Com. v. Mayberry, W. ( 2022 )

J-S07022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM H. MAYBERRY, JR. :
:
Appellant : No. 1095 WDA 2021
Appeal from the Order Entered August 11, 2021
In the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0001019-2004
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: June 29, 2022
William J. Mayberry, Jr. (“Mayberry”) appeals from the order adding
supervisory conditions to his probationary sentence pursuant to 42 Pa.C.S.A.
§ 9771. After careful review, we vacate and remand for further proceedings
consistent with this memorandum.
In 2004, Mayberry was charged with rape by forcible compulsion, rape
of a person less than thirteen years old, two counts of involuntary deviate
sexual intercourse with a person less than thirteen years old, statutory sexual
assault, aggravated indecent assault, two counts of indecent assault of a
person less than sixteen years old, incest, and corruption of minors, for the
repeated sexual assault and rape of his biological daughter between 2000 and
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* Retired Senior Judge assigned to the Superior Court.
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2005.1 In May 2005, a jury convicted Mayberry of all the charged offenses
except involuntary deviate sexual assault of a person less than thirteen years
old, and one count of indecent assault of a person less than sixteen years old.
The trial court sentenced Mayberry to an aggregate sentence of eight and one-
half to seventeen years of imprisonment followed by five years of state-
supervised probation. The trial court also designated Mayberry a sexually
violent predator. See 42 Pa.C.S.A. § 9792.
On December 30, 2020, the Pennsylvania Parole Board (the “Board”)
sent a letter to the trial court requesting a hearing pursuant to 42 Pa.C.S.A. §
9771(d) on its request to add special conditions to Mayberry’s probation.2 See
Trial Court Opinion, 8/11/21, at 2.
According to the trial court’s opinion, it held the requested hearing on
July 1, 2021.3 On July 8, 2021, Mayberry filed a motion to discontinue
asserting that the Board’s request constituted an untimely request for post-
sentence modification because he had not yet begun to serve his probationary
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1See 18 Pa.C.S.A. §§ 3121 (a) (1), 3121(a)(6) (now codified at 18 Pa.C.S.A.
§ 3121(c)), 3123 (a)(6) (now codified at 18 Pa.C.S.A. 3123(b)), 3122.1, 3125,
3126(a)(8), 4302, 6301(a).
2 These additions were pursuant to a demand by the Department of
Corrections (“DOC”), to the Board requiring the addition of conditions as part
of their memorandum of understanding.
3 No transcript of the hearing appears in the certified record. An informal
inquiry has disclosed that the hearing was not transcribed.
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sentence, and 42 Pa.C.S.A. § 9771(d) was limited to his conduct while on
probation.4
On August 11, 2021, the trial court denied Mayberry’s motion to
discontinue, and granted the Board’s request to add special conditions to
Mayberry’s probationary sentence. See Trial Court Opinion, 8/11/21, at 6.
Mayberry filed a timely notice of appeal, and complied with Pa.R.A.P. 1925.
The trial court did not prepare a Rule 1925(a) opinion, but relied on the
reasons stated in its August 11, 2021 opinion and order. See Order of Court,
8/28/21.
Mayberry raises the following issues for our review:
The [trial] court erred by allowing the [Board] to assert its interest
under 42 P[a.]C.S.A. § 9771(d) to impose “special conditions” to
a 15[-]year[-]old sentence. The court further erred by allowing
the rules and conditions of probation to be impermissibly modified
more than 30 days after sentencing and did not comply with the
limitations set forth in [Pa.R.Crim.P.] 720.
Mayberry’s Brief at vii.
An appeal challenging the statutory authority of the trial court to modify
the conditions of probation presents a question of law, and thus our standard
of review is de novo and our scope of review is plenary. Cf. Commonwealth
v. Concordia, 97 A.3d 366, 373 (Pa. Super. 2014). An order placing a
defendant on probation is not a judgment of sentence as that term is
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4In July 2021, Mayberry was incarcerated and had not yet begun to serve his
sentence of probation.
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construed for the purposes of procedure. See Commonwealth v. Nicely,
638 A.2d 213, 216-17 (Pa. 1994). A probation order is conditional by its very
nature and permits a court to alter its terms at any time. Id.42 Pa.C.S.A. § 9771, entitled “Modification or revocation of order of
probation” provides, in relevant part, as follows:
(a) General rule.—The court has inherent power to at any time
terminate continued supervision, lessen the conditions upon
which an order of probation has been imposed or increase
the conditions under which an order of probation has been
imposed upon a finding that a person presents an
identifiable threat to public safety.
****
(d) Hearing required—There shall be no revocation or increase
of conditions of sentence under this section except after a
hearing at which the court shall consider the record of the
sentencing proceeding together with evidence of conduct of
the defendant while on probation. . ..
42 Pa.C.S.A. § 9771(a), (d).
Although Mayberry has failed to comply with his obligation to ensure
that the hearing was transcribed or appears in the certified record, see
Commonwealth v. O’Black, 897 A.2d 1234, 1238 (Pa. Super. 2006)
(holding that it is an appellant’s responsibility to order the transcription
required and ascertain its presence in the record), there is, nevertheless, no
indication that the Board pled, or that the trial court considered, whether
Mayberry presents an “identifiable threat to public safety” as required by
section 9771(a). The trial court’s August 11, 2021 opinion is devoid of any
factual findings that Mayberry “presents an identifiable threat to public safety”
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that permits the court to impose the additional probationary conditions under
42 Pa.C.S.A. § 9771(a).
Accordingly, we conclude that the trial court erred and we are
constrained to vacate the trial court’s order and remand to the trial court to
make the requisite findings of fact required by section 9771(a). The court
may hold an additional hearing to consider evidence as it deems necessary,
and the trial court shall explain its findings of fact and conclusions of law as
to whether the evidence satisfies the requirements of 42 Pa.C.S.A. § 9771(a)
and (d) concerning the increase in the conditions of probation.
Order vacated. Case remanded for further proceedings consistent with
this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2022
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