J-E02004-20
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.
CONCURRING OPINION BY KUNSELMAN, J.: FILED AUGUST 18, 2021
I fully join in the Majority Opinion but write separately to note additional
statutory authority relevant to “split sentences” and the history of parole,
which buttress the Majority’s conclusions. I also provide additional analysis
to support overruling Commonwealth v. Wendowski, 420 A.2d 628 (Pa.
Super. 1980).
While trial courts have the inherent authority and discretion to impose
a sentence, the legislature dictates which actions constitute crimes and sets
the possible penalties for such actions. Quite simply, “[i]f no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction. An illegal sentence must be vacated.” Commonwealth
v. Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004) (en banc) (emphasis
added); see also Commonwealth v. Pi Delta Psi, Inc.,
211 A.3d 875, 889–
90 (Pa. Super. 2019), appeal denied,
221 A.3d 644 (Pa. 2019).
J-E02004-20
Additionally, the legislature has given trial courts the authority to issue
a “split sentence” which includes both incarceration and probation. The
Sentencing Code provides:
(a) General rule.--In determining the sentence to be imposed
the court shall, except as provided in subsection (a.1), 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)
(emphasis added).
As the Majority observed, the trial court here imposed a split sentence
of 6-23 months of incarceration with 3 years of probation, and it ordered that
the probation was consecutive to the confinement.1
____________________________________________
1 The trial court stated that this sentence shall commence on January 26,
2018, and that Simmons was immediately paroled to house arrest with
conditions: school, work, and religious reasons. I note that the granting of
parole here was improper, because there is no such thing as “immediate
parole.” By statute, parole power cannot be exercised before the expiration
of the minimum sentence fixed by the court. See 61 Pa. C.S.A. § 6137(a)(3);
Commonwealth v. Evola, 618 A.2d 969, 970-71 (Pa. Super. 1992) (trial
court lacked statutory authority to grant early parole; defendant is required
to complete the minimum sentence before parole may be granted). If the trial
court meant to impose a term of partial confinement, to allow for work release,
pursuant to 42 Pa. C.S.A. §§ 9724, 9755, it should have imposed this
sentencing option instead of total confinement.
-2-
J-E02004-20
To determine whether the trial court could revoke the probation portion
of this sentence, based on a parole violation, requires us to consider and
interpret sections of Title 42 (the Sentencing Code) and Title 61 (Prisons and
Parole). In these statutes, the legislature has established separate rules for
confinement and for orders of probation. Compare 42 Pa. C.S.A. § 9756
(Sentence of total confinement) with 42 Pa. C.S.A. § 9754 (Order of
probation). First, I discuss statutes relevant to confinement and parole and
then statutes relevant to probation.
For a sentence of total confinement, the legislature created an
indeterminate sentencing scheme.2 Under such a scheme, the sentencing
court generally must announce a sentence that includes both a minimum and
a maximum term. 42 Pa. C.S.A. § 9756. “In imposing a sentence of total
confinement the court shall at the time of sentencing specify any maximum
period up to the limit authorized by law. . . .” 42 Pa. C.S.A. § 9756(a). Thus,
while the trial court has some discretion on the length and type of the
sentence, the legislature determines the highest possible maximum term for
each offense. See, e.g., 18 Pa. C.S.A. §§ 1103–1105 (setting maximum
terms for felony, misdemeanor, and summary offenses). Also, according to
our statutes, the minimum period of confinement must not exceed one-half
____________________________________________
2 The length of time the defendant will serve in custody is indeterminate at
sentencing, because the defendant may ultimately serve only the minimum,
the maximum, or any sentence between the two. Commonwealth v.
Stemple, 940 A.2d 504, 508 (Pa. Super. 2008).
-3-
J-E02004-20
the maximum. 42 Pa. C.S.A. §§ 9756(b), 9757. “[T]he maximum term
represents the sentence imposed for a criminal offense, with the minimum
term merely setting the date after which a prisoner may be paroled.”
Commonwealth v. Blount, 207 A.3d 925, 939, (Pa. Super. 2019) appeal
denied,
218 A.3d 1198 (Pa. 2019) (citation omitted) (emphasis added).
The legislature also established where a confinement sentence shall be
served and who determines if, and when, an inmate is eligible for parole. For
confinement, a maximum term of five years or more, shall be served in a state
prison; a maximum term of two but less than five years, may be served in
either the state prison or the county jail, and a maximum of less than two
years shall be served in county jail. 42 Pa. C.S.A. § 9762(b). If confinement
is served in a state prison, then the State Board of Probation and Parole has
the exclusive authority to determine if, and when, the inmate may be granted
parole.3 61 Pa. C.S.A. § 6132. For these inmates, the trial court may give
only a recommendation regarding parole to the State Parole Board. Id. at §
6134 (b). If the sentence is served in county jail, however, the trial court has
the authority to determine if, and when, the inmate may be granted parole. 4
____________________________________________
3 Any order of the trial court attempting to deny parole to a state prisoner is
considered a nullity. Commonwealth v. Harris, 620 A.2d 1175, 1179 (Pa.
Super. 1993). The trial court has no authority to grant parole where the term
of incarceration is two years or more. Tillman v. Commonwealth, Bd. of
Probation and Parole,
409 A.2d 949, 951 (Pa. Cmwlth. 1980).
4 Unless the trial judge, by special order, has directed supervision by the State
Parole Board. 61 Pa. C.S.A. § 6132(a)(2)(i).
-4-
J-E02004-20
Id. at § 6134.1; 42 Pa. C.S.A § 9775; Commonwealth v. McDermott, 547
A.2d 1236, (Pa. Super. 1988) (common pleas court retains authority to grant
and revoke parole for offender sentenced to maximum term of imprisonment
of less than two years).
Notably, parole is a legislative creation. Sentencing courts have no
inherent authority to grant parole; the court’s authority must come from the
General Assembly. Presly v. Pa. Bd. of Prob. and Parole, 748 A.2d 791,
793 (Pa. Cmwlth. 2000). When the founders first adopted the Constitution
of the Commonwealth of Pennsylvania, parole, as a penological expedient, did
not exist. Com. ex rel. Banks v. Cain,
28 A.2d 897, 899 (Pa. 1942). The
system of parole initially appeared in America in the Elmira Reformatory,
opened in 1876.
Id. at 900, n.2. “It was first adopted in an American prison
in 1884 in Ohio. It did not come into general use in the American prison system
until the [1890s]. Parole made its initial entrance into Pennsylvania when the
Huntingdon Reformatory was organized in 1887, and it was not adopted in our
state penitentiaries until 1909 or in our county jails until 1911.”
Id.
The Supreme Court of Pennsylvania previously discussed the history of
parole and the separation of powers between the courts and the legislature as
follows:
The power to grant paroles is not inherent in courts;
Pennsylvania courts never had such power until it was given to
them [by the legislature] by the Act of June 19, 1911, P.L. 1059,
61 P.S. § 314, and then only with respect to prisoners in county
jails and workhouses. What the legislature thus gave it can take
-5-
J-E02004-20
away again in whole or in part and vest in some other agency of
government.
The legislature has exclusive power to determine the
penological system of the Commonwealth. It alone can prescribe
the punishments to be meted out for crime. It can provide for
fixed penalties or grant to the courts such measure of discretion
in the imposition of sentences as it may see fit. It may enact that
prison confinement shall be the punishment for crime or may
abolish prisons altogether and adopt some other method of
enforcing the criminal law. It may therefore establish a parole
system by which prisoners shall, under certain conditions, be
allowed to re-enter society through a gradual amelioration of their
restraint and a substitution of controlled freedom for continued
incarceration.
The granting of parole and the supervision of parolees are
purely administrative functions, and accordingly may be entrusted
by the legislature to non-judicial agencies. What parole statutes
give to the paroling authorities - in the present instance to the
State Board of Parole - is in effect nothing more than the factfinding duty of determining in each case when the conditions
prescribed by the legislature for provisional release from
confinement have been complied with, and that duty may properly
be placed in charge of an administrative tribunal as is so
commonly done in other fields of governmental administration.
Id. at 900 (paragraph formatting added).
The High Court further elaborated that parole was not:
an interference with judicial authority, nor an assumption of
judicial power, for the supervisors of penal institutions to
administer the very conditions of punishment or clemency which
the law prescribed and itself wrote into the judge’s sentence.
Where conditions of punishment are before-hand prescribed, and
form constituent parts of the sentence of conviction, it is not an
assumption of judicial power for an administrative officer, acting
within the law and the terms of the sentence, to take upon himself
the task of ascertaining whether the conditions have been
complied with.
Id.
-6-
J-E02004-20
Thus, “while the court determines the guilt or innocence of the accused
and pronounces upon the guilty the penalty provided by law,[5] the manner of
executing the sentence is prescribed by the legislature. . . .” Id. at 901.
Additionally, while an inmate is on parole, he is still considered to be
incarcerated:
The parolee is not discharged, but merely serves the remainder of
his sentence by having his liberty restrained in a manner
analogous to that employed in the ‘trusty’ or ‘honor’ system of
prison discipline. ‘The parole authorized by the statute does not
suspend service or operate to shorten the term. While on parole
the convict is bound to remain in the legal custody and under the
control of the warden until the expiration of the term. While this
is an amelioration of punishment, it is in legal effect
imprisonment’.
Id. (quoting Anderson v. Corall, 263 U.S. 193, 196 (1923) (some
punctuation omitted)).
Importantly, as part of establishing the rules for parole, the legislature
also set forth the penalty for a parole violation. If a parolee violates his state
parole by committing a new crime, the legislature authorized the State Parole
Board to revoke parole and recommit the parolee to the prison; if
recommitted, the parolee shall serve the remainder of the term which the
parolee would have been compelled to serve had parole not been granted. 61
____________________________________________
5 “The pronouncing of a sentence is undoubtedly a judicial act; but the
punishment which the sentence pronounces comes from the law itself. As
Blackstone truly expressed it, ‘The court must pronounce that judgment which
the law hath annexed to the crime.’” Com. ex rel. Banks v. Cain, 28 A.2d
897, 901 n.10 (Pa. 1942) (quoting State v. Dugan,
89 A. 691, 694 (N.J.
1913) (some punctuation omitted)).
-7-
J-E02004-20
Pa. C.S.A. §§ 6137(h), 6138(a). Similarly, if the parolee violates his county
parole by committing a new crime, as was the case here, the legislature
provided that the trial court may “on cause shown by the probation officer
that the inmate has violated his parole, recommit and reparole the inmate in
the same manner and by the same procedure as in the case of the original
parole. . . .” 42 Pa. C.S.A. § 9776(e). Thus, whether the State Parole Board
or the sentencing court supervises the parolee, the statutory sanction for a
parole violation is recommitment.
Here, the Majority and the Concurring/Dissenting Opinion (hereafter
Dissent) agree that the only remedy for a parole violation provided in our
statutes is recommitment of the parolee for the remainder of the term.
Majority at 30, Concurring/Dissenting at 1. Because Simmons violated his
parole, trial court can revoke parole and recommit Simmons to serve the
balance of his 23-month term.6 Upon remand, if the court orders
recommitment, it may also reparole him at any time during that term. 61 Pa.
C.S.A. § 6134.1; 42 Pa. C.S.A. § 9776(e).
As mentioned, the legislature has established separate rules if the trial
court chooses to enter an order of probation. See 42 Pa. C.S.A. § 9754.
“[T]he court shall specify the length of any term during which the defendant
____________________________________________
6 The length of the recommitment term here may be questioned, because
Simmons did not actually serve any of his 23-month maximum sentence. As
noted earlier, he did not serve the minimum of 6 months, because the trial
court granted him immediate parole.
-8-
J-E02004-20
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.” Id. at § 9754(a). The court is permitted to attach reasonable
conditions to probation. Id. at § 9754(b). Additionally, “the sentence to be
imposed in the event of a violation of a condition shall not be fixed prior to a
finding on the record that a violation has occurred.” Id. at § 9754(d).
Section 9771 sets forth when a trial court may modify or revoke an order
of probation. The Majority aptly discusses the interplay of subsections (a) and
(b) under that section, so I will not repeat that analysis here. However, as
Simmons argues in his brief, subsection (d) of section 9771 also supports the
Majority’s interpretation. That subsection provides: “(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. . . .” 42 Pa. C.S.A. § 9771(d).
Here, there is no doubt that Simmons was not “on probation” at the
time of his new crime. Thus, the court could not have considered any evidence
of his conduct “while on probation” as a basis to revoke its order of probation.
Instead, Simmons was on parole; his new crime constituted a violation of the
conditions of his parole, for which there is a separate remedy, i.e.,
recommitment. Under this subsection, the trial court could not consider
Simmons actions on parole as the basis to revoke his probation.
-9-
J-E02004-20
The Dissent maintains that the conditions of Simmons’ probation
attached at sentencing. “By imposing the conditions of a defendant’s
probation at the original sentencing, a defendant is put on notice as to what
the specific conditions of his probation are and that if he fails to lead a ‘law
abiding life’ from that day forward, he faces possible parole and probation
revocation.” Concurring/Dissenting at 6 (emphasis added). I disagree.
Under the Dissent’s view, the term of Simmons’ probation was actually
4 years and 11 months, not 3 years.7 This view also places Simmons on parole
and probation concurrently, which was not the split sentence that the trial
court ordered.8
Although the Dissent would choose to treat the incarceration and
probation parts of Simmons’ split sentence as intertwined, our legislature has
chosen to treat them separately. If the legislature intended for a new crime
while on parole to serve as a basis to revoke probation, it could have drafted
____________________________________________
7 Arguably, if the terms of probation attached on the date the court imposed
the original sentence, then Simmons’ sentence would have been 5 years,
because it would have started one month prior to the effective date of the
sentence stated by the trial court. I believe that the trial court may order a
convicted defendant to remain in custody of the court, under supervision of
the probation office, pending the start of his sentence. Here, however, the
trial court made no such order. As such, if Simmons had committed a new
crime between December 18, 2017 (the day of his sentencing hearing), and
January 26, 2018 (the effective date of his sentence), his actions would not
have constituted a violation of any supervision.
8 The trial court could have imposed the incarceration and probation parts of
this split sentence to run concurrently, but it did not. See 42 Pa. C.S.A. §
9721(a).
- 10 -
J-E02004-20
section 9771 (d) to provide: “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 or parole….”9
It did not.
In short, the legislature treats parole and probation separately. Indeed,
the penalties for technical violations of parole are dramatically different than
the technical violations of probation. Compare 61 Pa. C.S.A. § 6138(d)(3)-
(5) (setting forth defined maximum sentences of six months, nine months and
one year of recommitment for first, second, and third technical parole
violations, respectively) with 42 Pa. C.S.A. § 9771 (b)-(c) (making all
sentencing alternatives available to the court that were available at the time
of initial sentencing, with due consideration being given to the time spent
serving the order of probation). Whether intentional or not, the legislature
has authorized much broader and potentially more severe sanctions for
probation violations than for parole violations.
To be sure, the trial court must be aware of these distinctions, and
should consider them before choosing which sentencing alternatives to impose
during its original sentence, and whether to impose those sentence options
____________________________________________
9 Alternatively, the legislature could broadly state, “while under
supervision” which would cover a defendant who is under any type of
supervision.
- 11 -
J-E02004-20
concurrently or consecutively. Also, as our decision today makes clear, the
trial court must question whether the “VOP” hearing is for an alleged violation
of parole or violation of probation, as the court’s possible sanctions are very
different.
As a final matter, like the Majority, I believe Wendowski should be
overruled. In Wendowski, a three-judge panel of this court relied on cases
readily distinguishable from the instant matter.
First, the Wendowski court relied on a decision from the District of
Columbia Court of Appeals, Wright v. United States, 315 A.2d 839 (D.C.
App. 1974), which affirmed the revocation of a consecutive term of probation
while a defendant was serving a term of work release. The D.C. trial court
revoked Wright’s work release and probation and ordered him to serve the
balance of his original one-year sentence. The appeals court affirmed,
because if it reversed, a defendant who was previously granted probation
“could commit criminal acts with impunity -- as far as revocation of probation
is concerned -- until he commenced actual service of the probationary period.”
Id. at 841–42.
That logic does not apply here, as Simmons did not commit new criminal
acts with impunity. He was on parole and was subject to recommitment for
the balance of his term. Thus, his new crimes did affect his prior sentence.
Revoking his consecutive probation, however, was an additional sanction,
which the General Assembly of Pennsylvania has not authorized.
- 12 -
J-E02004-20
Moreover, the Wright Court acknowledged that the outcome we reach
today -- concluding the court lacked authority to revoke a probation sentence
that had not yet started -- “may occasionally happen” due to “legislative
oversight” where the statutes fairly leave “no room for construction to avoid
such a result.” Id. at 841.
The Wendowski Court also relied on a concurring opinion from the
United States Court of Appeals for the Fifth Circuit in James v. United States,
140 F.2d 392, 394 (5th Cir. 1944) (Waller, J, concurring), which lacks statutory
support. There, the James Court concluded that, because a future date was
not clearly fixed for the commencement of probation, the original judgment
placed the defendant on probation at the time the sentence was rendered. As
such, he was on probation when he committed the acts for which revocation
of probation was sought and obtained. Thus, the majority determined that
the district court was acting within its power and discretion under a federal
statute when it revoked James’ probation.
Id. at 393.
The concurrence disagreed that James was on probation at the time of
his new crime. Nonetheless, it would have found that the trial court was
authorized to revoke James’ probation. The concurrence cites no relevant
statutory authority for this conclusion, only the general notion that, “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
- 13 -
J-E02004-20
possession of a privilege to the enjoyment of a right.’” Id. at 394 (citing
Burns v. United States,
287 U.S. 216 (1932)).
However, a closer reading of Burns indicates that the district court that
revoked Burns’ probation was interpreting a federal probation statute. That
statute expressly gave district courts very broad discretion to revoke
probation at any time. Burns, 287 U.S. at 221. The Burns Court observed
that the statute broadly conferred discretion to grant probation, as well as to
modify or revoke it.
Id.
There, the relevant federal statute generally provided that “The court
may revoke or modify any condition of probation, or may change the period
of probation.” Id. As the Burns Court observed, “There [were] no limiting
requirements as to the formulation of charges, notice of charges, or manner
of hearing or determination. No criteria for modification or revocation [were]
suggested which [were] in addition to, or different from, those which pertain
to the original grant [of probation]. The question in both cases was whether
the court [was] satisfied that its action would subserve the ends of justice and
the best interests of both the public and the defendant. The only limitation,
and this applie[d] to both the grant and any modification of it, [was] that the
total period of probation shall not exceed five years.”
Id., (citing Act of March
4, 1925, § 1 (18 USCA § 724)). Thus, Burns interpreted a completely
different, and much less restricting, statute regarding probation revocation
than the one the Pennsylvania legislature has created.
- 14 -
J-E02004-20
As the Majority noted, the Wendowski Court did not examine the
relevant Pennsylvania statutes as we have done here, because the issue of
whether the trial court could revoke a probation sentence that had not yet
started was not before that court. Because Wendowski conflicts with those
statutes, despite its lengthy history in our precedent, it must be overruled.
“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.” Commonwealth v. Small, 238 A.3d 1267, 1285 (Pa.
2020) (citation omitted).
Obviously, the legislature has the power to modify the sanctions for
parole and probation violations to make them consistent if it chooses. Or, it
may grant sentencing courts the authority to revoke probation upon proof of
a violation of parole, as Congress did in Burns, supra. However, under the
present statutes, the Majority correctly holds that the trial court could not
revoke Simmons’ probation and resentence him for a probation violation that
occurred prior to the start of his probation. For the additional reasons stated
here, I join the Majority in finding that Simmons’ sentence is illegal and must
be vacated. The trial court may recommit him to the balance of his
incarceration sentence for his parole violation, but it must reinstate the
probation from its original, split sentence.
Judge Lazarus, Judge Dubow and Judge McCaffery join this Concurring
Opinion.
- 15 -
J-E02004-20
Judge Shogan did not participate in the consideration or decision of this
matter.
- 16 -
