Commonwealth v. Parsons ( 2017 )

J-S28012-17
2017 PA Super 223COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Respondent
v.
TIMOTHY ALLEN PARSONS,
Petitioner No. 1016 WDA 2016
Petition for Review of the Order June 20, 2016
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000448-2016
BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.
OPINION BY OLSON, J.: FILED JULY 14, 2017
Timothy Allen Parsons (“Parsons”) purports to appeal pro se from the
order, entered on June 20, 2016, which modified the conditions of his bail by
requiring him to complete a Court Reporting Network (“CRN”) evaluation.1
We hold that Parsons’ challenge is, in part, properly construed as a petition
for review pursuant to Pennsylvania Rule of Appellate Procedure 1762(b)(2),
which permits appellate review of bail orders pursuant to Chapter 15 of the
Pennsylvania Rules of Appellate Procedure. Pursuant to our authority to
review bail orders under Rule 1762(b)(2), we hold that 75 Pa.C.S.A. § 3816
does not require that every defendant charged with driving under the
1
A CRN evaluation is “[a] uniform prescreening evaluation procedure for all
[driving under the influence (“DUI”)] offenders to aid and support clinical
treatment recommendations offered to the judiciary, prior to sentencing.”
67 Pa.Code § 94.2 (emphasis added); see 75 Pa.C.S.A. § 3816 (emphasis
added) (CRN evaluations are used “to assist the court in determining what
sentencing, probation[,] or conditions of Accelerated Rehabilitative
Disposition would benefit the person or the public.”).
* Retired Senior Judge assigned to the Superior Court
J-S28012-17
influence (“DUI”) undergo a CRN evaluation as a condition of bail. We
therefore hold that the trial court erred by ordering Parsons to undergo a
CRN evaluation as a condition of his bail. We also conclude that we lack
authority to review Parsons’ challenge to the trial court’s jurisdiction over his
criminal case. Accordingly, we quash the petition for review in part, grant
the petition for review in part, vacate the trial court’s June 20, 2016 order,
and remand for further proceedings consistent with this opinion.
The factual background and procedural history of this case are as
follows. At approximately 2:00 a.m. on January 22, 2016, Officer Dustin
DeVault stopped Parsons’ vehicle while he was driving on Dry Run Road.
Officer DeVault suspected that Parsons was driving under the influence of
alcohol and arrested him. Police also found a small amount of marijuana
and drug paraphernalia. After releasing Parsons, police charged him via
criminal complaint with a variety of offenses arising from the traffic stop.
Parsons appeared at the courthouse on the date of his preliminary hearing;
however, he failed to stay for the hearing. As such, a bench warrant was
issued for his arrest.2 See Pa.R.Crim.P. 543(D)(3)(b). On February 24,
2016, Parsons filed a petition to vacate the bench warrant. The petition was
granted that same day and Parsons was released on recognizance, a type of
2
Pursuant to Pennsylvania Rule of Criminal Procedure 543(D)(3)(a), the
preliminary hearing was conducted despite Parsons’ failure to appear.
-2-
J-S28012-17
bail that imposes no conditions beyond those required by Pennsylvania Rule
of Criminal Procedure 526(A). See Pa.R.Crim.P. 524(C)(1).
On April 15, 2016, the Commonwealth charged Parsons via criminal
information with DUI – general impairment,3 resisting arrest,4 possession of
a small amount of marijuana,5 possession of drug paraphernalia,6 and four
summary traffic offenses. On June 16, 2016, Parsons appeared before the
trial court for what the trial court described as “plea court”. Trial Court
Opinion, 8/30/16, at 2. Although the record is unclear as to whether
Parsons intended to plead guilty at that hearing, when the trial court learned
that Parsons had not undergone a CRN evaluation it did not give him that
opportunity. Instead, the trial court modified the conditions of Parsons’ bail
by requiring him to complete a CRN evaluation. Parsons filed a motion to
reconsider, which the trial court denied.7
On July 12, 2016, Parsons filed a purported notice of appeal. On July
21, 2016, the trial court ordered Parsons to file a concise statement of errors
3
75 Pa.C.S.A. § 3802(a)(1).
4
18 Pa.C.S.A. § 5104.
5
35 P.S. § 780-113(a)(31)(i).
6
35 P.S. § 780-113(a)(32).
7
The order denying the motion for reconsideration is included in the certified
record; however, the order does not appear on the trial court docket. We
construe this motion for reconsideration as the application to the trial court
required under Pennsylvania Rule of Appellate Procedure 1762(b)(1).
-3-
J-S28012-17
complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On
August 8, 2016, Parsons filed his concise statement. On August 30, 2016,
the trial court issued its Rule 1925(a) opinion. On August 25, 2016, this
Court issued a rule to show cause why Parsons’ notice of appeal should not
be quashed. On September 6, 2016, Parsons filed a response to the rule to
show cause. On December 5, 2016, this Court discharged the rule to show
cause and deferred the jurisdictional issue to merits review.
Parsons presents two issues for our review:
1. [Did the trial court have jurisdiction over this criminal case?
2. Did the trial court err in requiring Parsons to undergo a CRN
evaluation?]
Parsons’ Brief at 3.8
Preliminarily, we must determine whether we have jurisdiction in this
case. The Commonwealth argues that we lack jurisdiction because Parsons
appealed from an interlocutory order. This argument misapprehends the
rules of appellate procedure.
Pennsylvania Rule of Appellate Procedure 1762(b)(2) provides that
“[a]n order relating to bail shall be subject to review pursuant to Chapter
15” of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 1762(b)(2).
When a defendant files a notice of appeal from an order relating to bail,
8
Parsons raises other issues in the argument section of his brief; however,
those issues are waived as they cannot be decided on the basis of the
certified record. See Pa.R.A.P. 1513(d)(5).
-4-
J-S28012-17
instead of a petition for review, this Court “will regard the appeal as a
[p]etition for review[.]” Commonwealth v. Jones, 899 A.2d 353, 354 n.1
(Pa. Super. 2006).9
The trial court’s June 20, 2016 order relates to bail. The trial court
modified the conditions of Parsons’ bail by requiring him to complete a CRN
evaluation. As such, we hold that we must construe Parsons’ notice of
appeal as a petition for review under Rule 1762(b)(2) and we have
jurisdiction to review his challenge to the merits of the trial court’s order. As
we construe Parsons’ notice of appeal as a petition for review under Rule
1762(b)(2), we lack jurisdiction over Parsons’ claim that the trial court lacks
jurisdiction over his criminal case. Such a claim is outside the scope of a
petition for review filed pursuant to Rule 1762(b)(2), which affirms appellate
review of bail-related orders in the absence of a pending appeal. Instead,
Parsons’ challenge to the trial court’s jurisdiction must be raised in a direct
appeal from any judgment of sentence that may be imposed in this case or
9
The Commonwealth relies upon Commonwealth v. Colleran, 469 A.2d
1130 (Pa. Super. 1983), in support of its argument that Parsons’ petition for
review should be quashed. Colleran, however, supports our determination
that we have jurisdiction over this petition. In Colleran, this Court stated
that the defendant should have filed a petition for review pursuant to Rule
1762(b) instead of a notice of appeal. Id. at 1131. As such, this Court
quashed the defendant’s notice of appeal. Id. In 2004, Rule 1762(b) was
amended. See 34 Pa.B. 3870 (July 24, 2004). After that amendment went
into effect, this Court in Jones held that, consistent with Pennsylvania Rule
of Appellate Procedure 1503, we must treat an improperly filed notice of
appeal as a petition for review. Jones, 899 A.2d at 354 n.1.
-5-
J-S28012-17
via the procedure set forth in Pennsylvania Rule of Appellate Procedure
1311.10
The Commonwealth also argues that Parsons’ petition is untimely.
This argument is without merit. The trial court’s order was entered on June
20, 2016.11 Pursuant to Pennsylvania Rule of Appellate Procedure
1512(a)(1), Parsons had 30 days to petition for review of that order.
Parsons filed his notice of appeal, which we treat as a petition for review, on
July 12, 2016 – 22 days after entry of the order. Accordingly, Parsons’
petition for review was timely and we have jurisdiction over the portion of
the petition challenging the trial court’s modification of Parsons’ bail.
Having determined that we have jurisdiction over Parsons’ petition for
review with respect to his challenge to the trial court’s bail modification
order, we turn to the merits of that issue. As this issue requires us to
interpret a statute and a rule of criminal procedure, our standard of review is
de novo and our scope of review is plenary. See Grimm v. Universal Med.
Servs., Inc., 156 A.3d 1282, 1286 (Pa. Super. 2017) (citation omitted)
(interpretation of a statute subject to de novo review); Commonwealth v.
10
Rule 1311 provides a mechanism by which a party may seek to appeal an
interlocutory order.
11
Although the order was dated (and filed with the clerk of courts) on June
16, 2016, it was not entered on the docket until June 20, 2016. The date
the order is entered on the docket is the date the petition period begins to
run. See Pa.R.A.P. 301(a)(1).
-6-
J-S28012-17
Libengood, 152 A.3d 1057, 1059 (Pa. Super. 2016) (citation omitted)
(interpretation of rule of criminal procedure subject to de novo review).
In its Rule 1925(a) opinion, the trial court states that it modified
Parsons’ bail conditions to require a CRN evaluation pursuant to 75
Pa.C.S.A. § 3816. In its brief before this Court, the Commonwealth also
argues that a CRN evaluation was required pursuant to section 3816.
“Interpretation of a statute is guided by the polestar principles set
forth in the Statutory Construction Act, 1 Pa.C.S.[A.] § 1501 et seq.”
Commonwealth v. Vandyke, 157 A.3d 535, 538 (Pa. Super. 2017)
(internal quotation marks and citation omitted). “Our paramount
interpretative task is to give effect to the intent of our General Assembly in
enacting the particular legislation under review.” Commonwealth v.
Walls, 144 A.3d 926, 932 (Pa. Super. 2016), appeal denied, 2017 WL
721824 (Pa. Feb. 23, 2017) (citation omitted). “[T]he best indication of
legislative intent is the plain language of a statute. Furthermore, in
construing statutory language, words and phrases shall be construed
according to rules of grammar and according to their common and approved
usage.” Tillery v. Children’s Hosp. of Phila., 156 A.3d 1233, 1244 (Pa.
Super. 2017) (internal alteration, quotation marks, and citation omitted).
Section 3816 provides, in relevant part, that:
In addition to any other requirements of the court, every person
convicted of a violation of section 3802 (relating to driving
under influence of alcohol or controlled substance) and every
person offered Accelerated Rehabilitative Disposition as a
-7-
J-S28012-17
result of a charge of a violation of section 3802 shall, prior to
sentencing or receiving Accelerated Rehabilitative Disposition or
other preliminary disposition, be evaluated using Court Reporting
Network instruments issued by the department and any other
additional evaluation techniques deemed appropriate by the
court to determine the extent of the person’s involvement with
alcohol or controlled substances and to assist the court in
determining what sentencing, probation or conditions of
Accelerated Rehabilitative Disposition would benefit the person
or the public.
75 Pa.C.S.A. § 3816(a) (emphasis added).
The plain language of section 3816(a) only requires that an individual
undergo a CRN evaluation after being convicted of DUI or offered
Accelerated Rehabilitative Disposition. Section 3816(a) thus presupposes
the entry of a guilty plea, an offer of Accelerated Rehabilitative Disposition,
or other form of conviction. It does not require that a defendant merely
charged with DUI undergo a CRN evaluation. Therefore, the trial court’s and
Commonwealth’s argument that Parsons was required to undergo a CRN
evaluation pursuant to section 3816(a) is without merit.
Having determined that the trial court’s statutory reasoning for
requiring Parsons to undergo a CRN evaluation was incorrect, we turn to the
trial court’s and Commonwealth’s alternative argument that requiring
Parsons to undergo a CRN evaluation was a valid imposition of a
nonmonetary bail condition. “To the extent practicable, [the Pennsylvania
Rules of Criminal Procedure] shall be construed in consonance with the rules
of statutory construction.” Pa.R.Crim.P. 101(C). To that end, when
interpreting a rule of criminal procedure, our goal is to ascertain the intent of
-8-
J-S28012-17
our Supreme Court. See Commonwealth v. Baker, 690 A.2d 164, 167
(Pa. 1997). “[T]he best indication of said intent is the plain language of a
rule.” Commonwealth v. Williams, 125 A.3d 425, 428 (Pa. Super. 2015)
(internal alterations and citation omitted).
Imposition of nonmonetary bail conditions is governed by Pennsylvania
Rule of Criminal Procedure 527. That rule provides that:
When the bail authority determines that, in addition to the
conditions of the bail bond required in every case pursuant to
Rule 526(A), nonmonetary conditions of release on bail are
necessary, the categories of nonmonetary conditions that the
bail authority may impose are:
(1) reporting requirements;
(2) restrictions on the defendant’s travel; and/or
(3) any other appropriate conditions designed to ensure the
defendant’s appearance and compliance with the conditions of
the bail bond.
Pa.R.Crim.P. 527(A).12
12
Rule 526(A) sets forth conditions of the bail bond that are required in
every case. This rule provides:
(A) In every case in which a defendant is released on bail, the
conditions of the bail bond shall be that the defendant will:
(1) appear at all times required until full and final disposition of
the case;
(2) obey all further orders of the bail authority;
(3) give written notice to the bail authority, the clerk of courts,
the district attorney, and the court bail agency or other
(Footnote Continued Next Page)
-9-
J-S28012-17
The language of Rule 527(A) is clear and free of ambiguity. Under the
cannon of expressio unius est exclusio alterius, “where certain things are
designated in a [rule], all omissions should be understood as exclusions.”
Commonwealth v. Richards, 128 A.3d 786, 789 (Pa. Super. 2015), appeal
denied, 145 A.3d 164 (Pa. 2016). In this instance, Rule 527(A) specifically
states that nonmonetary bail conditions not relating to reporting or travel
can be imposed “to ensure the defendant’s appearance and compliance with
the conditions of the bail bond.” Pa.R.Crim.P. 527(A)(3). Rule 527(A) does
not state that nonmonetary bail conditions may be imposed for any other
reason.
The Commonwealth relies upon the comment to Rule 527 which “sets
forth a few examples of conditions that might be imposed to address specific
situations.” Pa.R.Crim.P. 527 cmt. The six examples in the comment,
however, all address nonmonetary bail conditions meant to ensure the
defendant appears for future hearings and/or does not violate one of the
_______________________
(Footnote Continued)
designated court bail officer, of any change of address within 48
hours of the date of the change;
(4) neither do, nor cause to be done, nor permit to be done on
his or her behalf, any act proscribed by Section 4952 of the
Crimes Code (relating to intimidation of witnesses or victims) or
by Section 4953 (relating to retaliation against witnesses or
victims); 18 Pa.C.S. §§ 4952, 4953; and
(5) refrain from criminal activity.
Pa.R.Crim.P. 526(A).
- 10 -
J-S28012-17
standard bail conditions set forth in Pennsylvania Rule of Criminal Procedure
526.13 None of the examples relates to situations in which nonmonetary
conditions may be imposed for another reason, such as efficiency or ease
with which a defendant’s guilty plea may be accepted or a suitable sentence
imposed. Thus, Rule 527(A) prohibits such nonmonetary bail conditions.
Moreover, even if Rule 527(A) were ambiguous, we would conclude
that it prohibits ordering a defendant to undergo a CRN evaluation as a
condition of his or her bail. When the words of a rule are ambiguous, we
may look to the object to be attained in ascertaining its meaning. See 1
Pa.C.S.A. § 1921(c)(4); Pa.R.Crim.P. 101(C). In this case, the object to be
obtained by imposing nonmonetary bail conditions is to ensure that the
defendant appears for future court hearings and that the defendant complies
with the mandatory bail conditions set forth in Rule 526. See Pa.R.Crim.P.
527; cf. Commonwealth v. Sloan, 907 A.2d 460, 468 (Pa. 2006) (Bail
“may be conditioned on terms that not only give adequate assurance that
13
The one example in the comment to which the Commonwealth points is
example (2) which provides: “When, for example, the defendant is known to
have an alcohol or a drug problem, the bail authority could require that the
defendant submit to drug or alcohol testing. The bail authority could also
require that the defendant refrain from excessive use of alcoholic beverages
or from any use of illegal drugs.” Pa.R.Crim.P. 527 cmt. Clearly, directing
that defendant submit to alcohol or drug testing to ensure that the
defendant is sober while he or she is out on bail serves the dual purpose of
ensuring the defendant is able to appear for court proceedings and is in
compliance with the general bail conditions, including that he or she is
refraining from criminal activity. There is, however, a difference between
requiring that a defendant undergo random alcohol and drug screenings and
requiring that a defendant undergo a thorough and detailed CRN evaluation.
- 11 -
J-S28012-17
the accused will appear for trial, but also assures that victims, witnesses,
and the community will be protected.”). This object is not obtained by
imposing a bail condition requiring a defendant to undergo a CRN evaluation.
As section 3816 makes clear, a CRN evaluation contemplates a thorough and
professional assessment to assist our trial courts in identifying the
sentencing options that would best benefit the defendant and the public.
See 75 Pa.C.S.A. § 3816. Accordingly, we hold that the trial court lacked
the authority under Rule 527 to require Parsons to undergo a CRN evaluation
as a nonmonetary bail condition.
In its Rule 1925(a) opinion the trial court notes that the standard
practice in Washington County is to order defendants to undergo CRN
evaluations prior to adjudication of guilt. This practice stems from our
Supreme Court’s decision in Commonwealth v. Taylor, 104 A.3d 479 (Pa.
2014). In Taylor, our Supreme Court held that a CRN evaluation is required
before a trial court may sentence a defendant convicted of DUI. Id. at 490-
493. Thus, according to the trial court, the practice of requiring defendants
to undergo a CRN evaluation prior to an adjudication of guilt permits a trial
court to sentence a defendant immediately after he or she is adjudicated
guilty.
This increase in judicial efficiency is laudable; however, judicial
efficiency cannot trump legislative intent. Our legislature has stated that a
CRN evaluation is required if a defendant has been convicted of DUI or is
- 12 -
J-S28012-17
offered Accelerated Rehabilitative Disposition. It has not stated that a CRN
evaluation shall be done on every person charged with a DUI offense. If a
defendant decides that he or she prefers to be adjudicated guilty prior to
undergoing a CRN evaluation, he or she has that right. Trial judges cannot
force a defendant to undergo a CRN evaluation prior to an adjudication of
guilt under the guise of a bail condition. Such a bail condition violates the
plain language of the rules of criminal procedure. Therefore, although our
decision today may result in a small decrease in the overall efficiency of the
court system in Washington County (and possibly other counties), we
believe that most defendants will choose to undergo a CRN evaluation prior
to an adjudication of guilt in order to reduce the number of court
appearances. Nothing in our decision today should be construed as
preventing this voluntary practice.
In sum, we hold that Parsons’ challenge to the order requiring him to
complete a CRN evaluation is properly construed as a petition for review
pursuant to Pennsylvania Rule of Appellate Procedure 1762(b)(2). Thus,
although we lack jurisdiction to consider Parsons’ challenge to the trial
court’s jurisdiction over his criminal case, we do have jurisdiction over the
portion of Parsons’ petition challenging the trial court’s order modifying his
bail. We hold that section 3816 does not require that a CRN evaluation
occur prior to entry of a guilty plea in a DUI case. We also hold that the trial
court erred by requiring Parsons to undergo a CRN evaluation as a condition
- 13 -
J-S28012-17
of his bail. Accordingly, we quash the petition for review in part, grant the
petition for review in part, vacate the trial court’s June 20, 2016 order, and
remand for further proceedings consistent with this opinion.
Petition for review quashed in part and granted in part. Order
vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
- 14 -