J-S30043-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA CHARLES SIEPLE
Appellant No. 1771 MDA 2013
Appeal from the Judgment of Sentence August 28, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006012-2007
BEFORE: BENDER, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 12, 2014
sentence of 4 to 12 months of incarceration following the revocation of
probation for his possession of child pornography1 conviction. For the
reasons set forth herein, we affirm.
On September 4, 2007, a criminal complaint charged Appellant with
one count of Criminal Solicitation Possession of Child Pornography, 18
Pa.C.S. § 902(a) and one count of Sexual Abuse of Children Child
Pornography, 18 Pa.C.S. § 6312(d). The Affidavit of Probable Cause alleged
Appellant, while in an internet chat room, requested and received pictures of
naked individuals under the age of 16. Trial Court Opinion, February 25,
p. 2. After obtaining and executing a search warrant,
____________________________________________
1
18 Pa.C.S. § 6312(d)(1).
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the police located the obscene photographs on the hard drive of a computer
to which Appellant had access. Id.
On January 2, 2008, Appellant pled guilty to count 2, Sexual Abuse of
Children Child Pornography, pursuant to a plea agreement and the
Commonwealth withdrew count 1, Criminal Solicitation Possession of Child
Pornography. N.T. 1/2/2008 at pp. 1-4. On March 24, 2008, the trial court
sentenced Appellant to three years of probation, fulfillment
Law reporting obligations, and forfeiture of his computer. N.T. 3/24/2008 at
1-
reporting obligations, by the language of the statute, is not required to
refrain from contact with minors. See 42 Pa.C.S. § 9799.15 et seq.; N.T.
3/24/2008 at 2-4.
On February 27, 2001, the Honorable John H. Chronister, then
President Judge of the York County Court of Common Pleas, issued an
administrative order directing the York County Probation Department to
incorporate a set of specific sex offender conditions into the probation/parole
conditions for all defendants sentenced to probation or released on parole
supervision where the defendant had committed an offense of a sexual
nature. N.T. 8/28/2013, pp. 10-12, 14-15.2 Possession of child pornography
____________________________________________
2
As noted by the trial court, the administrative order stated:
It is hereby ordered sex offender conditions be
supervision based on the following offenses and any
(Footnote Continued Next Page)
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is an offense of a sexual nature. N.T. 8/28/2013, pp. 15-16, 20. The
conditions included not frequenting areas primarily attended by minors such
as theme parks, malls, or movie theaters, and undergoing sex offender
treatment counseling if deemed appropriate by the parole/probation officer.
Pursuant to and in furtherance of the 2001 administrative order, York
County Adult Parole and Probation included sexual offender conditions as
3
He received written notice of these conditions
within 24 hours of his sentencing, and acknowledged his awareness that he
would be subject to the sex offender conditions by signing a copy of them.
N.T. 8/28/2013, pp. 10-11. He did not challenge the propriety of those
conditions by filing post-trial motions or directly appealing the original
conditions of his sentence.
On March 19, 2009, the York County Adult Parole and Probation
_______________________
(Footnote Continued)
other offense not listed below which may be of a
sexual nature.
N.T. 8/28/2013, p. 9. The administrative order then listed several sexually
related offenses, including the offense of possession of child pornography.
Id. See also -7.
3
We note there was also a January 24, 2012 administrative order that
effectively renewed and modified the probation conditions for convicted
sexual offenders imposed by the 2001 administrative order. See
Administrative Order Imposing Conditions of Probation and Parole for Adult
Sexual Offenders and Imposing Cost of Treatment on Sexual Offenders,
January 24, 2012, at 1-6. Because the Commonwealth does not argue that
its applicability.
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complete sex offender treatment. On May 15, 2009, at his probation
violation hearing,4 Appellant admitted the violation specifically, that he
failed to pay for the costs of the treatment and was released from York
sentence of time-served to 23 months of incarceration with a consecutive
one-year probation term.5
On June 3, 2010, the York County Adult Parole and Probation
Department filed a second detainer on the grounds that Appellant again
violated the sex offender conditions of his parole. On August 23, 2010, at
the parole violation hearing,6 Appellant admitted the violation. The trial court
sentenced Appellant to completion of a Character Development Program,
ance of 642 days [of incarceration] with re-parole after
serving 120 days [or] . . . . [upon] complet[ion of] the Character
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4
On April 3, 2009, Appellant waived his Gagnon I hearing. We find that by
waiving this hearing, and the subsequent hearings, noted below, Appellant
conceded that there was probable cause to believe he committed a violation
of his probation. See Commonwealth v. Sims, 770 A.2d 346, 350
(Pa.Super.2001). He initially filed a petition for a writ of habeas corpus. On
May 15, 2009, by agreement of the parties, Appellant orally withdrew that
petition on the record and asked to proceed with the probation violation
hearing.
5
o
the detainer was issued March 19, 2009 until the date of his probation
violation hearing May 15, 2009.
6
On June 11, 2010, Appellant waived his Gagnon I hearing.
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Development Program[, whichever comes first], [and] . . . . a one year
7
N.T. 8/23/2010 pp. 3-4. On September
17, 2010, Appellant signed a parole plan that granted his release from
incarceration with the special condition that he comply with sex offender
conditions.
On May 11, 2011, the York County Parole and Probation Department
issued a third detain
assaultive behavior against his fiancé in violation of his parole. On July 18,
2011, at his parole violation hearing,8 Appellant admitted the violations. The
trial court sentenced Appellant to
serve the the unserved balance of his term of
approximate[ly] 541 days with the possibility of re-
parole after serving 6 months. Reparole will be
subject to the same terms and conditions as
previously imposed and subject to the additional
special condition that you complete the Thinking For
A Change Program while incarcerated and also
continue counseling with the TRIAD Treatment
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7
Although the record reflects that the trial court imposed a sentence of
incarceration and completion of the Character Development Program on
only pled guilty to count 2. See N.T. 8/23/2010 pp. 3-4. It may be inferred
from the transcript and original record that this resulted from the trial
solely on count 2. Id. Additionally, Appellant does not contend that his prior
or current sentences were illegal on that basis.
8
On May 24, 2011, Appellant waived his Gagnon I hearing. Appellant
initially filed a motion to suppress the evidence supporting the parole
violation. On July 18, 2011, by agreement of the parties, Appellant orally
withdrew that motion on the record and asked to proceed with the parole
violation hearing.
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Specialists to include the conduct that was set forth
in the parole violation report.
We will direct that with regard to [c]ount 2. We will
probation.
Order Dated 7/18/2011, p. 1. On November 3, 2011, Appellant completed a
parole plan, which provided that he comply with sex offender conditions.
On June 19, 2013, the York County Parole and Probation Department
issued a fourth detainer for Appellant based on allegations that he was
frequenting areas attended by minors in violation of the sex offender
conditions of his probation.9 On August 28, 2013,10 at the probation
violation hearing,11 the trial court found Appellant violated his probation and
sentenced him to 4 to 12 months of incarceration in York County Prison and,
department and the additional special conditions consisting of the sex
____________________________________________
9
At the time the fourth detainer was issued, Appellant was serving the
consecutive 12-month probation sentence that he received on May 15, 2009.
Ac
23-month sentence expired on October 17, 2012, and the probation
sentence became effective on October 18, 2012.
10
The probation violation hearing was originally scheduled for August 26,
2013. At that hearing, when Appellant submitted a two-page brief in support
of his position that the sex offender conditions were not applicable to the
term of his probation, the trial court ordered the hearing rescheduled for
August 28, 2013.
11
On June 27, 2013, Appellant waived his Gagnon I hearing.
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Appellant timely filed a Notice of Appeal on September 27, 2013. Both
Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.12 Appellant now raises the following issues on appeal:
I. Whether an administrative order that revokes or
modifies a defendant's conditions of probation
without a hearing violates the due process clauses of
the 5th and 14th Amendments to the U.S.
Constitution and Article 1, Sections 9 and 11 of the
Pennsylvania Constitution?
II. Whether the trial court erred when it found Appellant
in violation of special sex offender conditions that the
court had imposed in Appellant's original sentence
but were not re-imposed by the court when
Appellant was re-sentenced for a subsequent
probation violation?
13
The scope of review in an appeal following a sentence imposed after
probation revocation is limited to the validity of the revocation proceedings
and the legality of the sentence imposed following revocation.
Commonwealth v. Cartrette, 83 A.3d 1030, 1035 (Pa.Super.2013). Our
____________________________________________
12
On October 4, 2013, the trial court entered an order directing Appellant to
file a Statement of Matters Complained of on Appeal within twenty-one (21)
days. On October 29, 2013, the trial court granted Appellant an extension to
file his 1925(b) Statement until December 2, 2013. Appellant failed to file a
1925(b) Statement and, on December 11, 2013, the trial court issued a Rule
1925(a) Statement. On December 12, 2013, Appellant filed a Petition to
Reinstate his Appellate Rights and Accept his Nunc Pro Tunc 1925(b)
Statement. The trial court granted this request by order dated December 17,
2013.
13
Appellant raised four (4) issues in his 1925(b) Statement. He briefed only
the above-listed claims. Accordingly, he has waived his remaining claims.
See Commonwealth v. Rush, 959 A.2d 945, 950-51 (Pa.Super.2008).
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standard of review for a constitutional challenge to the legality of a sentence
and general questions of law is de novo, and our scope is plenary.
Commonwealth v. Shawver, 18 A.3d 1190, 1194 (Pa.Super.2011).
Due process is a flexible concept and calls for such procedural
protections as the particular circumstances require. In the Interest of F.C.
III, 2 A.3d 1201, 1215 (Pa.2010) (citing Morrisey v. Brewer, 408 U.S.
471, 481 (1972)). A defendant has a liberty interest in the revocation of
probation. Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973) (minimum due
process requirements for probation revocation are identical to those
established in Morrisey v. Brewer, supra, for parole revocation). Although
revocation of probation, like revocation of parole, is not part of a criminal
prosecution, it entails a loss of liberty and minimum due process must
therefore be accorded the probationer. Commonwealth v. Davis, 336 A.2d
616, 620 (Pa.1975) (citing Gagnon, 411 U.S. at 781). Specifically, a two-
step revocation procedure must be followed: a probationer is entitled to two
hearings, one is a preliminary hearing at the time of his arrest and detention
to determine whether there is probable cause to believe that he has
committed a violation of his probation (a Gagnon I Hearing), 14 and another,
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14
Gagnon I) hearing, a probationer or parolee is
entitled to notice of the alleged violations of probation or parole, an
opportunity to appear and to present evidence in his own behalf, a
conditional right to confront adverse witnesses, an independent
decisionmaker, and a writ Gagnon v. Scarpelli,
Supra, 411 U.S. at 786.
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more comprehensive hearing prior to a final revocation decision (a Gagnon
II Hearing). See id. at 620. As we have previously explained:
The Gagnon II hearing entails, or may entail, two
decisions: first, a consideration of whether the facts
determined warrant revocation. The first step in a
(Gagnon II) revocation decision . . . involves a
wholly retrospective factual question: whether the
parolee (or probationer) has in fact acted in violation
of one or more conditions of his parole (or
probation). . . . Only if it is determined that the
parolee (or probationer) did violate the conditions
does the second question arise: should the parolee
(or probationer) be recommitted to prison or should
other steps be taken to protect society and improve
chances of rehabilitation?
Davis, 336 A.2d at 621 (internal quotations and citations omitted).
While considerations of substantive fairness apply to probation
revocation proceedings, see, e.g., Bearden v. Georgia, 461 U.S. 660, 667
n. 7 (1983) (citing Morrisey, supra), a person who has been convicted of a
y the full panoply of
constitutional rights otherwise enjoyed by those who (have) not run afoul of
Commonwealth v. McBride, 433 A.2d 509, 510 (1981) (internal
citation and quotations omitted). At a Gagnon II revocation hearing, the
Commonwealth must prove a violation of probation by a preponderance of
the evidence. See Commonwealth v. Sims, 770 A.2d 346, 350
(Pa.Super.2001). When no evidence of a violation exists, a substantive due
probation.
See Douglas v. Buder, 412 U.S. 430, 432 (1973) (violation of substantive
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due process when state court revoked probation with no evidence that the
probationer had violated probation).
Appellant does not dispute that the sex offender conditions were
reasonably related to his possession of child pornography conviction or that
he was made aware of those conditions within 24 hours of his original
sentencing. See generally; N.T. 8/28/2013, pp. 10-11.
Rather, in his first issue, Appellant maintains the trial court violated his state
and federal due process rights when it found he violated special probationary
conditions that the 2001 administrative order imposed and York County
Adult Probation executed, but that were not mentioned by the trial court at
the time of sentencing. See N.T. 8/28/2013, p. 20.
(a) General rule.--In imposing an order of probation
the court shall specify at the time of sentencing the
length of any term during which the defendant 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.
(b) Conditions generally.--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.
(c) Specific conditions.--The court may as a condition
of its order require the defendant:
***
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(3) To undergo available medical or psychiatric
treatment and to enter and remain in a specified
institution, when required for that purpose.
***
(10) To report as directed to the court or the
probation officer and to permit the probation officer
to visit his home.
***
(13) To satisfy any other conditions reasonably
related to the rehabilitation of the defendant and not
unduly restrictive of his liberty or incompatible with
his freedom of conscience.
***
42 Pa.C.S.A. § 9754. Section 323 of the Pennsylvania Judicial Code, which
promulgates the power of the courts of common pleas, provides:
Every court [of common pleas] shall have power to
issue, under its judicial seal, every lawful writ and
process necessary or suitable for the exercise of its
jurisdiction and for the enforcement of any order
which it may make and all legal and equitable
powers required for or incidental to the exercise of
its jurisdiction, and, except as otherwise prescribed
by general rules, every court shall have power to
make such [local] rules and orders of court as the
interest of justice or the business of the court may
require.
42 Pa.C.S.A. § 323.
administrative order . . . which is adopted or enforced by a court of common
See
rules, either at the state or local level, are absolutely essential to the orderly
administration of justice and the smooth and efficient operation of the
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judicial process. Every court has a limited power to make such rules as the
Equip. Fin.,
Inc. v. Toth, 476 A.2d 1366, 1369 (Pa.Super.1984) (citing 42 Pa.C.S. §
323).
Here, the Commonwealth alleged that Appellant violated sex offender
15
At
the May 2009 probation revocation hearing, Appellant was resentenced to,
inter alia the original terms and conditions of his sup Opinion,
at 2-
include any mention of sexual offender conditions, the conditions were
imposed through a 2001 administrative order and implemented by York
County Adult Probation, and the Appellant acknowledged his duty to comply
with those rules.16
T
sentence, pursuant to a prior administrative order of the President Judge of
____________________________________________
15
We note that Appellant acknowledged violating sexual offender conditions
at the May 2009, August 2010, and July 2011 probation/parole revocation
hearings.
16
See N.T. 8/28/2013, pp. 10-11. As discussed above, Sections 9721 and
9754 of the Pennsylvania Sentencing Code empower the trial court, not a
county probation authority, with the sound discretion to impose an order of
probation and the generalized conditions thereunder. The mandate to
include a sexual offender condition was the province of the trial court. 42
Pa.C.S. § 9721(a). Therefore, the President Judge of York County had
statutory authorization to issue the 2001 administrative order and impose
enting an area attended by minors
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the York County Court of Common Pleas, was a valid exercise of the trial
See Commonwealth v. Elliot, 50 A.3d 1284,
1292 (Pa.2012).17 The 2001 administrative order is a local rule that the
the orderly administration of justice and the smooth and efficient operation
Toth, 476 A.2d at 1369. By providing standard
probation conditions for those convicted of and on probation for sexual
offenses, the rule promotes the expedient and efficient administration of
it is valid provided that it does not run afoul of the Sentencing Code and
Id.;
Commonwealth v. Hall, 80 A.3d 1204, 1212 (Pa.Super.2013).
The 2001 administrative order comports with Sections 9721 and 9754
of the Sentencing Code; the specific nature of a sexual offense conviction
allowed the President Judge of York County to issue an administrative order
____________________________________________
17
In Elliot, supra, our Supreme Court held that a condition of probation
the primary activity at such locations involves persons under the age
supervision imposed by the Pennsylvania Board of Probation and Parole.
Notably, the Elliot Court found the Pennsylvania Board of Probation and
See id.
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that imposed standard conditions of probation for these convictions. See
Elliot, 50 A.3d at 1292. York County Probation was then permitted to
fashion more tailored conditions of supervision pertaining to that probation,
so long as those supervisory conditions were in furtherance of the trial
Id.
sed on
evidence that he violated one of the sex offender conditions of probations
amount to a due process violation. As discussed above, the sex offender
conditions of probation were valid because the York County President Judge
acted within his authority when he issued standard probation conditions for
sexual offenses. Appellant had notice of the specific sexual offender
probation conditions imposed by the trial court through its 2001
administrative order within 24 hours of his original sentencing, expressly
agreed to those conditions in writing, and failed to challenge those
18
conditions at that time. N.T. 8/28/2013, pp. 10-11. As the trial court
probation, the trial court did not deprive him of a liberty interest guaranteed
by the Fourteenth Amendment to U.S. Constitution and Article 1 Section 9 of
____________________________________________
18
that the trial court imposed sexual offender
conditions as part of his original sentencing further serves to defeat his
argument. See
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Pennsylvania Constitution without due process of law. See Bearden v.
Georgia, 461 U.S. 660, 667 n. 7 (1983).
special sex offender conditions that the [trial] court had imposed in
Appellant's original sentence but were not re-imposed by the [trial] court
when Appellant was re-sentenced for a s
As discussed supra, the 2001 administrative order, along with
incorporate specific sexual offender conditions as part of his probation each
-sentencing on
November 3, 2011. York County Probation complied with this directive by
articulating specific sexual offenders as part of his probation. Appellant
agreed to these specific conditions in writing during his probation intake. In
May 2009, the trial court resentenced Appellant for probation violations,
expressly incorporating the original sexual offender conditions. See
McBride, 433 A.2d at 510 trial court which has revoked probation may
modify the original probationary period by lengthening it and by adding
-sentencing court
that has found proof of violation of a condition of probation broad discretion
sentencing court to impose reasonable conditions of probation to assist the
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defendant in leading a law-abiding life and does not prohibit incorporation of
conditions of probation by reference to original sentence). Therefore,
by re-imposing the original probation conditions by incorporating them by
reference. Further, in 2011, based on the reasoning above,19 the trial court
re-imposed the sex offender conditions through its 2001 administrative order
despite not mentioning them at the time of sentencing.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2014
____________________________________________
19
See discussion on pp. 12-14.
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