Commonwealth, Aplt. v. Koger, C. ( 2023 )

[J-60-2022] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 15 WAP 2022
:
Appellant : Appeal from the Order of the
: Superior Court entered June 4,
: 2021 at No. 251 WDA 2020,
v. : reversing the revocation of
: probation and parole and vacating
: the Judgment of Sentence of the
CHRISTOPHER ALBERT KOGER, : Court of Common Pleas of
: Washington County entered
Appellee : January 22, 2020 at No. CP-63-CR-
: 0000233-2018
:
ARGUED: October 25, 2022
CONCURRING OPINION
JUSTICE DONOHUE DECIDED: MAY 16, 2023
I agree with the Majority’s holding that Commonwealth v. Foster, 214 A.3d 1240(Pa. 2019)—a decision involving the statutory limitations on a trial court’s authority to
revoke a probation order—does not apply in equal measure to parole. Majority Op. at 15
(stating the Superior Court’s “extension of Foster and its attendant statutes to also cover
parole revocations assumed too much”). Having answered the specific question before
this Court regarding Foster’s limited scope, I respectfully submit that no more was
necessary. Nevertheless, the Majority also proclaims that, in county-parole cases, 42
Pa.C.S. § 9776(d) delegates to county probation officers “the authority to impose parole
conditions in addition to the trial court[.]” Majority Op. at 14 (hereinafter “the Delegation
Issue”). Regardless of one’s agreement with that proposition, it answers a question that
is not before this Court. In any event, I disagree with the Majority that Section 9776(d)
authorizes the delegation of the trial court’s responsibly to impose parole conditions. It
says no such thing.
Foster
In Foster, this Court held that the clear and unambiguous language of the prior
version of 42 Pa.C.S. § 97541 required that “an order of probation must specify the length
of the term thereof at the time of sentencing.” Foster, 214 A.3d at 1248-49 (citing 42
Pa.C.S. § 9754(a)). That version of Section 9754 also provided a general condition of
probation that a defendant “lead ‘a law-abiding life,’ i.e., that the defendant refrain from
committing another crime.” Id. at 1250 (quoting 42 Pa.C.S. § 9754(b)). In furtherance of
that general condition, the statute required “the sentencing court to attach” to the
probation order “any ‘reasonable conditions authorized by subsection (c)[’]” of Section
9754. Id. at 1249 (quoting 42 Pa.C.S. § 9754(b)). Section 9754(c) provided a non-
exhaustive list of conditions that the sentencing court could impose.
The trial court determined that Foster violated his probation by appearing in social
media posts while handling contraband. Foster, 214 A.3d at 1243. However, the court
“did not find that Foster had violated a condition of his probation – in fact, [it] never
mentioned the conditions of his probation in reaching its decision, and no order of
probation appear[ed] in the certified record on appeal.” Id. at 1244. The Superior Court
affirmed, relying on this Court’s statement in Commonwealth v. Infante, 888 A.2d 783 (Pa.
1 The General Assembly amended Section 9754, effective on December 18, 2019, four
months after we decided Foster. The revocations of Koger’s parole and probation
occurred under the prior statutory regime. Accordingly, from this point forward, all
citations to Section 9754 refer to the pre-amendment version of the statute.
[J-60-2022] [MO: Dougherty, J.] - 2
2005), that a “probation violation is established whenever it is shown that the conduct of
the probationer indicates the probation has proven to have been an ineffective vehicle to
accomplish rehabilitation and not sufficient to deter against future antisocial conduct.”
Infante, 888 A.2d at 791 (internal citations omitted). We reversed the Superior Court,
holding that both the trial court and the Superior Court had “disregarded the statutory
requirement that a court must first find that the defendant either committed a new crime
or violated a specific condition of probation in order to be found in violation.” Foster, 214
A.3d at 1251 (emphasis added).
Koger’s Probation and Parole Violations
On August 21, 2018, Koger pled guilty to one count each of child pornography, 18
Pa.C.S. § 6312(d) (count 1), and criminal use of a communication facility, 18 Pa.C.S. §
7512 (count 2); the trial court sentenced him at count 1 to eight to twenty-three months of
incarceration and at count 2 to a term of three years of probation to run consecutive to
the sentence imposed at count 1. The court then immediately paroled Koger based on
credit for time served. Both his parole and probation were ordered to be supervised by
the Washington County Adult Probation Office (“County Probation Office”). Two months
later, the County Probation Office filed a petition alleging that Koger violated the terms of
his probation and parole, and the parties proceeded by stipulating to those violations.
The trial court revoked Koger’s probation and parole, remanded Koger to county jail at
count 1, and reinstated his three-year probation term at count 2. The trial court later re-
paroled Koger at count 1 on June 21, 2019.
Only three months later, the County Probation Office filed a second petition
alleging three technical violations and one substantive violation of Koger’s probation and
[J-60-2022] [MO: Dougherty, J.] - 3
parole. Petition for the Revocation of Parole and Probation, 9/17/2019, at 2 (“Revocation
Petition”). At the conclusion of a hearing held on November 4, 2019 (“Revocation
Hearing”), the trial court determined that Koger had “violated his parole and probation by
committing technical violations and, accordingly, revoked his parole and probation.” Trial
Court Opinion, 5/26/2020, at 4. At the sentencing hearing held on January 22, 2020, the
trial court remanded Koger to county jail to serve the balance of his sentence at count 1,
and resentenced him at count 2 to one to three years of incarceration, consecutive to his
sentence imposed at count 1.
Superior Court
In his timely appeal to the Superior Court, Koger presented three questions for
review. Koger’s Superior Court Brief, at 6. He claimed there was insufficient evidence to
revoke his parole at count 1, insufficient evidence to revoke his probation at count 2, and
he also tendered an illegal-sentencing claim. Id. Regarding the first claim, Koger argued
that the Commonwealth failed to present sufficient “evidence to show that [he] violated a
term or condition of his parole” because “the Commonwealth did not establish what the
actual conditions of [his] parole were.” Id. at 19, 20. Similarly, Koger argued that the
Commonwealth failed to present sufficient evidence that he had “violated a specific term
or condition of his probation” because “the Commonwealth did not establish at the
Revocation Hearing what the actual conditions of [his] probation were.” Id. at 23, 24.
Koger’s illegal-sentencing issue echoed his sufficiency claims; he asserted that, because
the evidence was insufficient to show that he had “violated a specific term or condition of
probation or parole or committed a new offense[,]” the trial court “lacked the legal authority
to enter” the January 22, 2020 order of sentence. Id. at 28, 29.
[J-60-2022] [MO: Dougherty, J.] - 4
Notably, Koger only cited Foster in support of his sufficiency claim concerning the
revocation of his probation. Id. at 23-24. Nevertheless, the Superior Court addressed
Koger’s two sufficiency claims together and applied Foster’s rationale to both.
Commonwealth v. Koger, 255 A.3d 1285, 1290 (Pa. Super. 2021), reargument denied
(Aug. 10, 2021), appeal granted, 276 A.3d 202 (Pa. 2022) (“Under these circumstances,
we conclude the trial court erred in failing to specifically advise Appellant of the conditions
of his probation and parole at the time of his initial sentencing. See 42 Pa.C.S. § 9754(b);
Foster, 214 A.3d at 1244 n.5.”). Consequently, the Superior Court reversed “the
revocation of [Koger’s] probation and parole” and vacated his judgment of sentence. Id.
at 1291.2
The Commonwealth timely filed a petition for allowance of appeal, asking this
Court to answer two questions. First, the Commonwealth presented the question: “Did
the Superior Court err in expanding this Court's holding in … Foster and the statutory
requirements related to probation conditions under 42 Pa.C.S.[] § 9754 to not only
probation but also parole cases?” Commonwealth’s Petition for Allowance of Appeal
(“Petition”), 9/8/2021, at 5. We granted review of the question “as stated by” the
Commonwealth. Commonwealth v. Koger, 276 A.3d 202 (Pa. 2022) (per curiam)
(“Allocatur Order”). Second, the Commonwealth asked this Court to review whether “the
Superior Court err[ed] in failing to provide guidance to the trial and sentencing courts, as
2 The Superior Court also ostensibly determined that Koger’s judgment of sentence was
illegal, but its ruling on the issue was somewhat ambiguous as it merely repeated its
conclusion that the evidence was insufficient to support the revocations, again citing
Foster and Section 9754(b). Id. (“Because the trial court did not impose the conditions
which [Koger] is alleged to have violated, the Commonwealth could not prove by a
preponderance of the evidence that [he] committed any violations as allegedly defined in
the [Revocation Petition].”).
[J-60-2022] [MO: Dougherty, J.] - 5
well as probationers and parolees, as to how the conditions must be communicated?”
Petition at 5. We denied review of the Commonwealth’s second question.
Analysis
The Majority correctly concludes that Section 9754 does not require the trial court
to issue conditions of parole at the time of sentencing. Majority Op. at 13. Consequently,
Foster does not impose such a requirement, because Foster’s rationale was squarely
grounded in the text of Section 9754. See Foster, 214 A.3d at 1250 (stating “a court may
find a defendant in violation of probation only if the defendant has violated one of the
‘specific conditions’ of probation included in the probation order or has committed a new
crime. The plain language of the statute does not allow for any other result”). At that
point, the Majority fully resolves the question before this Court.
The Majority nevertheless plows forward to address the Delegation Issue despite
the fact that it was not accepted for our review, never briefed by the parties, and never
discussed in the lower courts. The Majority asks itself, sua sponte: Under what authority
does a trial court delegate its power to set parole conditions in county-parole cases? This
is an interesting question, worthy of consideration after proper cultivation, but the Majority
prematurely harvests an unsatisfactory answer, concluding that, in directing courts to
place parolees “in the charge of” a county probation officer, Section 9776(d) authorizes a
trial court to delegate its power to set the conditions of parole.
The trial court neither imposed nor communicated Koger’s parole conditions to him
in accordance with “long standing procedures in Washington County.” Trial Court Letter,
5/7/2021, at 1. The Majority acknowledges that the “Commonwealth never produced or
admitted into evidence the rules provided to and signed by [Koger] following sentencing,
[J-60-2022] [MO: Dougherty, J.] - 6
so they are not in the certified record. It is thus unclear whether the ‘conditions’ [set forth
in the Revocation Petition] are verbatim reproductions of the rules or summaries thereof.”
Majority Op. at 4 n.4. Not to be deterred by this information deficit, the Majority assures
us that Probation Officer Jeremy Bardo (“PO Bardo”), who filed the Revocation Petition
without attaching a copy of the parole conditions purportedly communicated to and signed
by Koger, and who further neglected to produce the same at the Revocation Hearing,
nevertheless “credibly” testified that Koger both received and signed a copy of those
conditions. Id. at 7. The Commonwealth did not ask PO Bardo, nor did PO Bardo
volunteer to divulge, whether he had personally witnessed Koger’s receipt and/or signing
of the parole conditions imposed, nor when (nor where, nor how) this off-the-record ritual
occurred.
These are certainly matters of interest that may come into play in the Superior
Court’s consideration on remand of Koger’s unanswered parole-related sufficiency claim.
And, regardless of how the Superior Court resolves that claim, it should cause at least
some concern that parole conditions are not routinely made part of the record at the
earliest possible time following parole, if only to minimize confusion and thereby maximize
fairness in the process of revocation should parolees transgress those conditions. That
this is not already the case already must be due, in no small part, to the fact that trial
courts routinely delegate their authority to impose parole conditions to county probation
officers. Thus, I share the Majority’s curiosity as to how it came to pass that trial courts
delegate this power to probation officers in county-parole cases.
But that Delegation Issue is simply not yet before this Court. So why are we
addressing it? The Majority approaches this Delegation Issue after lamenting that Koger
[J-60-2022] [MO: Dougherty, J.] - 7
“has not directed us to, and we have been unable to find, any statutory limitations within
the Sentencing Code regarding who may impose parole conditions, the permissible
conditions that may be imposed, or the time for imposing them.” Id. at 14. It befuddles
me why the Majority believes Koger, the appellee before this Court, had any responsibility
to bring such authorities to this Court’s attention, much less address an issue over which
this Court did not grant review.
The Commonwealth never raised the Delegation Issue as a subsidiary argument
to its Foster issue.3 The Majority instead relies on the language of our Allocatur Order
itself, which asked if “the Superior Court err[ed] in expanding this Court’s holding in”
Foster. Commonwealth v. Koger, 276 A.3d 202 (Pa. 2022) (per curiam). The Majority
declares that the Delegation Issue is obviously subsumed within that question, citing the
principle that a question presented for our review “will be deemed to include every
subsidiary question fairly comprised therein[,]” but omits the corollary rule that only “the
questions set forth in the petition, or fairly comprised therein, will ordinarily be considered
by the court in the event an appeal is allowed.” Pa.R.A.P. 1115(a). In my view, that
question is obviously not subsumed within our allocatur grant.4 Rule 1115 demands
3 I observe only one solitary reference to Section 9776 in the Commonwealth’s Brief,
offered solely for the proposition that the “Sentencing Code gives parole authority for
county sentences … to the sentencing judge.” Commonwealth’s Brief at 20 (citing 42
Pa.C.S. § 9776(a)). This boilerplate statement of the law was never in dispute. The
Commonwealth never mentioned, much less discussed, Section 9776(d)’s language
directing trial courts to “place” paroled inmates “in the charge of and under the supervision
of a designated probation officer.” 42 Pa.C.S. § 9776(d).
4 Here, the Majority undoubtably raises the Delegation Issue sua sponte. To the extent
the Majority believes that the Commonwealth attempted to raise concerns about the
Delegation Issue in its petition for allowance of appeal, the Commonwealth at best did so
vaguely and without any reference to the Section 9776(d) rationale now adopted by the
Majority. See Petition for Allowance of Appeal at 12 (“This appeal should be granted to
[J-60-2022] [MO: Dougherty, J.] - 8
that we do not address the issue, because: 1) the Delegation Issue was not explicitly set
forth in the text of the Allocatur Order; 2) it was not raised or argued by any party at any
prior stage; 3) it did not form the basis of any ruling in the lower courts; 4) it does not
directly resolve the question of whether the Superior Court erred in this case by
misapplying Foster; and 5) it does not otherwise aid the Majority in resolving the Foster
issue.5 For these reasons, I ascertain no essential connection between the question
granted for review and the Delegation Issue.
reaffirm this Court’s supervisory authority over the lower courts, to reaffirm the holding of
Foster and § 9754 and its application only to probation, and to remedy the conflict of the
Superior Court's opinion with this Court's holding in Foster and with the duly enacted
statutes.”). Nothing in the Commonwealth’s petition stated or implied a conflict with
Section 9776(d) as a basis for the Superior Court’s error, nor does the Commonwealth
assert such a conflict in is brief. Moreover, the statutes governing parole supervision
referenced by the Commonwealth in its petition had nothing to do with the Delegation
Issue at all, but instead concerned unrelated powers of probation officers generally and
the power of the state Parole Board to issue parole conditions. See Petition for Allowance
of Appeal at 9 (citing 42 Pa. C.S. §§ 9911 (definitions), 9912 (governing searches and
seizure by probation officers), and 61 Pa.C.S. § 6141 (permitting the state Parole Board
to issue “general rules for the conduct and supervision of offenders and” to “prescribe
special regulations for particular persons” in state parole cases)). Sections 9911 and
9912 simply have no relationship to the Delegation Issue at all, and the Majority rightly
rejects the Commonwealth’s arguments related to Section 6141 elsewhere in its opinion,
correctly stating that the state Parole Board had no authority in this county-parole case.
See Majority Opinion at 18.
5 This Court has a long-standing policy against appellate courts raising issues sua sponte
because it “unnecessarily disturb[s] the processes of orderly judicial decisionmaking” and
“deprives counsel of the opportunity to brief and argue the issues and the court of the
benefit of counsel’s advocacy.” Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975). In
a recent unanimous decision, this Court reiterated:
An appellate court must address an appeal as it is filed and
generally may not raise an issue sua sponte. An appellate
court can only pass upon the legal question involved in any
case which comes before it. We have held on numerous
occasions that where the parties fail to preserve an issue for
[J-60-2022] [MO: Dougherty, J.] - 9
Nevertheless, the Majority answers a question it was never asked, and so I am
compelled to address its answer. The Majority divines a solution to the Delegation Issue
from its reading of Section 9776(d). Section 9776 governs the judicial power to release
inmates: In cases that do not involve the exclusive parole jurisdiction of the Pennsylvania
Parole Board,6 i.e., county-parole cases, “a court of this Commonwealth or other court of
record having jurisdiction may, after due hearing, release on parole an inmate in the
county correctional institution of that judicial district.” 42 Pa.C.S. § 9776(a). “No inmate
may be paroled” under Section 9776 “except on petition verified by the oath of the inmate
or by the inmate’s representative and presented and filed in the court in which the inmate
was convicted.” Id. § 9776(b). Once a petition is filed, the court is obligated to schedule
a hearing, and a “copy of the petition shall be served on the district attorney and
prosecutor in the case at least ten days before the day fixed for the hearing.” Id. § 9776(c).
Following the hearing, the court must issue an order “as it may deem just and proper.”
Id. § 9776(d). Critically for our purposes here, if the court grants parole, “it shall place the
inmate in the charge of and under the supervision of a designated probation officer.” Id.
Finally, upon “cause shown by the probation officer that the [parolee] has violated his
parole,” the court may either recommit the parolee for the violation or reparole him if the
court finds a “reasonable probability” that he will benefit from parole. Id. § 9776(e).
appeal, an appellate court may not address the issue, even if
the disposition of the trial court was fundamentally wrong.
Gibraltar Rock, Inc. v. Dep’t of Env’t Prot., 286 A.3d 713, 724 (Pa. 2022) (internal citations,
brackets, ellipses, footnotes, and quotation marks omitted).
6Section 9776 was subjected to a minor amendment in 2021, recasting the “Pennsylvania
Parole Board of Probation and Parole” as the “Pennsylvania Parole Board.” No other
changes in the text of the statute occurred.
[J-60-2022] [MO: Dougherty, J.] - 10
Ostensibly uncomfortable with the absence of explicit authority permitting a trial
court to delegate its power to issue parole conditions, the Majority attempts to mine
Section 9776(d) to validate the belief that such authority must exist. The Majority’s
“discovery” of such authority in Section 9776(d) is coated with a veneer of statutory
construction that camouflages an underlying truth: Nothing in Section 9776, and nothing
in Section 9776(d) in particular, speaks to the power to issue conditions of parole.
Indeed, nothing in Section 9776 explicitly addresses parole conditions at all.
Nevertheless, the Majority dissects Section 9776(d)’s text, highlighting that when
a court “paroles the inmate, it shall place the inmate in the charge of and under the
supervision of a designated probation officer.” 42 Pa.C.S. § 9776(d) (emphasis added).
The Majority correctly casts aside the notion that the sequential use of the terms “in the
charge of” and “under the supervision of” in Section 9776(d) is a redundancy, which might
be the first impression of an unsophisticated reader.7 From this unremarkable platform,
the Majority jumps to conclude that the phrase “in the charge of” must, therefore, add to
that supervisory power “the authority to impose parole conditions[.]” Majority Op. at 14.
Why? Yet again, we are assured that it is “obvious.” Id.
It is not obvious. By its plain terms, Section 9776(d) says no such thing. I do not
pretend to know with certainty what “in the charge of” means beyond the power to
supervise, even if I agree with the Majority that the phrase cannot, by our canons of
statutory construction, mean exactly the same thing as “under the supervision of.” See 1
7 While this component of the Majority’s statutory construction rationale is technically
correct, it must be noted that the Majority effectively declares victory against a
redundancy strawman, given that no party has asked this Court to interpret the meaning
of Section 9776(d) in such a fashion and there is no interpretation by a prior court
identified by the Majority suggesting that those terms are identical in meaning.
[J-60-2022] [MO: Dougherty, J.] - 11
Pa.C.S. § 1921(a) (“Every statute shall be construed, if possible, to give effect to all its
provisions.”). However, it does not follow that “in the charge of” must mean that a
designated probation officer has independent “authority to impose parole conditions”
merely because those phrases must be afforded different meanings.8 The Majority’s
inability to uncover any other authority to support its view that a trial court may delegate
its power to issue parole conditions is no reason to find such authority in Section 9776(d).
Section 9776 simply does not discuss parole conditions at all, and there can be no
doubt that when the Legislature intended to delegate the power to issue parole conditions,
it said so in clear and unambiguous terms. In 2021, the Legislature granted the
Pennsylvania Parole Board “exclusive power” in state parole cases to “establish special
conditions of supervision for paroled offenders” and to “promulgate regulations
8 In the instant case, upon initially paroling Koger, the trial court ordered him to be
“supervised” by the County Probation Office; the court did not designate a probation
officer in its order. Order of Sentence, 8/21/2018, at 2. In the December 21, 2018 order
revoking Koger’s initial parole, wherein the trial court ordered Koger to be reparoled on
June 21, 2019, the court did not designate any supervising authority. Order, 12/21/2018,
at 1-2. As interpreted by the Majority, “a designated probation officer” is authorized to
impose conditions of parole. There is no evidence that the trial court designated a
probation officer in this case. In any event, in “ascertaining the intention of the General
Assembly in the enactment of a statute[,]” we presume that “the General Assembly does
not intend a result that is absurd, impossible of execution or unreasonable.” 1 Pa.C.S. §
1922(1). It is absurd and/or unreasonable to believe that the General Assembly intended
to place such broad authority to set parole conditions in the hands of one individual, if it
intended to delegate such power at all. Indeed, the absurdity of the Majority’s
interpretation is even more evident when applied to the preceding language in Section
9776(d), which mandates that the trial court “shall place the inmate in the charge of … a
designated probation officer[,]” which would suggest not only that the trial court may
delegate its authority to set parole conditions to a parole officer, but that it must do so.
42 Pa.C.S. § 9776(d) (emphasis added). The General Assembly could not have intended
to accomplish so much by saying so little, depriving the court of the authority to set
conditions of parole while simultaneously delegating such authority to the arbitrary
discretion of an individual probation officer.
[J-60-2022] [MO: Dougherty, J.] - 12
establishing general conditions of supervision applicable to every paroled offender.”
61 Pa.C.S. § 6132(a)(3)-(4) (emphasis added).9 The General Assembly did not delegate
the power to impose parole conditions to the Pennsylvania Parole Board by directing trial
courts to place state-sentence parolees “in the charge of” the Pennsylvania Parole Board
or its officers. It simply used the common sense, ordinary terms one would expect the
Legislature to use, terms glaringly absent from the text of Section 9776(d). As such, in
my view, Section 9776(d) means something other than the Majority’s interpretation.
Some advocacy would surely help.
Consequently, I join the Majority but for its incorrect, sua sponte interpretation of
Section 9776(d).
9 Section 9776(d) predated the 2021 amendment.
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