resentencing Guidelines were adopted by the Pennsylvania Commission
on Sentencing (“the Commission”) and were “not enacted as part of” the
Judicial Code. See id. at cmt. Nevertheless, the General Assembly mandated
that the Commission adopt guidelines for resentencing and the General
Assembly further declared that the Resentencing Guidelines “shall be
considered by the [trial] court when resentencing an offender following
revocation of probation.” 42 Pa.C.S.A. § 2154.4. Moreover, although the
Resentencing Guidelines took effect after the relevant events in the case at
bar, the above definitions provide further clarity that, under the plain language
of the statutes, the “specified conditions” of probation do not commence until
the defendant has begun to serve his period of probation. Indeed, regarding
a violation of the “specific conditions” of probation, the Resentencing
Guidelines clarify that the conditions are attached to the “order of probation;”
and, as explained above, at sentencing, the trial court must impose the entire
“order of probation” “consecutively or concurrently.” See 42 Pa.C.S.A.
§ 9721(a). Further, regarding the “general condition” that “the defendant
refrain from committing another crime,” the Resentencing Guidelines clarify
that a probation violation can only occur when the “[c]omission of [the] new
offense” occurs “during the period of probation.” 204 Pa.Code § 307.1
(emphasis added).
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Notwithstanding the plain language of the statutes, the Commonwealth
argues that the statutory presumption of legislative acquiescence favors
upholding Wendowski. According to the Commonwealth:
The General Assembly has been on notice of this Court’s
interpretation of § 9771 for decades and, despite amending
the statute twice in that time, has never changed the
operative language of the statute. It is well-established that
“[t]he failure of the General Assembly to change the law
which has been interpreted by the courts creates a
presumption that the interpretation was in accordance with
the legislative intent; otherwise the General Assembly would
have changed the law in a subsequent amendment.” Fonner
v. Shandon, Inc., 724 A.2d 903, 906 (Pa. 1999).
Commonwealth’s Brief at 16.
The Commonwealth’s argument fails. As explained above, “[t]he object
of all interpretation and construction of statutes is to ascertain and effectuate
the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a). “[A]s a
general rule, the best indication of legislative intent is the plain language of a
statute.” Shiffler, 879 A.2d at 189 (quotations and citations omitted).
Nevertheless, the rules of construction list certain, non-exclusive
presumptions that “may be used” to ascertain legislative intent. 1 Pa.C.S.A.
§ 1922. One of these presumptions is legislative acquiescence. The statute
declares:
In ascertaining the intention of the General Assembly in the
enactment of a statute the following presumptions, among
others, may be used:
...
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(4) That when a court of last resort has construed the
language used in a statute, the General Assembly in
subsequent statutes on the same subject matter intends
the same construction to be placed upon such language.
1 Pa.C.S.A. § 1922.
Wendowski was issued by a three-judge panel of this Court – not “a
court of last resort.” Nevertheless, in In re Estate of Lock, 244 A.2d 677
(Pa. 1968), the Pennsylvania Supreme Court extended the presumption of
legislative acquiescence to certain opinions from this Court. The Supreme
Court declared:
where a decision of the Superior Court construing a statute
was never modified by the Supreme Court, the presumption
was that when the legislature subsequently enacted a similar
statute dealing with the same subject matter, the legislature
intended the same construction to be placed on the language
of the subsequent statute.
In re Estate of Lock, 244 A.2d at 683.
Even though the presumption of legislative acquiescence extends to
Superior Court opinions, “[a]pplication of [the] presumption is discretionary,
not mandatory.” Commonwealth v. Small, 238 A.3d 1267, 1285 (Pa.
2020); 1 Pa.C.S.A. § 1922 (“[i]n ascertaining the intention of the General
Assembly in the enactment of a statute the following presumptions . . . may
be used”) (emphasis added). Further, our Supreme Court has explained that
the underlying rationale for applying the presumption of legislative
acquiescence is far weaker when dealing with Superior Court precedent, as
the presumption rests upon a rather dubious supposition. The Supreme Court
explained:
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This extension of § 1922(4) beyond its terms to encompass
lines of Superior Court precedent [the Pennsylvania Supreme
Court] has yet to disturb would seem to hinge at least in part
on the idea that [the Supreme Court’s] decision not to review
such cases is, itself, a form of acquiescence. But as [the
Supreme Court’s] then-Justice Samuel J. Roberts once
observed, “A denial [of allocatur] may merely reflect that the
particular controversy was not the proper vehicle for deciding
a question of law or that it was not presented in the proper
posture.” Hon. Samuel J. Roberts, Foreword, Pennsylvania
Supreme Court Review, 1980, 54 TEMPLE L.Q. 403, 407
(1981); cf. Commonwealth v. Tilghman, 673 A.2d 898,
904 (Pa. 1996) (“[A] dismissal [of a petition for allowance of
appeal] as being improvidently granted has the exact same
effect as if [the Supreme Court] had denied the petition for
allowance of appeal (allocatur) in the first place. Where [the
Supreme Court dismisses] an appeal as improvidently
granted, the lower tribunal's opinion and order stand as a
decision of that court and [the Supreme Court’s] order has
no precedential value”).
Commonwealth v. Dickson, 918 A.2d 95, 107 n.14 (Pa. 2007) (emphasis
and explanatory phrase omitted); see also Dickson,
918 A.2d at 110 (Cappy,
C.J., concurring) (agreeing with footnote 14 from the opinion and explaining:
“Estate of Lock's presumption regarding legislative intent hinges on the
existence of an intermediate court decision which has not been modified by
[the Supreme] Court. As noted by the Majority, this approach fails to
appreciate that [the Supreme Court’s] denial of allocatur of an intermediate
court decision is not an endorsement of or rejection of the intermediate
appellate court's decision”).
Wendowski held that a court may anticipatorily revoke an order of
probation when the defendant commits a new crime after sentencing, but
before the period of probation has begun. As explained above, this holding
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finds no support in our statutes and is contrary to the plain language of
Sections 9721, 9754, and 9771 of the Sentencing Code. Thus, to paraphrase
our Supreme Court in Dickson: “[t]hat we have declined, until now, to
address [Wendowski and its progeny] on this issue, while perhaps
regrettable, cannot be used as a brickbat to prevent us from bringing the
decisional law of this Commonwealth into line with the plain language of” the
statutes. Dickson, 918 A.2d at 108.9 Here, since Wendowski and its
progeny are contrary to the plain language of the statutes, we follow Dickson
and decline to apply the discretionary presumption of legislative acquiescence.
Moreover, since Wendowski and its progeny are contrary to the plain
language of the relevant statutes, we overrule Wendowski and its progeny.
____________________________________________
9 For like reasons, the Commonwealth’s appeal to the doctrine of stare decisis
must fail. We again paraphrase our Supreme Court in holding:
As for our precedent, we do not take lightly the decision to
depart therefrom. But stare decisis has its limits. While “stare
decisis serves invaluable and salutary principles, it is not an
inexorable command to be followed blindly when such
adherence leads to perpetuating error.” Stilp v.
Commonwealth, 905 A.2d 918, 967 (Pa. 2006). Indeed,
particularly when this Court's prior cases have “distorted the
clear intention of the legislative enactment and by that
erroneous interpretation permitted the policy of that
legislation to be effectively frustrated,” this Court has “no
alternative but to rectify our earlier pronouncements and may
not blindly adhere to the past rulings out of a deference to
antiquity.” Mayhugh v. Coon, 331 A.2d 452, 456 (Pa.
1975).
Small, 238 A.3d at 1287.
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We, thus, vacate Appellant’s judgment of sentence and remand this case “with
instructions to reinstate the original order of probation.” Commonwealth v.
Griggs, 461 A.2d 221, 225 (Pa. Super. 1983).10 As a final matter, with
respect to the revocation of Appellant’s parole, since the trial court revoked
____________________________________________
10 The learned concurring and dissenting opinion declares that we have
engaged in an “overly-strict interpretation” of 42 Pa.C.S.A. § 9771(b) because
we have held that “revocation is sanctioned only ‘upon proof of the violation
of specified conditions of probation.’” See Concurring and Dissenting Opinion
at *7, citing 42 Pa.C.S.A. § 9771(b). Further, the opinion declares that our
view “ignores § 9754(b), which our Supreme Court has held provides
additional grounds for revoking a defendant’s probation.” Id. at *6, citing
Foster, 214 A.3d at 1250. Respectfully, we believe the concurring and
dissenting opinion is mistaken.
At the outset, as explained above, the plain statutory language of Section
9771(b) only permits revocation of an order of probation upon “proof of the
violation of specified conditions of the probation.” See 42 Pa.C.S.A. § 9771(b)
(“[t]he court may revoke an order of probation upon proof of the violation of
specified conditions of the probation”). Second, we have not ignored the fact
that Section 9754(b) establishes a “general condition of probation – that the
defendant lead ‘a law-abiding life,’ i.e., that the defendant refrain from
committing another crime.” See Foster, 214 A.3d at 1250.
To clarify, there is a difference between “specified conditions” of probation and
“specific conditions” of probation. As explained in Foster, the “specified
conditions” of probation are composed of: 1) the “general condition . . . that
the defendant refrain from committing another crime” and 2) the “specific
conditions” that the court imposes “from the list enumerated in section
9754(c).” Foster, 214 A.3d at 1250. And, under the plain statutory language
of Section 9771(b), “[o]nly upon the violation of any of the ‘specified
conditions’ in the probation order (general or specific) may a court revoke the
defendant’s probation.” Id. Moreover, as we have explained, since the
“specified conditions” of an order of probation are attached to, or are a part
of, the order of probation, when the trial court imposes an “order of probation”
consecutively to another term, the entirety of the “order of probation” –
including the “specified conditions” – cannot begin to commence until the prior
term ends. See supra at **22-23.
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Appellant’s parole and illegally resentenced Appellant to serve a new term of
incarceration, we must also remand for resentencing. Commonwealth v.
Mitchell, 632 A.2d 934, 936 (Pa. Super. 1993) (“the order revoking parole
does not impose a new sentence; it requires appellant, rather, to serve the
balance of a valid sentence previously imposed. Moreover, such a recommittal
is just that – a recommittal and not a sentence. Further, at a ‘violation of
parole’ hearing, the court is not free to give a new sentence”) (citations and
some capitalization omitted).
Judgment of sentence vacated. Case remanded with instructions to
reinstate the original order of probation and for resentencing. Jurisdiction
relinquished.
President Judge Emeritus Bender, Judge Lazarus, Judge Dubow and
Judge McCaffery join this Opinion.
Judge Kunselman files a Concurring Opinion in which Judge Lazarus,
Judge Dubow and Judge McCaffery join.
Judge Bowes files a Concurring and Dissenting Opinion in which Judge
Murray joins.
Judge Shogan did not participate in the consideration or decision of this
matter.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2021
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