J-A14012-23
2023 PA Super 236
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM R. DELL :
:
Appellant : No. 2091 EDA 2022
Appeal from the Order Entered July 8, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0408011-2006
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
OPINION BY PANELLA, P.J.: FILED NOVEMBER 14, 2023
William Dell appeals the Philadelphia County Court of Common Pleas’
order granting the 2022 request of the Pennsylvania Board of Probation
and Parole (“PBPP”) to add three conditions to Dell’s probation, which was
imposed in 2008. Dell argues on appeal that the trial court lacked a legal
basis for entering this order modifying his probation. Both the trial court
and the Commonwealth agree with Dell, as do we. We therefore vacate
the order, and remand for proceedings consistent with this opinion.
In 2007, Dell was convicted of sexual abuse of children and related
offenses after a bench trial. The trial court sentenced Dell in 2008 to five
to ten years’ incarceration, followed by five years of probation. The
conditions of Dell’s probation were that he: (1) be supervised by the Sex
J-A14012-23
Offender’s Unit and (2) register as a sex offender and comply with Megan’s
Law. See Sentencing Order, 5/23/2008, at 1-2.
Dell began serving his probation on August 18, 2018. On June 23,
2022, the PBPP filed a letter requesting the trial court to hold a hearing
pursuant to 42 Pa. C.S.A. § 9771 and add three new conditions to Dell’s
probation. The three proposed conditions were: 1) “Standard and Optional
Special conditions for Sex Offenders with a minor victim;” 2) “Any
condition issued by PBPP;” and 3) “Use of GPS monitoring when PBPP staff
deem appropriate.” PBPP Letter, 6/23/2022 (single page).
The court held a hearing on the matter on July 8, 2022. There was
no evidence presented at the hearing regarding Dell’s conduct while on
probation. Nonetheless, the trial court granted PBPP’s request and issued
an order adding the three conditions to Dell’s probation. See Order
Granting Motion to Modify Conditions of Probation, 7/8/2022 (single page).
Dell filed a motion for reconsideration, which the trial court denied.
Dell then filed a timely notice of appeal and complied with the court’s
directive to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. In his statement, Dell argued, inter alia, that the court erred by
entering an order modifying his probation to include the three PBPP-
requested conditions without finding Dell violated a specific condition of
his probation or presented a threat to public safety pursuant to 42 Pa.
C.S.A. § 9771. The trial court agreed with Dell in its responsive Rule
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1925(a) opinion, and asked this Court to vacate its order imposing the
additional probation conditions. On appeal, Dell raises the following two
issues:
A. Did not the trial court err and abuse its discretion by
increasing the terms of [Dell’s] probation where the court
failed to meet the requirements of 42 Pa.C.S.A. § 9771 and
otherwise lacked authority to modify [Dell’s] sentence more
than 30 days after sentencing?
B. Did not the trial court err and abuse its discretion by
delegating responsibility for setting the specific terms of
[Dell’s] probation to the [PBPP]?
Appellant’s Brief at 3 (trial court’s answers omitted).
Dell first argues the trial court erred by adding new conditions to his
probation without complying with Section 9771. We, like the trial court,
agree with Dell.
After the thirty-day modification period provided by 42 Pa. C.S.A. §
5505 has passed, as there is no dispute it did here, a trial court may only
modify a probationer’s terms of probation pursuant to Section 9771, which
provides in relevant part:
(a) General Rule.-- The court has inherent power to at any
time terminate continued supervision, lessen the conditions
upon which an order of probation has been imposed or
increase the conditions under which an order of probation has
been imposed upon a finding that a person presents an
identifiable threat to public safety.
(b) Revocation.-- The court may increase the conditions …
of probation upon proof of the violation of specified conditions
of the probation.
…
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J-A14012-23
(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.
As indicated above, the trial court acknowledged in its Rule 1925(a)
opinion that the hearing it held in this case did not meet the requirements
of Section 9771. It explained:
The legal basis for the PBPP to seek to increase or modify the
terms of [Dell’s] probation would be for [the] PBPP to present
evidence that [Dell] violated the specific conditions of his
probation, or that [Dell] presents an identifiable threat to
public safety, or present evidence of the conduct of [Dell]
while on probation. See 42 Pa.C.S.A. § 9771. The PBPP did
not present, or offer to present, any such evidence.
Trial Court Opinion, 12/16/2022, at 5.
The court then concluded that its order must therefore be vacated.
See id. We agree, and note that the Commonwealth does as well:
[N]o evidence was presented [at the hearing] regarding
[Dell’s] conduct while on probation, and the court made no
findings that [Dell] either violated a condition of his probation
or presented an identifiable threat to public safety. The trial
court therefore had no basis for increasing the conditions of
probation after the hearing [and its order doing so should
therefore be vacated].
Commonwealth’s Brief at 5.
Based on the above, we must vacate the trial court’s order
increasing the terms of Dell’s probation, and we remand to the trial court
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for proceedings consistent with this memorandum. Given this disposition,
we need not address Dell’s second issue on appeal.
Order vacated and matter remanded for proceedings consistent with
this opinion. Jurisdiction relinquished.
Date: 11/14/2023
-5-
J-A14012-23
2023 PA Super 236
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM R. DELL :
:
Appellant : No. 2091 EDA 2022
Appeal from the Order Entered July 8, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0408011-2006
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
OPINION BY PANELLA, P.J.: FILED NOVEMBER 14, 2023
William Dell appeals the Philadelphia County Court of Common Pleas’
order granting the 2022 request of the Pennsylvania Board of Probation
and Parole (“PBPP”) to add three conditions to Dell’s probation, which was
imposed in 2008. Dell argues on appeal that the trial court lacked a legal
basis for entering this order modifying his probation. Both the trial court
and the Commonwealth agree with Dell, as do we. We therefore vacate
the order, and remand for proceedings consistent with this opinion.
In 2007, Dell was convicted of sexual abuse of children and related
offenses after a bench trial. The trial court sentenced Dell in 2008 to five
to ten years’ incarceration, followed by five years of probation. The
conditions of Dell’s probation were that he: (1) be supervised by the Sex
J-A14012-23
Offender’s Unit and (2) register as a sex offender and comply with Megan’s
Law. See Sentencing Order, 5/23/2008, at 1-2.
Dell began serving his probation on August 18, 2018. On June 23,
2022, the PBPP filed a letter requesting the trial court to hold a hearing
pursuant to 42 Pa. C.S.A. § 9771 and add three new conditions to Dell’s
probation. The three proposed conditions were: 1) “Standard and Optional
Special conditions for Sex Offenders with a minor victim;” 2) “Any
condition issued by PBPP;” and 3) “Use of GPS monitoring when PBPP staff
deem appropriate.” PBPP Letter, 6/23/2022 (single page).
The court held a hearing on the matter on July 8, 2022. There was
no evidence presented at the hearing regarding Dell’s conduct while on
probation. Nonetheless, the trial court granted PBPP’s request and issued
an order adding the three conditions to Dell’s probation. See Order
Granting Motion to Modify Conditions of Probation, 7/8/2022 (single page).
Dell filed a motion for reconsideration, which the trial court denied.
Dell then filed a timely notice of appeal and complied with the court’s
directive to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. In his statement, Dell argued, inter alia, that the court erred by
entering an order modifying his probation to include the three PBPP-
requested conditions without finding Dell violated a specific condition of
his probation or presented a threat to public safety pursuant to 42 Pa.
C.S.A. § 9771. The trial court agreed with Dell in its responsive Rule
-2-
J-A14012-23
1925(a) opinion, and asked this Court to vacate its order imposing the
additional probation conditions. On appeal, Dell raises the following two
issues:
A. Did not the trial court err and abuse its discretion by
increasing the terms of [Dell’s] probation where the court
failed to meet the requirements of 42 Pa.C.S.A. § 9771 and
otherwise lacked authority to modify [Dell’s] sentence more
than 30 days after sentencing?
B. Did not the trial court err and abuse its discretion by
delegating responsibility for setting the specific terms of
[Dell’s] probation to the [PBPP]?
Appellant’s Brief at 3 (trial court’s answers omitted).
Dell first argues the trial court erred by adding new conditions to his
probation without complying with Section 9771. We, like the trial court,
agree with Dell.
After the thirty-day modification period provided by 42 Pa. C.S.A. §
5505 has passed, as there is no dispute it did here, a trial court may only
modify a probationer’s terms of probation pursuant to Section 9771, which
provides in relevant part:
(a) General Rule.-- The court has inherent power to at any
time terminate continued supervision, lessen the conditions
upon which an order of probation has been imposed or
increase the conditions under which an order of probation has
been imposed upon a finding that a person presents an
identifiable threat to public safety.
(b) Revocation.-- The court may increase the conditions …
of probation upon proof of the violation of specified conditions
of the probation.
…
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J-A14012-23
(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.
As indicated above, the trial court acknowledged in its Rule 1925(a)
opinion that the hearing it held in this case did not meet the requirements
of Section 9771. It explained:
The legal basis for the PBPP to seek to increase or modify the
terms of [Dell’s] probation would be for [the] PBPP to present
evidence that [Dell] violated the specific conditions of his
probation, or that [Dell] presents an identifiable threat to
public safety, or present evidence of the conduct of [Dell]
while on probation. See 42 Pa.C.S.A. § 9771. The PBPP did
not present, or offer to present, any such evidence.
Trial Court Opinion, 12/16/2022, at 5.
The court then concluded that its order must therefore be vacated.
See id. We agree, and note that the Commonwealth does as well:
[N]o evidence was presented [at the hearing] regarding
[Dell’s] conduct while on probation, and the court made no
findings that [Dell] either violated a condition of his probation
or presented an identifiable threat to public safety. The trial
court therefore had no basis for increasing the conditions of
probation after the hearing [and its order doing so should
therefore be vacated].
Commonwealth’s Brief at 5.
Based on the above, we must vacate the trial court’s order
increasing the terms of Dell’s probation, and we remand to the trial court
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for proceedings consistent with this memorandum. Given this disposition,
we need not address Dell’s second issue on appeal.
Order vacated and matter remanded for proceedings consistent with
this opinion. Jurisdiction relinquished.
Date: 11/14/2023
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