Com. v. Hosler, H. ( 2023 )

J-S26026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HARRY EDWARD HOSLER :
:
Appellant : No. 99 MDA 2022
Appeal from the Judgment of Sentence Entered December 13, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0002137-2016
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
CONCURRING STATEMENT BY KUNSELMAN, J.: FILED: JUNE 29, 2023
I concur with the Majority but write separately to address a few other
points. First, I agree with the Majority that Appellant could have been more
specific in his points of error. Nonetheless, his points of error are discernable.
His main complaint on appeal is that the trial court acted prematurely by
revoking his probation before he was convicted on the new charges. He
claims:
I found a few matters seemingly judged in a premature manner
based upon irrelevant opinion. At the time of the revocation
hearing[,] I was still, very much, fighting my case to which
spawned my revocation. . . . ] [The trial court revoked] my
probation solely because I am a “drug dealer.” None of my priors
support such an outlandish statement nor [were] my open
charges settled.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S26026-22
Appellant’s Pro Se 1925(b) Statement, 3/24/23, at 2 (unpaginated) (emphasis
added).
Although Appellant’s point is well taken, his argument fails. We have
often cautioned trial judges who revoke probation based solely on new charges
before the resolution of the new charges. If a defendant is ultimately
acquitted of the new charges, then the revocation sentence cannot stand.
That is exactly what happened in Commonwealth v. Giliam, 233 A.3d 863(Pa. Super. 2020), where the trial court had revoked probation based on new
charges of which the defendant was ultimately acquitted. This Court held that
because the defendant'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 concluded that his
probation revocation sentence was void. Id. at 868. In Gilliam we noted
that “[t]he instant case exemplifies why, as a practical 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.” Id. at 869 (emphasis added).
Nevertheless, Appellant's argument here fails for two reasons. Even
though the better practice may have been to wait until resolution of the new
charges, the trial court was permitted to proceed with the probation revocation
hearing before the hearing on the new charges; in other words, the court was
not required to wait on the revocation hearing as Appellant suggests.
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J-S26026-22
Moreover, here, Appellant ultimately plead guilty to the new charges, so his
challenge here is moot.
Second, I agree with the Majority that Appellant waived any argument
with respect to the discretionary aspects of his sentence. But I note that if it
were properly preserved, this challenge would also fail. Appellant claims a
full revocation of probation and imposition of jail time is not warranted
because he was almost done serving his original 18-month sentence when he
committed the new charges. “Also I feel a full revocation when, by the time,
17 ½ months of an 18 month probation to be turned to a 12 to 24 month
sentence is a bit excessive without a supporting verdict.” Appellant’s Pro Se
1925 (b) Statement, 3/24/23, at 2 (unpaginated).
Ultimately, there was a supporting conviction on the new charges. And,
regardless of how far along he was, Appellant was still on probation at the
time he reoffended. He knew he needed to be “extra careful” during his
probation time, and he was not. Thus, he is subject to penalties both for his
new crime and the crime of violating his probation. Trial courts do not give
special consideration to whether a defendant is “almost done” serving
probation when he reoffends.
Thus, I concur with the Majority that Appellant’s probation revocation
sentence should be affirmed.
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