Com. v. Giliam, C. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CALIPH GILIAM :
:
Appellant : No. 3882 EDA 2016
Appeal from the Judgment of Sentence December 2, 2016,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0012894-2015.
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 27, 2020
Caliph Giliam appeals the judgment of sentence imposed following
revocation of his probation for committing new crimes. Upon review, we
vacate Giliam’s revocation sentence.
On July 11, 2016, Giliam entered into a negotiated guilty plea on
charges for terroristic threats with intent to terrorize another.1 These original
charges arose out of an incident that took place on October 16, 2015, when
Giliam verbally threatened a woman and her dog, then later walked by the
same woman and her neighbor, swinging a hammer and looking at them
sideways. After, Giliam pled guilty, the trial court sentenced him to three
years of probation and required him to obtain his GED.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2706(A)(1).
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Six days after his guilty plea and sentencing, Giliam was arrested and
charged with aggravated assault, simple assault, and resisting arrest. These
new charges stemmed from an incident where an officer allegedly saw Giliam
grabbing his girlfriend by the face and slamming her against a wall several
times. The officer stopped Giliam and handcuffed him. Giliam knocked the
officer’s hand off his shoulder and ran off. When the officer caught up with
him, Giliam laid down on the floor. The officer tried to pick him up, and Giliam
bit his gloved finger. The bite did not tear through the glove but cut the skin,
which was treated with a Band-Aid. Giliam was treated at the hospital for
various injuries.
A detainer was issued, and the Commonwealth filed a petition seeking
to proceed with a probation violation hearing prior to the trial on the new
charges pursuant to Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973)
(holding that, because there is no statutory or constitutional bar, a court may
conduct a VOP hearing prior to trial on the criminal charges which form the
basis for the alleged probation violation). The trial court granted the
Commonwealth’s request.
On August 29, 2016, the VOP court held the violation of probation
hearing; one of the officers at the scene of the incident and Giliam both
testified. No other testimony or evidence was offered. The VOP court found
the officer’s testimony credible and Gilliam’s testimony incredible. The VOP
court noted that the case for which Giliam was already on probation involved
terroristic threats, and that the facts of that case “indicated a propensity of
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violence.” N.T., 8/29/16, at 53. Moreover, the court observed, “[i]n this
case, Officer Thrasher indicates that he viewed and witnessed an act of
violence, that the defendant was hitting or banging . . . his girlfriend [against
a wall]. That’s definitely a violation of probation and clearly further shows a
propensity of violence on the part of [Giliam]. . . . Therefore, the Court finds
[Giliam] violated probation.” Id. The trial court then revoked his probation,
but deferred sentencing on the VOP until a mental health evaluation could be
conducted.
On December 2, 2016, the VOP court held the sentencing hearing for
Giliam’s revocation of probation. The VOP court heard testimony from the
original complainant, the officer who testified at the violation hearing, Giliam’s
probation officer, and Giliam. The mental health evaluation showed that
Giliam suffered from bi-polar disorder and post-traumatic stress disorder,
arising in part from a horrifically abusive childhood; inpatient treatment was
recommended. The VOP court sentenced Giliam to 2½ years to 5 years of
imprisonment. Additionally, the court ordered specific rehabilitative
conditions which included a requirement that Giliam obtain his GED, attend
drug and alcohol treatment, attend anger management and parenting classes,
take medication as required, and be supervised by the mental health unit.
Giliam filed a post-sentence motion, but before the court could rule on
it, Giliam filed this appeal. Both the court and Giliam complied with
Pennsylvania Rule of Appellate Procedure 1925.
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Thereafter, on June 2, 2017, while this appeal was pending, a different
judge conducted a bench trial on Giliam’s new criminal charges. After hearing
testimony from several witnesses, including the officer who testified at the
probation revocation hearing and another officer who was at the scene, the
court found that the officers’ testimony was inconsistent and not credible, and
that the defense witnesses’ testimony was credible. The court acquitted
Giliam of the new charges, telling the Commonwealth witnesses, “everywhere
you turn, your story falls short. I have to find this man not guilty and give
him our apologies.” N.T., 6/2/17, at 52-53.
In light of his acquittal, Giliam filed a motion with this Court to remand
the appeal of his violation of probation for a new hearing. This Court denied
the motion without prejudice to raise the issue before a merits panel. Giliam
petitioned this Court a second time to remand for a new hearing, this time,
with the consent of the Commonwealth. After receiving a supplemental
opinion from the VOP court, we again denied Giliam’s petition, without
prejudice to raise the issue before the merits panel.
On appeal, Giliam raises two issues:
1. Should not [Giliam's] probation violation and subsequent
sentence, based entirely on conduct for which he was
subsequently acquitted, be vacated?
2. In the alternative, should not the sentence be vacated and the
matter remanded for a new sentencing hearing, insofar as the
sentence was manifestly excessive and unreasonable, and failed
to sufficiently take into account [Giliam's] mental health and
rehabilitation needs?
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Giliam’s Brief at 3.
When considering an appeal from a sentence imposed 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. Perreault, 930 A.2d 553, 557 (Pa.
Super. 2007), appeal denied, 945 A.2d 169 (2008) (citation omitted); 42
Pa.C.S.A. § 9771(b). “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. Smith, 669 A.2d 1008, 1011 (Pa. 1996).
Giliam first argues that his VOP sentence should be vacated because he
was acquitted of the new criminal charges underlying the VOP charge. Giliam
contends that since these new charges were the sole basis for the trial court’s
finding that Giliam violated his probation, his VOP sentence should be vacated.
Giliam’s Brief at 16, 24. The Commonwealth agrees. Commonwealth’s Brief
at 9, 16.
The trial court believes that the VOP sentence should stand.
Supplemental Trial Court Opinion, 4/26/19, at 5. We disagree.
A defendant’s probation may be revoked upon proof that the defendant
either: 1) violated a specific condition of his or her probation or 2) committed
a new crime. 42 Pa.C.S.A. § 9771; Commonwealth v. Foster, 214 A.3d
1240, 1243 (Pa. 2019). These are the only grounds on which a court can find
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that a defendant violated his or her probation. Id. “[T]he VOP court must
find, based on the preponderance of the evidence, that the probationer
violated a specific condition of probation or committed a new crime to be found
in violation.” Id.Notably, “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.” Id. “Rather,
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.” Id.
at 1251. “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.” Id.
Once the court concludes a violation occurred and probation was not
effective, the court may resentence the defendant to a total term of
incarceration if: (1) the defendant was convicted of a new crime; (2) the
defendant’s conduct makes it likely that he or she will commit a new crime if
not incarcerated; or (3) incarceration “is essential to vindicate the authority
of the court.” 42 Pa.C.S.A. § 9771(c); Foster, 214 A.3d at 1251.
To determine the validity of Giliam’s VOP sentence, we initially must
consider why the court found him in violation. The Commonwealth charged
Giliam with a violation because he allegedly committed new crimes. In its
motion to proceed with a probation violation hearing, the Commonwealth only
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asserted that Giliam was arrested and charged with new crimes. The
Commonwealth did not allege that Giliam violated any condition of his
probation. As such, Giliam’s new charges were the sole basis for seeking
revocation of his probation.
In such circumstances, our courts have indicated, but not directly held,
that an acquittal of the charges which served as the basis for a probation
violation would be given preclusive effect. For example, in Commonwealth
v. Infante, 888 A.2d 783, 793 (Pa. 2005), abrogated on other grounds by
Foster, supra, the Commonwealth charged Infante with probation violations
based on new criminal charges and technical violations. The court held a VOP
hearing and found Infante violated his probation based upon the technical
violations, revoked his probation, and sentenced him to a county sentence
with a probation tail. The court warned Infante, however, that, if he were
convicted of the new criminal charges, it would revoke his parole and
probation and resentence him. Subsequently, Infante was convicted of those
new charges, and the VOP court imposed a stricter sentence. On appeal, this
Court vacated Infante’s revocation sentence. Our Supreme Court, however,
reversed. The High Court concluded that Infante’s VOP sentence was
appropriate, stating, in dicta, that the VOP court’s deliberate intention “to
withhold action on [Infante’s] criminal charges until after the outcome of the
trial on those charges . . . allowed the court to avoid the risk of entering
a VOP sentence that would ultimately be void if the defendant were
acquitted of the new charges. Infante, 888 A.2d at 793 (emphasis
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added), abrogated on other grounds by Foster, supra. The Court further
noted that this approach was the preferred course of action. Id.
Similarly, this Court found ineffective assistance of counsel where a
defendant’s counsel at the probation revocation proceeding never advised him
that he could seek to delay his revocation hearing until after trial on his new
charges. Commonwealth v. Moriarty, 180 A.3d 1279, 1288 (Pa. Super.
2018). There, a VOP court revoked Moriarity’s probation based solely on the
new charges, for which Moriarty was ultimately acquitted. Id. We noted that
his probation revocation was “based on what turned out to be nonexistent
violations.” Id. Instead of remanding, we found his revocation sentence was
“infirm,” and corrected it as an illegal sentence. Id. at 1288 n. 5.
Here, because Giliam’s violation of probation was based solely on
allegations of new criminal charges for which he was later acquitted,
ultimately, no violation of probation occurred. Consequently, we conclude
Giliam’s probation revocation sentence is void.
The trial court contends that it did not rely solely on Giliam’s new
charges to revoke his probation. Rather, the trial court concluded that the
three-year probation sentence for Giliam’s original charges was not serving
the desired outcome to rehabilitate Giliam, because he was still acting
erratically and violently. Relying on Kates, the trial court explained:
it is not necessary to wait until the person on probation to be
convicted of the alleged crime for a revocation of probation
hearing to be held, because if it becomes apparent that the
probation isn’t serving the desired outcome the court is allowed to
impose a more appropriate sanction.
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Trial Court Opinion, 10/3/18, at 8-9 (citation omitted). The trial court further
explained:
It is clear that probation [has] not proven effective because
[Giliam] admitted to being violent during his right of allocution at
his sentencing for violation of probation hearing where he
admitted to being angry following his original sentencing and
apologized to the officer for biting him. Because probation was
not enough of a deterrent for [Giliam], and because he admitted
to his violent behavior SIX DAYS after being sentenced, the court
took into account the following: the violence against the officer,
violent acts toward other individuals, the violence against the
Defendant’s child[ren]’s mother Giliam’s defiant, angry, and wild
behavior when the court indicated that he was to get a GED in his
underlying case, the needs and safety of the public, the fact that
Giliam has shown no remorse for his actions, and Giliam’s
propensity to be a danger to the public.
Supplemental Trial Court Opinion, 4/26/19, at 4. “Therefore, the court did
not err in revoking probation and resentencing Giliam to SCI Chester for his
mental health, because Giliam’s violent behavior is why Giliam was before the
court in his underlying case, and, just SIX DAYS after his negotiated guilty
plea, he exhibited the same violent behavior.” Trial Court Opinion, 10/3/18,
at 9 (emphasis in original).
Critically, we note that a VOP court may not consider whether the
probation was an effective deterrent when deciding whether a defendant
violated probation. Foster, 214 A.3d at 1243. In Foster,2 the Supreme Court
of Pennsylvania clarified the process a court must undertake when considering
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2 Foster was decided after Giliam’s VOP hearing. We therefore recognize that
the VOP court did not have the benefit of its holding.
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whether to revoke probation. First, a VOP court must determine whether a
probation violation actually occurred. If it did, only then the court may
consider the rehabilitative effectiveness of the probation in deciding whether
to revoke the probation.
Here, the VOP court’s finding the probation was ineffective may not
serve as the basis to revoke Giliam’s probation.3 Once Giliam was acquitted
of the new charges, the finding of a probation violation had to be set aside
because the Commonwealth did not allege or prove any other violation of
probation charge.
Finally, although the Kates decision from 1973 permits a VOP court to
conduct a revocation of probation hearing prior to trial on the underlying
charges, more recently our Supreme Court has cautioned against proceeding
in this manner. 4 See Infante, 888 A.2d at 793. This Court has also observed
that in many cases it may be “preferable to defer [] hearing until after the
trial, thus avoiding the possibly unjust result of revoking probation, only to
find later that the probationer has been acquitted of the charges that
prompted the revocation hearing.” Commonwealth v. Davis, 336 A.2d 616,
623 (Pa. Super. 1977). The instant case exemplifies why, as a practical
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3We also observe that Giliam had only been on probation six days. This was
barely sufficient time to establish whether Giliam’s probation was effective. It
was therefore unreasonable for the VOP court to reach this conclusion.
4 Given the Pennsylvania Supreme Court’s ruling in Foster, the application of
Kates in cases like this one, where the sole basis of a probation violation is
the commission of a new crime, is highly dubious.
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matter, the appellate courts have cautioned against proceeding with a
probation violation hearing before the trial on new charges where, as here,
the new charges are the sole basis for the alleged probation violation.
In sum, because Giliam was acquitted of the new criminal charges, his
revocation of probation sentence cannot stand. Accordingly, we vacate the
decision of the VOP court, and remand for the court to determine whether
Giliam should be credited for any time served against his original probation
sentence.5
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/20
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5Because our resolution of Giliam’s first issue is dispositive of this case, we
do not address his second issue.
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