Com. v. Frantz, B. ( 2022 )

J-S14025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BYRON EDWARD FRANTZ, JR. :
:
Appellant : No. 1044 WDA 2021
Appeal from the Judgment of Sentence Entered August 18, 2021
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000773-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BYRON EDWARD FRANTZ, JR. :
:
Appellant : No. 1045 WDA 2021
Appeal from the Judgment of Sentence Entered August 18, 2021
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000772-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BYRON EDWARD FRANTZ JR. :
:
Appellant : No. 1046 WDA 2021
Appeal from the Judgment of Sentence Entered August 18, 2021
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000771-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S14025-22
:
v. :
:
:
BYRON EDWARD FRANTZ, JR. :
:
Appellant : No. 1047 WDA 2021
Appeal from the Judgment of Sentence Entered August 18, 2021
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000568-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BYRON EDWARD FRANTZ, JR. :
:
Appellant : No. 1048 WDA 2021
Appeal from the Judgment of Sentence Entered August 18, 2021
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000567-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BYRON EDWARD FRANTZ JR. :
:
Appellant : No. 1049 WDA 2021
Appeal from the Judgment of Sentence Entered August 18, 2021
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000566-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
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J-S14025-22
BYRON EDWARD FRANTZ JR. :
:
Appellant : No. 1050 WDA 2021
Appeal from the Judgment of Sentence Entered August 18, 2021
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000565-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BYRON EDWARD FRANTZ :
:
Appellant : No. 1051 WDA 2021
Appeal from the Judgment of Sentence Entered August 18, 2021
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000090-2006
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: JULY 29, 2022
In these consolidated appeals,1 Byron Edward Frantz (Appellant)
appeals from the judgments of sentence imposed in the Jefferson County
Court of Common Pleas, following the revocations of his probation at eight
trial court dockets. Appellant contends the trial court abused its discretion
when it imposed a manifestly excessive sentence for technical violations of
the conditions of his probation. Because we are unable to ascertain from the
record before us whether Appellant was still serving probationary terms at
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* Retired Senior Judge assigned to the Superior Court.
1 This Court consolidated these appeals, sua sponte. See Order, 10/1/21.
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some of the trial court dockets at the time he was charged with violating his
probation, we vacate the judgments of sentence, and remand the matter to
the trial court for further clarification and resentencing.
In November and December of 2006, Appellant committed a series of
crimes in Jefferson County, which led to charges of, inter alia, burglary, theft,
and forgery,2 spanning eight separate trial court dockets. He subsequently
entered a guilty plea in each case. On May 17, 2006, Appellant pled guilty to
three counts of burglary at trial docket CP-33-CR-0000090-2006 (Docket 90-
2006), and was sentenced to a term of seven months to two years’ less one
day imprisonment, followed by three years’ plus one day probation. In
September of 2006, Appellant’s probation was revoked following a violation,
and he was resentenced to a term of two and one-half to five years’
imprisonment followed by five years’ consecutive probation. Thus, it appears
that Appellant’s consecutive term of five years’ probation, absent any further
violations, would have expired in 2016.3
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2 See 18 Pa.C.S. §§ 3502, 3921, and 4101(a)(2).
3 We note the record for Docket 90-2006 contains a document entitled
“Request for Special Probation/Parole Supervision,” which was signed by the
trial court on April 14, 2010. See Request for Special Probation/Parole
Supervision, 4/14/10, at 2 (unpaginated). That document indicates that
Appellant’s concurrent probationary sentences for two counts of burglary
began on January 2, 2011, and would expire on January 2, 2016. See id. at
1 (unpaginated).
The record at Docket 90-2006 also includes a Detainer issued on
February 7, 2020, directing that Appellant be detained pending a hearing to
(Footnote Continued Next Page)
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On April 4, 2007, Appellant entered guilty pleas for the remaining seven
dockets. At trial dockets CP-33-CR-0000565-2006, CP-33-CR-0000566-2006,
CP-33-CR-0000567-2006, and CP-33-CR-0000568-2006 (collectively,
Dockets 565-568-2006), Appellant entered a guilty plea to four counts of
burglary, one at each docket, and was sentenced to five terms of five years’
probation, to be served concurrently with each other and consecutively to the
sentence imposed at Docket 90-2006. See Guilty Plea Colloquy, 3/28/07, at
8 (unpaginated). At trial dockets CP-33-CR-0000771-2006 and CP-33-CR-
0000772-2006 (collectively, Dockets 771-772-2006), Appellant pled guilty to
two counts of theft, and was sentenced to two concurrent terms of one year
probation, to be served consecutively to the sentence at Docket 90-2006. Id.
Lastly, at trial docket CP-33-CR-0000773-2006 (Docket 773-2006), Appellant
entered a guilty plea to one count of forgery. He was sentenced to a term of
five years’ probation, to be served concurrently with the probationary
sentences imposed at Dockets 565-568-2006 and Dockets 771-772-2006, and
consecutive to the sentence at Docket 90-2006. Id. Therefore, it appears
that Appellant would have completed serving his one-year probationary terms
at Dockets 771-772-2006 in 2017, but his five-year probationary terms at
Dockets 565-568-2006 and 773-2006 would not have expired until 2021.
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determine if “Probable Cause exists to believe that he is in Contempt for Non-
Payment.” Detainer, 2/7/20. Thereafter, on March 20, 2020, the court
entered an order withdrawing the detainer, directing Appellant be released
from prison, and ordering him to contact “Jefferson County Probation to
establish a pay plan.” Order to Withdraw Detainer, 3/20/20.
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On July 26, 2021, Appellant’s probation officer filed a notice of a
Gagnon I hearing4 for Dockets 90-2006, 565-2006, 568-2006, and 773-206,
as well as a Notice of Charges, alleging Appellant violated the following
conditions of his probation: (1) failed to report to probation as instructed in
December of 2020; (2) changed his residence without permission in December
of 2020; (3) failed to maintain employment or notify his probation officer of
loss of employment in December of 2020; (4) failed to abide by his payment
plan, as his last payment was received in September of 2019; and (5) failed
to refrain from using controlled substances, namely Appellant called an
ambulance “due to overdosing on Heroin” in July of 2021. See Notice of
Preliminary Hearing (Gagnon I), 7/26/21; Notice of Charges & Hearing Rights
& Written Request for Revocation, 7/26/21. On August 3, 2021, Fred Hummel,
Esquire, entered his appearance on behalf of Appellant.
A Gagnon I hearing was scheduled for August 4, 2021. Appellant
appeared before the trial court, waived the Gagnon I hearing, and “admit[ed]
to the violations charged[.]” Gagnon Order, 8/6/21. Notably, the court’s
Gagnon order listed all of the trial court dockets at issue herein. Id. The
order also directed Adult Probation to conduct a Pre-Sentence Investigation
Report (PSI) and scheduled the Gagnon II hearing for August 18, 2021. Id.
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4 See Gagnon v. Scarpelli, 411 U.S. 778 (1973). This notice was preceded
by a Bench Warrant, issued on January 26, 2021, directing that Appellant be
“arrested and detained” pending a Gagnon I hearing for his alleged violations.
Bench Warrant, 1/26/21.
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At the August 18th hearing, Attorney Hummel noted that, although an
updated PSI was prepared, Appellant’s version of the violations was not
included because, purportedly, a request had been faxed to the prison with
insufficient time for Appellant to respond. See N.T., 8/18/21, at 3-4. He
requested the trial court “not . . . hold anything against [Appellant due to] the
fact that he hasn’t responded in writing.” Id. at 4. Notably, Attorney Hummel
did not request a continuance of the hearing so that Appellant could formally
respond.
Rather, Attorney Hummel argued that it was “known” Appellant had
“drug problems” at the time of the original PSI, dated July 25, 2006, and
asserted that the criminal acts at issue were “no doubt” a result of his drug
use. N.T., 8/18/21, at 5. He pointed out, however, there was no update
regarding Appellant’s “current situation [or] health status.” Id. Attorney
Hummel requested the court impose a sentence “such that [Appellant would]
be eligible for the state drug treatment program.” Id. at 6.
Thereafter, the court provided Appellant with the opportunity to speak
on his own behalf. N.T., 8/18/21, at 6. Appellant stated that he “did good for
years” when he was released in 2008. Id. He claimed: “I kind of had an idea
I was supposed to be on probation when I maxed out, but they told me I
wasn’t.”5 Id. Appellant stated he did not “relapse again until [he] knew
probation was looking for” him. Id. He further told the court that he
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5 Appellant did not specify who “they” were.
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understood he had a “bad criminal history,” but that he “made it a point not
to commit . . . new crimes.” Id.
Before imposing Appellant’s revocation sentence, the trial court
emphasized Appellant’s “bad prior record,” as well as the fact that he
“continually dabble[d] in drugs” and “other than a few times, . . . never really
had a job[.]” N.T., 8/18/21, at 7-8; see id. at 8 (“You committed Felony 1
robberies and a lot of burglaries. I think that’s how you lived.”). The court
further noted that while it was unsure whether Appellant suffered from
addiction, it intended to impose a sentence in state prison where Appellant
could receive treatment “as long as [he] admit[ted he had] a problem[;]” in
fact, the court recommended Appellant for “the state drug treatment
program.” Id. at 7-9. The court also rejected Appellant’s claim that he did
not know he was on probation, commenting:
You’re impossible to manage on probation. You knew you had
probation. That part of you is a pure lie.
You knew you had probation. You knew you were going to
avoid it until you got picked up, and then how did you get picked
up, by an overdose.
That’s [your] life in a nutshell, new crime or overdose. . . .
Id. at 9.
The trial court revoked Appellant’s probationary sentences at each of
the dockets listed above, and imposed the following sentences: (1) at Docket
773-2006, a term of three and one-half to seven years’ imprisonment for
forgery; (2) at Docket 772-2006, a consecutive term of six months’ to one
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year imprisonment for theft; (3) at Docket 771-2006, a consecutive term of
six months’ to one year imprisonment for theft; and (4) at Dockets 90-2006,
and 565-568-2005, a term of one year probation for each count, imposed
concurrently to each other, but consecutive to the prison sentence imposed at
Docket 771-2006. See Gagnon Order, 8/18/21. Therefore, the court
imposed an aggregate sentence of four and one-half to nine years’
imprisonment, followed by one year of probation.
On August 24, 2021, Appellant filed a timely motion to reconsider his
sentence, asserting the aggregate sentence was “excessive for the technical
violations to which he admitted[,] not appropriate under the Sentencing
Code[, and] clearly unreasonable . . . as the sentence was not individualized
. . . by failing to give due weight and consideration to [his] rehabilitative needs
and mental condition[.]” Appellant’s Motion to Reconsider Sentence, 8/24/21,
at 2 (unpaginated). The trial court entered an order denying Appellant’s
motion that same day. See Order, 8/24/21. This timely appeal follows.6
Appellant presents one issue for our review:
Whether the [trial c]ourt erred by sentencing [Appellant] to
an aggregate sentence of 4 ½ to 9 years incarceration as such
aggregate sentence is contrary to the fundamental norms which
underlie the sentencing process, was not individualized to
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6 Appellant filed separate notices of appeal at each docket on September 1,
2021, less than 30 days after sentence was imposed. See Pa.R.Crim.P.
708(E) (motion to modify sentence filed after revocation does not toll 30-day
appeal period). Appellant also timely complied with the trial court’s directive
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
at each docket.
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[Appellant] and clearly unreasonable as the [c]ourt failed to give
due weight and consideration to [Appellant’s] rehabilitative needs
and mental condition; and, the sentence is manifestly excessive
and inflicts too severe a punishment as it is disproportionate to
the violations committed which were all of a technical nature[?]
Appellant’s Brief at 4.7
Our review of a sentence imposed following the revocation of probation
is limited to consideration of “the validity of the revocation proceedings, the
legality of the sentence imposed following revocation, and any challenge to
the discretionary aspects of the sentence imposed.” Commonwealth v.
Simmons, 262 A.3d 512, 515 (Pa. Super. 2021) (en banc) (citation omitted).
Although Appellant challenges only the discretionary aspects of his probation
revocation sentence, this Court may consider the legality of a sentence sua
sponte. See Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super.
2003) (en banc) (“[C]hallenges to [a]n illegal sentence can never be waived
and by be reviewed sua sponte by this Court.”) (citation and quotation marks
omitted).
It is axiomatic that a trial court has no authority to revoke a defendant’s
probation based on conduct that occurred after the term of probation had
expired. See Commonwealth v. Mathias, 121 A.3d 558, 563 (Pa. Super.
2015). Thus, if a trial court lacks the authority to revoke probation, any
sentence imposed as a result thereof is illegal. Id.____________________________________________
7 The Commonwealth declined to file a responsive brief in this matter, and,
instead informed the Superior Court Prothonotary by letter that it “completely
concurs and relies upon the trial court’s well-reasoned Opinion[.]” Letter from
Commonwealth to Prothonotary, 4/6/22.
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As noted above, it is unclear from the record whether any of Appellant’s
various probationary terms — and, in particular, those imposed at Dockets
90-2006, and 771-772-20068 — expired prior to December of 2020, when he
committed the charged violations. Thus, we are compelled to vacate the
judgments of sentence and remand this matter to the trial court for further
clarification. If the court determines that Appellant was still serving all of his
probationary sentences at the time he committed the violations, it shall re-
impose the same sentence. However, if the court determines that any of
Appellant’s probationary sentences expired before he committed the charged
violations, then it has no authority to either revoke Appellant’s probation at
those counts, or impose a new sentence. In that case, the trial court shall
resentence Appellant accordingly. Under either scenario, after resentencing,
Appellant shall be afforded the opportunity, should he so choose, to file a new
post-sentence motion followed by a direct appeal.
Judgments of sentence vacated. Case remanded for proceedings
consistent with this Memorandum. Jurisdiction relinquished.
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8As noted supra, it appears from the record before us that Appellant would
have completed serving his five-year probationary term at Docket 90-2006 in
2016, and his one-year terms at Dockets 771-771-2006 in 2017.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2022
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