Failure to Advise of Parole/Probation Conditions at Sentencing

Commonwealth v. Koger, 255 A.3d 1285 (Pa. Super. 2021), allocatur granted Apr. 5, 2022, appeal docket 15 WAP 2021

Christopher Albert Koger was convicted of possession of child pornography and of criminal use of a communication facility. As a result of sentencing credit, Koger was immediately paroled for the child pornography conviction and was sentenced to a consecutive term of three years’ probation for the criminal use of a communication facility conviction. At sentencing, the trial 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 [c]ommunity [s]ervice and complete sexual offender counseling.

Slip op. at 2. Thereafter, the Probation Office filed a petition alleging that Koger violated the following conditions of his parole and probation:

“Condition 7, [relating to refraining] from any assaultive, threatening, or harassing behavior[,]” “Condition 1, [failing] to permit a [probation officer] to visit [him at his] residence [ ] and submit to warrantless searches of [his] residence, vehicle, property, and/or [his] person[,]” and Condition 2, “[relating to violations of] criminal laws or ordinances.”

Slip op. at 2-3. The trial court held a revocation hearing where the Commonwealth presented the testimony of Officer Jeremy Bardo (PO Bardo), who testified that:

… he searched Appellant’s phone and discovered pornographic images of a minor Appellant had been communicating with via text messages. PO Bardo testified that Appellant had “been provided with a copy of the rules of the adult probation office … that [Appellant] signed.” After PO Bardo searched Appellant’s phone, Appellant became agitated and was placed in custody for safety concerns. Once at the jail, Appellant threatened another officer. PO Bardo also recalled a prior incident, during which Appellant was removed from a community service office where he was working in the “FITS Program.”

Slip op. at 3 (internal citations omitted). After the testimony, the trial court found Appellant was in technical violation and revoked Appellant’s parole and probation. The trial court resentenced Koger to serve the balance of his maximum sentence on his conviction for possession of child pornography and 1 to 3 years’ confinement for his conviction of criminal use of a communication facility.

Koger appealed his probation and parole revocations, arguing that the Commonwealth offered no evidence to establish that specific conditions of parole or probation were imposed at the time of sentencing necessary to find Koger in violation of a parole or probation condition. In support, Koger relied on Commonwealth v. Foster, 214 A.3d 1240, 1250 (Pa. 2019), in which the Pennsylvania Supreme Court held that 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.” The Commonwealth countered that it could not locate case law setting forth a requirement that it provide proof of the conditions, rules, and regulations under which an offender was supervised, but even so, the Probation Office’s petition for the revocation of parole and probation, “clearly indicates the conditions and alleged violations.” Slip op. at 5. Superior Court remanded the case to the trial court for a supplemental opinion to clarify whether the court had imposed, or advised Koger of, the terms and specific conditions of his probation and parole at the time of the initial sentencing. The trial court responded by letter, explaining that “‘it did not advise [Appellant] of the general conditions of his probation or parole at the time of sentencing[.]’ Instead, pursuant to the Washington County local procedures, the probation and parole conditions were explained to Appellant, after sentencing, by an adult probation officer.” Slip op. at 4.

Following the receipt of the trial court’s response on remand, Superior Court vacated the trial court’s revocations, concluding that because the court did not advise Koger of the conditions of his probation and parole at the time of the initial sentencing, the court could not have found he violated these conditions. The court reasoned:

Under these circumstances, we conclude the trial court erred in failing to specifically advise Appellant of the conditions of his probation and parole at the time of his initial sentencing. See 42 Pa.C.S. § 9754(b); Foster, 214 A.3d at 1244 n.5. We reject the Commonwealth’s argument that the probation officer’s VOP petition sufficiently indicated the conditions and alleged violations. See Commonwealth Brief at 8. Instead, “[t]he court shall attach such of the reasonable conditions … as it deems necessary to insure or assist the defendant in leading a law-abiding life. See Foster, 214 A.3d at 1244 n.5 citing 42 Pa.C.S. § 9754(b). 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[.]” See Foster, 214 A.3d at 1250. In short, a sentencing court may not delegate its statutorily 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. Accordingly, we reverse the revocation of probation and parole and we vacate the VOP judgment of sentence.

Slip op. at 9 (emphasis in original; footnote omitted).

The Pennsylvania Supreme Court granted allocatur to consider:

Did the Superior Court err in expanding this Court’s holding in Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019), and the statutory requirements related to probation conditions under 42 Pa.C.S. § 9754 to not only probation but also parole cases?


For more information, contact Kevin McKeon or Dennis Whitaker.