Com. v. Mathias, S., Jr. ( 2015 )

J-A08043-15
2015 PA Super 163COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHAHNAWAZ M. MATHIAS, JR., :
:
Appellant : No. 876 MDA 2014
Appeal from the Judgment of Sentence Entered April 21, 2014
in the Court of Common Pleas of York County,
Criminal Division, at No(s): CP-67-CR-0006753-2005
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED JULY 29, 2015
Shahnawaz M. Mathias, Jr., (Appellant) appeals from a judgment of
sentence entered after the trial court purported to revoke his probation. We
conclude that the imposition of the judgment was illegal. Consequently, we
vacate Appellant’s judgment of sentence.
The procedural background underlying this matter is rather
complicated. This Court previously summarized it as follows.
… On May 15, 2006, Appellant pleaded guilty to indecent assault
and unlawful contact with a minor, and on November 15, 2006,
the trial court imposed an aggregate sentence of five years’
probation. Twelve days thereafter, Appellant filed a post-
sentence motion seeking withdrawal of his “plea because he
discovered that, as a condition of his probation,” his travel and
contact with his minor children were limited and he was not
permitted to consume alcohol. The trial court denied this motion
on January 18, 2007. Appellant then filed a counseled
application on June 6, 2007 to modify his probation, challenging
the probationary condition that he first obtain permission before
travelling outside the York County area, and seeking instead
*Retired Senior Judge assigned to the Superior Court.
J-A08043-15
merely to provide notice before traveling. The court denied this
application on June 8, 2007.
Appellant took appeals from both orders which were
consolidated by this Court. The Commonwealth argued that
Appellant’s motion to modify the conditions of his “probation was
akin to an untimely post-sentence motion, and therefore, [his]
appeal from the … order, which denied the application, was also
untimely.” On September 19, 2007, this Court issued an order
quashing that appeal.
However, in an unpublished memorandum dated August 4,
2008, this Court declined to find Appellant’s appeal from the
latter order untimely. We reasoned that the court had
jurisdiction under 42 Pa.C.S. § 9771(a) to consider Appellant’s
second application for relief, “which essentially sought to lessen
a condition of [his] probation related to his traveling.”
Nevertheless, this Court found Appellant’s issue waived for
counsel’s untimely filing of a court-ordered Pa.R.A.P. 1925(b)
statement. Our Supreme Court denied allowance of appeal from
this decision on July 1, 2009.
One day after this Court issued our memorandum, on
August 5, 2008, Appellant filed a counseled PCRA petition,
alleging that he “recently … discovered that the [victim] has
[recanted] to one or more persons her accusations by admitting
that the alleged crime was a falsehood perpetuated [sic] to
obtain a financial advantage.” The petition further averred,
“That information was reduced to an affidavit signed by one
Jason Hollar,” which he attached, and that Appellant was
“attempting to ascertain the identity of at least two … other
individuals to whom [the victim] has recanted[.]” On August
13th, the trial court dismissed the petition without prejudice,
reasoning that the appeal before this Court was still pending.
We summarize that subsequently, Appellant filed
numerous petitions with the trial court seeking relief from the
terms of his probation. Some of the denials of these petitions
resulted in appeals to this Court. This Court quashed two of the
appeals, in each holding that the relief Appellant sought related
to his judgment of sentence, and thus his notices of appeal were
untimely. A third appeal related to the trial court’s denial of a
motion to modify Appellant’s probation so that he could “exercise
-2-
J-A08043-15
custodial rights to his children.” This Court held that Appellant’s
motion for reconsideration of the denial of this motion was
untimely and thus his notice of appeal was untimely. We
therefore quashed. The last appeal stemmed from the court’s
denial of a petition to terminate probation, which was filed while
the third appeal was pending. This Court quashed, holding that
because the pending appeal “also concerned the terms of his
probation,” “the trial court was without jurisdiction to rule on”
the latest petition.
On May 7, 2013, approximately one month after the last
Superior Court decision, Appellant filed [another], counseled
PCRA petition….
Commonwealth v. Mathias, 93 A.3d 510 (Pa. Super. 2013) (unpublished
memorandum at 2-5) (citations and footnotes omitted). The PCRA court
dismissed the PCRA petition, and this Court affirmed that order on December
13, 2013. Id.While the order dismissing the PCRA petition still was on appeal,
Appellant filed a “Petition to Change Treatment Providers.”1 In addition, the
York County Adult Probation Department (the Department) apparently filed a
petition in which it sought a hearing to resolve how much credit time
Appellant should receive toward his probation sentence.
In a petition filed on October 17, 2013, which was entitled “Petition for
Hearing on Stay and Related Items,” Appellant highlighted, inter alia, that he
has been under probationary supervision since 2005, despite the fact that he
1
As a condition of Appellant’s probation, he was required to attend
counseling.
-3-
J-A08043-15
was sentenced to only five years of probation in 2006.2 According to
Appellant, he has not been credited for time that accrued during his various
appeals to this Court.
The trial court held a hearing on December 3, 2013. Several
witnesses testified at that hearing, including Albert Sabol. Mr. Sabol was the
Chief Adult Probation Officer at the Department for eleven years when he
retired in December of 2012. According to Mr. Sabol, in 2002, then
President Judge Chronister of the York County Court of Common Pleas
issued an unwritten directive “that when a case is on appeal in an upper
court, [] the local court lacks jurisdiction and cannot change or alter a
sentence, and he directed that [the Department] no longer supervise cases
that have taken an appeal.” N.T., 12/3/2013, at 46-47. Mr. Sabol testified
that this directive was issued, in part, to avoid having to reimburse
probationers whose appeals are successful for costs they incurred as a result
of their probationary sentences. In any event, pursuant to Judge
Chronister’s unwritten directive, the Department adopted a policy of not
supervising persons sentenced to serve probation when those persons
appeal a trial court’s decision.
In an order entered on December 5, 2013, the trial court determined
that, because of the multiple appeals Appellant has taken related to his
2
Appellant’s claim that he was on probation since 2005 appears to be the
product of a typographical error, given that he was not sentenced to serve
probation until 2006.
-4-
J-A08043-15
probation, as of December 3, 2013, Appellant had served only 666 days of
his five-year probation sentence, leaving him with 1,159 days of supervision
to complete. Furthermore, the trial court denied Appellant’s request to
change counseling centers.
On December 13, 2013, Appellant filed a motion to reconsider the
December 5, 2013 order. Therein, Appellant contended, inter alia, that
Judge Chronister’s “unwritten directive” is unconstitutional. The trial court
denied that motion on December 27, 2013. On January 27, 2014, Appellant
filed a notice of appeal wherein he stated his intent to appeal the order
denying his motion for reconsideration. In a per curiam order filed on May
5, 2014, this Court quashed the appeal as untimely filed. Commonwealth
v. Mathias, Jr., 208 MDA 2014.
In the meantime, on March 14, 2014, the Department filed a petition
in the trial court wherein it sought a hearing to determine whether Appellant
had violated his probation by failing to enter and successfully complete an
approved sexual offender treatment program. The trial court held a hearing
regarding the petition on April 21, 2014.
At the beginning of the hearing, Appellant’s counsel reminded the
court that Appellant’s appeal regarding the constitutionality of the “unwritten
directive” still was pending in this Court. Counsel also moved to quash the
Department’s petition. As to this motion, counsel argued that the
Department was alleging that Appellant violated his probation by failing to
-5-
J-A08043-15
attend counseling while his appeal was pending, despite the fact that,
pursuant to the “unwritten directive,” Appellant was not being supervised at
that time.
At the conclusion of the hearing, the trial court determined that
Appellant violated his probation. The court, therefore, revoked his
probation. The court sentenced Appellant to serve 6 to 23 months in prison.
Appellant timely filed a motion for reconsideration. Therein, Appellant
contended, inter alia, that his sentence was excessive. The trial court
denied the motion.
Appellant timely filed a notice of appeal. The trial court directed
Appellant to comply with Pa.R.A.P. 1925(b), and Appellant subsequently filed
a 1925(b) statement. The trial court responded by filing an opinion pursuant
to Pa.R.A.P. 1925(a). In his brief to this Court, Appellant asks us to consider
the questions that follow.
1. Whether the probation directive challenged herein is facially
unconstitutional because it forces defendants to unknowingly
choose between their right to an appeal and their right to have
their sentence speedily carried out?
2. Whether the probation directive challenged in this appeal is
procedurally unconstitutional under the due process clause as
applied to [Appellant] because he never received actual or
constructive notice of the times he was on or off probation, and
because of the further impacts generated by his specific
conviction, which are now set to continue for years more than he
originally agreed to through his guilty plea?
3. Whether this unwritten directive impermissibly removes
substantive due process from convicted persons, and [Appellant]
-6-
J-A08043-15
specifically, while they remain under the department of
probation’s supervision?
4. Whether probation may implement a directive without written
procedure or policy regarding that directive, and, relatedly,
whether that unwritten policy is impermissibly vague or is
subject to interpretation such that it would not be arbitrarily
applied?
5. Is the sentence of 6-23 months for a technical violation of
probation an abuse of discretion on the part of the trial court?
Appellant’s Brief at 11-12 (Appellant’s answer’s omitted).
Under his first four issues, Appellant raises a number of constitutional
challenges to the “unwritten directive” and the Department’s policy of not
supervising Appellant’s probation while his various appeals were pending.
He, however, ultimately contends that his sentence is illegal because his
five-year term of probation had expired when the trial court revoked his
probation and sentenced him. We need not reach the merits of Appellant’s
constitutional challenges in order to agree with him that he is serving an
illegal sentence.3
“Issues relating to the legality of a sentence are questions of law[.] …
Our standard of review over such questions is de novo[,] and our scope of
3
It is well settled that courts should “avoid constitutional issues if the claim
may be resolved on alternative grounds[.]” Commonwealth v. Karetny,
880 A.2d 505, 519 (Pa. 2005). We further note that the trial court and the
Commonwealth suggest that Appellant waived his constitutional challenges.
However, it is well settled that “[c]hallenges to an illegal sentence can never
be waived and may be reviewed sua sponte by the Superior Court.”
Commonwealth v. Johnson, 873 A.2d 704, 708 n.1 (Pa. Super. 2005).
-7-
J-A08043-15
review is plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.
Super. 2014).
While it is easy to get distracted by, inter alia, the procedural
complexity of this case, our determination that Appellant’s sentence is illegal
flows from a fairly straightforward analysis. On November 15, 2006, the
trial court sentenced Appellant to serve an aggregate of five years of
probation. Over seven years after the imposition of this sentence, the trial
court purported to revoke that five-year probation sentence and to
resentence Appellant to a period of imprisonment. Yet, the certified record
is devoid of any order staying Appellant’s original sentence. Moreover, prior
to the 2014 order revoking the probation, the trial court never revoked
Appellant’s probation or resentenced him.
The Department may very well have a policy of not supervising
probation when an appeal is pending;4 however, that policy did not act to
4
The record indicates that the Department’s policy is fueled in large part by
a misguided belief that, pursuant to Pa.R.A.P. 1701, the court lacked
jurisdiction to supervise Appellant or to revoke his probation when an appeal
was pending. For instance, at a proceeding that took place on January 30,
2012, the trial court cited Rule 1701 in support of its belief that a court loses
jurisdiction to find a probation violation when an appeal is pending.
As an initial matter, there simply is no language in Rule 1701 that
justifies the Department’s policy of not supervising a probationer while an
appeal is pending. As to whether a court can revoke probation while an
appeal is pending, Rule 1701 does generally state that, “after an appeal is
taken …, the trial court … may no longer proceed further in the matter.”
Pa.R.A.P. 1701(a). However, the rule explicitly allows a court, after an
appeal has been taken, to enforce an order entered in the matter. Pa.R.A.P.
-8-
J-A08043-15
stay Appellant’s sentence and does not alter the fact that, during the
pendency of his appeals, Appellant was serving his sentence.
When the trial court revoked Appellant’s probation and resentenced
him, Appellant’s term of probation had expired. Consequently, the trial
court lacked the authority to revoke the probation, and the sentence of
imprisonment is illegal. See, e.g., Commonwealth v. Mitchell, 955 A.2d
433, 435 (Pa. Super. 2008) (“Under Pennsylvania law, an order of probation
can be changed or revoked if, at any time before the defendant has
completed the maximum period of probation, or before he has begun
service of his probation” the defendant commits offenses or otherwise
demonstrates he is unworthy of probation.”) (emphasis added) (citations
and quotation marks omitted). We, therefore, vacate the judgment of
sentence.
Judgment of sentence vacated.
Judge Wecht joins this opinion.
Judge Shogan files a concurring opinion in which Judge Strassburger
joins.
1701(b)(2). Thus, when Appellant’s appeals were pending, the trial court
clearly could enforce the terms of Appellant’s sentence of probation.
-9-
J-A08043-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2015
- 10 -