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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.
CONCURRING AND DISSENTING OPINION BY BOWES, J.:
FILED AUGUST 18, 2021
I agree with the learned Majority that the parole portion of Appellant’s
sentence must be vacated and remanded so that Appellant can be
recommitted to serve parole back-time.1 However, I respectfully disagree that
the probation should be reimposed. The Majority’s interpretation of 42 Pa.C.S.
§ 9771 upends forty years of unchallenged precedent permitting the
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1 Upon revocation of parole, the only sentencing option available is
recommitment to serve the balance of the prison term initially imposed. See
Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa.Super. 2008).
However, here, the sentencing court imposed a new sentence of incarceration.
Since there is no authority for a parole-revocation court to impose a new
penalty, we agree with the Majority that the parole portion of Appellant’s
sentence should be vacated and remanded for resentencing. See
Commonwealth v. Bischof,
616 A.2d 6, 10 (Pa.Super. 1992) (reversing and
remanding for resentencing after the parole revocation court modified an
appellant’s sentence instead of recommitting him to serve the balance of his
sentence).
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anticipatory revocation of an order of probation when a defendant commits a
new crime. Starting with Commonwealth v. Wendowski,
420 A.2d 628
(Pa.Super. 1980), our courts have repeatedly construed § 9771 as providing
that a defendant may violate the conditions of a probationary order by
committing a new crime any time between sentencing and the completion of
the maximum period of probation. To my mind, the doctrine of stare decisis
and the presumption of legislative acquiescence warrant maintaining this long-
standing interpretation of Pennsylvania law. Accordingly, I dissent.
As the Majority explains, statutory construction is a pure question of
law, which we review de novo. Commonwealth v. Cousins, 212 A.3d 34,
38 (Pa. 2019). “The object of all interpretation and construction of statutes
is to ascertain and effectuate the intention of the General Assembly. Every
statute shall be construed, if possible, to give effect to all its provisions.” 1
Pa.C.S. § 1921(a). We first look to the plain language of the statute,
construing the words according to their common usage to discern the
legislature’s intent. See 1 Pa.C.S. § 1921(a), (b); Commonwealth v.
Foster,
214 A.3d 1240, 1247 (Pa. 2019). Importantly, the plain meaning of
a word “does not depend upon its form, but upon the intention of the
Legislature, to be ascertained from a consideration of the entire act, its nature,
its object, and the consequences that would result from construing it one way
or the other.” MERSCORP, Inc. v. Del. Cty.,
207 A.3d 855, 866 (Pa. 2019)
(citation and internal quotations omitted).
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We look beyond the plain meaning of the statute only where the words
of the statute are ambiguous or not explicit. See 1 Pa.C.S. § 1921(c). A
statutory text is ambiguous if it is susceptible to two or more reasonable
interpretations. See Commonwealth v. McClelland, 233 A.3d 717, 734 (Pa.
2020). Once a court concludes that the statutory language is ambiguous, it
turns to the canons of statutory construction to determine the intended
meaning of the relevant language. See 1 Pa.C.S. § 1921(c); 1 Pa.C.S. §
1922.
Section 9771 addresses the termination, modification, and revocation of
probation and it provides as follows:
(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.
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(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. § 9771 (emphasis added).2
The Majority concludes that the plain meaning of § 9771 permits
revocation of probation only after a defendant has begun serving the
probationary portion of his sentence. Specifically, the Majority focuses upon
§ 9771(b), which states that “[t]he court may revoke an order of probation
upon proof of the violation of specified conditions of the probation.” The
Majority reads § 9771(b) in tandem with 42 Pa.C.S. § 9721(a), which
authorizes a trial court to impose probation “consecutively or concurrently.”
Since probation can only be imposed “consecutively or concurrently” pursuant
to 42 Pa.C.S. § 9721(a), the Majority concludes that the “specified conditions”
of a probation order set to run consecutively to a separate term of
incarceration cannot take effect until the defendant begins serving the
probationary portion of his sentence. The Majority found that “[t]his view is
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2 The General Assembly amended the language of subsections (a) and (b) in
December of 2019, which now allow the court to alter the terms of an order
of probation “at any time” if it finds “that a person presents an identifiable
threat to public safety.” 42 Pa.C.S. § 9771(a). The legislature also added
language to § 9771(b) to allow the Commonwealth “to file notice at any time
prior to resentencing of the Commonwealth’s intention to proceed under an
applicable provision of law requiring a mandatory minimum sentence.” 42
Pa.C.S. § 9771(b). These changes were made after the imposition of
Appellant’s sentence in this case and are not pertinent to this appeal.
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mandated by the plain language of the statutes. Indeed, any other view is
statutorily untenable.” Majority Opinion at 19. I must respectfully disagree
with this proffered statutory interpretation.
From the outset, I emphasize that the Majority’s analysis overlooks an
unbroken line of Pennsylvania precedent interpreting the phrase “order of
probation” under § 9771 much differently in the revocation context. This
Court has consistently held that the order of probation itself may be revoked
at any time after sentencing and before the maximum period of probation has
elapsed. See Commonwealth v. Miller, 516 A.2d 1263, 1265 (Pa.Super.
1986) (“To suggest . . . 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 is not
commenced is to suggest an absurdity in the statute which this Court is not
prepared to create.”). Accordingly, our case law treats the probationary and
incarceration aspects of a defendant’s sentence as intertwined parts of the
same sentencing scheme. Commonwealth v. Infante,
63 A.3d 358, 365
(Pa.Super. 2013) (“[U]pon revocation, the sentencing alternatives available
to the court shall be the same as the alternatives available at the time of initial
sentencing . . . . the trial court is limited only by the maximum sentence that
it could have imposed originally”); see also Commonwealth v.
Goldhammer,
517 A.2d 1280, 1283 (Pa. 1986) (“When a defendant
challenges one of several interdependent sentences, he, in effect, challenges
the entire sentencing plan.”).
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This long-standing interpretation jettisoned by the Majority3 is also
supported by the language of § 9771(b) when viewed in tandem with 42
Pa.C.S. § 9754(b)4, which states that the sentencing alternatives available to
the revocation court are the same that were available to the initial sentencing
court. See 42 Pa.C.S. § 9771(b). 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. See Commonwealth v. Shires, 240 A.3d 974, 977-80
(Pa.Super. 2020) (examining the interplay between the crimes code and
prisons and parole code, before holding that the only pertinent conditions of
a defendant’s probation for revocation purposes were the conditions imposed
as part of his original sentence).
I also disagree with the Majority’s overly-strict interpretation of §
9771(b) to the effect that revocation is sanctioned only “upon proof of the
violation of specified conditions of probation,” which are enumerated in §
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3 The Majority’s interpretation arises from reading the words “an order of
probation” in isolation. However, our precedent mandates that we “read them
with reference to the context in which they appear.” MERSCORP, Inc. v.
Del. Co., 207 A.3d 855, 867-69 (Pa. 2019) (discerning the meaning of a
mortgage assignment statute by viewing it in the context of how it had been
interpreted by Pennsylvania Courts for over a hundred years). Accordingly, I
would not be so dismissive of an interpretation that has influenced criminal
sentencing decisions for decades.
4 “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.” 42 Pa.C.S. § 9754(b).
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9754(c) and listed in the Majority Opinion. Since specified conditions of
probation run coextensively with the term of probation, the Majority posits
that the plain-meaning of “order of probation” cannot become effective for
revocation purposes until a defendant begins serving probation. See Majority
at 22-24. However, this view ignores 42 Pa.C.S. § 9754(b), which our
Supreme Court has held provides additional grounds for revoking a
defendant’s probation. See Foster, supra at 1250.
In Foster, our Supreme Court applied the canons of statutory
construction to § 9771 to discern whether acts not specified in § 9754(c) could
still constitute a probation violation. Id. Our High Court found that, when
read together, § 9771(b) and § 9754(b) create a construct so that probation
revocation can take place after a violation of a “specific condition” or the
commission of a new crime. Id. at 1250 (“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 probation included in the probation order or has
committed a new crime.”). Thus, the specific conditions of probation flow
from the general condition of probation that a defendant leads “a law-abiding
life.” Id. at 1250; see also 42 Pa.C.S. § 9754(b). The Foster Court imported
the general condition of law-abidingness into the same sentence of the section
at issue here, even though that condition was not specified in the actual
sentencing order, which, under the Majority’s approach, § 9771(b) plainly
requires. See 42 Pa.C.S. § 9771(b) (“The court may revoke an order of
probation upon proof of the violation of specified conditions of the
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probation.”). Notably, Foster clarified that “specified conditions” includes the
general condition of law-abidingness. Accordingly, Foster serves as a prime
example that the language of § 9771(b) need not be construed as strictly as
the Majority view would impose.
Concededly, the question of anticipatory revocation was not before the
Foster Court. However, a defendant can commit a new crime at any time
after a split sentence is imposed, regardless of which portion of that sentence
he is then serving. Since the general and specific conditions are included in
the probation order, a defendant is placed on notice at the sentencing hearing
of the penalties associated with committing a new crime. Thus, the Foster
Court’s interpretation of § 9771(b) plainly supports Wendowski’s
construction of § 9771: commission of a new crime any time after imposition
of sentence may serve as the basis for revocation of probation.
Given the existence of these cases that espouse an equally reasonable
statutory interpretation compared to the majority view, I would find that §
9771 is ambiguous, at best, on this point. Therefore, I would turn to additional
tools of statutory construction, which overwhelmingly support the affirmation
of established case law interpreting § 9771. See 1 Pa.C.S. § 1921(c).5
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5 To discern legislative intent when faced with an ambiguous statute, the
factors to consider include, but are not limited to: “(1) The occasion and
necessity for the statute; (2) The circumstances under which it was enacted;
(3) The mischief to be remedied; (4) The object to be attained; (5) The former
law, if any, including other statutes upon the same or similar subjects; (6)
The consequences of a particular interpretation; (7) The contemporaneous
legislative history; [and] (8) Legislative and administrative interpretations of
such statute.” 1 Pa.C.S. § 1921(c).
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First, pursuant to 1 Pa.C.S. § 1922(c)(1) we are permitted to examine
the statutory consequences of a particular interpretation. See 1 Pa.C.S. §
1922(c)(1) (presuming that the legislature did not intend an absurd or
unreasonable result, we are permitted to examine the practical consequences
of a particular interpretation). Moreover, in accordance with 1 Pa.C.S. §
1922(c)(5), we presume that the general assembly intended to favor the
public interest over any private interest. See 1 Pa.C.S. § 1922(c)(5) (“[T]he
General Assembly [presumptively] intends to favor the public interest as
against any private interest.”).
Here, an examination of the consequences of the Majority’s approach
highlights its practical unworkability and inconsistency with important public
policy interests. The Wendowski court aptly addressed the implicated public
policy concerns, explaining:
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 [a] 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, supra at 630 (emphasis in original) (quoting James v. United
States,
140 F.2d 392, 394 (5th Cir. 1944) (Waller, J., concurring)).
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Indeed, probation is a “privilege” not a “right.” Id. Interpreting the
statute as the Majority suggests would be turn this notion on its head,
changing probation from a “privilege” to a “right” that must be honored no
matter how many additional crimes the defendant commits between the
imposition of his sentence and the commencement of the probationary term.
For example, a parolee who commits a crime on the last day of his term of
incarceration could never face any probationary consequences for that crime,
since it was committed outside of the probationary portion of his sentence. In
other words, once the amount of back time left on his sentence neared
completion, the defendant would have license to break the law while resting
assured of an irrevocable entitlement to probation. Although the defendant
had unequivocally demonstrated the continuing inability to abide by the law,
the probation revocation court would have to grant him the opportunity to
commit yet another crime during the probationary portion of his split sentence
before the court could act. This result topples the long-standing recognition
of probation as a “privilege” and discourages courts’ utilization of it as an
important deterrent and rehabilitative tool, which, when used in combination
with parole revocation, protects the public.6
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6 Indeed, what court will now opt to impose a split sentence that cannot be
altered no matter how terribly the defendant behaves during the confinement
portion of his sentence rather than just sentencing the defendant to a lengthier
maximum term of imprisonment to ensure that the privilege of less-intense
supervision is not abused?
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Second, the doctrines of stare decisis and legislative acquiescence
support upholding Wendowski and its progeny. For over forty years, we
have explicitly authorized revocation courts to anticipatorily revoke probation
based on our interpretation of § 9771. See, e.g. Commonwealth v.
Allhouse, 33 A.3d 39 (Pa.Super. 2011); Commonwealth v. Hoover,
909
A.2d 321, 323-24 (Pa.Super. 2006); Commonwealth v. Ware,
737 A.2d
251, 253-54 (Pa.Super. 1999);
Miller, supra at 1265-66; Commonwealth
v. Dickens,
475 A.2d 141, 152-53 (Pa.Super. 1984);
Wendowski, supra at
630. Thus, it has been clearly established through precedent that “a court
may revoke a probationary sentence at any time prior to its completion if the
defendant demonstrates to the court that he is unworthy of probation.”
Wendowski at 630. This precedent provided the legal landscape upon which
trial courts chose probationary tails from among the sentencing options
available to them. I think it is beyond cavil that knowledge that the probation
could be revoked at any time upon a defendant’s commission of a new crime
informed some of these courts’ decisions, and that sentencing schemes may
well have been structured quite differently had the courts been aware of the
constraint that the Majority now imposes.
Furthermore, since Wendowski, the legislature has amended § 9771
twice. See Commonwealth’s brief at 16. However, neither amendment has
addressed the operative language at issue here. Therefore, the legislature
appears to have acquiesced in the long line of precedent borne of the
Wendowski holding that the conditions of probation begin at the time
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sentence is imposed. See Commonwealth’s brief at 16; see also, e.g.
Commonwealth v. Batts, 163 A.3d 410, 459-60 (Pa. 2017) (Batts II)
(Finding legislative acquiescence to the Commonwealth v. Batts,
66 A.3d
286, 295 (Pa. 2013) (Batts I) Court’s interpretation of 18 Pa.C.S. § 1102,
since “[d]espite the passage of four years since we issued Batts I, the General
Assembly has not passed a statute addressing the sentencing of juveniles
convicted of first-degree murder pre-Miller [v. Alabama,
567 U.S. 460
(2012)], nor has it amended the pertinent provisions that were severed in
Batts I.”); see also, e.g. Commonwealth v. Bradley,
834 A.2d 1127, 1133
(Pa. 2003) (considering the “three strikes” provision of the sentencing code
and finding the fact that “several versions of the [sentencing] Guidelines
adopted the same definition of ‘transaction’” as “at least some evidence of
legislative acquiescence in the definition.”).
The Majority discusses the Commonwealth’s stare decisis and legislative
arguments, acknowledging that the Superior Court has reaffirmed
Wendowski many times and conceding that the doctrine of stare decisis can
still apply in situations, such as here, where the Pennsylvania Supreme Court
has never ruled on the issue. See Majority at 24-25. Nevertheless, the
Majority gives short shrift to the Commonwealth’s position, dismissing and
departing from established precedent because it finds that precedent relied on
an erroneous interpretation of § 9771 which ran “contrary to the plain
language of the statutes” for decades. Id. at 27.
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While I do not deem our Court’s repeatedly consistent interpretation of
§ 9771 and the legislature’s acquiescence to that interpretation as dispositive
of the question of statutory interpretation, neither would I deem it insignificant
as the Majority suggests. Legal precedent exists to ensure “the evenhanded,
predictable, and consistent development of legal principles.” Payne v.
Tennessee, 501 U.S. 808, 827 (1991). Section 9771 is not obscure or rarely
applied, and the General Assembly has had forty years to undo the holding in
Wendowski if it thought the holding incorrect or that defendants who commit
new crimes while serving parole deserved more lenient treatment. In
circumstances such as here, where the legislature has declined the
opportunity to clarify an ambiguous text, adherence to our precedent
promotes notions of fairness and stability. Accordingly, I would not unsettle
forty years of established jurisprudence. Instead, I would leave any
amendment of § 9771 to the General Assembly.
Therefore, while I agree that the parole portion of Appellant’s sentence
was imposed illegally, I respectfully dissent from the Majority’s decision to
vacate Appellant’s entire judgment of sentence on the grounds that the court
did not possess the authority to anticipatorily revoke Appellant’s probation.
Judge Murray joins this dissenting opinion.
Judge Shogan did not participate in the consideration or decision of this
matter.
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