Commonwealth v. Wilson

CONCURRING STATEMENT BY

FORD ELLIOTT, P.J.:

I concur in the result reached by the Opinion in Support of Affirmance. I find that a challenge to the condition of probation at issue goes to the discretionary aspects of appellant’s sentence, and not to the legality of his sentence, and that, therefore, appellant waived this issue by not first raising it before the court below.1

As the Opinion in Support of Affirmance notes, the trial court imposed as a condition of appellant’s probation that he be subject to random searches of his residence for weapons, and the court did not require reasonable suspicion on the part of the probation officer before initiating the search. The Opinion in Support of Affir-mance finds that this condition of appellant’s probation goes to the legality of his sentence and, concluding that such a condition is authorized by law and is reasonable, affirms the judgment of sentence as to appellant’s probation and this condition. While I would reach the same result, I would do so by finding this issue waived because it was not raised before the trial court. I do not believe that this condition of probation implicates the legality of appellant’s sentence.

This court has long held that not every error in crafting a sentence results in an illegal sentence:

Through these en banc cases, we have established the principle that “the term ‘illegal sentence’ is a term of art that our Courts apply narrowly, to a relatively small class of cases.” [Commonwealth v.] Berry, 877 A.2d [479 (Pa.Super.2005) ] at 483. This class of cases includes: (1) claims that the sentence fell “outside of the legal parameters prescribed by the applicable statute”; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See [Commonwealth v.] Jacobs, 900 A.2d [368 (Pa.Super.2006) ] at 372-373 (citations omitted). These claims implicate the fundamental legal authority of the court to impose the sentence that it did. Id.
Most other challenges to a sentence implicate the discretionary aspects of the sentence. [Commonwealth v.] Archer, 722 A.2d [203 (Pa.Super.1998) ] at *532209-210. This is true even though the claim may involve a legal question, a patently obvious mathematical error, or an issue of constitutional dimension. Id.; Jacobs, 900 A.2d at 373-374.[Footnote 5] Moreover, the mere fact that a rule or statute may govern or limit the trial court’s exercise of discretion in sentencing does not necessarily convert the claim into one involving the legality of the sentence. Id. at 373-375. For example, we recently held that the denial of the right of allocution was a challenge to the discretionary aspects of the sentence, even though both a statute and a rule of criminal procedure mandated that a court provide allocution before sentencing. Jacobs, 900 A.2d at 377; [Commonwealth v.] Williams, 900 A.2d [906 (Pa.Super.2006) ] at 909.
[Footnote 5] Even ten years before Archer, this Court issued an en banc opinion advising that "if a sentencing court considers improper factors in imposing sentence upon a defendant, the court thereby abuses its discretion, but the sentence imposed is not rendered illegal. Otherwise, every erroneous consideration by a sentencing court will render the sentence illegal in a manner which cannot be waived by a defendant. This is not the law. Indeed, even issues of constitutional dimensions can be waived.” Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134, 136 (1987) {en banc) (citations omitted).

Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa.Super.2007) (additional footnote omitted).

The authority of the trial court to impose conditions on probation is specifically authorized by statute:

(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:
(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(b) and (c)(13).2

This court has also held that the statutory authority to impose conditions of probation implicates the discretionary aspects of sentence, and not the legality of sentence.3 Commonwealth v. Houtz, 982 A.2d 537, 539 (Pa.Super.2009); Commonwealth v. Fenton, 750 A.2d 863, 867 n. 4 (Pa.Super.2000). It is my position that even if a condition of probation is legal error, it represents an abuse of discretion by the trial court for purposes of appeal. If found to be an abuse of discretion and preserved for appeal, the condition is unenforceable.

*533Discretion is abused when the course pursued [by the trial court] represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Archer, 722 A.2d 203, 211 (Pa.Super.1998), quoting Commonwealth v. Smith, 545 Pa. 487, 491, 681 A.2d 1288, 1290 (1996) (emphasis in original).

The Opinion in Support of Affirmance relies upon Commonwealth v. Mears, 972 A.2d 1210 (Pa.Super.2009) to conclude that the instant condition of probation goes to the legality of sentence. I find Mears to be inapposite. While Mears is another Philadelphia Gun Court case where random searches were imposed as a condition of appellant’s probation and/or parole, Mears was not actually sentenced to probation. Moreover, Mears specifically noted that it was not a situation in which the random searches provision was imposed as a condition of probation. Mears, 972 A.2d at 1212. Rather, the illegality found in Mears was that the random searches condition would apply to any parole served by the appellant, in a situation where the trial court was unauthorized to set any conditions on parole, and where the Pennsylvania Board of Probation and Parole was solely authorized to set the conditions of parole.4 Thus, Mears did not find that imposing a random searches condition of probation went to the legality of the sentence.

I would find that appellant is raising an issue that affects an abuse of the trial court’s exercise of discretion in setting conditions of probation. Because he did not raise this before the trial court, it is waived on appeal. For these reasons, I concur in the result.

OPINION IN SUPPORT OF REVERSAL BY

LAZARUS, J.:

David A. Wilson appeals from his judgment of sentence imposed by the Honorable Susan I. Shulman on August 18, 2008 in the Court of Common Pleas of Philadelphia County. After careful review, I would reverse.

Following a bench trial, Wilson was found guilty of three counts of violating the Uniform Firearms Act (“VUFA”)1 and of possession of a controlled substance.2 Wilson’s case was assigned to Philadelphia Gun Court (“Gun Court”), which was implemented by the Philadelphia Court of Common Pleas in response to an increase in the volume of weapons offenses committed in the city.3 The court consolidates all gun cases in which the most serious charge is VUFA onto one docket in an effort to streamline and promptly adjudicate gun offenses. Gun Court aims also to improve the coordination of the numerous agencies involved in the city’s effort to reduce the number of illegal guns on the streets of Philadelphia. Most Gun Court defendants receive a “Release on Special Conditions” (“ROSC”) which requires, inter alia, that they: (1) attend all court proceedings; (2) submit to all orders of the court; (3) provide pretrial services with an up-to-date *534address; (4) not possess any weapons; (5) obey all conditions imposed by the court and/or pretrial services; (6) maintain weekly contact with then* case managers; and (7) attend a gun education program.

Optional conditions which may be imposed upon a Gun Court defendant include signing a firearm surrender agreement, drug detection and electronic monitoring. Finally, for those Gun Court offenders who receive a sentence that includes probation, certain enhanced conditions may be imposed. These include: (1) reporting as directed to probation officer and permitting the officer to visit the home or place of employment as needed; (2) being subject' to personal or property searches if there is reasonable suspicion to believe the offender is in violation of any condition of probation; (3) maintaining, at a minimum, weekly contact with probation officer; and (4) being subject to home visits through targeted patrol (police/probation partnership).

Wilson was sentenced to a term of imprisonment of 2 to 5 years, followed by 3 years’ reporting probation, subject to a series of conditions, including that he submit to random searches of his residence for weapons. The trial court also imposed the same condition on Wilson’s parole. In its order, the trial court did not include any requirement that these searches be based upon probable cause or reasonable suspicion.

On appeal, Wilson challenges the legality of his sentence. Specifically, he claims that the condition of probation subjecting him to random searches of his residence were imposed by the trial court without legal authority, as it did not require a showing by the probation officer of reasonable suspicion as required by the Constitutions of the United States and the Commonwealth of Pennsylvania, as well as 61 P.S. § 331.27b. The Commonwealth contends that the condition of probation at issue presents merely a challenge to the discretionary aspect of sentencing, which Wilson has waived by failing to raise in post-sentence motions.

A challenge to the legality of a sentence may be raised as a matter of right, is non-waivable and may be entertained so long as the reviewing court has jurisdiction. Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa.Super.2007) (en banc). Indeed, an illegal sentence may be reviewed sua sponte by this Court. Commonwealth v. Anthony Williams, 871 A.2d 254 (Pa.Super.2005) (vacating illegal component of sentence even though issue not raised by appellant).

Conversely, when the discretionary aspects of a judgment of sentence are questioned, an appeal is not guaranteed as of right. Commonwealth v. Moore, 420 Pa.Super. 484, 617 A.2d 8, 11 ’ (1992). Rather, two criteria must be met before an appeal may be taken. First, the appellant must “set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence.” Pa. R.A.P. 2119(f); Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 621-22 (2002). Second, an appeal will only be granted when a “substantial question” has been presented. 42 Pa.C.S.A. § 9781(b); Mouzon, supra, at 622; Moore, 617 A.2d at 11. We will find a “substantial question” and review the decision of the trial court only where an aggrieved party can articulate clear reasons why the sentence imposed by the trial court compromises the sentencing scheme as a whole. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). See also Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587, 590 (1992) (Superior Court will grant appeal only when appellant shows that trial judge’s actions were either: (1) inconsistent with *535specific provision of Sentencing Code; or (2) contrary to fundamental norms which underlie sentencing process). This Court’s standard of review when a defendant challenges the discretionary aspects of his sentence is very narrow; it will reverse only where appellant has demonstrated a manifest abuse of discretion by the sentencing judge. Commonwealth v. Hermanson, 449 Pa.Super. 443, 674 A.2d 281 (1996).

Here, the Commonwealth asserts that Wilson’s appeal implicates only the discretionary aspects of his sentence and must fail because: (1) he did not preserve the issue in the court below; (2) he failed to set forth a substantial question on which this Court could grant appellate review; (3) even if a substantial question had been raised, the challenge to the court’s exercise of discretion is meritless because the condition at issue is reasonably related to the crime, defendant’s rehabilitation, public safety, and does not unduly impinge defendant’s liberty or his diminished privacy rights; and (4) his constitutional challenge is not yet ripe for review and is, at this juncture, purely hypothetical.4

The term “illegal sentence” is a term of art that our Courts apply narrowly, to a relatively small class of cases. Robinson, supra, at 21. This class of cases includes; (1) claims that the sentence fell “outside of the legal parameters prescribed by the applicable statute”; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that any fact, other than prior conviction, exposing defendant to sentence in excess of relevant statutory maximum must — unless admitted by defendant — be (1) found by jury, not judge; and (2) established beyond reasonable doubt). Id.

In Anthony Williams, supra, this Court, sua sponte, vacated a judgment of sentence that included a requirement that the defendant install an ignition interlock device on all motor vehicles over which he had lawful control. In an earlier decision, Commonwealth v. Mockaitis, 575 Pa. 5, 834 A.2d 488 (2003), our Supreme Court had declared unconstitutional the statute requiring the installation of such ignition systems on motor vehicles owned by a serial driving under the influence offender. Although the defendant had not raised this issue on appeal, this Court concluded that “if a court does not have statutory authority to order a particular act, the order must be vacated.” Id. at 266, citing Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super.2003) (en banc). Thus, when a court lacks statutory authority to impose a specific act or condition as part of its sentencing scheme, the sentence’s legality is implicated and may be addressed, sua sponte, as a matter of right, even if not raised by an appellant. Here, because Wilson questions the authority of the court to impose the conditions of probation and parole, his appeal raises the legality of his sentence and we will address it.

Generally, the Fourth Amendment of the U.S. Constitution protects citizens and their property from unreasonable search and seizure in the absence of a warrant obtained upon probable cause.5 See also *536Pennsylvania Constitution, Article I, Section 8.6 However, the U.S. Supreme Court has, over the years, carved out numerous exceptions to the warrant requirement.7 Most notably, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the U.S. Supreme Court found a “reasonable suspicion” exception, allowing law enforcement agents to conduct a warrantless search when possessed of a reasonable suspicion, supportable by “specific and ar-ticulable facts,” that criminal activity may be afoot. Additionally, it has long been settled that individuals subject to probationary supervision have limited Fourth Amendment rights due to a diminished expectation of privacy. Commonwealth v. Eric Williams, 547 Pa. 577, 692 A.2d 1031 (1997); Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).

In Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (Pa.1993), our Supreme Court addressed a factual scenario similar to the one now before us, but prior to the enactment of 61 P.S. 331.27b, governing the authority of probation and parole officers to conduct reasonable searches of the property of offenders. In Pickron, parole officers conducted a warrantless search of a parolee’s home, where they found drugs and drug paraphernalia. In reversing the holding of this Court, the Supreme Court upheld the trial court’s suppression of the evidence because there existed no “statute or regulation which allows or governs the performance of warrantless searches based upon reasonable suspicion or probable cause” by probation and parole officers. Id. at 1097. Thus, the Court concluded that such warrantless searches were prohibited by the Fourth Amendment “without the consent of the owner or without a statutory or regulatory framework governing the search.” Id. at 1098 (emphasis added).8

In response to the Pickron decision, the Pennsylvania Legislature in 1995 enacted 61 P.S. § 331.27b, which provided just such a “statutory framework” for property searches by probation officers. The statute delineates the authority of county probation officers9 and authorizes such officers to conduct property searches only where reasonable suspicion exists. Thus, while acknowledging probationers’ limited privacy rights by not requiring probable cause and a warrant, as the Supreme Court held in Pickron, the legislature took the middle ground and preserved a level of constitutional protection for probationers. The legislature also provided that “[njoth-ing in [Section 331.27b] shall be construed to permit searches or seizures in violation *537of the Constitution of the United State or section 8 of Article I of the Constitution of Pennsylvania.” 61 P.S. § 331.27b(b). I believe Section 331.27b to be dispositive in the instant matter.

Although imposed as a part of a penal sentence, conditions of probation are primarily aimed at furthering, as a constructive alternative to imprisonment, an offender’s rehabilitation, reassimilation and reintegration into society as a law-abiding citizen and, thus, courts are traditionally and properly invested with a broad measure of discretion in fashioning conditions of probation appropriate to the circumstances of an individual case. Commonwealth v. Walton, 483 Pa. 588, 397 A.2d 1179, 1184 (1979); see also 61 Pa.C.S.A. § 6153(a) (purpose of supervision is to assist offenders in rehabilitation and reassi-milation into community as well as protection of public). However, it is axiomatic that a court lacks authority to order the performance of an act that is contrary to statutory law and that any order purporting to require such an act is a legal nullity. See Commonwealth v. Meats, 972 A.2d 1210 (Pa.Super.2009) (holding imposition by trial court of condition of parole to be legal nullity as statutory law vests such authority solely with Board of Probation and Parole). Here, the trial court ordered that Wilson be subjected by the Department of Probation to random, warrantless searches in contravention of Section 331.27b, which requires that probationary searches be supported by reasonable suspicion. As a result, I would vacate that portion of Wilson’s sentence requiring that he be subjected to such searches.

The Opinion in Support of Affirmance concludes that the constitutional constraints imposed upon probation officers by Section 331.27b do not apply in cases, such as the matter sub judice, in which the warrantless search is not initiated by the probation officer himself, but rather performed pursuant to an order of court. The Opinion in Support of Affirmance asserts that “[a] plain reading of § 331.27b discloses that it pertains to searches made by probation officers acting on their own authority without judicial sanction.” Opinion in Support of Affirmance, at 526-27. I do not read such a limitation into the legislature’s words. The Opinion in Support of Affirmance cites to Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666 (2009), discussing the Statutory Construction Act, 1 Pa. C.S.A. § 1921, for the proposition that “when the words of a statute are clear and free of ambiguity we must interpret those words by their plain meaning.” Cox, 983 A.2d at 703. However, nowhere in section 331.27b am I able to find language plainly limiting its application to probation officers acting on their own authority, as opposed to the authority of a court order. I do not believe that the imprimatur of a court can transform an illegal act into a legal one with the stroke of a judicial pen.

For the foregoing reasons, I conclude that the condition imposed by the court, subjecting Wilson to random, suspicionless searches of his residence, is in violation of the authority granted by the legislature to probation officers under 61 P.S. § 331.27b. Where the legislature has established a statutory framework regulating the manner in which probation officers may function, the trial court, well-intentioned as it may be, is not free to authorize those officers to exceed the boundaries imposed by the legislature.10 I conclude that the *538trial court in this matter had no authority to direct Wilson’s probation officer to perform random, suspicionless searches of his property and, to the extent that the trial court did so, I would vacate that portion of Wilson’s sentence.

Wilson also challenges the legality of the condition of parole imposed by the trial court. As to this issue, I am in full agreement with the Opinion in Support of Affir-mance, which concludes that Wilson’s parole is “under the exclusive supervision of the Pennsylvania Board of Probation and Parole ... and not the Court of Common Pleas.” Mears, 972 A.2d at 1212 (citations omitted). Thus, “any condition the sentencing court purported to impose on Appellant’s state parole is advisory only” and, as such, is of no legal force. Id.

. "Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a mo-lion to modify the sentence imposed.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super.2010).

. I believe that this statute authorizes the condition of probation that was imposed here. Moreover, I disagree with the Opinion in Support of Reversal’s view that finds that the Legislature restricted searches by probation officers to instances where they had reasonable suspicion. See former 61 P.S. § 331.27b. In this regard, I agree with the Opinion in Support of Affirmance that § 331.27b refers only to probation officers conducting searches on their own authorization, and not as directed by a court as a condition of probation or otherwise.

. But see Commonwealth v. Hall, 994 A.2d 1141 (Pa.Super.2010) {en banc), which determined that a condition of probation requiring appellant to support the children of the decedent was unauthorized restitution and therefore went to the legality of sentence. In dissent, Judge Allen would have affirmed the trial court’s authority to order the child support as a condition of probation. This writer joined Judge Allen in dissent.

. In this regard, I am in agreement, in both rationale and result, with that part of the Opinion in Support of Affirmance that finds application of the random searches condition to any parole to be served by appellant, an illegal sentence.

. 18 Pa.C.S.A. §§ 6105, 6108 and 6110.2.

. 35 P.S. § 780 — 113(a)(16).

. All information referenced herein regarding Gun Court was obtained from the website of the Court of Common Pleas of Philadelphia County at http://courts.phila.gov/pdf/notices/ 2005/notice-2005-guncourt-fact-sheet.pdf

. We find this claim to be meritless and will not discuss it in any detail, except to note that Wilson's sentence, of which the condition of probation is an integral part, is a final and immediately appealable judgment and, thus, we will review the condition of probation.

. The Fourth Amendment of the U.S. Constitution, applicable to the States via the Fourteenth Amendment, requires that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall is*536sue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

. Article I, Section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

. Such other exceptions to the warrant requirement include the “hot pursuit” exception carved out in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); the search incident to arrest exception established in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); and the "automobile exception” first set forth in Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)

. The Court could have, but did not, add the words "or without a court order” to the possible circumstances under which a warrantless search might be acceptable.

. Section 331.27b also applies to county parole officers and state parole officers supervising county offenders.

. That is not to say that certain rights conferred by the legislature and even the Constitution may not be subject to waiver. Appropriate circumstances may exist, such as prior to arraignment, where a defendant may choose to waive his right to be free of random, suspicionless searches, in exchange for the benefits which may flow to him from a *538program such as Gun Court. However, that issue is not presently before us.