Com. v. Gaiski, S. ( 2022 )


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  • J-S30024-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    :
    v.                             :
    :
    :
    SAMUEL JAMES GAISKI                        :
    :
    Appellant               :     No. 462 MDA 2021
    Appeal from the Judgment of Sentence Entered March 24, 2021
    In the Court of Common Pleas of Dauphin County Criminal Division at
    No(s): CP-22-CR-0002022-2012
    BEFORE:      BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
    MEMORANDUM BY McCAFFERY, J.:                          FILED: JANUARY 19, 2022
    Samuel James Gaiski (Appellant) appeals from the judgment of
    sentence entered in the Dauphin County Court of Common Pleas, following
    the revocation of his probation imposed pursuant to a 2012 no contest plea to
    aggravated assault of an unborn child.1            Appellant contends:   (1) the trial
    court erred in revoking his probation for his violation of a condition not
    properly imposed by the court; (2) the sentence imposed for a technical
    violation was excessive; and (3) the court abused its discretion when it
    imposed sex offender conditions as part of the revocation sentence. While it
    is clear Appellant’s prior eight-year term of incarceration for assault did not
    rehabilitate him, and both the trial court and Appellant’s probation officer
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   18 Pa.C.S. § 2606(a).
    J-S30024-21
    acted with the intention to protect future victims, we agree that the trial court
    revoked Appellant’s probation for a condition it did not impose. Thus, we are
    constrained to reverse the order revoking his probation and vacate the
    judgment of sentence.
    The facts underlying Appellant’s 2012 arrest and conviction were
    summarized by the Commonwealth at a December 3, 2012, guilty plea
    hearing:
    [O]n January 16 and 17 of 2012, the victim in this case, [S.B.],
    was seven months pregnant with [Appellant’s] child.
    On January 16, they did get into a physical altercation. As
    well as on January 17 there was another physical altercation
    where [Appellant] threw the victim up against the door, put both
    hands around her neck strangling her, he did push her around as
    well as striking her in the stomach with his knee.
    After the incident, the victim began to leak fluid from her
    vaginal area. She was taken to the hospital, was in the hospital
    for eight days. There was placental blood in her bloodstream that
    indicated there was trauma to the fetus. The placenta detached
    from her uterus.
    After being released from the hospital, [S.B.] was on bed
    rest for the remainder of her pregnancy. She did give birth to a
    son. He does have some medical issues which may or may not be
    related to the incident. There’s not really any way to tell whether
    or not that is the case.
    N.T., Guilty Plea & Sentencing H’rg, 12/3/12, at 4-5.
    Appellant was charged with aggravated assault, aggravated assault of
    an unborn child, simple assault (two counts), unlawful restraint, false
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    imprisonment, and harassment.2 On December 3, 2012, Appellant entered
    into a negotiated plea agreement with the Commonwealth. Specifically, he
    pled guilty to all charges, except aggravated assault of an unborn child, to
    which he pled no contest. See N.T., Guilty Plea & Sentencing H’rg, at 5-6.
    The parties agreed Appellant would be sentenced to an aggregate term of 4
    to 8 years’ incarceration, followed by a consecutive term of four years’
    probation. See id. at 3. The trial court accepted the plea and sentenced
    Appellant accordingly.       The 4-to-8-year prison term was imposed on the
    aggravated assault charge, and concurrent terms of 6 to 23 months’
    imprisonment were imposed on the counts of simple assault, unlawful
    restraint, and false imprisonment.3 The four-year consecutive probationary
    term was imposed on Appellant’s conviction of aggravated assault of an
    unborn child.      The trial court explicitly ordered that Appellant “have no
    contact direct or indirectly with the victim” and “attend and complete a
    26 week batterer’s course.”         Id. at 13 (emphasis added); see Sentencing
    Order, 12/10/12, at 2 (unpaginated). No direct appeal was filed.
    ____________________________________________
    2 See 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), (3), 2902(a)(1), 2903(a), and
    2709(a)(3), respectively. Appellant was also originally charged with several
    sexual offenses, including rape and involuntary deviate sexual intercourse,
    based upon S.B.’s report to police that Appellant forced her to have anal sex
    on January 16, 2012. See Affidavit of Probable Cause, 4/26/12, at 2.
    However, the Commonwealth agreed to withdraw all of the sexual crimes in
    exchange for Appellant’s negotiated plea.       See Appellant’s Guilty Plea
    Colloquy, 12/3/12, at 4.
    3   The court imposed a $150 fine for the summary offense of harassment.
    -3-
    J-S30024-21
    Appellant served his entire 8-year prison sentence.          See N.T.,
    Revocation H’rg, 1/27/21, at 7. He was released on January 17, 2020, at
    which time he began serving his probationary term. Id. In March of 2020,
    Appellant’s state parole agent, Elizabeth Lucas,4 received a call from a woman,
    G.I., claiming: (1) she was Appellant’s current girlfriend, (2) Appellant was
    “harassing her[,]” and (3) “she was scared of him[.]” Id. at 11. Agent Lucas
    instructed G.I. to call the police and report the harassment. Id. She then
    “made contact” with Appellant, informed him of G.I.’s allegations, and
    “provided him written instructions[, which Appellant signed,] that he was not
    permitted to have any contact with” G.I. Id. See Commonwealth’s Response
    to Appellant’s Petition for Writ of Habeas Corpus, 12/21/20, Exhibit A, Parole
    Violation Warning/Instruction, 3/23/20 (instructing Appellant, “You may have
    no contact with [G.I.] for any reason under any circumstance.”).
    Meanwhile, Pennsylvania State Trooper Mark Zearfaus interviewed G.I.,
    who told the trooper Appellant had physically assaulted her.         See N.T.,
    Revocation H’rg, at 13, 36-37. Trooper Zearfaus observed G.I.’s injuries and,
    on March 25, 2020, filed charges of simple assault and harassment against
    ____________________________________________
    4 Agent Lucas testified that she is employed by “State Parole” as a “Specialized
    Sex Offender Agent.” N.T., Revocation H’rg, at 6-7. She became Appellant’s
    supervisor “a couple of months after he had been out.” Id. at 7. She
    explained that, in December of 2017, Appellant signed a document, accepting
    that “State Parole would supervise his probation.” Id. Thus, although
    Appellant was only on probation after his release, he was supervised by a
    State Parole Agent.
    -4-
    J-S30024-21
    Appellant. Id. at 13, 37-38. In response to these new charges, Agent Lucas
    detained Appellant “on a pending [probation] violation.” Id. at 13.
    In October of 2020, the charges relating to Appellant’s alleged abuse of
    G.I. were dismissed because G.I. refused to testify. N.T., Revocation H’rg, at
    39.     Nevertheless, Appellant remained detained pending a probation
    revocation because Agent Lucas learned that Appellant continued to have
    contact with G.I. after he signed the “no contact” order, and while he was in
    prison awaiting trial on charges that he assaulted her.5 Id. at 18.
    Subsequently, the Commonwealth sought revocation of Appellant’s
    probation, and a Gagnon I6 hearing was conducted before a Magisterial
    District Judge (MDJ) on November 16, 2020.7 See Appellant’s Petition for Writ
    of Habeas Corpus, 12/2/20, at 1. On December 2, 2020, Appellant filed a
    petition for writ of habeas corpus asserting the “sole violation presented” for
    the revocation of his probation “was failing to abide by [the] ‘no contact’
    instruction” with G.I. Id. at 1. He asserted that because that condition was
    not imposed by the trial court — but rather, only by his parole agent — the
    revocation of his probation on that basis was improper. See id. at 1-2. The
    ____________________________________________
    5 At the revocation hearing, the Commonwealth presented evidence that
    Appellant and G.I. had twelve video visits between April 25 and May 9, 2020.
    See N.T., Revocation H’rg, at 32-33, 40-41.
    6   See Gagnon v. Scarpelli, 
    411 U.S. 778
     (1973).
    7Neither the revocation petition, nor a transcript or paperwork from the
    Gagnon I hearing, is included in the certified record.
    -5-
    J-S30024-21
    Commonwealth filed a response, admitting that it sought to revoke Appellant’s
    probation based only on his failure to abide by the no contact order with G.I.
    See Commonwealth’s Response to Appellant’s Petition for Writ of Habeas
    Corpus, 12/21/20, at 1 (unpaginated).            The Commonwealth further stated
    that Appellant was provided that “written instruction as a condition of
    supervision,” and he signed the document. 
    Id.
    The trial court conducted a revocation hearing on January 27, 2021.
    Appellant conceded that he “did, indeed, have contact with” G.I. in violation
    of the supervision condition imposed by Agent Lucas. N.T., Revocation H’rg,
    at 4, 43. However, he challenged Agent Lucas’s authority to impose such a
    condition. Id. at 4. At the conclusion of the hearing, the trial court asked
    both parties to file memoranda on the legal question at issue.        Id. at 43.
    Thereafter, on March 19th, the trial court entered an order denying Appellant’s
    petition for writ of habeas corpus.8 The court found that the parole agent’s
    condition of supervision — that Appellant have no contact with G.I. — was
    “germane to” and “elaborate[d] on a condition imposed by the sentencing
    court[,]” specifically, that Appellant have no contact with the victim (S.B.) in
    the underlying case. Order, 3/19/21, at 2. Thus, the court concluded “the
    parole office was well within their authority to impose this condition to protect
    the current girlfriend.” Id. (footnote omitted).
    ____________________________________________
    8The trial court initially entered an order denying the petition on December
    21, 2020. However, the court entered another order on March 19, 2021,
    which also included an explanation of the court’s reasoning.
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    J-S30024-21
    On March 24, 2021, the trial court sentenced Appellant to a term of 2
    1/2 to 8 years’ imprisonment, followed by three years’ probation upon the
    revocation of his probation for aggravated assault of an unborn child.
    Additionally, the court imposed, inter alia, the following conditions:
    1. [Appellant] must abide by all sex offender conditions.
    2. Comply with the Pennsylvania Board of Probation Parole,
    special conditions for sexual offenders.
    3. Comply with any optional special conditions for sexual
    offenders imposed by the parole board.
    4. Successfully complete sex offender treatment.
    5. Refrain from contact with all victims, including the
    present victim in this particular revocation matter as well as the
    original victim. . . .
    N.T., Revocation Sentencing H’rg, 3/24/21, at 6-7.
    Appellant filed a timely post-sentence motion on April 2, 2021, followed
    by a timely notice of appeal on April 13th. See Pa.R.Crim.P. 708(E) (filing of
    motion to modify sentence following probation revocation “will not toll the 30-
    day appeal period”). Appellant also complied with the trial court’s directive to
    file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
    Appellant frames his three issues on appeal as follows:
    I.     Whether the condition that Appellant is accused             of
    violat[ing] was properly imposed by the sentencing court?
    II.    Whether Appellant’s sentence on a technical probation
    violation of not less than two and a half (2 1/2) years of
    incarceration to not more than eight (8) years of incarceration
    followed by thee (3) years of probation constituted an abuse of
    discretion and was too harsh under the circumstances?
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    J-S30024-21
    III. Whether it was an abuse of discretion or a violation of
    Appellant’s due process rights to impose sex offender conditions
    on him when there was no basis for doing so?
    Appellant’s Brief at 5.9
    When considering an appeal following the revocation of probation,
    [o]ur review is limited to determining the validity of the probation
    revocation proceedings and the authority of the sentencing court
    to consider the same sentencing alternatives that it had at the
    time of the initial sentencing. . . .
    Commonwealth v. Simmons, 
    56 A.3d 1280
    , 1286 (Pa. Super. 2012)
    (citations omitted).       Furthermore, we note:      “Revocation of a probation
    sentence is a matter committed to the sound discretion of the trial court and
    that court’s decision will not be disturbed on appeal in the absence of an error
    of law or an abuse of discretion.” Commonwealth v. Colon, 
    102 A.3d 1033
    ,
    1041 (Pa. Super. 2014) (citation omitted)
    In his first issue, Appellant challenges the underlying basis for his
    probation revocation. He argues the condition of his probation he was charged
    with violating — that he have no contact with G.I. — “was not imposed by the
    [trial c]ourt[, but rather,] was drafted by his state probation officer.”
    Appellant’s Brief at 12. Because the legislature empowers the court, and not
    probation officers, to impose conditions of probation, Appellant maintains the
    trial court improperly revoked his probation for violating a condition that was
    not court-imposed.       See id. at 12-13.       While he acknowledges probation
    ____________________________________________
    9As noted infra, because our resolution of Appellant’s first issue is dispositive,
    we need not address his remaining claims on appeal.
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    J-S30024-21
    officers may “impose conditions of supervision that are germane to, elaborate
    on, or interpret any conditions of probation that are imposed by the trial
    court[,]” Appellant insists the no-contact provision at issue here — which
    involved a different victim in a separate incident — “was not germane to
    or an elaboration of a condition imposed” in the case sub judice. Id. at 13,
    citing Commonwealth v. Elliott, 
    50 A.3d 1284
    , 1292 (Pa. 2012). Thus, he
    contends the trial court had no basis to revoke his probation. To the extent
    the trial court relies on other “additional violations” in its opinion, Appellant
    argues these violations “were not addressed by the previous hearings or put
    forth by the Commonwealth as violations.” Appellant’s Brief at 15.
    The authority to impose conditions of probation lies with the trial court.
    Pursuant to the Sentencing Code, a trial court must “attach” to an order of
    probation “reasonable conditions . . . as it deems necessary to ensure or assist
    the defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(b).10 See
    also Elliott, 50 A.3d at 1290.           However, in Elliott, our Supreme Court
    recognized that probation officers are also authorized to “establish uniform
    standards for the supervision of probationers . . . and further to implement
    those standards and conditions.”               Elliott, 50 A.3d at 1291.   The Court
    explained:
    [T]he [Probation] Board and its agents may impose conditions of
    supervision that are germane to, elaborate on, or interpret any
    ____________________________________________
    10 Section 9754(b) refers to a list of enumerated conditions of probation
    outlined in Section 9763(b). See 42 Pa.C.S. §§ 9754(b), 9763(b)(1)-(15).
    -9-
    J-S30024-21
    conditions of probation that are imposed by the trial court. This
    interpretation gives meaning to all of the statutory provisions . . .
    and thus: (1) maintains the sentencing authority solely with a trial
    court; (2) permits the Board and its agents to evaluate
    probationers on a one-on-one basis to effectuate supervision; (3)
    sustains the ability of the Board to impose conditions of
    supervision; and (4) authorizes that a probationer may be
    detained, arrested, and “violated” for failing to comply with either
    a condition of probation or a condition of supervision. In
    summary, a trial court may impose conditions of probation in a
    generalized manner, and the 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 the trial court’s conditions of probation.
    Id. at 1292 (emphases added).
    Recently, in Commonwealth v. Foster, 
    214 A.3d 1240
     (Pa. 2019), the
    Supreme Court further clarified that a trial court may revoke an order of
    probation only upon “proof” that the defendant violated one of the “specified
    conditions of the probation.”      Id. at 1250 (emphasis added), citing 42
    Pa.C.S. § 9771(b). The Court explained: “[A] violation of probation does not
    occur solely because a judge believes the probationer’s conduct indicates that
    probation has been ineffective to rehabilitate or to deter against antisocial
    conduct.” Foster, 214 A.3d at 1243.
    In that case, the trial court revoked the defendant’s probation based
    upon photographs on the defendant’s social media accounts that “depicted
    guns, drugs, [and] large amounts of money[.]” Foster, 214 A.3d at 1243.
    The court found that, while the photographs did not prove the defendant
    violated a specific condition of his probation, they did evince his
    “indifference regarding his crimes” and “clearly indicate[ ] that probation was
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    J-S30024-21
    an ineffective vehicle to accomplish his rehabilitation[.]” Id. at 1245 (record
    citation omitted).   On appeal, a panel of this Court affirmed, relying upon
    language in Commonwealth v. Infante, 
    888 A.2d 783
     (Pa. 2005), that a
    probation violation is established if it is “shown that the conduct of the
    probationer indicates the probation has proven to have been an ineffective
    vehicle to accomplish rehabilitation and not sufficient to deter against future
    antisocial conduct.” Foster, 214 A.3d at 1245 (citations omitted).
    However, the Supreme Court reversed our ruling, concluding the
    language in Infante was taken out of context. Foster, 214 A.3d at 1251.
    The Court explained:
    Read in context, it is clear that the effectiveness of probation as a
    rehabilitative tool and as a deterrent to antisocial conduct is the
    lens through which a violation is to be viewed. Revocation and
    resentencing are warranted if, in the face of a new criminal act
    or the violation of a condition of probation, the court finds
    that probation is no longer achieving its desired aims of
    rehabilitation and deterring criminal activity. As the statute
    provides (and Infante reflects), a court never reaches this
    question unless there is a violation of a specified term of the
    probation order or the probationer commits a new crime.
    Id. (citations omitted and emphases added). Moreover, in a footnote, the
    Court explicitly stated:
    We expressly disapprove of the Superior Court’s reliance on this
    passage from Infante . . . for the proposition that revocation of
    probation is permissible in the absence of a finding that the
    defendant violated a specified condition of probation if the VOP
    court finds that probation has been ineffective to rehabilitate or to
    deter against antisocial conduct.
    Id. at 1251 n.14.
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    J-S30024-21
    Recently, this Court re-emphasized the statutory requirement that a
    trial court “specifically advise [a defendant] of the conditions of his probation
    and parole at the time of his initial sentencing.” Commonwealth v. Koger,
    
    255 A.3d 1285
    , 1290 (Pa. Super. 2021), citing 42 Pa.C.S. § 9754(b). In that
    case, the defendant received a probationary sentence, following a guilty plea
    to criminal use of a communication facility in connection with his possession
    of child pornography. Koger, 255 A.3d at 1287. The trial court advised the
    defendant of the following “special conditions” of his sentence: (1) that he
    have no contact with any victims including those displayed in the images, (2)
    that he undergo a drug and alcohol evaluation and complete any
    recommended treatment, and (3) that he perform 100 hours of community
    service and complete sex offender counseling. Id. The court did not provide
    the defendant with any specific conditions of his probation or parole, but
    rather, noted the rules and conditions of his probation and parole “were
    explained [to him] by an adult probation officer immediately following the
    sentencing proceeding.” Id. at 1290 (citation omitted and emphasis added).
    Subsequently, the Commonwealth sought to revoke the defendant’s
    probation and parole after, inter alia, a search of his cell phone uncovered
    “pornographic images of a minor [the defendant] has been communicating
    with via text messages.” Koger, 255 A.3d at 1288. Following a hearing, the
    trial court revoked the probationary sentence and imposed a one-to-three-
    year prison term. Id.
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    J-S30024-21
    On appeal, this Court reversed the order revoking the defendant’s
    probation and parole, concluding the trial court failed “to specifically advise
    [the defendant] of the conditions of his probation and parole at the time of his
    initial sentencing.” Koger, 255 A.3d at 1290. We opined:
    Because the trial court did not impose, at the time of the [initial]
    sentencing any specific probation or parole conditions, the court
    could not have found [the defendant] “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.
    Id. at 1291 (footnote omitted). Thus, we vacated the judgment of sentence
    imposed on the probation revocation. Id.
    In the present case, the trial court acknowledged that the specific “no
    contact” provision Appellant violated was imposed by his probation officer, not
    the court. See Trial Ct. Op. at 3. However, relying on Elliott, the trial court
    found the provision at issue was “germane to, or certainly elaborate[d] on a
    condition imposed by the sentencing court” — that is, the no contact order
    concerning the victim in the underlying case. Id. at 4. The court opined:
    Once the parole office was notified of a similar situation (one
    where [Appellant] was now abusing a current girlfriend), the
    parole office was well within their authority to impose this
    condition to protect the current girlfriend. The Board imposed a
    condition that is similar to the one that was originally imposed, a
    no-contact provision on behalf of a victim that was [Appellant’s]
    girlfriend at the time.        Additionally, the sentencing court
    recognized the aggressive behavior of [Appellant] and ordered
    him to attend batterer’s counseling. Likewise, when the Board
    discovered that [Appellant] was being physically aggressive to an
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    J-S30024-21
    individual, it was within the Board’s power to impose a condition
    to protect that individual, including the issuance of a no-contact
    provision. . . .
    Id.
    Upon our review of the relevant statutory and case law, we are
    constrained to conclude the trial court exceeded its authority when it revoked
    Appellant’s probation based upon his admitted violation of a supervisory
    condition imposed by his parole agent.       See Simmons, 
    56 A.3d at 1286
    .
    Neither the trial court, nor the Commonwealth, dispute the fact that the
    condition at issue was not imposed by the court at the time of the initial
    sentencing. See Trial Ct. Op. at 3-4; Commonwealth’s Brief at 6-7. Rather,
    they insist Agent Lucas’ subsequent written instruction — prohibiting Appellant
    from having any contact with G.I. — was sufficiently “in furtherance of the
    trial court’s conditions of probation” that it satisfied the requirements of
    Elliott. Elliott, 50 A.3d at 1292. See Trial Ct. Op. at 4; Commonwealth’s
    Brief at 7-8. We disagree.
    Both Foster and Koger make clear that a trial court may revoke a
    defendant’s probation only if the defendant (1) commits a new crime or (2)
    violates a specific, court-imposed condition of his probation, or a Board-
    imposed condition of supervision in furtherance of the court’s conditions.
    Here, Agent Lucas’s directive that Appellant have no contact with G.I. was
    neither court-imposed, nor in furtherance of the two court-imposed conditions
    — that Appellant have no contact with the victim (S.B.) and attend a batterer’s
    course. G.I. was not the victim in the underlying case. We do not agree that
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    J-S30024-21
    a “no contact” order for a different victim involving a separate incident
    is “germane to, or elaborate[s] on” the “no contact” condition imposed by the
    trial court. See Elliott, 50 A.3d at 1292. Moreover, directing Appellant to
    have “no contact” with G.I. has no relation to his purported failure to attend
    a batterer’s course.11      Thus, we conclude the trial court erred in revoking
    Appellant’s probation based upon his violation of the “no contact” condition
    imposed by Agent Lucas.
    Nevertheless, in its opinion, the trial court attempts to justify its
    revocation of Appellant’s probation based upon three, additional alleged
    violations — (1) a violation of “Rule 2” because Appellant “picked up new
    charges” for his assault of G.I.; (2) a violation of “Rule 4” because he failed
    to refrain from threatening behavior; (3) a violation of “Rule 7” because he
    failed to make monthly payments towards his restitution; and (4) a violation
    of “Rule 12” because he failed to follow his probation officer’s instructions.
    See Trial Ct. Op. at 7, 9. The court acknowledges that the new charges were
    later dismissed because G.I. refused to cooperate. However, it noted that
    ____________________________________________
    11 While the Commonwealth now insists Appellant did not complete the
    batterer’s course, there was no mention of this probation condition during the
    revocation hearing. See Commonwealth’s Brief at 7. To the extent the trial
    court implies Appellant failed to establish he completed the course, we note
    that the Commonwealth bears the burden of proof in a probation revocation
    hearing. See Trial Ct. Op. at 4 n.9 (“There was no evidence introduced to
    suggest that [Appellant] had completed the course.”); Commonwealth v.
    Perreault, 
    930 A.2d 553
    , 558 (Pa. Super. 2007) (“The Commonwealth
    establishes a probation violation meriting revocation when it shows, by a
    preponderance of the evidence, that the probationer’s conduct violated the
    terms and conditions of his probation[.]”).
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    J-S30024-21
    “when a charge is nolle prossed, the Commonwealth is not prevented from
    pursuing a violation of probation if evidence is presented to demonstrate that
    a crime occurred.” Id. at 7 (citation and emphasis omitted). Here, the court
    found Trooper Zearfus’s credible testimony at the revocation hearing provided
    sufficient evidence that a crime occurred to violate Appellant’s probation on
    that basis. See id. at 8-9.
    We conclude that the trial court’s reliance on these “additional” alleged
    violations is misplaced. First, the “Rules” to which the trial court refers are
    not in the certified record. What is clear, however, is that, as in Koger, these
    “Rules” were not provided to Appellant at the time of his initial sentencing
    and, thus, not court-imposed. See Koger, 255 A.3d at 1290-91.
    Second, in responding to Appellant’s habeas corpus petition, the
    Commonwealth admitted that the “sole violation presented” to the MDJ at
    the Gagnon I hearing was Appellant’s failure “to abide by a no-contact
    instruction with” G.I. See Appellant’s Petition for Writ of Habeas Corpus at 1
    (emphasis added); Commonwealth’s Response to Appellant’s Petition at 1.
    Third, our review of the transcript from the revocation hearing reveals
    the focus of that proceeding was Appellant’s continued violation of the “no
    contact” order.   In fact, the trial court noted twice that Appellant did not
    contest the fact that he violated the “no contact” order, but rather, argued
    his probation officer had no authority to impose that condition. See N.T.,
    Revocation H’rg, at 4-5, 43-44. The court repeated this in its March 19, 2021,
    order denying Appellant’s petition for writ of habeas corpus.       See Order,
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    J-S30024-21
    3/19/21, at 1 n.1 (“[Appellant] does not contest the [probation] violation.
    [Appellant] does, however, contest the . . . officer’s ability to place that
    condition on him.”).
    Thus, upon our review of the record, it is evident the basis for
    Appellant’s probation revocation was his violation of the “no contact” order
    imposed by Agent Lucas.       Accordingly, we reject the trial court’s belated
    reliance on “additional violations” to support its ruling. This Court’s decision
    in Commonwealth v. Carter, 
    523 A.2d 779
     (Pa. Super. 1987), is instructive.
    In Carter, the defendant appeared for a Gagnon I hearing to
    “determine whether probable cause existed for believing that [he] had violated
    the terms of his probation by committing one or more new offenses.” Carter,
    
    523 A.2d at 780
    . However, during the hearing, the trial court “learned that
    [the defendant] failed to report as ordered during probation.” 
    Id.
     Based on
    that information, the court “immediately revoked probation and imposed a
    [new] sentence[.]” 
    Id.
     The new offenses, which provided the basis for the
    revocation proceeding, were later dismissed. See 
    id.
    On appeal, this Court explained:
    “[D]ue process requires that a probationer receive written notice
    of the claimed probation violations prior to commencement of the
    revocation hearing. . . .” The purpose of requiring prior written
    notice “is to ensure that the ... probationer can sufficiently prepare
    his case, both against the allegations of violations, and against the
    argument that the violations, if proved, demonstrate that . . .
    probation is no longer an effective rehabilitative tool and should
    be revoked. . . . [T]he requirement bears directly on the ability
    to contest revocation.”
    - 17 -
    J-S30024-21
    Carter, 
    523 A.2d at 780
    . Accordingly, the Carter panel held that the trial
    court “committed error” when it “changed direction” during the revocation
    hearing and found the defendant had committed a technical violation of his
    probation, when the defendant had “received no notice of any alleged
    technical violation of his probation before he appeared before the court.”
    Carter, 
    523 A.2d at 781
    .
    The same is true here. There is no evidence in the record that these
    other purported bases for revoking Appellant’s probation were included in the
    revocation petition, or presented to the MDJ at the Gagnon I hearing. Thus,
    we conclude the trial court erred to the extent it relied on these purported
    violations in revoking Appellant’s probation. See Carter, 
    523 A.2d at 781
    .
    Because we agree with Appellant that the trial court improperly revoked
    his probation based upon a purported violation of a condition that was not
    court-imposed, we reverse the order revoking his probation, and vacate the
    judgment of sentence.        Moreover, because we vacate the judgment of
    sentence, we need not address Appellant’s remaining two claims, which
    concern the sentence imposed following revocation.
    Violation of probation order reversed. Judgment of sentence vacated.
    Jurisdiction relinquished.
    - 18 -
    J-S30024-21
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 01/19/2022
    - 19 -
    

Document Info

Docket Number: 462 MDA 2021

Judges: McCaffery, J.

Filed Date: 1/19/2022

Precedential Status: Precedential

Modified Date: 1/19/2022