J-S37038-21
2021 PA Super 255
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHALIL CONLEY :
:
Appellant : No. 419 EDA 2021
Appeal from the Judgment of Sentence Entered January 26, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001304-2019
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 21, 2021
Appellant Khalil Conley appeals from the judgment of sentence entered
in the Court of Common Pleas of Philadelphia County on January 26, 2021,
following the revocation of his parole and probation. In light of this Court’s
recent en banc decision in Commonwealth v. Simmons, --- A.3d ----, 2021
WL 36418459 (Pa.Super. August 18, 2021) (en banc) which addressed the
same issue Appellant presents herein regarding a trial court’s lack of authority
to anticipatorily revoke an appellant’s probation for an alleged violation that
occurred before his or her period of probation began, we vacate and remand.
The trial court set forth the relevant factual and procedural history
herein as follows:
Appellant had been originally arrested and charged with
multiple offenses based upon reports to law enforcement that he
had that firing shots in the direction of the complainant, who had
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* Former Justice specially assigned to the Superior Court.
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been inside a fleeing vehicle following an intense argument. On
October 7, 2019, Appellant entered a negotiated plea to reduced
charges with a merciful sentence before this [c]ourt as follows:
Count 3: Possession of an Instrument of Crime with Intent,
graded as a misdemeanor of the first degree, under 18 § 907 §§
A: Minimum eleven (11) months and fifteen (15) days to
maximum twenty-three (23) months of County supervised term
confinement;
Count 4: Simple Assault, graded as a misdemeanor of the
second degree, under 18 § 2701 §§ A: Maximum two (2) years
County supervised probation, to run consecutively to Count 3;
Count 5: Recklessly Endangering Another Person, graded
as a misdemeanor of the second degree, under 18 § 2705:
Maximum two (2) years County supervised probation, to run
consecutively to Count 4.
Pursuant to negotiations, the resulting aggregate sentence was a
minimum period of eleven and a half (11 ½ ) months to a
maximum period of twenty-three (23) months Philadelphia
County term incarceration, plus four (4) years of county
supervising reporting probation, with immediate grant of county
parole to house arrest with electric monitoring. Before this Court
Appellant’s grandmother kindly and reluctantly offered her home
as the location for assignment of house arrest. Credit was
provided for custodial time served.
Appellant was ordered to pay mandatory court costs. This
[c]ourt reiterated in detail the conditions of house arrest and
probation and consequences of violations to [Appellant]. They
included a stay away order which had prohibited Appellant from
having any contact whatsoever with the complainant, neither
direct, indirect or via third party or social media. Rehabilitative
and restorative conditions were inserted, including the direction
that Appellant is to comply with recommended mental health and
drug and alcohol diagnosis and treatment.
While on parole and probation, Appellant was specifically
ordered to submit to random drug and alcohol testing, home and
vehicle searches, and was also ordered to refrain from possessing
illegal weapons or drugs of any kind or posting illegal activity,
including photos of drugs and/or weapons on social media. A
violation hearing was to be listed upon first “hot urine” testing
result.
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Appellant was specifically prohibited from residing in any
home where illegal narcotics or deadly weapons, particularly
firearms, were located and from traveling in any vehicle where
illegal narcotics or deadly weapons were located. Appellant was
directed to submit to random checks of same.
Additionally, Appellant was directed to complete fifty (50)
hours of community service and fifty (50) hours of anger
management counseling. Appellant’s sentence was imposed on
October 7, 2019 and he surrendered on November 6, 2019. Prior
to surrendering to house arrest on October 25, 2019, Appellant
was shot eleven times in both of his legs and his neck.
Miracuously [sic] he survived. On October 28, 2019, assigned
supervising officers from the Philadelphia Adult Parole Probation
Department contacted Appellant, and he stated that he had been
released from Temple Hospital and was in stable condition. When
he was questioned about who had shot him and whether it was in
retaliation for something drug related, Appellant stated that he did
not know who had shot him but that he knew that he had not been
the intended target.
Notably, very shortly after Appellant had been released from
incarceration pursuant to entry of the underlying negotiated Order
of Sentence and while he was under supervision of the
Philadelphia County Adult Parole and Probation department,
House Arrest/Electronic Monitoring Division, he directly and
indirectly violated the terms and conditions of the Order of
Sentence several times. First, on January 7, 2020, Appellant
tested positive for THC, a marijuana directive [sic]. He tested
positive for THC again on January 30, 2020. Then, on February 8,
2020, he tested positive for benzodiazepine and THC. The COVID-
19 pandemic lockdown subsequently prevented further drug
testing, but Appellant still managed to violate various house arrest
violations.
On April 23, 2020, despite contrary instructions upon
implementation of the electronic monitoring equipment, Appellant
ventured was out of range of his house arrest boundaries from
1:51 to 1:58 p.m. He falsely claimed that he was on his front
porch. Under the terms of his probation, Appellant had not been
permitted on his front porch particularly due to the danger of
being shot. Again, on April 28, 2020, Appellant was out of range
multiple times: 11:31 a.m., 11:38 a.m., 1:55 p.m., 2:07 p.m.,
2:11-2:23 p.m., 2:30-3:08 p.m., 3:11-3:26 p.m., and 3:54-4:00
p.m. Appellant refused to respond to phone calls from the
probation department until 5:00 p.m., when he stated that he had
inexplicably claimed to be taking out the trash during every one
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of those occasions. On April 28, 2020 at 7:30 p.m., the probation
department contacted Appellant and reiterated that he had not
been allowed to exit his front door, which had meant that he had
not been permitted to go on his front porch. He had been warned
multiple times that if he kept violating the terms of his house
arrest, he would be remanded into county custody and listed for
violation and revocation proceedings.
On May 10, 2020, Appellant was arrested and charged with
Receiving Stolen Property, Firearm Not to be Carried Without a
License, Carrying a Firearm on Public Street in Philadelphia, and
Possession of a Criminal Instrument. Appellant’s new arrest while
under this [c]ourt’s supervision arrest investigation by law
enforcement of April 29, 2021 postings of Appellant from his
Instagram account, named “9.Gunplay,” wherein he had been
observed posing with a black firearm, and laser sight with
extended magazine on his front porch of his grandmother’s home
while under house arrest and electronic monitoring pursuant to
this Court’s Order of Sentence. On May 10, 2020, Philadelphia
Police SWAT Units had been summoned to Appellant’s residence
at 2758 N. Dover Street, Philadelphia, PA 19132; there SWAT
officers observed Appellant flee and discard a firearm; Appellant
was apprehended after attempting to elude police responders.
Pursuant to execution of Search and Seizure Warrant #228288 a
black Kahr P380 semi-automatic firearm with extended magazine
and loaded with eight live rounds was retrieved from the rear yard
of Appellant’s residence.
On May 11, 2020, a body warrant for Appellant had been
issued Court was advised that May 13, 2020 and Gagnon 2
summaries were filed on June 9, 2020 and September 25, 2020
respectively.
On October 2, 2020, after revocation evidentiary hearing,
this [c]ourt determined that Appellant had indeed violated[.]
Indeed it was admitted that the social media postings had
depicted Appellant on the front porch of his grandmother’s home
while under this [c]ourt’s supervision and specifically country [sic]
to the stated conditions of the Order and Judgement of Sentence.
Appellant’s overall conduct as reported not debated were
determined to be violative the terms and conditions of his parole
and probation and that revocation had been due under Section
9771. Appellant’s detainer was lifted, and he was reamended [sic]
to county custody pending sentencing hearing.
On January 26, 2021, Appellant’s violation penalties were
imposed, and he was resentenced accordingly:
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Count 3: Possession of an Instrument of Crime with Intent,
graded as a misdemeanor of the first degree, under 18 § 907 §§
A: Minimum two (2) years to maximum five (5) years of State
supervised term confinement;
Count 4: Simple Assault, graded as a misdemeanor of the second
degree, under 18 § 2701 §§ A: Minimum one (1) year to maximum
two (2) years of State supervised term confinement, to run
consecutively to Count 3;
Count 5: Recklessly Endangering Another Person, graded as a
misdemeanor of the second degree, under 18 § 2705: Minimum
one (1) year to maximum two (2) years of State supervised term
confinement, to run consecutively to Count 4.
The resulting aggregate sentence was four (4) years to nine (9)
years of State supervised confinement. Appellant was determined
to be “RRRI” and boot camp eligible. Credit was accorded for
custodial time served, and all rehabilitative conditions of
Appellant’s original sentence were reiterated.
Appellant filed a timely appeal on February 24, 2021 and
was directed to file a Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925 by June 15, 2021. On June 14, 2021,
Appellant’s Statement of Errors was filed by his sentencing
counsel . . . .
Trial Court Opinion, filed 7/27/21, at 2-6 (boldface type in original).
In his appellate brief, Appellant presents a single issue for this Court’s
review:
When the trial court revoked parole for technical violations
uncontested by Appellant, 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?
Brief for Appellant at 4.
Initially, we observe that this anticipatory revocation of Appellant’s
order of probation was permissible at the time the trial court issued its
revocation order under longstanding precedent established by this Court
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beginning with this Court’s decision in Commonwealth v. Wendowski, 420
A.2d 628, 630 (Pa.Super. 1980).1 However, in Simmons, supra, overruling
Wendowski and its progeny, this Court held that a trial court could not
anticipatorily revoke an order of probation for a defendant’s commission of a
new crime after sentencing but before his or her period of probation had
begun. In doing, so this Court determined the holdings of prior precedent had
no support in relevant Pennsylvania statutes and contravened the plain
language of Sections 9721, 9754, and 9771 of the Sentencing Code as follows:
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.
Simmons, supra at *10.
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1 In its Pa.R.A.P. 1925(a) Opinion, the trial court acknowledged Appellant had
stated in his concise statement that the issue he presents herein was pending
before an en banc panel of this Court. Notwithstanding, the court explained
it was bound by Wendowski which expressly approved anticipatory
revocations. Trial Court Opinion, filed 7/27/21, at 6.
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Thereafter, this Court further stated that pursuant to Simmons, a “trial
court lack[s] statutory authority to anticipatorily revoke [a defendant's]
probation for an alleged ‘technical probation violation’ that occurred before
[his or her] period of probation began.” Commonwealth v. Reavis, 2021 WL
3668883, at *1 (Pa.Super. Aug. 18, 2021) (en banc) (non-precedential
decision). It is axiomatic that a sentence imposed without statutory authority
is an illegal sentence. See Commonwealth v. Finnecy,
249 A.3d 903, 912
(Pa. 2021).
Herein, Appellant’s order of probation was revoked because the trial
court found him to be in violation of his future consecutive sentence of
probation when it also found him to be in violation of his parole on October 2,
2020. However, under Simmons, Appellant was not yet required to comply
with the probation portion of the imposed order of sentence before he began
serving it; thus, his noncompliance did not permit the anticipatory revocation
of his order of probation. Therefore, as was the case in Simmons, Appellant
is entitled to relief in the form of having his current judgment of sentence
vacated and his October 7, 2019, order of probation reinstated. See
Simmons, supra at *13 (vacating the judgment of sentence and remanding
with instructions to reinstate the original order of probation; Reavis, supra
(same). Accordingly, since the trial court herein revoked Appellant’s parole
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and illegally resentenced him to serve a new term of incarceration, we must
remand for resentencing. Simmons, supra at *12.2
Judgment of sentence vacated. Case remanded with instructions to
reinstate the original order and probation and for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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2 In light of this Court’s recent holdings, the Commonwealth agrees with
Appellant that he is entitled to resentencing because the trial court erred in
anticipatorily revoking Appellant’s probationary sentence for conduct that
occurred before the probationary period began. The Commonwealth further
reasons that because the maximum period of incarceration had elapsed as of
the time it filed its brief, Appellant should be released to serve the remainder
of his four-year probationary sentence. Commonwealth’s Brief at 4-7.
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