J-S31041-24
2024 PA Super 268
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DISHAWN STEWART :
:
Appellant : No. 2853 EDA 2023
Appeal from the Judgment of Sentence Entered July 6, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009201-2019
BEFORE: BOWES, J., McLAUGHLIN, J., and BECK, J.
OPINION BY BECK, J.: FILED NOVEMBER 13, 2024
Dishawn Stewart (“Stewart”) appeals from the judgment of sentence
entered by the Philadelphia County Court of Common Pleas (“trial court”)
following the revocation of his probation. On appeal, Stewart challenges the
trial court’s determination that he violated his probation by failing to complete
domestic violence therapy based on his assertion that such therapy was not a
condition of his probation. Because we conclude that domestic violence
therapy was a valid condition of his probation, we affirm.
This case stems from an incident during which Stewart threatened his
sister-in-law with a gun in front of her children. On August 31, 2019, police
arrested and charged Stewart with firearms not to be carried without a license,
carrying firearms on public streets in Philadelphia, possessing instruments of
crime, simple assault, and recklessly endangering another person. On
November 22, 2021, Stewart entered a negotiated guilty plea to the charges
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of carrying firearms on public streets in Philadelphia and simple assault, and
the remaining charges were nolle prossed. The trial court sentenced Stewart
to two years of probation. The court placed the following conditions on
Stewart’s probation:
Mandatory Court Costs – Court Costs: Defendant is to pay
imposed mandatory court costs.
Supervision – Supervision Under Domestic Violence Unit: To be
supervised under the Domestic Violence Unit.
Stay Away Order: To stay away from victim(s). To Remain in
Effect for Duration of Sentence.
Negotiated Guilty Plea Order, 11/23/2021.
The same day the trial court imposed the sentence, Stewart completed
his initial intake with the Domestic Violence Unit. As part of his supervision,
the Domestic Violence Unit required Stewart to complete domestic violence
therapy. During intake, Stewart signed the rules for the Domestic Violence
Unit, which state, in pertinent part:
I must complete Domestic Violence Therapy by a licensed
psychiatrist, or psychologist trained to give Domestic Violence
specific counseling by a facility already approved by the
Department and [d]ischarge from treatment for any reason other
than successful discharge will result in a Violation Hearing and/or
possibly being detained.
Gagnon1 II Summary, 6/15/23, at 2 (unpaginated). The Domestic Violence
Unit also provided Stewart with a copy of these rules, per his request. Id.
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1 Gagnon v. Scarpelli,
411 U.S. 778 (1973).
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Upon activation of his medical insurance on March 1, 2022, the Domestic
Violence Unit referred Stewart to the batterer’s intervention program at
Joseph J. Peters Institute (“JJPI”), where he agreed to attend treatment via
Zoom. Throughout 2022 and into 2023, Stewart failed to consistently attend
treatment, missing numerous sessions during a fifteen-month period. In May
2023, Stewart missed all sessions except one, and during the session he did
attend, his therapist had to remove him from the Zoom call because of his
abusive and inappropriate behavior. At the end of May 2023, JJPI discharged
Stewart from the program because of his failure to regularly attend treatment.
In June 2023, Stewart’s probation officer requested a violation of
probation (“VOP”) hearing because he failed to abide by the requirements of
supervision by the Domestic Violence Unit, i.e., his inability to complete
domestic violence therapy. The trial court held VOP hearings on June 20,
2023 and July 6, 2023. At the conclusion of the July 6, 2023 hearing, the trial
court found Stewart in technical violation of his probation for failing to
complete domestic violence therapy. The same day, the trial court revoked
Stewart’s probation and resentenced him to eleven-and-a-half to twenty-three
months in prison, followed by two years of probation.
On September 21, 2023, Stewart filed a petition pursuant to the Post
Conviction Relief Act (“PCRA”)2 in which he requested reinstatement of his
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2 42 Pa.C.S. §§ 9541-9546.
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direct appeal rights nunc pro tunc because his appointed counsel failed to file
the direct appeal he had requested. On October 30, 2023, the trial court
granted the petition and reinstated Stewart’s direct appeal rights. This timely
appeal followed. Both Stewart and the trial court have complied with
Pennsylvania Rule of Appellate Procedure 1925. Stewart presents a single
claim for our review: “Did the [trial] court illegally find [Stewart] in violation
of his probation for failing to attend domestic violence therapy where this
therapy was not a condition of his probation?” Stewart’s Brief at 2.
When reviewing a trial court’s decision to revoke probation, we employ
the following standard:
The imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed on
appeal. An abuse of discretion is more than an error in
judgment—a sentencing court has not abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
When assessing whether to revoke probation, the trial court
must balance the interests of society in preventing future criminal
conduct by the defendant against the possibility of rehabilitating
the defendant outside of prison. In order to uphold a revocation
of probation, the Commonwealth must show by a preponderance
of the evidence that the defendant violated his probation.
Commonwealth v. Baumann, 307 A.3d 1231, 1236 (Pa. Super. 2023)
(citation omitted).
Stewart argues that the trial court abused its discretion in revoking his
probation for failing to consistently attend domestic violence therapy.
Stewart’s Brief at 8-15. According to Stewart, because his original sentencing
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order did not explicitly list domestic violence therapy as a condition of his
probation, the trial court could not revoke his probation on the basis that he
failed to attend therapy sessions. Id. at 8-9. Stewart further asserts that the
Domestic Violence Unit did not have the authority to impose domestic violence
therapy as a condition of probation, and that such authority solely rested with
the sentencing court. Id. at 10-13.
A trial court may revoke a defendant’s probation if it finds, based on a
preponderance of the evidence, the defendant either: 1) violated a specific
condition of probation or 2) committed a new crime. 42 Pa.C.S. § 9771;
Commonwealth v. Foster, 214 A.3d 1240, 1243 (Pa. 2019). These are the
only grounds on which a court can find a defendant in violation of probation.
Foster, 214 A.3d at 1243.
Our Supreme Court has explained that the authority to impose the terms
and conditions of probation lies with the sentencing court. Commonwealth
v. Elliott, 50 A.3d 1284, 1291 (Pa. 2012). Under section 9754 of the
Sentencing Code, which governs orders of probation, the court “shall specify
at the time of sentencing the length of any term during which the defendant
is to be supervised,” “the authority that shall conduct the supervision[,]” and
“shall attach reasonable conditions authorized by section 9763 (relating to
conditions of probation).” 42 Pa.C.S. § 9754(a)-(b). Section 9763(b) requires
the sentencing court to impose conditions of probation “based on
individualized circumstances” and states that “the court shall attach only those
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conditions that the court deems necessary and the least restrictive means
available to promote the defendant’s rehabilitation and protection of the
public[.]” Id. § 9763(b). Section 9763(b) also sets forth several permissible
conditions of probation, including ordering the defendant “[t]o undergo
individual or family counseling” and “[t]o do other things reasonably related
to rehabilitation.” Id. § 9763(b)(4), (15).
Our Supreme Court has further explained that the Pennsylvania Board
of Probation and Parole (“the Board”) “and its agents cannot impose any
condition of supervision it wishes, carte blanche.” Elliott, 50 A.3d at 1291.
The Court, however, has “recognized that probation officers may, consistent
with their own statutory authority, impose specific conditions of supervision
pertaining to a defendant’s probation.” Commonwealth v. Koger,
295 A.3d
699, 707 (Pa. 2023). Specifically, the Board and its agents “may impose
conditions of supervision that are germane to, elaborate on, or interpret any
conditions of probation that are imposed by the trial court.” Elliott,
50 A.3d
at 1292. The Court reasoned that this interpretation gives meaning to the
relevant statutory provisions and thus:
(1) maintains the sentencing authority solely with a trial court;
(2) permits the Board and its agents to evaluate probationers on
a one-on-one basis to effectuate supervision; (3) sustains the
ability of the Board to impose conditions of supervision; and (4)
authorizes that a probationer may be detained, arrested, and
“violated” for failing to comply with either a condition of probation
or a condition of supervision. In summary, a trial court may
impose conditions of probation in a generalized manner, and the
Board or its agents may impose more specific conditions of
supervision pertaining to that probation, so long as those
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supervision conditions are in furtherance of the trial court’s
conditions of probation.
Id. (footnote omitted).
In rejecting Stewart’s claim, the trial court concluded:
[T]he probation department acted within the authority of the
[c]ourt order when it imposed domestic violence treatment
conditions on [Stewart]’s probation. [Stewart]’s conviction arose
from a violent family incident. Because the order directed
supervision under the Domestic Violence Unit of probation, the
probation department’s requirement for [Stewart] to complete the
specific condition of the [b]atterer’s [i]ntervention [p]rogram was
in furtherance of the court order. [Stewart] was in technical
violation when he failed to participate in this valid condition of his
probation.
Trial Court Opinion, 2/20/2024, at 7 (record citations omitted).
We agree. The certified record reflects that Stewart pled guilty to a
crime stemming from an incident involving domestic violence and
consequently, the trial court’s sentencing order stated that Stewart’s
probation was “to be supervised under the Domestic Violence Unit.”
Negotiated Guilty Plea Order, 11/23/2021. The same day Stewart received
his sentence of probation, he completed his intake with the Domestic Violence
Unit during which he signed the rules for the unit, which stated, “I must
complete Domestic Violence Therapy” and that “[d]ischarge from treatment
for any reason other than successful discharge will result in a Violation Hearing
and/or possibly being detained.” Gagnon II Summary, 6/15/23, at 2
(unpaginated). Given that Stewart committed a crime involving domestic
violence and that the sentencing order expressly informed Stewart that his
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probation would be supervised by the Domestic Violence Unit, the imposition
of the requirement that Stewart complete domestic violence therapy was
germane to and elaborated upon the sentencing court’s decision to assign his
supervision to the Domestic Violence Unit. See Elliott, 50 A.3d at 1292; see
also Baumann,
307 A.3d at 1234-35, 1237 (stating, in a case where the
appellant was convicted of a sex offense and, as part of his probation, was to
“submit to supervision by the Sexual Offender’s Unit[,]” the requirement that
the appellant participate in a sex offender therapeutic treatment program was
a valid condition of supervision under the Sexual Offender’s Unit).3
In support on his claim, Stewart cites Commonwealth v. Shires, 240
A.3d 974 (Pa. Super. 2020). Stewart’s Brief at 12–13. In Shires, the
sentencing court issued two orders regarding the appellant’s conditions of
probation: an earlier order that only required the appellant to pay costs, fines,
and restitution, and a later order that included “standard special conditions
for sex offenders.” Shires,
240 A.3d at 978. The appellant, however, was
never served with the second probation order.
Id. at 978. The trial court
revoked his probation for failing to comply with several of the special
conditions for sex offenders, but on appeal, this Court determined that
because the appellant was never served with the second order, “the only
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3 We note that in Baumann, this Court ultimately concluded that the trial
court improperly revoked the appellant’s probation based upon circumstances
unrelated to and not present in the instant matter. Baumann,
307 A.3d at
1237.
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pertinent condition of probation” was the earlier order “related to paying costs,
fines, and restitution.” Id. at 976-78. We therefore concluded that the
“special conditions for sex offenders,” which required the appellant “to obtain
treatment and restrict his residence and his contact with minors, plainly
[were] not germane to the sole court-imposed condition of probation, which
merely required [him] to pay costs, fines, and restitution.” Id. at 979.
Shires is readily distinguishable from the instant case. Unlike in
Shires, the sentencing court expressly ordered Stewart’s probation to be
supervised by the Domestic Violence Unit, Stewart was aware of this condition,
and he was immediately informed that this supervision would include domestic
violence therapy. See Negotiated Guilty Plea Order, 11/23/2021; see also
Gagnon II Summary, 6/15/23, at 2 (unpaginated). Thus, we are not
persuaded by Stewart’s reliance on Shires.
Based on the foregoing, we conclude that the requirement that Stewart
complete domestic violence therapy was germane to and elaborated on the
sentencing court’s directive to assign his supervision to the Domestic Violence
Unit. Accordingly, the trial court did not abuse its discretion in revoking
Stewart’s probation based on his failure to consistently attend domestic
violence therapy sessions.
Judgment of sentence affirmed.
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Date: 11/13/2024
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