Com. v. Moore, B. ( 2022 )

J-S28034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BENJAMIN BLAKE MOORE :
:
Appellant : No. 1644 MDA 2021
Appeal from the Judgment of Sentence Entered November 18, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003124-2020
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: SEPTEMBER 12, 2022
Appellant, Benjamin Blake Moore, appeals from the judgment of
sentence entered in the York County Court of Common Pleas, following
revocation of his parole. We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history of this case as follows:
[Appellant] was charged with one count of DUI: Controlled
Substance Schedule 1 — 1st Offense under 75 [Pa.C.S.A.] §
3802(d)(1)(i); one count of Driving Under the Influence of
Alcohol or Controlled Substance under 75 [Pa.C.S.A.] §
3802(d)(2); one count of Possession of Drug Paraphernalia
under 35 P.S. 780-113(a)(32); one count of False Reports
under 75 [Pa.C.S.A.] § 3748; one count of DUI: Controlled
Substance Schedule 2 or 3 — 1st [offense] under 75
[Pa.C.S.A.] § 3802(d)(1)(ii); and one count of Driving Under
the Influence of a Controlled Substance — Schedule I, II, or
III — 1st offense under 75 [Pa.C.S.A.] § 3802(d)(1)(iii).
[Appellant] was before this [c]ourt for a bench warrant,
which was issued for his failure to appear at his nonjury trial,
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scheduled for March 30, 2021. [Appellant’s] case was
originally listed as a jury trial; however, the Commonwealth
nol prossed the paraphernalia charge, therefore, the case
was rescheduled as a nonjury trial. [Appellant’s] attorney
indicated that [Appellant] would “prefer to do the jail
sentence rather than the R[estrictive] P[robation] sentence.
So we don’t need to wait to get a drug and alcohol
evaluation to do the plea and sentencing. [Appellant]
does understand that he will need to get the drug and
alcohol either way...” [(N.T. Plea Hearing, 3/31/21, at 2)
(emphasis added)].
This [c]ourt further asked for clarification from [Appellant]
in regards to his request for a straight prison sentence. This
[c]ourt inquired about [Appellant’s] intentions of receiving
any treatment. Defense counsel indicated that [Appellant]
was currently in a treatment center for a methadone
program in Hanover, Pennsylvania. When this [c]ourt
expressed concerns about whether the program worked for
[Appellant], [Appellant] indicated the incident in question
happened when he first started the program.
[Appellant] further indicated, that he has made progress in
the treatment program, as he sees his counselor weekly,
and had gone back to school after being accepted to York
Technical Institute. [Appellant] elected to enter into a plea
to the sole count of Driving Under the Influence of Alcohol
or Controlled Substance under 75 [Pa.C.S.A.] § 3802(d)(2).
The ADA recommended a sentence of seventy-two (72)
hours to six (6) months in York County Prison, the
mandatory fine of $1,000, the costs of prosecution, and
compliance with all standard DUI conditions. All other
remaining counts were to be dismissed. This [c]ourt
accepted [Appellant’s] plea and sentenced [Appellant] to
the agreed-upon sentence…
On September 10, 2021, a petition to schedule a [parole]
violation hearing was filed. The [parole] violation hearing
was scheduled for November 18, 2021. [Appellant’s]
violations were failure to complete a DUI education class
and failure to obtain a drug and alcohol evaluation.
However, [Appellant] did complete a drug and alcohol
evaluation on November 16, 2021, after the filing of the
violation petition. The recommendation was intensive
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outpatient treatment.
This [c]ourt determined [Appellant] to be in violation for
failing to complete the drug and alcohol evaluation due to
counsel stating on the record that [Appellant] wanted a jail
sentence rather than a restrictive probation sentence and
that [Appellant] did not need to wait to be sentenced but
understood he would need to have the evaluation
completed. This [c]ourt accepted the defense counsel’s
Koger3 argument as to the DUI education class and
therefore, did not find [Appellant] in violation of that
condition. [Appellant] was sentenced to the unserved
balance of one hundred and seventy-six (176) days, with
release forthwith, and he was directed to follow through with
his drug and alcohol treatment, and complete DUI education
classes.
3 Commonwealth v. Koger, 255 A.3d 1285(Pa.Super. 2021).
On December 17, 2021, [Appellant] filed a notice of appeal
to the Superior Court, and an application for In Forma
Pauperis (herein “IFP”) status. On December 17, 2021, this
[c]ourt issued a concise statement order. On December 22,
2021, this [c]ourt granted [Appellant’s] IFP motion.
[Appellant] filed a Statement of Errors Complained of on
Appeal on January 7, 2022.
(Trial Court Opinion, filed 1/19/22, at 1-6) (most internal citations and
footnotes omitted).
Appellant raises one issue for our review:
The trial court abused its discretion in violating [Appellant’s]
parole for failing to complete a drug and alcohol evaluation
where the court never ordered completion of the evaluation
as a condition of parole.
(Appellant’s Brief at 4).
Appellant argues that the court was only permitted to revoke his parole
if Appellant violated a “specific condition” of his parole or committed a new
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crime. Appellant asserts that there is no allegation that he committed a new
crime in this case. Appellant contends the disputed parole violation was for
failing to complete a drug and alcohol evaluation. Appellant emphasizes that
the court did not specify that completion of a drug and alcohol evaluation was
a condition of his parole. Appellant acknowledges that prior to the court
accepting his plea, defense counsel stated at the plea hearing that Appellant
understood he would need to complete a drug and alcohol evaluation.
Nevertheless, Appellant stresses that the court did not impose a drug and
alcohol evaluation as a specific parole condition after accepting Appellant’s
plea and sentencing him. Rather, Appellant maintains the sentence imposed
was 72 hours to 6 months’ imprisonment, a fine of $1,000.00, costs of
prosecution, and to comply with the “standard conditions related to a DUI
offense.”
Appellant highlights that the sentencing order contains boxes for specific
conditions of parole, including “D/A Eval” and “Highway Safety,” but that
neither box is checked on the sentencing order.1 Appellant posits that “[t]he
only tenable reading of this record is that the court did not impose an
evaluation as a specific condition of [Appellant’s] parole.” (Appellant’s Brief
____________________________________________
1 The sentencing order contains a section titled: “Court Ordered
Conditions/Recommendations” and lists eight boxes with specific
requirements. While no box is checked, there is an additional line under the
boxes marked “Other,” next to which the court wrote: “Standard DUI
Cond[itions].” (Sentencing Order, 11/18/21, at 1).
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at 16). Appellant concludes the court erred by revoking his parole under these
circumstances, and this Court must grant relief. We disagree.
“The Commonwealth must prove [a parole] violation by a
preponderance of evidence and, once it does so, the decision to revoke parole
is a matter for the court’s discretion.” Commonwealth v. Kalichak, 943
A.2d 285, 290-91 (Pa.Super. 2008). As it relates to probation, our Supreme
Court has stated: “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.”
Commonwealth v. Foster, 654 Pa. 266, 282, 214 A.3d 1240, 1250 (2019).
In support of Appellant’s complaints on appeal, he relies heavily on this
Court’s recent decision in Koger, supra. In that case, the appellant pled
guilty to possession of child pornography and criminal use of a communication
facility on August 21, 2018. The court sentenced him to 8-23 months’
imprisonment for the child pornography conviction, he was awarded credit for
time served, and immediately paroled. For the criminal use of a
communication facility conviction, the court sentenced the appellant to three
years’ probation. At sentencing, the court stated:
As special conditions of this sentence, Appellant shall have
no contact with any victims or persons displayed in the
images. Appellant shall submit to a drug and alcohol
evaluation and complete any recommended treatment;
perform 100 hours of community service and complete
sexual offender counseling.
Koger, supra at 1287 (quoting Order of Sentence, 8/21/18). On December
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21, 2018, the court revoked the appellant’s probation and parole after he
stipulated to committing technical violations. On September 16, 2019, a
second petition was filed alleging the appellant violated his parole and
probation for engaging in assaultive, threatening or harassing behavior, failing
to permit a probation officer to visit his residence, failing to submit to
warrantless searches, and other violations of criminal laws or ordinances.
At the revocation hearing, the appellant’s parole officer testified about
the facts giving rise to the alleged violations. At the conclusion of the hearing,
the court found the appellant in technical violation and revoked the appellant’s
parole and probation. Subsequently, the court resentenced the appellant to
serve the balance of his minimum sentence for the child pornography
conviction and imposed a term of 1-3 years’ imprisonment for the criminal use
of a communication facility conviction. The appellant appealed.
Initially, this Court remanded for a supplemental opinion concerning
whether the court had imposed or advised the appellant of the terms and
conditions of his probation and parole at the time of the initial August 21, 2018
sentencing. The court responded stating that it did not advise the appellant
of the general conditions of his probation or parole at the time of sentencing;
instead, pursuant to local procedures, the probation and parole conditions
were explained to the appellant after sentencing by an adult probation officer.
The appellant challenged the sufficiency of the evidence to support his
violations in the absence of evidence as to the actual terms and conditions of
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the appellant’s parole and probation, and he claimed his revocation sentences
were illegal. In evaluating the appellant’s claims, this Court relied on language
from our Supreme Court’s decision in Foster, supra, in which the Court said
that a trial court is required to “attach reasonable conditions authorized by
[42 Pa.C.S.A. § 9763] (relating to conditions of probation) as it deems
necessary to ensure or assist the defendant in leading a law-abiding life”; the
failure to do so is a violation of the court’s statutory mandate. Koger, supra
at 1290 (citing Foster, supra at 272 n.5, 214 A.3d at 1244 n.5, 1248-50).
Relying on Foster, the Koger Court held that the trial court erred in
failing to specifically advise the appellant of the conditions of his probation
and parole at the time of his initial sentencing. “Because the trial court did
not impose, at the time of the August 21, 2018 sentencing, any specific
probation or parole conditions, the court could not have found he violated one
of the specific conditions of probation or parole included in the probation
order.” Koger, supra at 1291 (internal quotation marks omitted). The Court
continued: “In short, a sentencing court may not delegate its statutorily
proscribed duties to probation and parole offices and is required to
communicate any conditions of probation or parole as a prerequisite to
violating any such condition.” Id. Thus, this Court reversed the revocation
of probation and parole and vacated the new judgment of sentence.
Instantly, the trial court distinguished Koger from the facts of this
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case,2 reasoning:
In the case at hand, … [Appellant] elected to enter a guilty
plea. We find this case distinguishable from Koger because
[Appellant’s] attorney acknowledged on the record “…So we
don’t need to wait to get a drug and alcohol evaluation to
do the plea and sentencing. [Appellant] does
understand that he will need to get the drug and
alcohol either way.” [(N.T. Plea Hearing at 3) (emphasis
added).]
This [c]ourt argues that under Koger, a defendant cannot
be surprised by any of the conditions that may be imposed
on him/her. Therefore, because [Appellant’s] trial counsel,
stated on the record that [Appellant] understood he needed
to complete a drug and alcohol evaluation he was well aware
that he needed to comply with that specific term under his
[parole] conditions.
(Trial Court Opinion at 10-11) (some internal citations omitted).
We agree with the trial court’s analysis. Unlike Koger, where there was
no evidence on the record of the probation conditions at the time of
sentencing, the transcript from the plea hearing in this case makes clear
Appellant knew (via his counsel’s one-the-record representation) he was
required to undergo a drug and alcohol evaluation as a parole condition. The
court further stated at sentencing and in the sentencing order that Appellant
____________________________________________
2 The Pennsylvania Supreme Court granted allowance of appeal in Koger to
decide whether this Court erred in expanding the holding in Foster and the
statutory requirements related to probation conditions, to parole cases. See
Commonwealth v. Koger, 270 WAL 2021 (Pa. Apr. 5, 2022).
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would be subject to “standard DUI conditions.”3 Notably, when the court
inquired at the parole revocation hearing why Appellant did not obtain the
drug and alcohol evaluation in the eight months after sentencing, Appellant
did not claim a lack of notice; rather, Appellant simply responded that he “just
didn’t get it done soon enough.” (Id. at 2).
Under these circumstances, Appellant’s reliance on Koger is misplaced.
See, e.g., Commonwealth v. Adams, No. 1261 EDA 2021 (Pa.Super. Apr.
11, 2022) (unpublished memorandum)4 (affirming revocation sentence and
distinguishing Koger where trial court advised appellant at time of sentencing
of his obligation to report as part of his probation conditions, even though
sentencing order did not specify that condition). See also Commonwealth
v. Crabb, No. 829 MDA 2021 (Pa.Super. July 27, 2022) (unpublished
memorandum) (explaining Koger did not mandate that every conceivable
condition or aspect of probation or parole must be specified by trial court).
Accordingly, we affirm Appellant’s revocation sentence.
Judgment of sentence affirmed.
____________________________________________
3Appellant acknowledged that he received the specific requirement to undergo
a drug and alcohol evaluation, via e-mail after sentencing. (N.T. Revocation
Hearing, 11/18/21, at 3-4).
4 See Pa.R.A.P. 126(b) (stating this Court may cite to and rely on for
persuasive value unpublished decisions of this Court filed after May 1, 2019).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/12/2022
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