Com. v. Harper, N. ( 2022 )


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  • J-A19042-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    NIGEL RAMON HARPER                         :
    :
    Appellant               :   No. 1662 MDA 2021
    Appeal from the Judgment of Sentence Entered November 18, 2021
    In the Court of Common Pleas of York County Criminal Division at No(s):
    CP-67-CR-0005214-2020
    BEFORE:      BOWES, J., KING, J., and STEVENS, P.J.E.*
    DISSENTING MEMORANDUM BY BOWES, J.:                 FILED: OCTOBER 4, 2022
    I fully agree with the learned Majority’s conclusion that Appellant’s claim
    regarding the legality of his sentence is not moot. See Commonwealth v.
    Foster, 
    214 A.3d 1240
    , 1246 (Pa. 2019).            I write separately to note my
    disagreement with the Majority’s additional conclusion that Appellant’s
    completion of outpatient treatment was a specific condition of his probation
    such that the trial court was permitted to revoke and impose a revocation
    sentence for his failure to complete it. Pursuant to 42 Pa.C.S. § 9754(b), the
    trial court was required to communicate any conditions of probation to the
    defendant in its order imposing the defendant’s initial term of probation.
    However, the conditions of Appellant’s probation were not sufficiently
    communicated to him. Thus, I would reverse the trial court’s order.
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    J-A19042-22
    Appellant pleaded guilty to one count of driving under the influence
    (“DUI”) as a first-time, first-tier offender. See N.T. Guilty Plea & Sentencing,
    4/20/21, at 2. He was sentenced to six months of probation. During these
    proceedings, Appellant’s attorney noted Appellant had received an evaluation
    recommending outpatient treatment for drug and alcohol abuse in Maryland.
    Id. (“Even though he doesn’t need a drug and alcohol evaluation for this
    disposition, he does have one completed. He got it at a treatment center in
    Maryland.    He’s recommended outpatient and begins tomorrow.”).             In
    response, the trial court directed Appellant to provide a copy of the evaluation
    to York County Probation Department of Adult Services (“York County
    Probation”). Id. The court, however, did not explicitly include the completion
    of outpatient treatment as a condition of Appellant’s probation, stating only
    that Appellant would be required to comply with “standard conditions related
    to a DUI offense.” Id. at 6. No further explanation was provided.
    Several months later, the Commonwealth filed a probation violation
    petition alleging that Appellant had failed to complete certain required
    counseling or treatment. See Petition for Violation, 9/22/21, at 2. At the
    revocation hearing, Appellant’s counsel argued that such treatment was not
    included in the probation conditions imposed by the trial court. The trial court
    did not credit this argument. See N.T. Revocation Hearing, 11/18/21, at 2-3
    (“Sorry, but counsel acknowledged that he’s already had a drug and alcohol
    evaluation done and that he was recommended for outpatient treatment,
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    J-A19042-22
    which was beginning the next day, so he was well aware of the situation.”).
    Thus, it revoked Appellant’s probation.
    The Majority concludes that the passing mentions of Appellant’s
    Maryland drug and alcohol evaluation quoted above were sufficient to place
    him on notice that such treatment would be a requisite part of his probation
    conditions. See Majority Memorandum at 10-11. I disagree.
    Our legislature has provided that, in imposing an order of probation, a
    trial court “shall attach reasonable conditions authorized by section 9763
    (relating to conditions of probation) as it deems necessary to ensure or assist
    the defendant in leading a law-abiding life.”    42 Pa.C.S. § 9754(b).      Our
    Supreme Court has ruled that the failure of a trial court to include an order
    “specifying the conditions of probation in the record” constitutes “a violation
    of this statutory mandate.” Foster, supra at 1244 n.5. Furthermore, this
    Court recently concluded that the 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.” Commonwealth v. Koger, 
    255 A.3d 1285
    ,
    1291 (Pa.Super. 2021), appeal granted, 
    276 A.3d 202
     (Pa. 2022).
    Aside from referencing “the standard conditions related to a DUI
    offense,” the trial court made no pronouncements or filings detailing the
    specific probation requirements imposed upon Appellant. Cf. N.T. Guilty Plea
    & Sentencing, 4/20/21, at 4-6.       At best, the court’s statements during
    Appellant’s sentencing were ambiguous and left Appellant to guess at what
    -3-
    J-A19042-22
    the trial court might have meant by referring to such “standard” probation
    conditions.   Such generalized statements are insufficient to fulfill a court’s
    statutory duty to imposes specific conditions under § 9754(b). Furthermore,
    I note that the trial court seemed to delegate responsibility for imposing these
    treatment conditions by directing Appellant to hand over his evaluation to York
    County Probation, without any further elucidation. Id. at 2. Such practice is
    not permitted pursuant to Koger, supra at 1291 (disapproving of court
    abdicating responsibility for imposing probation conditions to other officials).
    Furthermore, defense counsel’s mere acknowledgement of a pre-
    existing drug and alcohol evaluation from Maryland is an insufficient substitute
    for a clear and unambiguous statement from the trial court that outpatient
    treatment was to be a mandatory condition of Appellant’s probation.           As
    Appellant argues aptly in his brief, “[n]owhere in the court’s statements is
    there any indication that [Appellant] was required to complete treatment, let
    alone that the failure to do so could result in revocation of his probation.”
    Appellant’s brief at 14 (emphasis in original).
    Instead, this case strikes me as a fair analogue to our holding in Koger,
    supra at 1290 (“[T]he trial court erred in failing to specifically advise
    Appellant of the conditions of his probation . . . at the time of his initial
    sentencing.”). In the absence of any specific probation conditions related to
    outpatient treatment actually imposed by the sentencing court, I would hold
    the court erred in revoking Appellant’s probation. See Foster, supra at 1250
    (“[A] court may find a defendant in violation of probation only if the defendant
    -4-
    J-A19042-22
    has violated one of the specific conditions of probation included in the
    probation order or has committed a new crime. The plain language of the
    statute does not allow for any other result.” (emphasis added)).
    Based on the foregoing, I respectfully dissent.
    -5-
    

Document Info

Docket Number: 1662 MDA 2021

Judges: Bowes, J.

Filed Date: 10/4/2022

Precedential Status: Precedential

Modified Date: 10/4/2022