Com. v. Reavis, A. ( 2019 )

J-A17021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ACEY REAVIS :
:
Appellant : No. 1360 EDA 2018
Appeal from the Judgment of Sentence April 13, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-XX-XXXXXXX-2016
BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 06, 2019
Appellant, Acey Reavis, appeals from the April 13, 2018 judgment of
sentence entered in the Criminal Division of the Court of Common Pleas of
Philadelphia County following the revocation of his parole and probation. We
affirm.
The trial court summarized the facts and procedural history in this
matter as follows.
On January 11, 2016, [Appellant] was arrested for theft by
unlawful taking, terroristic threats with intent to terrorize another,
and simple assault based on events that occurred on December
16, 2015. A negotiated guilty plea was entered on June 9, 2016,
when [Appellant] appeared before the [trial court]. Pursuant to
negotiations, [Appellant] was sentenced to [six] to 23 months of
incarceration for simple assault, plus [three] years of consecutive
reporting probation for terroristic threats. He [received] no
further penalty for theft by unlawful taking.
On May 24, 2017, [Appellant] appeared before th[e trial c]ourt for
a violation [of parole] hearing. [Appellant] was found in technical
violation for missing multiple scheduled office visits with his parole
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officer, non-compliance with mental health treatment, and
possible drug use. [Appellant’s] parole was revoked and
sentencing was deferred. On July 31, 2017, [Appellant] was
sentenced to his back time with immediate parole for simple
assault, plus the three years of probation for terroristic threats
originally imposed. He was also required to attend outpatient
mental health treatment.
On October 5, 2017, [Appellant] appeared before th[e trial c]ourt
for a violation [] hearing and was found again [to be] in technical
violation of his [parole] for missed appointments, positive drug
screens and failure to provide a stable address. The hearing was
continued at that time. On October 11, 2017, his probation and
parole were continued. The hearing was further continued until
October 20, 2017. [Appellant] failed to appear on that date and
a bench warrant was issued.
On January 4, 2018, [Appellant] appeared before th[e trial court
once] again for a violation [] hearing, [based upon] technical
violations of drug use, inconsistent attendance for mental health
treatment, and inconsistent reporting. On this date parole was
continued.
On March 29 2018, [Appellant] appeared before th[e trial c]ourt
for a violation [] hearing and he [again] was found in technical
violation [] for failure to report to court, positive drug tests, and
non-attendance for mental health treatment. Sentencing was
deferred for further information regarding allegations contained in
the Gagnon[1] summary.
On April 13, 2018, [Appellant’s] parole officer reported numerous
technical violations, including failure to report to mental health
treatment and failure to report to [the parole office]. [N.T.,
4/13/18, at 8]. [Appellant’s] parole and probation were revoked
and he was sentenced to back time for the simple assault charge
and two to four years of incarceration for the terroristic threats
charge, to run concurrently. [N.T., 4/13/18, at 12].
On April 20, 2018, [Appellant] filed a post-sentence motion, which
[the trial court denied] on April 23, 2018. On May 4, 2018,
[Appellant] filed a timely appeal from [his judgment of] sentence.
On May 8, 2018, th[e trial c]ourt entered an [o]rder directing
[Appellant] to file a [s]tatement of [m]atters [c]omplained of [on
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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a]ppeal within twenty-one (21) days from the date of entry of the
[o]rder. On May 24, 2018, [Appellant] filed both a [s]tatement of
[e]rrors [c]omplained of on [a]ppeal and [p]etition for [e]xtension
of [t]ime to [f]ile a [s]upplemental [s]tatement of [e]rrors
[c]omplained of on [a]ppeal upon [r]eceipt of the [n]otes of
[t]estimony. Th[e trial c]ourt granted [Appellant’s petition for
extension] on May 29, 2018.
On June 4, 2018, [Appellant] filed a [s]upplemental [s]tatement
of [e]rrors [c]omplained of on [a]ppeal. Th[e trial c]ourt [issued
its opinion on July 23, 2018].
Trial Court Opinion, 7/23/18, at 1-3.
On appeal, Appellant raises the following questions for our review.
1. When the court revoked parole for a violation of his parole did
not the court lack authority under Pennsylvania law to also
revoke a consecutive sentence of probation that the [Appellant]
had not yet begun to serve?
2. Did not the increase in punishment caused by the revocation of
probation in violation of statutory law violate double jeopardy
rights under the Pennsylvania and United States Constitutions?
Appellant’s Brief at 2.
Appellant’s first claim asserts that the trial court lacked statutory
authority to revoke his probationary sentence before he began to serve it. 2
As this claim implicates the legality of Appellant’s sentence, our standard of
review is de novo and our scope of review is plenary. See Commonwealth
v. Hall, 994 A.2d 1141, 1144 (Pa. Super. 2010) (a sentence is illegal and
subject to mandatory correction where there is no statutory support for its
imposition); see also Commonwealth v. Williams, 980 A.2d 667, 672 (Pa.
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2Appellant concedes that he is not challenging the trial court’s substantive
decision to revoke his probation or parole. See Appellant’s Brief at 3.
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Super. 2009) (assertion that trial court erroneously imposed illegal sentence
is a question of law and, as such, Superior Court’s scope of review is plenary
and its standard of review is de novo), appeal denied, 990 A.2d 730 (Pa.
2010).
In developing his contention that the trial court lacked statutory
authority to revoke a probationary sentence before it commenced (sometimes
referred to as an “anticipatory revocation”), Appellant addresses two statutory
provisions, 42 Pa.C.S.A. § 5505 and 42 Pa.C.S.A. § 9771. We discuss
Appellant’s contentions pursuant to these provisions in turn.
Section 5505 of the Judicial Code permits the trial court to modify an
order within 30 days of its entry if no appeal from the order has been taken
or allowed. See 42 Pa.C.S.A. § 5505. Appellant points out that the trial court
originally directed that he serve a consecutive probationary term following his
six to 23-month prison sentence. Thereafter, the court revoked his parole and
simultaneously revoked his probationary sentence before it commenced.
Based upon this sequence of events, Appellant likens the court’s action to an
implicit, but impermissible, modification of his sentence from consecutive to
concurrent in nature, which occurred outside the 30-day window provided by
§ 5505 and, thus, in violation of that provision. See Appellant’s Brief at 12.
Appellant also relies upon § 9771 of the Sentencing Code in developing
his claim that anticipatory probation revocation is contrary to Pennsylvania
statutory law. In relevant part, 42 Pa.C.S.A. § 9771 provides as follows:
§ 9771. Modification or revocation of order of probation
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(a) General rule.--The court may at any time terminate continued
supervision or lessen or increase the conditions upon which an
order of probation has been imposed.
***
(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 the conduct of the defendant while on
probation. Probation may be eliminated or the term decreased
without a hearing.
42 Pa.C.S.A. § 9771 (emphasis added). Citing the highlighted portion of
§ 9771, Appellant argues that the trial court violated the statute because it
did not consider his conduct which occurred “while on probation,” but instead
considered conduct that took place before his probationary sentence
commenced.3 See Appellant’s Brief at 17.
Notwithstanding the compelling arguments Appellant advances on
appeal, this Court has previously held that a trial court may revoke a
consecutive term of probation even if the defendant has not yet begun to
serve the probationary sentence. See Commonwealth v. Wendowski, 420
A.2d 628 (Pa. Super. 1980). In fact, this Court has re-affirmed the holding in
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3 Appellant also seeks to bolster his claim by citing to 42 Pa.C.S.A. § 9771(a).
Here, he points out that revocation may only occur following consideration of
conduct that takes place “while on probation,” in contrast to termination of
supervision or increasing or reducing the conditions of supervision, which may
occur “at any time.” See Appellant’s Brief at 18, citing 42 Pa.C.S.A.
§ 9771(a). Appellant asks this Court to give effect to the more restrictive
language used by the General Assembly in describing the limited
circumstances in which revocation may permissibly be ordered.
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Wendowski on several occasions. See Commonwealth v. Allshouse, 33
A.3d 31, 39 (Pa. Super. 2011); Commonwealth v. Hoover, 909 A.2d 321,
323-324 (Pa. Super. 2006); Commonwealth v. Ware, 737 A.2d 251,
253-254 (Pa. Super. 1999); Commonwealth v. Miller, 516 A.2d 1263,
1265-1266 (Pa. Super. 1986); Commonwealth v. Dicken, 475 A.2d 141,
152-153 (Pa. Super. 1984). Because this panel lacks authority to overrule
prior published opinions of this Court, we are constrained to conclude that the
revocation court correctly decided that it enjoyed the power to revoke
Appellant’s probation although he had not yet begun to serve that sentence.
See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (“[I]t is
beyond the power of a Superior Court panel to overrule a prior decision of the
Superior Court, ... except in circumstances where intervening authority by our
Supreme Court calls into question a previous decision of this Court”), appeal
denied, 946 A.2d 686 (Pa. 2008), cert. denied, 555 U.S. 881 (2008).
Accordingly, no relief is due on Appellant’s first claim.4
Building on his claim that there was no statutory basis for revoking his
probationary sentence before it commenced, Appellant contends in his second
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4 At oral argument and in his submissions before this panel, counsel for
Appellant has made clear that it is his aim to have an en banc panel of this
Court reconsider the decision in Wendowski, supra. In anticipation of an
adverse result, counsel for Appellant filed a request for en banc reargument
(unopposed by the District Attorney’s office) before oral argument took place
in this matter. We deny Appellant’s application for en banc review without
prejudice to file an application for reargument in accordance with the
Pennsylvania Rules of Appellate Procedure.
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issue that “[h]e had a legitimate expectation that the decision to sentence him
to a [purely] consecutive, rather than a concurrent, sentence of probation was
final, and that it could not be [altered if he was not serving his probationary
term].” Appellant’s Brief at 22-23. Appellant concedes that a probationer
who engages in misconduct possesses no legitimate expectation of remaining
on probation; however, he maintains that a probationer may rely on the
expectation that a court will not revoke a probationary sentence that has yet
to commence. See id. Appellant concludes that the trial court’s revocation
sentence frustrated his legitimate expectation of finality and avoiding
anticipatory revocation in violation of the double jeopardy clause.
Our prior decision in Wendowski forecloses this contention. There, we
said that a term of probation “should be construed for revocation purposes as
including the term beginning at the time probation is granted.” Wendowski,
420 A.2d at 630 (quotations omitted). We also said that an order imposing a
probationary sentence “beginning at a future time does not change [the
defendant’s] position from the possession of a privilege to the enjoyment of a
right.” Id. Under prevailing case law, Appellant was deemed to be serving
his probationary sentence since the time that the sentence was imposed.
Moreover, our case law does not confer upon him a legitimate expectation that
only misconduct that occurred during the probationary period would be
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considered in support of revocation. For each of these reasons, no relief is
due.5
Judgment of sentence affirmed. Application for reargument en banc
denied without prejudice to file an application for reargument.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/19
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5 Counsel for Appellant sent a post-argument letter to this Court dated August
21, 2019 in which he enclosed copies of the Pennsylvania Supreme Court’s
opinion in Commonwealth v. Foster, 21 EAP 2018 (Pa. 8/20/19). Counsel
for Appellant asserted that the Foster decision was relevant to the issue of
statutory construction in probation revocation cases, with particular focus on
the approach followed in Wendowski, supra. The specific holding in Foster,
i.e., a court may find a violation of probation only when the defendant commits
a new crime or violates a specific condition included in his probation order,
does not impact this case since it is not disputed that Appellant violated
conditions of his probationary sentence.
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