Violation of Probation Sentences not yet Commenced

Commonwealth v. Rosario, 2021 WL 4129781 (Pa. Super. 2021) (unreported), allocatur granted Jan. 25, 2022, appeal dockets 3 – 5 WAP 2022

Keith Rosario pled guilty to two counts of delivery of a controlled substance (PWID) and one count of firearms not to be carried without a license. The trial court sentenced Rosario to 2½ to 5 years of imprisonment for the first PWID offense. For the second PWID offense, Rosario was sentenced to 5 years of probation consecutive to his term of imprisonment for the first offense. For the firearm offense, Rosario was sentenced to 1 year of probation, concurrent to his probation sentence for the second PWIS offense. A previous panel of Superior Court summarized the subsequent background as follows:

Appellant was subsequently paroled; however, while on parole, he was charged with attempted homicide, aggravated assault, kidnapping and firearms charges at docket number CP-63-CR-0002611-2017 [(2611-2017)]. As a result, the Commonwealth alleged that Appellant violated the terms of his parole and probation. [*note 2] Appellant appeared before the [VOP] court on May 7, 2018 for a Gagnon II [*note 3]hearing. At the conclusion of the hearing, the [VOP] court found Appellant to be in violation of his supervision and revoked both his parole and probation. [On February 7, 2019, a jury found Appellant guilty of attempted homicide, two counts of aggravated assault, two counts of kidnapping, and criminal conspiracy at docket number 2611-2017.] On February 21, 2019, the [VOP] court resentenced Appellant to the balance of his 2½ to 5 year term of imprisonment originally imposed at docket number [1543-2013], 5 to 10 years of imprisonment at docket number [1262-2013], and 5 years of probation at docket number [223-2015], to be served consecutive to one another. [Furthermore, the VOP court did not make a determination as to Appellant’s eligibility for the RRRI program.]

[*note 2] While Appellant was on parole from his incarceration at docket number [1543-2013] when the Commonwealth filed its petition for revocation, and [Appellant] had not yet begun serving his probationary sentences at the other two dockets, the “fact that [A]ppellant had not commenced serving probation when the new offense occurred did not prevent the court from revoking its prior order placing [A]ppellant on probation.” Commonwealth v. Ware, 737[ ] A.2d 251, 253 (Pa. Super. 1999) (“If, at any time before the defendant has completed the 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 court that he is unworthy of probation … the court [can] revoke or change the order of probation.”) (emphasis in original).

 [*note 3] See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

Commonwealth v. Rosario, 798 WDA 2019, 799 WDA 2019, 800 WDA 2019, 2020 WL 1889121, at *1 (Pa. Super. filed Apr. 6, 2020) (unpublished mem.) (record citations and some footnotes omitted) (formatting altered).

Appellant subsequently appealed his sentence, and this Court reversed, concluding that the VOP court did not give “adequate consideration to the sentencing factors delineated in Section 9721(b)” and “failed to impose an individualized sentence ‘consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.’ ” Id. at *4 (quoting 42 Pa.C.S. § 9721(b)). This Court also concluded the VOP court erred by resentencing Appellant without the aid of a pre-sentence investigation (PSI) report and without conducting a pre-sentence inquiry of the particular circumstances of the offense. Id. at *4-6. Additionally, we stated that the VOP court imposed an illegal sentence because it did not determine if Appellant was eligible for RRRI minimum sentence. Id. at *7. This Court remanded this case to the VOP court for resentencing. Id.

On remand, the VOP considered the PSI prepared for Appellant’s new case at docket number 2611-2017, certificates from classes Appellant took while incarcerated, and prison misconduct reports. N.T. VOP Sentencing Hr’g, 8/14/20, at 4-11, 30. After hearing argument from both sides and Appellant’s testimony, the VOP court recommitted Appellant to serve the balance of his original sentence at docket number 1543-2013. Id. at 31; Order, 9/3/20, at 3 (unpaginated).2 The VOP court also imposed consecutive terms of five to ten years’ incarceration at docket number 1262-2013, and two to five years’ incarceration at docket number 223-2015. N.T. VOP Sentencing Hr’g, 8/14/20, at 31-32; Order, 9/3/20, at 3-4. The VOP court, for the first time, found that Appellant was not eligible for RRRI because of a prior simple assault conviction and the instant VUFA conviction at docket number 1543-2013. N.T. VOP Sentencing Hr’g, 8/14/20, at 30, 32; Order, 9/3/20, at 4. Appellant’s aggregate sentence was nine-and-a-half to twenty years’ incarceration.

Slip op. at 3-5. Rosario appealed the discretionary aspects of his sentence to Superior Court. In their briefs to Superior Court, neither Rosario nor the Commonwealth addressed the VOP court’s authority to revoke Rosario’s parole and probation.

Superior Court raised the issue of the legality of Appellant’s sentence following the revocation of his parole and the anticipatory revocation of his probation sua sponte. The court explained that while Superior Court had previously affirmed anticipatory revocations of probation, those cases were recently overruled by Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super. 2021) (en banc). Superior Court summarized Simmons’ as follows:

In Simmons, the trial court originally sentenced the defendant to six to twenty-three months of incarceration, followed by three years of probation. Simmons, 2021 WL 3641859, at *1. After the defendant pleaded guilty to new charges, the VOP court revoked the defendant’s parole, anticipatorily revoked the defendant’s probation, and resentenced him to serve a term of two-and-one-half to five years of imprisonment. Id. The Simmons Court noted that the defendant’s challenge to the anticipatory revocation of his probation was a challenge to the legality of the sentence. Id. at *1 n.3. The Court concluded that “the holding of Wendowski and its progeny contravene the plain language of the relevant [sentencing] statutes[,]” including 42 Pa.C.S. §§ 9721(a), 9754, 9771(b). Id. at *8; see also id. at *12.

Specifically, the Simmons Court explained 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;” 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.

Id. at *10 (some citations omitted).

Ultimately, the Simmons Court vacated the defendant’s sentence and remanded with instructions for the VOP court to reinstate the original order of probation. Id. at *12.

Slip op. at 11-12 (footnote omitted). Applying Simmons, Superior Court concluded:

Here, the VOP court initially sentenced Appellant to a term of five years of probation at docket number 1262-2013 and a concurrent term of one year of probation at docket number 223-2015. Appellant’s probationary sentences ran consecutively to the two-and-a-half to five years of incarceration imposed at docket number 1543-2013. Order, 5/14/15, at 2 (unpaginated). When the VOP court revoked Appellant’s probationary sentences on May 7, 2018, Appellant was on parole for his sentence at 1543-2013, and had not yet started serving his terms of probation. The VOP court subsequently resentenced Appellant as described above.

Under Simmons, the VOP court lacked the authority to revoke Appellant’s probationary sentences because Appellant had not yet begun to serve his concurrent periods of probation at the time he was convicted of new charges. See Simmons, 2021 WL 3641859, at *8-10, *12.

Slip op. at 13 (footnote omitted). Thus, Superior Court reversed the trial court, vacated the sentences, and remanded to the VOP court to reinstate the original May 4, 2015 orders of probation.

The Supreme Court granted allocatur to consider the following issues:

(1) Did the Superior Court err and abuse its discretion and misapprehend and ignore or misapply the doctrine of stare decisis in its Simmons decision by overturning over 40 years of case law permitting the revocation of consecutive probation sentences not yet commenced where there has been a substantive violation and conviction in a new case?

(2) Did the Superior Court abuse its discretion and misapprehend and misapply the statutory authority it cited in Simmons, which statutes do not clearly and unambiguously speak to or demand the result of prohibiting violation of probation sentences that have not yet commenced when a substantive violation has occurred?