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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DOUGLAS AKINS
Appellant No. 1520 WDA 2018
Appeal from the Judgment of Sentence Entered October 8, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001459-1994
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED JULY 19, 2019
Appellant, Douglas Akins, appeals pro se from the judgment of sentence
entered in the Erie County Court of Common Pleas, following revocation of his
probation. For the following reasons, we vacate the probation revocation and
revocation sentence and remand with instructions.
The relevant facts and procedural history of this case are as follows. On
February 9, 1995, a jury convicted Appellant at Docket No. CR-1459-1994 of
three drug offenses and criminal conspiracy. The court sentenced Appellant
on March 8, 1995, to a term of 3 to 10 years' incarceration for the drug
offenses and 10 years of consecutive probation for conspiracy, plus court costs
and fines. This Court affirmed the judgment of sentence on January 26, 1996.
See Commonwealth v. Akins, 676 A.2d 277 (Pa.Super. 1996) (unpublished
memorandum). Appellant sought no further review. Between 1996 and 2004,
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Appellant unsuccessfully pursued at least three petitions for collateral review
under the Post Conviction Relief Act ("PCRA") at 42 Pa.C.S.A. §§ 9541-9546.
Meanwhile, Appellant was arrested in 2002 under Docket No. CR-1306-
2002, due to various parole violations, including new drug offenses. These
criminal offenses led to new convictions and a sentence of 5 to 10 years of
incarceration to be served concurrent and overlapping with the remainder of
his incarceration at Docket No. CR-1459-1994. This Court affirmed the
judgment of sentence on April 22, 2004, and our Supreme Court denied
allowance of appeal on December 8, 2004. See Commonwealth v. Aiken,
a/k/a Douglas Akins, 852 A.2d 1242 (2004), appeal denied, 581 Pa. 689,
864 A.2d 528 (2004).
In 2017, Appellant's wife petitioned for a protection from abuse ("PFA")
order against Appellant, which the court entered in September 2017. On
August 2018, the Commonwealth charged Appellant at Docket No. MD -499-
2018 with indirect criminal contempt ("ICC") for violating the PFA order. The
court convicted Appellant of ICC on September 5, 2018. That same day, the
court sentenced Appellant to 45 (forty-five) days to six (6) months'
incarceration. Appellant appealed that judgment of sentence on September
20, 2018.
While his appeal at Docket No. MD -499-2018 was pending, on October
8, 2018, the court conducted a joint hearing under Commonwealth v.
Grazier, 552 Pa. 9, 713 A.2d 81 (1998) and a violation of probation ("VOP")
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hearing at Docket No. CR-1459-1994. Appellant's ICC conviction was the
Commonwealth's sole basis for revocation of Appellant's probation. (See N.T.
Revocation, 10/8/18, at 10, 15.)
During the hearing, Appellant objected to the proceeding on the
following bases: (i) he had not received notice of his alleged probation
violation prior to the October 8th hearing; (ii) he was entitled to a Gagnon II -
hearing; and (iii) his probation at Docket No. CR-1459-1994 had expired the
week before the VOP hearing. At the hearing, the court revoked Appellant's
probation at Docket No. CR-1459-1994, and resentenced him to three (3) to
twelve (12) months' incarceration.
Appellant timely filed pro se post -sentence motions on October 11,
2018, and October 12, 2018. On October 15, 2018, the revocation court
denied the post -sentence motions. Appellant timely filed a notice of appeal
on October 22, 2018. The court ordered Appellant on October 24, 2018, to
file a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b); Appellant timely complied on November 1, 2018.
Appellant raises the following issues for our review:
(1) WHETHER THE COURT COMMITTED AN ABUSE OF
DISCRETION OR ERROR OF LAW WHEN IT REVOKED
[APPELLANT'S] PROBATION AND RESENTENCED HIM AFTER
HIS PROBATIONARY TERM HAD EXPIRED ON THE GROUNDS
THAT HE ALLEGEDLY COMMITTED A NEW OFFENSE WHERE
HE DID NOT VIOLATE ANY SPECIFIC CONDITION OF HIS
PROBATION PURSUANT TO 42 [PA.C.S.A.] § 9754(C) OR 37
1 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
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[PA. CODE] § 65.4 GOVERNING SPECIAL PROBATION, NOR
DID HE VIOLATE THE PUBLIC LAW?
(2) WHETHER APPELLANT'S DUE PROCESS [RIGHTS]
W[ERE] VIOLATED/SATISFIED WHERE HE NEVER RECEIVED
WRITTEN NOTICE OR ANY NOTICE OF ANY SORT BY HIS
PROBATION OFFICER OR ANYONE FROM THE
[PENNSYLVANIA BOARD OF PROBATION AND PAROLE
("PBPP")] OF AN ALLEGATION AGAINST HIM NOR WHAT
CONDITION OF PROBATION HE ALLEGEDLY VIOLATED, NOR
DISCLOSURE OF EVIDENCE AGAINST HIM PRIOR TO HIS
PROBATIONARY TERM EXPIRING OR AFTER IT EXPIRED[?]
(3) WHETHER [APPELLANT]'S DUE PROCESS [RIGHTS]
[W]ERE VIOLATED/SATISFIED WHERE HE WAS NOT
AFFORDED A GAGNON I PRELIMINARY HEARING TO
DETERMINE IF PROBABLE CAUSE EXISTED TO BELIEVE
THAT [APPELLANT] VIOLATED HIS PROBATION TO DETAIN
[APPELLANT] NOR DID HE WAIVE HIS RIGHT TO THAT
HEARING PRIOR TO HIS PROBATIONARY TERM EXPIRING
OR AFTER IT EXPIRED?
(4) WHETHER THE COURT THAT REVOKED [APPELLANT]'S
PROBATION HAD THE LEGAL AUTHORITY TO REVOKE
[APPELLANT]'S PROBATION WHERE IT WAS NOT THE TRIAL
COURT THAT PLACED [APPELLANT] ON PROBATION[?][2]
(5) WHETHER [APPELLANT]'S PROBATION COULD BE
REVOKED WHERE [APPELLANT]'S PROBATION OFFICER
NOR ANYONE FROM THE PBPP ALLEGED AN[] ALLEGATION
AGAINST [APPELLANT] NOR DID THE COMMONWEALTH
PETITION TO HAVE HIS PROBATION REVOKED?
2 Appellant cites no relevant law to support his argument that the revocation
court lacked jurisdiction to revoke his probation and resentence him, because
the jurist was not the same jurist who had originally sentenced Appellant. See
Pa.R.A.P. 2119(a); Commonwealth v. Johnson, 604 Pa. 176, 191, 985 A.2d
915, 924 (2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165
(2010) (providing claim is waived where appellate brief does not include
citation to relevant authority or fails to develop issue in any meaningful fashion
capable of review). Therefore, Appellant's fourth issue is waived, and we will
give it no further attention.
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(Appellant's Brief at 8, 11, 13, 15, 16).3
In his remaining issues combined, Appellant argues he had completed
his probationary term at Docket No. CR-1459-1994 before the 2018 VOP
hearing. Appellant contends he received no notice, written or otherwise, that
he had allegedly violated the terms of his probation before the October 2018
revocation hearing. Appellant submits the Commonwealth and PBPP did not
file a petition to revoke his probation. Appellant also maintains the revocation
court failed to conduct a Gagnon I hearing. Appellant asserts his 2018 ICC
conviction did not constitute a violation of probation. Appellant concludes this
Court should vacate the VOP judgment of sentence. For other reasons, we
agree some relief is due.
When reviewing the outcome of a revocation proceeding, this Court is
limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.
Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013) (en
banc). "In general, the imposition of a 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." Commonwealth
3 Appellant's issues appear only as headings in the argument section of his
brief but not in a discrete statement of questions presented section, in
technical violation of the rules of appellate procedure. See Pa.R.A.P. 2116(a).
Nevertheless, we decline to waive the remaining issues on this basis.
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v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).
Pennsylvania Rule of Criminal Procedure 708 governs violations of
parole/probation, in pertinent part, as follows:
Rule 708. Violation of Probation, Intermediate
Punishment, or Parole; Hearing and Disposition
(A) A written request for revocation shall be filed with
the clerk of courts.
(B) Whenever a defendant has been sentenced to
probation or intermediate punishment, or placed on parole,
the judge shall not revoke such probation, intermediate
punishment, or parole as allowed by law unless there has
been:
(1) a hearing held as speedily as possible at which the
defendant is present and represented by counsel; and
(2) a finding of record that the defendant violated a
condition of probation, intermediate punishment, or parole.
Pa.R.Crim.P. 708(A) -(B). Additionally, regarding revocation of probation,
Section 9771 of the Sentencing Code provides:
§ 9771. Modification or revocation of order of
probation
(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
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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.
(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.A. § 9771.
"When a parolee or probationer is detained pending a revocation
hearing, due process requires a determination at a pre -revocation hearing, a
Gagnon I hearing, that probable cause exists to believe that a violation has
been committed. Where a finding of probable cause is made, a second, more
comprehensive hearing, a Gagnon II hearing, is required before a final
revocation decision can be made." Commonwealth v. Sims, 770 A.2d 346,
349 (Pa.Super. 2001) (internal citations omitted). A Gagnon I hearing is not
required, however, where the probationer has already been convicted of the
offense forming the basis for the revocation of his probation.
Commonwealth v. Davis, 336 A.2d 616 (Pa.Super. 1975). "Without
question, [a probationer is] entitled to written notice of [a] revocation hearing,
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and to adequate time to prepare for it." Commonwealth v. King, 430 A.2d
990, 991 (Pa.Super. 1981).
Additionally, a court cannot revoke probation for conduct that a
defendant committed after his sentence is complete. Commonwealth v.
Wright, 116 A.3d 133 (Pa.Super. 2015). On the other hand, "a sentence for
a violation of the terms of probation can be imposed after the expiration of
the probationary period if the revocation is based on a violation which occurred
within the probationary period." Id. at 137. "[I]n that circumstance, the
probation must be revoked and the [VOP] sentence must be imposed within a
reasonable time after the expiration of the probationary period." Id. (vacating
VOP judgment of sentence where evidence was insufficient to prove defendant
committed new offenses while still on probation; moreover, VOP hearing as to
defendant's alleged reporting violations was untimely, where it took place over
two and one-half years after defendant's probation had ended). Otherwise,
the VOP sentence will be deemed illegal. Commonwealth v. Mathias, 121
A.3d 558 (Pa.Super. 2015).
Issues related to the legality of a sentence are questions of law.
Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super 2008), appeal
denied, 598 Pa. 755, 955 A.2d 356 (2008). When the legality of a sentence
is at issue on appeal, our "standard of review is de novo and our scope of
review is plenary." Id. at 256. "An illegal sentence must be vacated."
Commonwealth v. Watson, 945 A.2d 174, 178-79 (Pa.Super. 2008). See
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Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa.Super. 2002), aff'd, 576
Pa. 229, 839 A.2d 184 (2003) (stating legality of sentence may be subject of
inquiry by appellate court sua sponte).
Pennsylvania law at 42 Pa.C.S.A. § 9757 mandates the "automatic
aggregation of sentences once a trial court imposes a consecutive sentence."
Commonwealth v. Allshouse, 33 A.3d 31, 35 (Pa.Super. 2011), appeal
denied, 616 Pa. 649, 49 A.3d 441 (2012). Thus, periods of consecutive
incarceration are combined before the running of a term of probation. Id. at
36. Pennsylvania law does not permit "defendants to serve a term of
probation and a term of state incarceration simultaneously." Id. (rejecting
any argument on concept of "constructive probation," that is, simultaneous
service of incarceration and probation). See also Commonwealth v.
Brown, 145 A.3d 184 (Pa.Super. 2016), appeal denied, 641 Pa. 56, 165 A.3d
892 (2017) (applying Allshouse to hold defendant's state probation began
only after he was released from federal custody, not when his state term of
incarceration ended and his federal custody began; rejecting concept of
service of state "constructive probation" during period of unrelated federal
incarceration). "[P]robation rehabilitates a defendant in a less restrictive
manner than total confinement. As such, logic would lead to the conclusion
that a term of probation cannot be served while the defendant is imprisoned
on an unrelated sentence, whether it be in a state facility as in Allshouse or
in federal custody as with Brown." Id. at 188.
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Instantly, on March 8, 1995, the court sentenced Appellant at Docket
No. CR-1459-1994 to a term of 3 to 10 years' incarceration for the drug
offenses and 10 years of consecutive probation for conspiracy, plus court costs
and fines.4 Appellant was arrested in 2002 under Docket No. CR-1306-2002,
due to various parole violations, including new drug offenses. These criminal
offenses led to new convictions and a sentence of 5 to 10 years of
incarceration to be served concurrent to and overlapping with the remainder
of his incarceration at Docket No. CR-1459-1994. Appellant's aggregate state
incarceration at the 1994 and 2002 docket numbers was 18 years and
conceivably ended in or around 2013. If so, then his state probationary term
of 10 years appears to have commenced in 2013. Absent more in this record,
however, we cannot say with certainty that Appellant was on probation in
August 2018, when he purportedly violated the 2017 PFA order at Docket No.
MD -499-2018. What we can say with certainty is that after the court convicted
Appellant of ICC on September 5, 2018, and sentenced him on that date, the
court promptly held a VOP hearing on October 8, 2018, and imposed the
revocation sentence of 3 to 12 months' incarceration. See Wright, supra.
4 In its Rule 1925(a) opinion, the revocation court incorrectly recites
Appellant's sentence to include a twenty-year probationary tail. (See Trial
Court Opinion, filed 12/14/18, at 2 n.1) (stating: "Appellant was
sentenced...on March 8, 1995, to 10 years of probation at Count 5,...
consecutive to Count 2.... Appellant was sentenced to 3 to 10 years of
incarceration followed by 10 years of probation at Count 2"). This statement
is inaccurate.
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Appellant appears to be still under supervision, either in prison or on parole,
in service of the revocation sentence (3 to 12 months' incarceration imposed
on October 8, 2018) that should expire sometime in October or November
2019.
This appeal from the revocation sentence involves another legal
dilemma: while the current appeal was pending, this Court vacated Appellant's
ICC conviction and sentence and remanded with instructions for a new trial on
the ICC offense, because Appellant had been deprived of his statutory right to
counsel at the first ICC trial. See Commonwealth v. Akins, A.3d I
No. 1356 WDA 2018 (Pa.Super. filed May 24, 2019) (unpublished
memorandum). This Court's decision to overturn the ICC
offense/conviction/sentence independently and logically calls into question the
integrity of the VOP and revocation sentence, which was based solely on the
overturned ICC conviction.
Therefore, we conclude the best resolution of this appeal is to vacate
the probation revocation and sentence imposed on the basis of the now -
vacated ICC conviction. We decline to order a new VOP hearing at this
juncture, because the present case does not turn on some procedural flaw in
the prior VOP proceedings or the failure of the Commonwealth to produce any
evidence of a probation violation at the prior hearing. Compare
Commonwealth v. Mullins, 591 Pa. 341, 918 A.2d 82 (2007) (holding as
general rule, remand for new VOP hearing should accompany reversal of
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probation revocation and vacation of related judgment of sentence, for lack of
sufficient basis for revocation; even if VOP hearing record is insufficient to
sustain revocation of probation, "court that granted probation should not be
precluded from determining whether probation remains the proper course only
because the Commonwealth failed to include certain formalities in the
record"). But see id. (Chief Justice Cappy concurring) (joining majority under
facts of case but writing separately to say majority decision should not be
construed "as enunciating a per se rule requiring a remand to the trial court
for a new VOP hearing in each instance where the VOP hearing record is
insufficient to support revocation of probation. Upon disposition of an appeal,
an appellate tribunal has an array of options available. ... Accordingly, I
cannot endorse the articulation of a bright -line rule that restricts those
options. See e.g., Commonwealth v. Griggs, 314 Pa.Super. 407, 461 A.2d
221 (1983) (Superior Court vacated the judgment of sentence of revocation
when the finding of participation in criminal activity was not substantiated at
the VOP hearing)").
Here, this VOP case turned exclusively on a now -vacated ICC conviction;
and future, related VOP proceedings will naturally depend on the outcome of
Appellant's new trial on the ICC charge. If the new trial results in another ICC
conviction, then the Commonwealth will have the opportunity to seek
probation revocation. The Commonwealth, however, must first confirm on the
record that Appellant was still on probation at Docket No. CR-1459-1994 when
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the ICC offense allegedly occurred. As well, the Commonwealth must meet
all the other prerequisites for probation revocation. If a new ICC conviction
leads to a new VOP hearing and sentence, then Appellant must also receive
credit for the time he has already served on the revocation sentence we are
now vacating. Accordingly, we vacate both the revocation of probation and
the sentence imposed and remand with instructions. Due to our disposition,
we decline to address Appellant's remaining claims.
Judgment of sentence vacated; case remanded with instructions.
Jurisdiction is relinquished.
Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date: 7/19/2019
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