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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TANIESHA DIAZ :
:
Appellant : No. 1928 EDA 2020
Appeal from the Judgment of Sentence Entered September 14, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002898-2018
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 19, 2021
Taniesha Diaz appeals from the aggregate judgment of sentence of
three to six years of incarceration followed by three years of probation, which
the trial court imposed after revoking her parole and probation. Based upon
this Court’s recent decision in Commonwealth v. Simmons, ___ A.3d ___,
2021 PA Super 166, 2021 WL 3641859 (Pa.Super. Aug. 18, 2021) (en banc),
we vacate Appellant’s judgment of sentence and remand for the trial court to
reinstate its April 4, 2019 order of probation and resentence Appellant for her
parole violation.
On April 4, 2019, Appellant pled guilty to one count each of burglary and
conspiracy in exchange for concurrent sentences of eleven and one-half to
twenty-three months of incarceration, with immediate parole to house arrest,
followed by three years of probation, at each count. On January 9, 2020,
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while on parole, Appellant tested positive for PCP. At the Gagnon II1 hearing,
Appellant was found to be in violation of her probation and the order of
probation was revoked. On September 14, 2020, the court imposed
concurrent terms of three to six years of incarceration followed by three years
of probation at each count. Appellant filed a motion for reconsideration,
seeking a sentence in the mitigated range of the guidelines, specifically a
“mental health inpatient sentence,” because she has remorse, strong family
relationships, and strong ties to the community. Motion for Re-Consideration
of Sentence of VOP, 9/16/20, at 3-4. Before the trial court ruled on the post-
sentence motion, Appellant timely filed the instant appeal.2 Both Appellant
and the trial court complied with Pa.R.A.P. 1925.3
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1 “A Gagnon I hearing is a pre-revocation hearing to determine if probable
cause exists that a violation was committed. After this determination is made,
a Gagnon II hearing is conducted where the Commonwealth is required to
establish that the defendant did violate his parole/probation.”
Commonwealth v. Stafford, 29 A.3d 800, 802 n.1 (Pa.Super. 2011)
(cleaned up) (citing Gagnon v. Scarpelli, 411 U.S. 778 (1973)). Instantly,
Appellant did not order the transcripts of her Gagnon proceedings for
purposes of this appeal. Accordingly, we rely on the trial court’s opinion for
the date and disposition of the Gagnon II hearing. See Trial Court Opinion,
12/10/20, at 2 (“On February 5, 2020, a Gagnon II hearing was held and
Appellant was found to be in violation of probation and probation was revoked.
A pre-sentence report and mental health evaluation was ordered.”).
2 Pursuant to Pa.R.Crim.P. 708(E), Appellant’s filing of a post-sentence motion
did not toll the time for filing an appeal, and Appellant timely and properly
filed her notice of appeal despite the pendency of the motion.
3This Court initially dismissed Appellant’s appeal for failure to file a brief, but
upon application, reinstated the appeal.
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Appellant raises three issues for our review, which are mooted by our
application of Simmons, as we must first address the legality of Appellant’s
revocation sentence. See Simmons, supra at *1 n.3 (noting that challenges
to an illegal sentence may be raised by this Court sua sponte). As indicated
hereinabove, the judgment of sentence from which Appellant has appealed
was imposed following the trial court’s decision to revoke Appellant’s parole
and probation. Specifically, Appellant was originally sentenced to eleven and
one-half to twenty-three months of incarceration, with a consecutive order of
probation to follow the term of incarceration, at each count. The conduct that
served as the basis for the revocation, namely Appellant’s positive test result
for PCP, was committed during Appellant’s parole. Since her probationary
term was set to commence on April 24, 2021, the trial court revoked the order
of probation before the consecutive probationary term had commenced.
We observe that this anticipatory revocation of Appellant’s order of
probation was permissible at the time the trial court issued its revocation order
under longstanding precedent established by this Court. Indeed, for more
than four decades, beginning with this Court’s decision in Commonwealth v.
Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980), the law of this
Commonwealth was that, for revocation purposes, a term of probation
included all time from when probation was granted until the probationary term
had been fully served. However, in Simmons, supra, an en banc panel of
this Court overruled Wendowski and its progeny, holding as follows:
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Simply stated, Wendowski was incorrect in holding that a trial
court may anticipatorily revoke an order of probation and in
reasoning that “a term of probation may and should be construed
for revocation purposes as including the term beginning at the
time probation is granted.” Wendowski, 420 A.2d at 630
(quotations omitted). No statutory authority exists to support this
understanding. Rather, the plain language of the relevant
statutes provides that: a trial court may only revoke an order of
probation “upon proof of the violation of specified conditions of
the probation;” the “specified conditions” of an order of probation
are attached to, or are a part of, the order of probation; and, when
the trial court imposes an “order of probation” consecutively to
another term, the entirety of the “order of probation” – including
the “specified conditions” – do not begin to commence until the
prior term ends.
Simmons, supra at *10. This Court further explained that, pursuant to
Simmons, a “trial court lack[s] statutory authority to anticipatorily revoke [a
defendant’s] probation for an alleged ‘technical probation violation’ that
occurred before [his or her] period of probation began.” Commonwealth v.
Reavis, 1360 EDA 2018, 2021 WL 3668883, at *1 (Pa.Super. Aug. 18, 2021)
(en banc) (non-precedential decision). A sentence imposed without statutory
authority is an illegal sentence. See, e.g., Commonwealth v. Finnecy, 249
A.3d 903, 912 (Pa. 2021).
Here, Appellant’s order of probation was revoked because she violated
the special probation conditions applicable to the not-yet-commenced
probationary tail of her sentence. However, pursuant to Simmons, Appellant
was not required to comply with the conditions of probation before she began
serving that probationary term, and therefore her noncompliance did not
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permit the anticipatory revocation of her order of probation.4 Therefore, as
was the appellant in Simmons, Appellant is entitled to relief in the form of
having her current judgment of sentence vacated and her April 4, 2019 order
of probation reinstated.5 See Simmons, supra at *13 (vacating the
judgment of sentence and remanding with instructions to reinstate the original
order of probation); Reavis, supra (same).
As a final matter, we note that while the trial court posits in its opinion
that it only revoked Appellant’s probation, see Trial Court Opinion, 12/10/20,
at 2 (noting “probation was revoked”), the September 14, 2020 sentencing
order states Appellant’s “original probation/parole [had] been revoked.”
Violation of Probation Sentencing, 9/14/20. Insofar as the trial court revoked
Appellant’s parole and imposed a new sentence, that new sentence was illegal.
See Simmons, supra at *12; Commonwealth v. Kalichak, 943 A.2d 285,
290 (Pa.Super. 2008) (“Unlike a probation revocation, a parole revocation
does not involve the imposition of a new sentence. Indeed, there is no
authority for a parole-revocation court to impose a new penalty. Rather, the
only option for a court that decides to revoke parole is to recommit the
defendant to serve the already-imposed, original sentence.” (cleaned up)).
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4 The author of this memorandum dissented to this aspect of the Simmons
decision. See Commonwealth v. Simmons, ___ A.3d ___, 2021 PA Super
166, 2021 WL 3641859 at *19-24 (Pa.Super. Aug. 18, 2021) (en banc)
(Bowes, J. concurring and dissenting).
5 Given this disposition, we do not reach the issues raised by Appellant.
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Accordingly, as with the appellant in Simmons, “since the trial court revoked
Appellant’s parole and illegally resentenced Appellant to serve a new term of
incarceration, we must also remand for resentencing.” Simmons, supra at
*12 (cleaned up).
Judgment of sentence vacated. Case remanded with instructions to
reinstate the original order of probation and for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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