J-S15011-21
2021 PA Super 173
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID JASON WILLIAMS :
:
Appellant : No. 1220 WDA 2020
Appeal from the Judgment of Sentence Entered September 11, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005055-2015
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
OPINION BY LAZARUS, J.: FILED: AUGUST 27, 2021
David Jason Williams appeals from the judgment of sentence entered in
the Court of Common Pleas of Allegheny County. After careful review, we are
constrained to reverse and remand for further proceedings.
The underlying facts of this case are as follows. On January 7, 2016,
Williams entered a guilty plea, under docket number CC-5055-2015, to one
count each of persons not to possess a firearm,1 carrying a firearm without a
license,2 and possession of a small amount of marijuana.3 The court
sentenced Williams on August 19, 2016, to two years’ state intermediate
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105.
2 18 Pa.C.S.A. § 6106.
3 35 P.S. § 780-113(a)(31).
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punishment (SIP),4 see 61 Pa.C.S.A. § 4102-4109 (repealed),5 followed by
three years’ probation for persons not to possess a firearm, with no further
penalty on the remaining counts. On October 30, 2017, Williams absconded
from SIP and remained a fugitive for twenty-two months until he was arrested
on August 30, 2019.6 On December 18, 2019, the section of the Sentencing
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4 SIP was a two-year program designed to benefit persons with drug and
alcohol problems. In order to be eligible, the defendant could not have a
history of present or past violent behavior and the Pennsylvania Department
of Corrections must have determined that the defendant was in need of drug
and alcohol treatment. See, generally, Commonwealth v. Kuykendall, 2
A.3d 559, 560-65 (Pa. Super. 2010).
5 The General Assembly repealed 42 Pa.C.S.A. § 9774 (“Revocation of State
Intermediate Punishment Sentence”) in its entirety, effective December 18,
2019. Additionally, “State Intermediate Punishment” was deleted from the
sentencing alternatives provided in section 9721. Finally, 61 Pa.C.S.A. §
4105, which previously was titled “Drug Offender Treatment Program,” was
retitled “State Drug Treatment Program.” See, generally, Commonwealth
v. Hoover,
231 A.3d 785, 788 n.1 (Pa. 2020).
6 Williams explained that he left SIP without permission because:
[having been] shot himself and witnessing other shootings earlier
in his life led him to develop a “phobia” about seeing people fall
incapacitated. [Williams] has struggled for years with drug and
alcohol problems, and stated “every time I go in [the SIP
alternative housing facility], I would see people—like the new
drug, K2, I don’t know what it is, [and] I never did it or anything,
but it’s like seeing people fall out, pass out.” [Williams] initially
pleaded with his counselor at [the housing facility from which
Williams absconded] to find another facility away from drug
addicts[. W]hen he was told there was no alternative [],
[Williams] “walked away []. I couldn’t deal with the proximity to
drug use.” [] Williams added that “when I see things like people
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Code governing revocation of SIP, 42 Pa.C.S.A. § 9774 (“Revocation of State
Intermediate Punishment Sentence”) was repealed. See supra, at n.5. At
docket number CC-10145-2019, the Commonwealth charged Williams with
escape;7 at docket number CC-11324-2019, the Commonwealth charged
Williams with possession of a controlled substance (crack cocaine);8 and at
docket number CC-11939-2019,9 the Commonwealth charged Williams with
driving under the influence—first offense. Williams pled guilty at a combined
plea and resentencing hearing after the Commonwealth agreed to withdraw
the possession of a controlled substance charge.10
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passing out from overdosing on drugs, it takes my mind
somewhere else, and I got to get away [for] a minute.”
Appellant’s Brief, at 10 (brackets and internal citations omitted). See also
N.T. Resentencing Hearing, 9/11/20, at 24-25.
7 18 Pa.C.S.A. § 5121(a).
8 35 P.S. § 780-113(a)(16).
9 Although the charge at this docket number was referenced at the sentencing
hearing, the docket number itself is not listed on the transcript cover page.
See N.T. Resentencing Hearing, 9/11/20, at 1, 3. Nevertheless, we may
ignore the inconsistency since the present appeal is only in relation to docket
number CC-5055-2015. See infra, at n.10.
10 The written guilty plea colloquies and are not in the certified record.
In any
event, Williams has only filed one notice of appeal at docket CC-5055-2015,
thereby foregoing any appeal relating to the other dockets. See
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that, after
June 1, 2018, separate notices of appeal must be filed for each lower court
docket number or appeal will be quashed); Commonwealth v. J. Johnson,
236 A.3d 1141, 1146 (Pa. Super. 2020) (en banc) (same); Pa.R.A.P. 341(a);
Commonwealth v. R. Johnson,
236 A.3d 63, 66 (Pa. Super. 2020) (en
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On September 11, 2020, the trial court resentenced Williams on his
original conviction for person not to possess a firearm and imposed a sentence
of forty-eight-to-ninety-six months’ incarceration.11 On October 5, 2020,
Williams filed a pro se notice of appeal, challenging the trial court’s sentence,
which was forwarded to counsel. Counsel then filed a petition to accept a
motion to reconsider sentence nunc pro tunc, as well as the underlying motion
to reconsider. On October 9, 2020, the trial court granted the petition and
denied the motion to reconsider by separate orders. Williams filed a timely
notice of appeal on November 9, 2020. The trial court and Williams both
complied with Pa.R.A.P. 1925.
On appeal, Williams raises the following issues for our consideration:
1. Whether the trial court retained jurisdiction to revoke and
resentence [] Williams from [SIP] following the repeal of 42
Pa.C.S.[A. §] 9774[.]
2. Whether the trial court abused its discretion by imposing an
excessive sentence and failing to consider [] Williams’[]
rehabilitative needs, primarily his need for treatment, potential
for rehabilitation, and willingness to accept responsibility for
and to explain his improper actions, as required by 42
Pa.C.S.[A. §] 9721(b)[.]
Appellant’s Brief, at 5.
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banc) (revisiting Walker requirements). See also Pa.R.A.P. 903(a) (“notice
of appeal must be filed within 30 days after entry of order from which appeal
is taken”).
11 As noted previously, this appeal only concerns the sentence imposed at
docket CC-5055-2015, so we need not address the sentences imposed at the
other docket numbers. See supra, at n.10.
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In his first issue, Williams claims that the trial court lacked the authority
to revoke his SIP sentence because section 9774, which controlled revocation
of SIP sentences, was repealed at the time of Williams’ SIP revocation and
resentencing. Williams reasons that, under the new version of the law, now
the State Drug Treatment Program, see supra at n.5, authority to expel
someone from the program rests solely with the Department of Corrections.
See 61 Pa.C.S.A. § 4105(f) (effective December 18, 2019). Further, Williams
argues that, upon expulsion from the program, the currently enacted version
of the statute requires that the offender “shall be housed in a State
correctional institution to serve the remainder of the participant’s sentence.”
61 Pa.C.S.A. § 4015(f)(1). Consequently, Williams argues that he must be
sent to serve the remainder of the flat two-year SIP sentence because the
new statute contains no saving clause12 preserving the repealed SIP
revocation provisions. Williams concludes that the September 11, 2020
judgment of sentence should be vacated as a result of the court’s error. We
are constrained to agree.
Williams relies on our Supreme Court’s decision in Commonwealth v.
Walton, 397 A.2d 1179 (Pa. 1979), as well as our decisions in
Commonwealth v. Bangs,
393 A.2d 720 (Pa. Super. 1978),
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12 A “saving clause” is a provision that the General Assembly includes in the
new enactment that has the effect of preserving portions of the old statute.
See, e.g., Commonwealth v. Beattie,
93 Pa. Super. 404, 411-12 (1928);
see also Commonwealth v. Bangs,
393 A.2d 720, 721 n.2 (Pa. Super.
1978) (“Pennsylvania is among the handful of states presently without a
general saving clause applicable to criminal prosecutions.”).
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Commonwealth v. Flashburg, 352 A.2d 185 (Pa. Super. 1975), and
Commonwealth v. Beattie,
93 Pa. Super. 404 (1928).
In Walton, the trial court relied on a repealed section of a statute for
authority to order restitution in connection with a criminal sentence. Our
Supreme Court found that, where there was no saving clause in the new
statute, and since the General Assembly unequivocally repealed the restitution
section at issue in that case without enacting a counterpart in the new statute,
the trial court could not rely on the repealed section for the authority to order
the defendant to pay restitution to the victim. Walton, supra at 1182;
accord
Flashburg, supra at 188 (court had no power to order restitution
where section providing authority for court to order restitution was repealed
and no corresponding section was reenacted).
In Bangs, there was an amendment to the definition of statutory rape
while a prosecution for that crime was already in progress. The amendment
reduced the age of consent from sixteen to fourteen and was enacted without
a saving clause that expressly permitted ongoing statutory rape prosecutions
to continue under the prior definition. Because the appellant’s alleged criminal
act no longer met the statutory definition, this Court discharged him from
prosecution in the case. See Bangs, supra at 71-72.
Finally, in Beattie, this Court considered whether the trial court had the
authority to order the defendant, at sentencing, to pay a $300 fine and serve
two years’ imprisonment. The trial court’s sentence was authorized by the
law in effect at the time of the sentencing hearing, but it exceeded the
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maximum penalty for the offense under the amended act, which took effect
while the case was on appeal. This Court found that, because a sentence must
be sustainable through final judgment, the appellate courts no longer had the
authority to sustain the appellant’s sentence where it exceeded the statutory
maximums in effect at the time of appellate review. See Beattie, supra at
415. Thus, the Court reversed and remanded for resentencing.
Id.
Here, the trial court, in its Rule 1925(a) opinion, described, as follows,
the authority on which it relied for revoking Williams’ SIP sentence despite the
General Assembly’s repeal of sections 9774 and 4105(f)(3):
[Williams] absconded from[,] and thus violated[,] SIP prior to
February 18, 2020. At the time of [Williams’] absconding, the
remedy for violating SIP was to revoke and reimpose sentence.
This process is required because the SIP is a flat two-year program
with no minimum or maximum sentence. In other words, if this
[c]ourt did not have the authority to resentence [Williams] under
the current version of [section] 4105, [Williams] would be left with
an illegal flat sentence.
Furthermore, [section] 4105, in its current form, applies to
individuals in the “State drug treatment program,” not SIP. When
[Williams] absconded from [SIP] two years ago, he violated SIP,
not the State drug treatment program. [Williams] does not get to
benefit from his misconduct.
Instead, he is subject to [section] 4105 as it read when he was
expelled. Logically, this is the only possible conclusion. If
[Williams] is correct that th[e trial c]ourt lacks the authority to
resentence him, all SIP participants would be able to leave the
program without fear of facing any consequences.
Trial Court Opinion, 1/25/21, at 3-4.13
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13 The trial court’s Rule 1925(a) opinion is dated January 22, 2020, but was
not docketed until three days later.
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The Commonwealth contends this Court should affirm Williams’
judgment of sentence and uphold the trial court’s revocation of his SIP
sentence because Williams’ original aggregate SIP sentence included a period
of probation, which remained in place, despite the repeal of SIP. The
Commonwealth further notes that a court may revoke a defendant’s
probation, even prior to the commencement of the probationary period, if the
court determines that probation is no longer in the best interest of the public
or the defendant. See Appellee’s Brief, at 12-13. The Commonwealth
suggests that, although its current legal theory was not presented in the trial
court, the appellate courts may affirm a trial court order, when it is correct,
based on any legal ground, regardless of the legal basis on which the trial
court relied. See, e.g., Commonwealth v. Petroski, 695 A.2d 844, 847
(Pa. Super. 1997).
We begin by noting the applicable appellate standard of review. In
Commonwealth v. Kuykendall, 2 A.3d 559 (Pa. Super. 2010), we found
that revocation of a defendant’s SIP sentence and the defendant’s subsequent
resentencing were analogous to probation revocation hearings.
Id. at 563.
As such, we borrowed that comparable standard:
We find guidance in the applicable statutory law regarding SIP and
analogous case law regarding probation revocation hearings.
Generally, in reviewing an appeal from a judgment of sentence
imposed after the revocation of probation, this Court’s scope of
review includes the validity of the hearing, the legality of the final
sentence, and[,] if properly raised, the discretionary aspects of
the appellant’s sentence. Commonwealth v. Ferguson, [] 893
A.2d 735, 737 ([Pa. Super.] 2006). Accordingly, in evaluating the
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revocation of a SIP sentence, we ordinarily would apply that scope
of review.
Id. at 563. Additionally, a challenge to the legality of a sentence is a question
of law which requires a plenary scope and de novo standard of review.
Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa. Super. 2017) (en banc).
When an appellant raises such a challenge, we have explained:
A claim that implicates the fundamental legal authority of the
court to impose a particular sentence constitutes a challenge to
the legality of the sentence. If no statutory authorization exists
for a particular sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated. . . . If a court
imposes a sentence outside of the legal parameters prescribed by
the applicable statute, the sentence is illegal and should be
remanded for correction.
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (internal
citations and quotation marks omitted).
We have previously noted that expulsion from and revocation of SIP are
separate and distinct concepts as they appear in the statute. Kuykendall,
supra at 562. Under SIP, prior to its repeal, the Department of Corrections
was permitted to expel defendants from the program at any time, but was
required to promptly notify the court of such expulsion so that the court could,
in turn, conduct a prompt revocation hearing:
(f) Expulsion from program.
(1) A participant may be expelled from the drug offender
treatment program at any time in accordance with guidelines
established by the department, including failure to comply with
administrative or disciplinary procedures or requirements set forth
by the department.
(2) The department shall promptly notify the court, the
defendant, the attorney for the Commonwealth and the
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commission of the expulsion of a participant from the drug
offender treatment program and the reason for such expulsion.
The participant shall be housed in a State correctional institution
or county jail pending action by the court.
(3) The court shall schedule a prompt State intermediate
punishment revocation hearing pursuant to 42 Pa.C.S. § 9774
(relating to revocation of State intermediate punishment
sentence) [(now repealed)].
61 Pa.C.S.A. § 4105(f) (emphasis added).
Here, we are constrained to agree with Williams and find that Walton,
Flashburg, and Beattie control the case sub judice. Williams was originally
sentenced pursuant to the SIP statute and then absconded after completing
several months of the program. However, like in Walton, supra, the General
Assembly did not include a saving clause in the new provision of law, the State
drug offender program. Since the General Assembly unequivocally repealed
the SIP revocation procedure, see 61 Pa.C.S.A. § 4105(f)(3) (repealed); see
also 42 Pa.C.S.A. § 9774 (repealed), without enacting counterparts to those
deleted sections in the new statute, the trial court could not rely on the
repealed sections for the authority to order Williams’ SIP sentence revoked.
See
Walton, supra; see also
Flashburg, supra. Additionally, like in
Beattie, Williams’ sentence cannot be sustained on appeal because the
appellate courts do not have the authority to rely on a repealed statute that
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the General Assembly did not intend to “save” in order to affirm a defendant’s
judgment of sentence.14 See Beattie, supra at 415.
Because the court revoked Williams’ SIP sentence without statutory
authority, we are constrained to remand for further proceedings.15 See
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14 Even if we were to find that the trial court could rely on the repealed statutes
for authority to revoke Williams’ SIP sentence, we would find that the
Commonwealth and the court did not follow the requisite procedure outlined
in subsections 4105(f)(2) and (3). There is no evidence in the record to
identify at what time the Department of Corrections expelled Williams from
SIP. See Kuykendall, supra at 562; 61 Pa.C.S.A. § 4105(f)(2). Although
there was a suggestion by counsel at the resentencing hearing that a courtordered bond revocation on March 29, 2016 evidenced Williams’ expulsion
from SIP, see N.T. Resentencing Hearing, 9/11/20, at 19, we note the hearing
was held several months prior to Williams’ absconding, and makes no mention
of his expulsion from SIP. See, generally, N.T. Bond Revocation Hearing,
3/29/16. Moreover, there is no evidence in the record that the court
conducted a “prompt” SIP revocation hearing. See 61 Pa.C.S.A. § 4105(f)(3).
Indeed, Williams’ SIP sentence was not revoked for twenty-two months after
his absconding and prior to the court finally holding the revocation hearing.
Far from allowing Williams to benefit from his absconding, we note that the
Commonwealth neglected its duty to act promptly with regard to Williams’
case. See 61 Pa.C.S.A. §§ 4105(f)(2), (3). We disagree that, as a result of
this decision, participants of SIP will be able to leave the program without
facing consequences; the Commonwealth could have requested the court to
resentence Williams in absentia during his period of absconding in order to
satisfy the promptness requirements in subsection 4105(f). See, e.g.,
Commonwealth v. Andrews, 1103 EDA 2012, at *2-*3 (Pa. Super. 2014)
(unpublished memorandum) (trial court resentenced defendant in absentia
after defendant did not report to begin serving original sentence).
Additionally, the General Assembly could have included a saving clause in the
new State drug treatment program law if it so desired, but it did not. Here,
like in
Beattie, supra at 415, the trial court took the risk of imposing a
sentence that could not be affirmed on appeal.
15 We decline to adopt the Commonwealth’s alternative theory for affirming—
namely, that the trial court was permitted to revoke Williams’ probationary
sentence prior to its commencement. We agree with the Commonwealth that
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Infante, supra. Additionally, we need not address Williams’ second issue, a
challenge to the discretionary aspects of his sentence, because we vacate his
judgment of sentence and remand.
Judgment of sentence vacated. Remanded with instructions to reinstate
original order of probation.16 Jurisdiction relinquished.
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the appellee is permitted to raise a valid alternative legal theory in support of
affirmance for the first time on appeal, provided that the correct basis for the
decision is clear on the record. See Bearoff v. Bearoff Brothers, Inc., 327
A.2d 72, 76 (Pa. 1974). Here, Williams’ probationary sentence was not
revoked by the court, as alleged by the Commonwealth. See N.T.
Resentencing Hearing, 9/11/20, at 14-15 (court inquiring into Williams’
understanding of ongoing proceedings; “[Court:] So[,] you understand that
your SIP program is a sentence failure; it’s not a violation of probation or
parole[? Williams:] Okay.”) (emphasis added). Moreover, an en banc panel
of this Court recently overturned the line of cases cited by the Commonwealth
in support of its position. See Commonwealth v. Simmons, 2461 EDA
2018, at *19 (Pa. Super. filed 8/18/21) (en banc) (overturning
Commonwealth v. Wendowski,
420 A.2d 628 (Pa. Super. 1980), and its
progeny).
16 Although we find that Williams’ SIP revocation proceeding was void for lack
of statutory authority, we also find that Williams cannot continue to serve the
original SIP sentence where the SIP statute has been repealed and substituted
with the State drug treatment program, and where there is no saving clause
applicable to Williams’ case. See 1 Pa.C.S.A. § 1971(a). Therefore, the only
remaining valid portion of Williams’ original sentence is the consecutive term
of three years’ probation. See Simmons, supra at *30 (remanding with
instructions to reinstate valid portions of defendant’s original sentence
following appellate determination that resentencing was void).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2021
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