J-S06041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PATRICK ADAMS :
:
Appellant : No. 1261 EDA 2021
Appeal from the Judgment of Sentence Entered May 25, 2021
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004081-2017
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED APRIL 11, 2022
Appellant, Patrick Adams, appeals from the judgment of sentence
entered in the Montgomery County Court of Common Pleas, following the
revocation of his probation. We affirm.
The relevant facts and procedural history of this case are as follows. On
September 29, 2017, Appellant entered an open guilty plea to one count of
possession of drug paraphernalia.1 Appellant’s guilty plea stemmed from an
incident on May 17, 2017, when Appellant was searched incident to arrest and
had in his possession a cap syringe which would be used for ingestion of drugs.
The court accepted Appellant’s plea as knowing, intelligent, and voluntary,
and deferred sentencing pending a State Intermediate Punishment (“SIP”)
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1 Appellant also entered a guilty plea that day to one count of false
identification arising under a different docket number.
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evaluation.
On March 19, 2018, Appellant appeared for sentencing for the drug
paraphernalia conviction at issue in this case, the false identification
conviction, and five revocation of probation cases arising at other dockets.
The court initially noted that Appellant had been approved for SIP. The court
explained that under the SIP program, Appellant would get a flat 24-month
sentence to begin that day, with seven months to be served in a state
correctional institution, and the remainder to be served in a half-way house,
and then intensive outpatient treatment. Across all dockets, the court
sentenced Appellant to 24 months in the SIP program, followed by four years’
probation. As it relates to this appeal, the court imposed one year of probation
for Appellant’s drug paraphernalia conviction, to be served immediately after
Appellant’s completion of the SIP program.
The court expressly informed Appellant that if he successfully completed
the SIP program plus one year of probation and was doing everything right—
staying drug-free, refraining from committing crimes, and “reporting like
[he’s] supposed [to]”—the court would convert the second year of
probation to non-reporting probation, and then terminate the remainder of
the sentence. (See N.T. Sentencing, 3/19/18, at 7) (emphasis added). At
the conclusion of the hearing, the court reiterated Appellant’s aggregate
sentence as a flat 24-month sentence under the SIP program, followed by four
years’ probation. Relevant to this appeal, on the sentencing order, under the
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section titled “Special Conditions of Sentence,” the trial court checked the box
stating: “[Appellant] shall comply with any special conditions of
probation/parole/state intermediate punishment imposed by the Montgomery
County Adult Probation/Parole Department or the PA Board of Probation and
Parole.” (Trial/Plea/Sentence Sheet, 3/19/18, at 2).
On March 12, 2021, a violation of probation notice was filed against
Appellant alleging that he, inter alia, failed to report for probation on
November 3, 2020, November 17, 2020, December 11, 2020, January 15,
2021, January 19, 2021, and February 19, 2021.2 The court held a revocation
of probation hearing on May 25, 2021. At the hearing, Appellant stipulated to
violating his probation by failing to report on the dates alleged. (See N.T.
Revocation Hearing, 5/25/21, at 3-8).3 At the conclusion of the hearing, the
court found Appellant in violation of his probation, revoked probation, and
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2 Appellant’s participation in the SIP program began on March 19, 2018, and
was scheduled to end on March 19, 2020, at which time Appellant’s one year
of reporting probation for the drug paraphernalia charge at issue would begin.
The record indicates, however, that Appellant did not successfully complete
the SIP program. The record does not specify the exact date of Appellant’s
discharge from the program or when Appellant began his one year of reporting
probation for the drug paraphernalia conviction at issue. Nevertheless, the
parties do not dispute that Appellant was serving his probationary sentence
for the crime at issue when he allegedly failed to report.
3 At one point during the hearing, Appellant equivocated about whether he
wanted to enter the stipulation. After further consultation with counsel,
however, Appellant made clear he was stipulating to the failure to report
violations. Appellant does not challenge the voluntariness of his stipulation
on appeal. (See id.)
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resentenced Appellant to 12 months’ probation to begin that day.4
On June 23, 2021, Appellant timely filed a notice of appeal. Appellant
subsequently filed a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raises two issues on appeal:
Was the sentence imposed by the [c]ourt on May 25, 2021
an illegal sentence since the Commonwealth failed to
present evidence of the actual terms and conditions of
[Appellant]’s probation and parole as required by
[Commonwealth v. Koger, 255 A.3d 1285 (Pa.Super.
2021), appeal granted, No. 270 WAL 2021 (Pa. Apr. 5,
2022)]; failed to establish a violation of a specific condition
of probation as required by Koger; and failed to establish a
new criminal conviction for [Appellant]?
Was the evidence at the May 25, 2021 Gagnon II[5] hearing
insufficient to establish a Gagnon violation since the
Commonwealth failed to present evidence of the actual
terms and conditions of [Appellant]’s probation and parole
as required by [Koger]; failed to establish a violation of a
specific condition of probation as required by Koger; and
failed to establish a new criminal conviction for [Appellant]?
(Appellant’s Brief at 3).
When reviewing the outcome of a revocation proceeding, this Court is
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4The court also imposed additional sentences at other dockets which are not
at issue in this appeal.
5 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
See also Commonwealth v. Ferguson, 761 A.2d 613 (Pa.Super. 2000)
(explaining that when parolee or probationer is detained pending revocation
hearing, due process requires determination at pre-revocation hearing of
probable cause to believe violation was committed; upon finding of probable
cause, second, more comprehensive hearing follows before court makes final
revocation decision).
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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 1030 (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 v.
Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).
In his issues combined, Appellant concedes that he stipulated to
violating his probation by failing to report. Nevertheless, Appellant argues
there was no evidence that reporting was a condition of his probation, where
the court did not expressly set forth that condition in its original March 19,
2018 sentencing order. Appellant claims that a court can find a defendant in
violation of probation only if the defendant has violated one of the “specific
conditions” of probation imposed at sentencing or has committed a new crime.
Appellant asserts that the trial court is obligated to set forth the conditions
of probation or parole at sentencing as a prerequisite for finding that the
probationer violated his probation. Appellant maintains that the court lacked
subject matter jurisdiction to impose the May 25, 2021 revocation sentence
because the probation condition to which Appellant stipulated to violating was
never made part of his sentence.
Likewise, Appellant complains the evidence was insufficient to support
the probation violation where the failing to report condition of probation at
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issue was not set forth at sentencing. Under these circumstances, Appellant
insists his revocation sentence is illegal, and his stipulation is not binding.
Appellant concludes the evidence was insufficient to support the probation
violation, the revocation sentence was illegal, and this Court must vacate and
remand for a new revocation hearing or reinstate the original sentence of
probation. We disagree.
“The Commonwealth must prove the violation by a preponderance of
evidence and, once it does so, the decision to revoke [probation or] parole is
a matter for the court’s discretion.” Commonwealth v. Kalichak, 943 A.2d
285, 290-91 (Pa.Super. 2008). “A court may find a defendant in violation of
probation only if the defendant has violated one of the ‘specific conditions’ of
probation included in the probation order or has committed a new crime.”
Commonwealth v. Foster, 654 Pa. 266, ___, 214 A.3d 1240, 1250 (2019).
In support of Appellant’s complaints on appeal, he relies heavily on this
Court’s recent decision in Koger, supra.6 In that case, the appellant pled
guilty to possession of child pornography and criminal use of a communication
facility on August 21, 2018. The court sentenced him to 8-23 months’
imprisonment for the child pornography conviction, he was awarded credit for
time served, and immediately paroled. For the criminal use of a
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6 In its Rule 1925(a) opinion, the trial court suggests that Appellant is entitled
to relief under Koger. The Commonwealth disputes Appellant’s entitlement
to relief and insists Koger is distinguishable from the facts of this case.
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communication facility conviction, the court sentenced the appellant to three
years’ probation. At sentencing, the court stated:
As special conditions of this sentence, Appellant shall have
no contact with any victims or persons displayed in the
images. Appellant shall submit to a drug and alcohol
evaluation and complete any recommended treatment;
perform 100 hours of community service and complete
sexual offender counseling.
Koger, supra at 1287 (quoting Order of Sentence, 8/21/18). On December
21, 2018, the court revoked the appellant’s probation and parole after he
stipulated to committing technical violations. On September 16, 2019, a
second petition was filed alleging the appellant violated his parole and
probation for engaging in assaultive, threatening or harassing behavior, failing
to permit a probation officer to visit his residence and failure to submit to
warrantless searches, and other violations of criminal laws or ordinances.
At the revocation hearing, the appellant’s parole officer testified about
the facts giving rise to the alleged violations. At the conclusion of the hearing,
the court found the appellant in technical violation and revoked the appellant’s
parole and probation. Subsequently, the court resentenced the appellant to
serve the balance of his minimum sentence for the child pornography
conviction and imposed a term of 1-3 years’ imprisonment for the criminal use
of a communication facility conviction. The appellant appealed.
Initially, this Court remanded for a supplemental opinion concerning
whether the court had imposed or advised the appellant of the terms and
conditions of his probation and parole at the time of the initial August 21, 2018
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sentencing. The court responded stating that it did not advise the appellant
of the general conditions of his probation or parole at the time of sentencing;
instead, pursuant to local procedures, the probation and parole conditions
were explained to the appellant after sentencing by an adult probation officer.
The appellant challenged the sufficiency of the evidence to support his
violations in the absence of evidence as to the actual terms and conditions of
the appellant’s parole and probation and claimed his revocation sentences
were illegal. In evaluating the appellant’s claims, this Court relied on language
from our Supreme Court’s decision in Foster, supra, in which the Court said
that a trial court is required to “attach reasonable conditions authorized by
[42 Pa.C.S.A. § 9763] (relating to conditions of probation) as it deems
necessary to ensure or assist the defendant in leading a law-abiding life”; the
failure to do so is a violation of the court’s statutory mandate. Koger, supra
at 1290 (citing Foster, supra at ___, 214 A.3d at 1244 n.5, 1248-50).
Relying on Foster, the Koger Court held that the trial court erred in
failing to specifically advise the appellant of the conditions of his probation
and parole at the time of his initial sentencing. “Because the trial court did
not impose, at the time of the August 21, 2018 sentencing, any specific
probation or parole conditions, the court could not have found he violated one
of the specific conditions of probation or parole included in the probation
order.” Koger, supra at 1291 (internal quotation marks omitted). The Court
continued: “In short, a sentencing court may not delegate its statutorily
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proscribed duties to probation and parole offices and is required to
communicate any conditions of probation or parole as a prerequisite to
violating any such condition.” Id. Thus, this Court reversed the revocation
of probation and parole and vacated the new judgment of sentence.
Instantly, on March 19, 2018, the court originally sentenced Appellant
to one year of probation for his possession of drug paraphernalia conviction.
While structuring Appellant’s sentence for this crime and other offenses at
different dockets, the court informed Appellant that if he successfully
completed the SIP program plus the one year of probation imposed for the
possession of drug paraphernalia conviction and was “doing everything right,”
including “reporting like [he’s] supposed [to],” then the court would
convert the second year of probation to non-reporting probation, and
terminate the remainder of the sentence. (See N.T. Sentencing, 3/19/18, at
7) (emphasis added). At the conclusion of the hearing, the court reiterated
Appellant’s sentence at all dockets as a flat 24-month sentence under the SIP
program, followed by four years’ probation. At the end of three years of
supervision (two years of SIP plus one year of reporting probation for the
possession of drug paraphernalia conviction), if Appellant was doing
everything right, the next year of probation would be converted to non-
reporting probation, and the remainder of the sentence would be terminated.
(See id. at 9).
Significantly, Appellant completely ignores the court’s remarks at the
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March 19, 2018 sentencing hearing where the court expressly stated
Appellant’s obligation to report during the first year of probation following the
SIP program. (Id. at 7). Additionally, although the sentencing order did not
specify that Appellant was required to report for his probation, once the trial
court dictates general probation conditions, the Board or its agents may
impose more specific conditions consistent with the trial court’s intent. See
Commonwealth v. Elliott, 616 Pa. 524, 535-37, 50 A.3d 1284, 1291-92
(2012) (stating probation offices are authorized to establish uniform standards
for supervision of probationers, and further to implement those standards and
conditions; this interpretation gives meaning to all relevant statutory
provisions; in short, trial court may impose conditions of probation in
generalized manner, and Board or its agents may impose more specific
conditions of supervision pertaining to that probation, so long as those
supervision conditions are in furtherance of trial court’s conditions of
probation). Under this framework, the court could generally impose a duty to
report as a condition of Appellant’s probation, and the Board could specify the
nature of that obligation, i.e., when, where, and to whom Appellant must
report. See id.
Unlike Koger, where there was no evidence on the record of the
probation conditions at issue at the time of sentencing, the transcript from the
sentencing hearing in this case makes clear that Appellant was obligated to
report as a condition of his probation. Therefore, Appellant and the trial
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court’s reliance on Koger is misplaced. As Appellant stipulated to his failure
to report, which was set forth as a condition of his probation at the time of
the original sentencing hearing, we see no basis on which to disrupt the court’s
imposition of the revocation sentence. Accordingly, we affirm the May 25,
2021 revocation sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2022
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