J-A04024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NASIR JACKSON :
:
Appellant : No. 3590 EDA 2018
Appeal from the Judgment of Sentence Entered November 15, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003443-2017,
CP-51-CR-0009140-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NASIR JACKSON :
:
Appellant : No. 951 EDA 2020
Appeal from the Judgment of Sentence Entered November 15, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003443-2017,
CP-51-CR-0009140-2017
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 12, 2022
Appellant Nasir Jackson appeals from the judgments of sentence
imposed following the revocation of his parole and probation. On appeal,
Appellant challenges the discretionary aspects and the legality of his sentence.
We vacate the judgments of sentence, and remand with instructions.
J-A04024-22
On January 24, 2018, Appellant entered negotiated guilty pleas to
robbery and related offenses1 at two docket numbers based on his
participation in gunpoint robberies and assaults involving separate victims.
Pursuant to the negotiated pleas, the trial court imposed an aggregate
sentence of eleven-and-a-half to twenty-three months’ incarceration followed
by seven years’ probation.2
We state the subsequent factual and procedural history as set forth by
the trial court as follows:
As part of the conditions of probation, Appellant was specifically
directed by this [c]ourt to attend a minimum of fifty (50) hours of
anger management, complete fifty (50) hours of community
____________________________________________
1 At docket number CP-51-CR-0003443-2017 (Docket No. 3443-2017),
Appellant pled guilty to robbery, graded as a felony of the first-degree,
aggravated assault, graded as a felony of the second-degree, and conspiracy
to commit robbery, graded as a felony of the first-degree. 18 Pa.C.S. §§
3701(a)(1), 2702(a), and 903, respectively.
At docket number CP-51-CR-0009140-2017 (Docket No. 9140-2017),
Appellant pleaded guilty to robbery, graded as a felony of the first-degree,
conspiracy to commit robbery, graded as a felony of the first-degree, and
possession of an instrument of crime (PIC), graded as a misdemeanor of the
first degree. 18 Pa.C.S. §§ 3701(a)(1), 903, and 907(a), respectively.
2 At Docket No. 3443-2017, the trial court imposed concurrent terms of
eleven-and-a-half to twenty-three months’ incarceration followed by
concurrent terms of seven years’ probation for each of the three counts.
Order, Docket No. 3443-2017, 1/24/18, at 1-2. At Docket No. 9140-2017,
the trial court imposed concurrent terms of eleven-and-a-half to twenty-three
months’ incarceration followed by concurrent terms seven years’ probation on
the robbery and conspiracy counts. Order, Docket No. 9140-2017, 1/24/18,
at 1-2. The trial court sentenced Appellant to five years’ probation for the PIC
count, which ran concurrent to the other terms of probation. Id. The
sentences for Docket No. 9140-2017 ran concurrent to the sentences for
Docket No. 3443-2017. Id.
-2-
J-A04024-22
service, submit to random drug and alcohol screens as well as
home and vehicle checks for drugs and weapons, comply with
recommendations for treatment, and participate in vocational
training if needed and to seek and maintain legitimate
employment.
Additionally, Appellant was ordered to have no contact with any
of his co-defendants as well as any of the Commonwealth’s
witnesses and complainants and refrain from any involvement
with illegal narcotics or weapons. Mandatory fines and costs were
also imposed. Credit for time served as calculated separately was
accorded. Appellant was immediately paroled consistent with the
negotiations. No appeal was taken. . . .
Following parole, Appellant was assigned to intensive supervision
of the High Risk Anti-Violence Unit of the Philadelphia Adult
Probation and Parole Department. He was directed by his
probation officer to attend two hours of one day a week for a
period of fourteen weeks of Cognitive Behavior Therapy in a class
developed and conducted by a University of Pennsylvania
psychologist. Class topics reinforced the need for compliance with
the rehabilitative conditions and goals and terms of probation. In
this class Appellant was provided ample educational or vocational
opportunities and rehabilitative tools. Within one month of
completion of this program Appellant submitted a urinalysis that
returned positive presence for the illegal narcotic hallucinogenic
substance of phencyclidine, commonly known as “PCP.” When
questioned, Appellant had initially lied to his probation officer and
denied ingestion of this substance and denied any need for
treatment.
Appellant refused to comply with directed attendance in drug and
alcohol treatment following referral to the Wedge IOP Drug
Treatment Program. Appellant remained unemployed and
demonstrated zero effort to obtain employment. He was referred
to CLIP for community service. He never fulfilled any community
service. Appellant reported to his probation officer on July 10,
2018 and again denied ingestion of any illegal substances. His
urinalysis reflected positive finding for illegal narcotics in the form
of Benzodiazepines. On July 17, 2018, he last reported to the
probation department and admitted to taking Xanax. Appellant
claimed to have completed some community service but produced
zero information concerning this claim. Thereafter, Appellant
absconded and the issuance of the active warrant followed. The
-3-
J-A04024-22
Gagnon[3] Summaries reflected the probation department’s
recommendation of revocation and confinement to serve back
time.
At the violation hearing, Appellant conceded the technical and
revoking violations of absconding, as well as the noncompliance
with any of the terms and conditions of supervision including the
recorded illegal narcotic use, including the positive test
benzodiazepines, and a positive test for phencyclidine (“PCP”).
Following agreed upon revocation, this [c]ourt ordered a
Presentence Investigative Report, Mental Health Evaluation, and
Forensic Intensive Recovery Assessment (“FIR”) be conducted.
Appellant returned for formal reiteration of revocation and
sentencing evidentiary hearing on November 15, 2018. After full
consideration and recitation of all salient sentencing factors, this
[c]ourt essentially imposed a combined concurrently running
aggregate sentence term of seven and a half (7½) years to fifteen
(15) years[4,5] of state supervised confinement in both cases.
____________________________________________
3 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4 At Docket No. 9140-2017, the trial court imposed concurrent terms of five
to fifteen years’ incarceration for robbery and conspiracy and a consecutive
sentence of two-and-a-half to five years’ incarceration for PIC. Order, Docket
No. 9140-2017, 11/15/18, at 1-2. The trial court imposed an aggregate
sentence of five to fifteen years’ incarceration at Docket No. 3443-2017, which
ran concurrent to the sentence at Docket No. 9140-2017. Order, Docket No.
3443-2017, 11/15/18, at 1-2.
5 We note that the trial court’s statements at sentencing differ from the
sentences set forth in the sentencing order. At the sentencing hearing, the
court stated that Appellant’s aggregate sentence was seven-and-a-half to
fifteen years’ incarceration. N.T. Sentencing Hr’g, 11/15/18, at 26. However,
the sentencing order for Docket No. 9140-2017 indicates that the sentence of
two-and-a-half to five years for PIC is consecutive to the concurrent sentences
of five to fifteen years for robbery and conspiracy. See Order, Docket No.
9140-2017, 11/15/18, at 1-2.
At Docket No. 3443-2017, the court stated that Appellant’s sentence was five
to fifteen years for robbery and five to ten years for aggravated assault. N.T.
Sentencing Hr’g, 11/15/18, at 25. However, according to the sentencing
(Footnote Continued Next Page)
-4-
J-A04024-22
Credit for custodial time served was duly accorded. Appellant was
deemed ineligible for Boot Camp until he served at least five years
of custody. He was deemed statutorily ineligible for any other
release other early release “RRRI” programs. The original
rehabilitative supervision terms and conditions were reapplied.
Trial Ct. Op., 7/17/19 at 1-4 (some formatting altered).
Appellant filed a timely motion for modification of sentence, which the
trial court denied. Appellant subsequently filed timely notices of appeal.6 Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises five issues for our review, which we reorder
as follows:
1. Did not the trial court, after revoking Appellant’s parole, lack
authority under Pennsylvania law to also revoke a consecutive
sentence of probation that he had not yet begun to serve?
2. Did not the sentencing court violate the requirements of 42
Pa.C.S. § 9771(c) of the Sentencing Code when, after revoking
his probation, it sentenced Appellant to a period of total
____________________________________________
order, the trial court imposed a term of five to fifteen years’ incarceration on
the aggravated assault and a concurrent term of five to ten years’
incarceration for robbery. Order, Docket No. 3443-2017, 11/15/18, at 1-2.
“In Pennsylvania, the text of the sentencing order, and not the statements a
trial court makes about a defendant’s sentence, is determinative of the court’s
sentencing intentions and the sentence imposed.” Commonwealth v.
Borrin, 80 A.3d 1219, 1226 (Pa. 2013). Notwithstanding the trial court’s oral
statement at sentencing, the written sentencing orders control, therefore,
Appellant’s aggregate sentence is seven-and-a-half to twenty years’
incarceration. See Borrin, 80 A.3d at 1226.
6 Appellant filed a separate appeal at each trial court docket pursuant to
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and Pa.R.A.P. 341(a).
However, this Court originally docketed both of Appellant’s appeals at 3590
EDA 2018. This Court subsequently docketed Appellant’s second appeal at
951 EDA 2020 and sua sponte consolidated these matters. See Order,
4/13/20.
-5-
J-A04024-22
confinement where: 1) he had not been convicted of or charged
with a new crime, 2) the record did not demonstrate any
likelihood that he would commit a new crime if not
incarcerated, and 3) incarceration was not essential to
vindicate the authority of the court?
3. Was not the lower court’s imposition of a seven and a half (7½)
to fifteen (15) year sentence of incarceration for technical
violations of probation, manifestly excessive and an abuse of
discretion where the court failed to give individualized
consideration to Appellant’s personal history, rehabilitative
needs or background, and without explaining how, as a matter
of law, this sentence was the least stringent one adequate to
protect the community and to serve the rehabilitative needs of
the Appellant and instead focused solely on the original offense
of conviction?
4. Did not the trial court err and abuse its discretion by sentencing
[Appellant] to an excessive period of incarceration?
5. Did not the increase in punishment caused by the revocation of
probation in violation of statutory law violate [Appellant’s]
double jeopardy rights under the Pennsylvania and U.S.
Constitutions?
Appellant’s Brief at 4-5 (formatting altered).7
____________________________________________
7 During the pendency of this appeal, Appellant filed an application for relief
captioned “Petition for Expedited Review Without Argument and/or for Habeas
Relief,” in which he argued that his sentence was illegal based on
Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super. 2021) (en banc).
This Court directed the trial court to file a supplemental opinion addressing
Simmons, which the trial court did on November 19, 2021. As discussed
further below, the trial court concluded that Simmons was not applicable to
the instant case. Appellant filed a second application for relief captioned
“Emergency Petition to Vacate Illegal Sentence” on January 6, 2022, again
citing Simmons and requesting this Court order his immediate release
because he has served more than the maximum term of twenty-three months’
incarceration imposed under his original sentence. As stated, we will discuss
the Simmons holding in detail below.
-6-
J-A04024-22
Initially we note that both Appellant and the Commonwealth argue that
Appellant’s sentence is illegal and must be vacated under Simmons.8
Appellant’s Brief at 30-42; Commonwealth’s Brief at 5-7.
On an appeal from a revocation of probation,9 “we can review the
validity of the revocation proceedings, the legality of the sentence imposed
following revocation, and any challenge to the discretionary aspects of the
____________________________________________
8 Although Appellant filed his brief before Simmons was decided, he argues
that the trial court lacked the authority to revoke his probation, which he had
not yet begun serving at the time the trial court revoked his parole.
Appellant’s Brief at 30-42. As stated above, after filing his brief, Appellant
has filed applications for relief arguing that his sentence is illegal under
Simmons. App. for Relief, 9/21/21, at 1-3 (unpaginated); App. for Relief,
1/6/22, at 1-4 (unpaginated).
9Our Supreme Court explained the differences between probation and parole
as follows:
As commonly defined, probation is a sentence imposed for
commission of crime whereby a convicted criminal offender is
released into the community under the supervision of a probation
officer in lieu of incarceration. Conversely, parole is the release
from jail, prison or other confinement after actually serving part
of the sentence. Conditional release from imprisonment which
entitles parolee to serve remainder of his term outside the
confines of an institution, if he satisfactorily complies with all
terms and conditions provided in parole order. . . . [A] court faced
with a violation of probation may impose a new sentence so long
as it is within the sentencing alternatives available at the time of
the original sentence. In contrast, a court faced with a parole
violation must recommit the parolee to serve the remainder of the
original sentence of imprisonment, from which the prisoner could
be reparoled.
Commonwealth v. Holmes, 933 A.2d 57, 59 n.5 (Pa. 2007) (citations
omitted and formatting altered).
-7-
J-A04024-22
sentence imposed.” Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.
Super. 2015) (citation omitted)).
This Court has explained that “a challenge to the legality of the sentence
can never be waived . . . .” Commonwealth v. Wolfe, 106 A.3d 800, 801
(Pa. Super. 2014) (citation omitted). “[I]f no statutory authorization exists
for a particular sentence, that sentence is illegal and subject to correction.”
Id. at 802 (citation omitted and formatting altered). Issues relating to the
legality of a sentence are questions of law, therefore our standard of review
is de novo and our scope of review is plenary. Id.
It is well settled that “Pennsylvania appellate courts apply the law in
effect at the time of the appellate decision. This means that we adhere to the
principle that a party whose case is pending on direct appeal is entitled to the
benefit of changes in law which occur before the judgment becomes final.”
Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (citations
omitted and formatting altered). Further, “[t]his Court is bound by existing
precedent under the doctrine of stare decisis and continues to follow
controlling precedent as long as the decision has not been overturned by our
Supreme Court.” Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super.
2014) (citations omitted).
We note that at the time the trial court revoked Appellant’s probation,
this Court’s case law permitted anticipatory revocations of probation. See,
e.g., Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980)
(holding that “[i]f, at any time before the defendant has completed the
-8-
J-A04024-22
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 trial court
that he is unworthy of probation . . . the trial court could revoke or change
the order of probation” (citations omitted)); Commonwealth v. Allshouse,
33 A.3d 31, 39 (Pa. Super. 2011) (affirming that the trial court’s anticipatory
revocation of the defendant’s probation for “a technical violation” because,
“[a]s in Wendowski, [the defendant’s] probation was revoked prior to its
commencement on the basis that [the defendant] was a danger to society
and, therefore, unworthy of probation”).
However in Simmons, an en banc panel of this Court overruled
Wendowski and its progeny, explaining that
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;”[10] 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, 262 A.3d at 524-25 (some citations and footnote omitted); see
also Commonwealth v. Conley, 266 A.3d 1136, 1139-40 (Pa. Super. 2021)
____________________________________________
10 42 Pa.C.S. § 9771(b).
-9-
J-A04024-22
(applying Simmons where the trial court anticipatorily revoked the
defendant’s probation for technical violations of the conditions of probation
which occurred before the period of probation began).
Further, the Simmons Court addressed the trial court’s authority to
resentence a defendant following the revocation of parole. Specifically, the
Court reiterated that
[an] order revoking parole does not impose a new sentence; it
requires [the defendant], rather, to serve the balance of a valid
sentence previously imposed. Moreover, such a recommittal is
just that – a recommittal and not a sentence. Further, at a
“violation of parole” hearing, the court is not free to give a new
sentence.
Simmons, 262 A.3d at 528 (quoting Commonwealth v. Mitchell, 632 A.2d
934, 936 (Pa. Super. 1993)) (formatting altered). Therefore, the Simmons
Court concluded that the trial court imposed an illegal sentence when it
imposed a new term of incarceration following the revocation of the
defendant’s parole. Id. Accordingly, the Simmons Court vacated the
defendant’s sentence and remanded the case with instructions for the trial
court to reinstate the original order of probation and for resentencing on the
parole violation. Id. at 527-28.
Here, in its supplemental opinion addressing Simmons, the trial court
explained:
On November 15, 2018, Appellant was sentenced approximately
three years before the Pennsylvania Superior reversed direction
on August 18, 2021 with the filing of Commonwealth v.
Simmons, . . . This case ruling has not yet been tested by the
- 10 -
J-A04024-22
Supreme Court of Pennsylvania. Nor has this ruling been deemed
to have appl[ied] retroactively.[11]
* * *
Until the Simmons opinion was filed, the Pennsylvania appellate
courts had repeatedly acknowledged the very broad standard that
sentencing courts must use in determining whether probation has
been violated: “A probation violation is established whenever it is
show that the conduct of the probationer indicates the probation
has proven to be an ineffective vehicle to accomplish rehabilitation
and not sufficient to deter against future antisocial conduct.”
Commonwealth v. Infante, 888 A.2d 783, 791 (Pa. 2005) . . .
.
In the instant matter, Appellant’s return to illegal narcotics use,
his failure to comply with any of the directed terms and conditions
and his concession to those multiple violations, the evidence was
certainly strong enough to support the revocation imposed by the
court.
. . . This [c]ourt retained full[] jurisdiction over both the parole
and probationary periods of supervision. Both sections were
supervised by the County of Philadelphia Adult Probation and
Parole Anti-Violence Unit . . . . All conditions were applied to all
portions of the sentence.
More importantly, this trial record is bereft of any defense
objections to this [c]ourt’s finding of breaches of this [c]ourt’s
specifically directed conditions of court supervised parole and
anticipatory probation conditions that had been imposed in
____________________________________________
11 The trial court also suggests that Simmons was incorrectly decided. See
Trial Ct. Op., 11/9/21, at 7. We are bound by existing precedent until such
time that it is overturned. See Reed, 107 A.3d at 143. Therefore, to the
extent the trial court takes issue with this Court’s decision in Simmons, we
remain obligated to follow the existing, controlling case law. Further, we
remind the trial court that, as this Court recently reiterated, “[b]oth this Court
and the trial court are bound by existing Superior Court precedent under the
doctrine of stare decisis.” Smith v. A.O. Smith Corp., --- A.3d ---, 2022 PA
Super 13, 2022 WL 221559, at *7 (Pa. Super. filed Jan. 26, 2022) (citation
omitted and formatting altered); see also Commonwealth v. Randolph,
718 A.2d 1242, 1245 (Pa. 1998) (holding that “[i]t is a fundamental precept
of our judicial system that a lower tribunal may not disregard the standards
articulated by a higher court”).
- 11 -
J-A04024-22
tandem pursuant to the terms of the negotiated guilty pleas as
entered. To the contrary, the record reflects concession to
violations. Additionally, no objections to the revocation of both
parole and probation had been raised during or after the
imposition of sentences in the form of post-sentence motions. It
was not until the issue was raised within the Statement of Matters
Complained of on Appeal . . . [Appellant] claimed error resulting
from the sentences that had been imposed stemming from the
combined parole and the anticipatory probationary period
breaches. Thus, this claim has been waived.
Trial Ct. Op., 11/9/21, at 3-7 (some citations omitted and formatting altered).
Here, the trial court revoked Appellant’s parole and anticipatorily
revoked his probation. See Gagnon Summary Report, 7/23/18, at 1
(unpaginated) (indicating that Appellant’s parole would not expire until April
23, 2019, and that Appellant’s probation would begin the following day). The
trial court subsequently resentenced Appellant for these parole and probation
violations as described above. At the time of Appellant’s parole violations,
anticipatory revocations of probation were permissible under this Court’s case
law. See, e.g., Wendowski, 420 A.2d at 630. However, while Appellant’s
case was pending on appeal, this Court announced its decision in Simmons,
which held that trial courts may not anticipatorily revoke an order of probation.
See Simmons, 262 A.3d at 524-25. Appellant is entitled to the benefit of the
change in law that occurred while this appeal was pending.12 See Chesney,
____________________________________________
12We note that the Commonwealth did not file a petition for allowance of
appeal to our Supreme Court after this Court announced its decision in
Simmons. However, our Supreme Court subsequently granted the
Commonwealth’s petition for review in an unrelated matter, which directly
implicates our holding in Simmons. See Commonwealth v. Rosario, 298
(Footnote Continued Next Page)
- 12 -
J-A04024-22
196 A.3d at 257; see also Conley, 266 A.3d at 1139-40, 1139 n.1.
Therefore, we conclude that because the trial court did not have the authority
to anticipatorily revoke Appellant’s probation, we must vacate the November
15, 2018 judgments of sentence and remand to the trial court to reinstate the
original January 24, 2018 orders of probation. See Simmons, 262 A.3d at
527; see also Wolfe, 106 A.3d at 802.
Additionally, to the extent the trial court sentenced Appellant to serve a
new term of incarceration following the revocation of his parole, rather than
recommitting Appellant to serve the balance of his previous sentence, we must
vacate that sentence and remand for resentencing. See Simmons, 262 A.3d
at 528; Mitchell, 632 A.2d at 936.
For these reasons, we vacate the judgments of sentence and remand
both cases for resentencing consistent with this Court’s decision in
Simmons.13,14
____________________________________________
WAL 2021, 2022 WL 213753 (Pa. filed Jan. 25, 2022) (granting the
Commonwealth’s petition for allowance of appeal to consider whether the
Simmons Court erred in holding that trial courts lack the statutory authority
to anticipatorily revoke a defendant’s probation that have not yet
commenced). In any event, we remain bound by Simmons as binding
precedent. See Reed, 107 A.3d at 143.
13 Because we conclude that Appellant’s revocation sentence is illegal,
Appellant’s other issues challenging the discretionary aspects of his revocation
sentence are moot.
14Additionally, because we vacate the sentences imposed after the trial court’s
anticipatory revocation of Appellant’s probation as illegal sentences, the
legality of the five-to-fifteen-year sentence for aggravated assault, graded as
(Footnote Continued Next Page)
- 13 -
J-A04024-22
Because we vacate Appellant’s judgment of sentence and remand for
resentencing, we deny Appellant’s applications for expedited review and to
vacate his sentence as moot.
Judgments of sentence vacated. Case remanded with instructions to
reinstate the original orders of probation and for resentencing. Appellant’s
applications for relief denied as moot. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2022
____________________________________________
a felony of the second degree, at Docket No. 3443-2017 is moot. See 18
Pa.C.S. § 1103(2) (providing that the maximum possible sentence for a
second-degree felony is ten years’ imprisonment).
- 14 -