Com. v. Anderson, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW ANDERSON
Appellant No. 1668 MDA 2014
Appeal from the Judgment of Sentence September 12, 2014
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001443-2008
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 28, 2015
Appellant, Matthew Anderson, appeals from the September 12, 2014
judgment of sentence of six months’ to three years’ imprisonment, imposed
following the revocation of his prior probation sentence. After careful
review, we affirm.
We summarize the relevant facts and procedural history of this case,
as contained in the certified record, as follows. On December 8, 2008, the
trial court imposed on Appellant an aggregate sentence of four and one-half
to nine years’ imprisonment after Appellant pled guilty to three counts of
possession with intent to deliver (PWID) and one count of criminal use of a
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communication facility.1 On September 13, 2010, upon agreement, the
PCRA court granted Appellant’s amended petition for post-conviction
collateral relief and vacated the December 8, 2008 judgment of sentence.
On that same date, Appellant pled guilty to two counts of PWID and one
count of criminal use of a communication facility,2 and the trial court
imposed an aggregate sentence of three to six years’ imprisonment,
commencing July 17, 2008, followed by three years’ probation under the
special supervision of the Pennsylvania Board of Probation and Parole.3
Appellant served the maximum term of imprisonment, which expired on July
17, 2014, and his three years’ probation began that day.
On September 12, 2014, the trial court held a probation violation
hearing at which a representative of the Board of Probation and Parole
testified that Appellant had committed two technical violations of his
probation. Specifically, Appellant’s two technical violations were his failure
to report to his probation officer and his use of a controlled substance,
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1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively.
2
The third count of PWID, to which Appellant originally pled guilty and was
sentenced, was nolle prossed.
3
Specifically, on the first count of PWID (cocaine), the trial court sentenced
Appellant to three to six years’ imprisonment. On the second count of PWID
(heroin), the trial court imposed a sentence of one to two years’
imprisonment to run concurrently with Appellant’s first PWID sentence. On
the conviction for criminal use of a communication facility, the trial court
imposed a sentence of three years’ probation, consecutive to Appellant’s
aforementioned sentences.
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evidenced by both a urine sample, which tested positive for THC, and
Appellant’s admission to his probation officer that he had smoked marijuana.
N.T., 9/12/14, at 5-8. Based on these two technical violations, the trial
court found Appellant had violated the terms of his probation.
Consequently, the trial court revoked Appellant’s probation, and re-
sentenced him to six months’ to three years’ imprisonment.
Appellant did not file a post-sentence motion. On October 2, 2014,
Appellant timely filed a notice of appeal.4
On appeal, Appellant raises the following issue for our review.
I. Did the [trial] court err in revoking probation as it
lacked proof of the “violation of specified conditions
of probation” as required by 42 [Pa.C.S.A.]
§ 9771(b) where a state parole agent rather than the
sentencing court imposed the conditions alleged to
have been violated[?]
Appellant’s Brief at 5.
The following standards guide our review of Appellant’s issue. “The
court may revoke an order of probation upon proof of the violation of
specified conditions of the probation.” 42 Pa.C.S.A. § 9771(b). Revocation
of probation is in the sound discretion of the trial court and we will not
disturb it in the absence of an error of law or an abuse of discretion.
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007),
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4
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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appeal denied, 945 A.2d 169 (Pa. 2008). “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, and that probation has proven an ineffective
rehabilitation tool incapable of deterring probationer from future antisocial
conduct.” Id. (citation omitted).
The imposition of sentence following the revocation
of probation is vested within the sound discretion of
the trial court, which, absent an abuse of that
discretion, will not be disturbed on appeal. An abuse
of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011) (citation
omitted), appeal denied, 49 A.3d 441 (Pa. 2012).
Appellant does not challenge the sufficiency of the evidence of his
failure to report and his use of marijuana, upon which the trial court based
his revocation. Instead, he contends that he did not violate the conditions of
his probation because the sentencing court did not impose, as express
conditions, the requirements to report or to abstain from using controlled
substances. Appellant maintains his probation officer imposed those
conditions in contravention of Section 9754(b) of the Sentencing Code,
which requires the trial court to prescribe probation conditions. Appellant’s
Brief at 12. Thus, according to Appellant, the trial court was without
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authority to revoke his probation by enforcing conditions that the trial court
did not impose. Id. We disagree.
Section 9754 of the Sentencing Code describes a trial court’s authority
to impose conditions of probation as follows.
§ 9754. Order of probation
(a) General rule.--In imposing an order of
probation the court shall specify at the time of
sentencing the length of any term during which the
defendant is to be supervised, which term may not
exceed the maximum term for which the defendant
could be confined, and the authority that shall
conduct the supervision.
(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.
42 Pa.C.S.A. § 9754(a)-(b). Subsection (c) contains 15 conditions, including
“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.” Id. § 9754(c)(13). Further, Section 6133 of the
Prisons and Parole Code provides the Board of Probation and Parole has the
“exclusive power” to supervise a probationer when the sentencing court’s
order directs supervision by the Board (special probation), and Section
6131(a)(5)(ii) authorizes the Board to establish uniform standards for the
supervision of probationers. 61 Pa.C.S.A. §§ 6133(a), 6131(a)(5)(ii).
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Our Supreme Court has reconciled the trial court’s exclusive authority
to attach conditions of probation with the Board’s power to impose
conditions of supervision as follows.
[T]he Board and its agents may impose conditions of
supervision that are germane to, elaborate on, or
interpret any conditions of probation that are
imposed by the trial court. This interpretation gives
meaning to all of the statutory provisions relevant to
this case 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.
Commonwealth v. Elliott, 50 A.3d 1284, 1292 (Pa. 2012) (footnote
omitted) (holding that revocation was proper based on a violation of the
Board’s condition of supervision that probationer not be within 1,000 feet of
areas where primary activity involves minors as said condition derived from
the trial court’s condition of probation that probationer not have
unsupervised contact with minors).
Further, this Court has recognized that there are certain implied
conditions inherent in probation orders, such as not engaging in unlawful
acts during the probationary period. Allshouse, supra. In Allshouse, this
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Court addressed a similar issue to the one involved in the instant case.
Therein, the defendant argued that the trial court improperly revoked his
probation for the defendant’s refusal to sign and acknowledge a form with
the conditions of his probation because the sentencing court did not impose
such a condition. Id. In affirming the revocation of probation, this Court
held that while the sentencing court did not expressly impose the condition,
it was “an obvious, implied condition of his probation.” Id. at 38; cf.
Vilsaint, supra at 756, 757 n.5 (rejecting Commonwealth’s contention that
banning alcohol consumption was derived from condition that authorized
probation department to enroll the defendant in any counseling programs
and noting that prohibiting drinking alcohol cannot be an implied condition
because drinking and being intoxicated are not illegal).
In this case, the trial court found that Appellant violated two conditions
of supervision imposed by the Board. First, Appellant did not report
regularly to his probation officer. Second, Appellant used controlled
substances, specifically marijuana. These conditions of supervision were
derivative of the sentencing court’s order specifically imposing the following
conditions of probation, among others, “[t]hat you violate no law of this
Commonwealth or any other jurisdiction during your probationary period[,]”
and “[t]hat you comply with all the conditions, rules, and regulations as
required by the Centre County Probation and Parole Department.” Order,
9/13/10, at ¶¶ 2-3; see also Elliott, supra at 1292 (stating that “a trial
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court may impose conditions of probation in a generalized manner[]”).
Thus, the trial court had the authority to revoke Appellant’s probation for
using marijuana, which is evidence that Appellant engaged in unlawful
activity in violation of the second condition of his probation. 5 See Order,
9/13/10, at ¶ 2; 35 P.S. § 780-113(a)(31) (prohibiting possessing a small
amount of marijuana).
Based on the foregoing, we conclude that the trial court did not abuse
its discretion or commit an error of law in finding Appellant violated his
probation. See 42 Pa.C.S.A. § 9771(b); Perreault, supra. Accordingly, we
affirm the September 12, 2014 judgment of sentence imposed following the
revocation of Appellant’s probation. See Allshouse, supra at 37.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2015
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5
Given our conclusion that the trial court properly revoked Appellant’s
probation for possessing and using marijuana, we need not evaluate whether
Appellant’s failure to report to the probation officer provides an additional
basis for revocation. See Allshouse, supra at 38.
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