Com. v. Reavis, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ACEY REAVIS :
:
Appellant : No. 1360 EDA 2018
Appeal from the Judgment of Sentence April 13, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-XX-XXXXXXX-2016
BEFORE: BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED AUGUST 18, 2021
I respectfully disagree with the learned Majority’s decision to interpret
42 Pa.C.S. § 9771 in a way which upends forty years of unchallenged
precedent permitting the anticipatory revocation of an order of probation when
a defendant commits a new crime or violates the specific conditions of his
probation. Starting with Commonwealth v. Wendowski, 420 A.2d 628(Pa.Super. 1980), our courts have repeatedly construed § 9771 as providing
that a defendant may violate the conditions of a probationary order by
committing a new crime or by violating the specific conditions of his probation
any time between sentencing and the completion of the maximum period of
probation. As set forth at length in my dissent in Commonwealth v.
Simmons, ___ A.3d ___ (Pa.Super. 2021) (en banc) (Bowes, J.) (dissenting
opinion), the doctrine of stare decisis and the presumption of legislative
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acquiescence warrant maintaining this long-standing interpretation of
Pennsylvania law. Accordingly, I dissent.
Statutory construction is a pure question of law, which we review de
novo. Commonwealth v. Cousins, 212 A.3d 34, 38 (Pa. 2019). We first
look to the plain language of the statute, construing the words according to
their common usage to discern the legislature’s intent. See 1 Pa.C.S.
§ 1921(a), (b); Commonwealth v. Foster, 214 A.3d 1240, 1247 (Pa. 2019).
We look beyond the plain meaning of the statute only where the words of the
statute are ambiguous or not explicit. See 1 Pa.C.S. § 1921(c). A statutory
text is ambiguous if it is susceptible to two or more reasonable interpretations.
See Commonwealth v. McClelland, 233 A.3d 717, 734 (Pa. 2020). Once a
court concludes that the statutory language is ambiguous, it turns to the
canons of statutory construction to determine the intended meaning of the
relevant language. See 1 Pa.C.S. § 1921(c); 1 Pa.C.S. § 1922.
Section 9771 addresses the termination, modification, and revocation of
probation and it provides as follows:
(a) General rule. – The court may at any time terminate
continued supervision or lessen or increase the conditions
upon which an order of probation has been imposed.
(b) Revocation. – The court may revoke an order of probation
upon proof of the violation of specified conditions of the
probation. Upon revocation the sentencing alternatives
available to the court shall be the same as were available at
the time of initial sentencing, due consideration being given
to the time spent serving the order of probation.
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(c) Limitation on sentence of total confinement. – The court
shall not impose a sentence of total confinement upon
revocation unless it finds that:
(1) the defendant has been convicted of another crime;
or
(2) the conduct of the defendant indicates that it is likely
that he will commit another crime if he is not
imprisoned; or
(3) such a sentence is essential to vindicate the authority
of the court.
(d) Hearing required. – There shall be no revocation or increase
of conditions of sentence under this section except after a
hearing at which the court shall consider the record of the
sentencing proceeding together with evidence of the
conduct of the defendant while on probation. Probation may
be eliminated or the term decreased without a hearing.
42 Pa.C.S. § 9771 (emphasis added).1
Adopting its analysis in Commonwealth v. Simmons, ___ A.3d ___
(Pa.Super. 2021) (en banc), and extending its holding to cover technical
probation violations, the Majority concludes that the plain meaning of § 9771
permits revocation of probation only after a defendant has actually begun
serving the probationary portion of his sentence. The Simmons Court
focused upon § 9771(b), which states that “[t]he court may revoke an order
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1 The General Assembly amended the language of subsections (a) and (b) in
December of 2019, which now allow the court to alter the terms of an order
of probation “at any time” if it finds “that a person presents an identifiable
threat to public safety.” 42 Pa.C.S. § 9771(a). The legislature also added
language to § 9771(b) to allow the Commonwealth “to file notice at any time
prior to resentencing of the Commonwealth’s intention to proceed under an
applicable provision of law requiring a mandatory minimum sentence.” 42
Pa.C.S. § 9771(b). These changes were made after the imposition of
Appellant’s sentence in this case and are not pertinent to this appeal.
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of probation upon proof of the violation of specified conditions of probation.”
The Simmons Court read § 9771(b) in tandem with 42 Pa.C.S. § 9721(a),
which authorizes a trial court to impose probation “consecutively or
concurrently.” Since probation can only be imposed “consecutively or
concurrently” pursuant to 42 Pa.C.S. § 9721(a), the Simmons Court
concluded that the “specified conditions” of a probation order set to run
consecutively to a separate term of incarceration cannot take effect until the
defendant begins serving the probationary portion of his sentence. The
Simmons Court found that “[t]his view [was] mandated by the plain language
of the statutes. Indeed, any other view is statutorily untenable.” Simmons,
slip op. at 19. Again, I must respectfully disagree with this statutory
interpretation.
From the outset, I emphasize that Simmons’s analysis overlooks an
unbroken line of Pennsylvania precedent interpreting the phrase “order of
probation” under § 9771 much differently in the revocation context. This
Court has consistently held that the order of probation itself may be revoked
at any time after sentencing and before the maximum period of probation has
elapsed. See Commonwealth v. Hoover, 909 A.2d 321, 323-24 (Pa.Super.
2006) (anticipatorily revoking probation after the appellant violated the
conditions of his work release); see also Commonwealth v. Miller, 516 A.2d
1263, 1265 (Pa.Super. 1986) (“To suggest . . . that a defendant is free to
commit unlimited additional crimes without in any way impairing or
endangering a previously imposed sentence of probation merely because the
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probationary period is not commenced is to suggest an absurdity in the statute
which this Court is not prepared to create.”). Accordingly, our case law treats
the probationary and incarcerations aspects of a split sentence as intertwined
parts of the same sentencing scheme. See Commonwealth v. Infante, 63
A.3d 358, 365 (Pa.Super. 2013) (“[U]pon revocation, the sentencing
alternatives available to the court shall be the same as the alternatives
available at the time of initial sentencing . . . the trial court is limited only by
the maximum sentence that it could have imposed originally”; see also
Commonwealth v. Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986) (“When
a defendant challenges one of several interdependent sentences, he, in effect,
challenges the entire sentencing plan.”).
The interpretation overturned by Simmons, and extended to technical
violations by the Majority here, is also supported by the language of § 9771(b)
when viewed in tandem with 42 Pa.C.S. § 9754(b),2 which states that the
sentencing alternatives available to the revocation court are the same that
were available to the initial sentencing court. See 42 Pa.C.S. § 9771(b). By
imposing the conditions of a defendant’s probation at the original sentencing,
a defendant is put on notice as to what the specific conditions of his probation
are and that, if he fails to comply with those conditions from that day forward,
he faces possible parole and probation revocation. See also Commonwealth
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2 “The court shall attach such of the reasonable conditions authorized by
subsection (c) of this section as it deems necessary to insure or assist the
defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(b).
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v. Shires, 240 A.3d 974, 977-80 (Pa.Super. 2020) (examining the interplay
between the crimes code and prisons and parole code, before holding that the
only pertinent conditions of a defendant’s probation for revocation purposes
were the conditions imposed as part of his original sentence).
For example, Appellant was put on notice at his original sentencing
hearing that he was required to submit to random drug screens and comply
with mental health treatment. It is undisputed that, while on parole, Appellant
violated the specific conditions of his parole and probation, when he
repeatedly tested positive for drugs and failed to attend his court-ordered
mental health treatment. See 42 Pa.C.S. 9771(b) (requiring proof of the
violation of specified conditions of probation before probation can be revoked).
Thus, § 9771(b) empowered the court with the authority to revoke Appellant’s
probation, reverting to the same sentencing alternatives that were available
at the time of the initial sentencing. Id. A sentence of total confinement
could be imposed as long as the revocation court found that Appellant had
committed another crime, that his conduct indicated he was likely to commit
another crime if not imprisoned, or if incarceration was necessary to vindicate
the authority of the court. See 42 Pa.C.S. 9771(c).
Thus, I disagree with the Majority’s overly-strict interpretation of
§ 9771(b) to the effect that the term “order of probation” can only be revoked
after the probation portion of a split sentence commences. Majority
Memorandum at 2. Given the existence of this parallel line of cases espousing
an equally reasonable statutory interpretation, I would find that § 9771 is
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ambiguous, at best, on this point. Therefore, I would turn to the tools of
statutory construction, which overwhelmingly support the affirmation of
established case law interpreting § 9771. See 1 Pa.C.S. § 1921(c).
First, an examination of the consequences of the Simmons’s and
Majority’s approach highlights its practical unworkability and inconsistency
with important public policy interests. See 1 Pa.C.S. § 1922(c)(1) (presuming
that the legislature did not intend an absurd or unreasonable result, we are
permitted to examine the practical consequences of a particular
interpretation); see also 1 Pa.C.S. § 1922(c)(5) (“[T]he General Assembly
[presumptively] intends to favor the public interest as against any private
interest.”). The Wendowski court aptly addressed the implicated public
policy concerns, explaining:
If, at any time before the defendant has completed the
maximum period of probation, or before he has begun service
of his probation, he should commit offenses of such nature as
to demonstrate to the court that he is unworthy of probation and
that the granting of the same would not be in subservience to the
ends of justice and the best interests of the public, or the
defendant, the court could revoke or change the order of
probation. A defendant on probation has no contract with the
court. He is still a person convicted of [a] crime, and the
expressed intent of the court to have him under probation
beginning at a future time does not ‘change his position from the
possession of a privilege to the enjoyment of a right.’
Wendowski, supra at 630 (emphasis in original) (quoting James v. United
States, 140 F.2d 392, 394 (5th Cir. 1944) (Waller, J., concurring)).
Indeed, probation is a “privilege” not a “right.” Id. Interpreting the
statute as Simmons suggests would be turn this notion on its head, changing
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probation from a “privilege” to a “right” that must be honored no matter how
many crimes a defendant commits between imposition of sentence and the
commencement of the probationary term. For example, a parolee who
commits a crime on the last day before his term of incarceration concluded
could never face any probationary consequences for that crime, since it was
committed outside of the probationary portion of his sentence. In other
words, once the amount of back time left on his sentence got short enough,
the defendant would have license to break the law while resting assured of an
irrevocable entitlement to probation. Although the defendant had
unequivocally demonstrated the continuing inability to abide by the law, the
probation revocation court would have to give him the opportunity to commit
yet another crime during the probationary portion of his split sentence before
the court could act. This result topples the long-standing recognition of
probation as a “privilege” and discourages courts’ utilization of it as an
important deterrent and rehabilitative tool, which, when used in combination
with parole revocation, protects the public.3
Further, by restricting a court’s ability to adjust probation conditions for
defendants who fail to comply with the specific conditions of probation before
additional crimes are committed, we hinder the court’s ability to reassess and
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3 Indeed, what court will now opt to impose a split sentence that cannot be
altered no matter how terribly the defendant behaves during the confinement
portion of his sentence rather than just sentencing the defendant to a lengthier
maximum term of imprisonment to ensure that the privilege of less-intense
supervision is not abused?
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individually tailor its rehabilitation efforts to better suit specific defendants,
like Appellant, whose criminality is closely tied to drug dependency and
underlying mental health diagnoses.4 Thus, anticipatory revocation serves as
an important deterrent tool, in addition to parole revocation, that protects the
public and helps the courts tailor their rehabilitation efforts more effectively
on a case-by-case basis.
Second, the doctrines of stare decisis and legislative acquiescence
support upholding Wendowski and its progeny. For over forty years, we
have explicitly authorized revocation courts to anticipatorily revoke probation
based on our interpretation of § 9771. See, e.g. Commonwealth v.
Allhouse, 33 A.3d 39 (Pa.Super. 2011); Hoover, supra at 323-24;
Commonwealth v. Ware, 737 A.2d 251, 253-54 (Pa.Super. 1999); Miller,
supra at 1265-66; Commonwealth v. Dickens, 475 A.2d 141, 152-53
(Pa.Super. 1984); Wendowski, supra at 630. Thus, it has been clearly
established that “a court may revoke a probationary sentence at any time
prior to its completion if the defendant demonstrates to the court that he is
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4 Upon revocation of parole, the only sentencing option available is
recommitment to serve the balance of the prison term initially imposed. See
Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa.Super. 2008).
However, upon revocation of probation, the sentencing court has all of the
alternatives that previously existed at its disposal. See 42 Pa.C.S. § 9771(b);
see also Commonwealth v. Coolbaugh, 770 A.2d 788, 792 (Pa.Super.
2001). Accordingly, upon revocation of probation, the court can adjust the
court-ordered specific conditions of probation, as long as they “are germane
to, elaborate on, or interpret any conditions of probation” that were set by the
original sentencing court. Commonwealth v. Shires, 240 A.3d 974, 978
(Pa.Super. 2020) (citing Commonwealth v. Elliott, 50 A.3d 1284, 1288 (Pa.
2012)).
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unworthy of probation.” Wendowski at 630. This precedent provided the
legal landscape upon which trial courts chose probationary tails from among
the sentencing options available to them. I think it is beyond cavil that
knowledge that probation could be revoked at any time upon a defendant’s
commission of a new crime or violation of a specific condition of his probation
informed some of these courts’ decisions. Sentencing schemes may well have
been structured quite differently had the courts been aware of the constraint
that the Majority now imposes.
Furthermore, since Wendowski, the legislature has amended § 9771
twice. See Commonwealth’s brief at 16. However, neither amendment has
addressed the operative language at issue here. Therefore, the legislature
appears to have acquiesced in the long line of precedent borne of the
Wendowski holding that the conditions of probation begins at the time it is
imposed. Id.; see also, e.g. Commonwealth v. Bradley, 834 A.2d 1127,
1133 (Pa. 2003) (considering the “three strikes” provision of the sentencing
code and finding the fact that “several versions of the [sentencing] Guidelines
adopted the same definition of ‘transaction’” as “at least some evidence of
legislative acquiescence in the definition.”).
While the Majority does not mention the Commonwealth’s stare decisis
and legislative arguments, the Simmons Court upon which the Majority relies,
acknowledged that the Superior Court has reaffirmed Wendowski many
times and conceded that the doctrine of stare decisis can still apply in
situations, such as here, where the Pennsylvania Supreme Court has never
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ruled on the issue. Simmons , slip op. at 24-25. Nevertheless, the Simmons
Court gave short shrift to the Commonwealth’s position, quickly dismissing
and departing from established precedent because it found that precedent
relied on an erroneous interpretation of § 9771 which ran “contrary to the
plain language of the statutes” for decades. Id. at 27.
While I do not deem our Court’s repeatedly consistent interpretation of
§ 9771 and the legislature’s acquiescence to that interpretation as dispositive
of the question of statutory interpretation, neither would I deem it insignificant
as the Majority suggests by sidestepping the issue in its entirety. Legal
precedent exists to ensure “the evenhanded, predictable, and consistent
development of legal principles.” Payne v. Tennessee, 501 U.S. 808, 827
(1991). Section 9771 is not obscure or rarely applied, and the General
Assembly has had forty years to undo the holding in Wendowski if it thought
the holding incorrect or that defendants who commit new crimes or violate
specific terms of probation while serving parole deserved more lenient
treatment. See, e.g. Mosley v. Workers’ Compensation Appeal Board
(City of Pittsburgh), 937 A.2d 607, 609-10 (Pa.Cmwlth. 2007) (“Fourteen
years of a single judicial interpretation, accepted without question by the
General Assembly, fatally undermines Claimant’s contention. . . .”); see also,
e.g., Commonwealth ex rel. Fox v. Fox, 212 A.2d 912, 914 (Pa.Super.
1965) (holding that the legislature was assumed to have agreed with judicial
construction of a statute governing jurisdiction for child custody and
maintenance proceedings where the legislature had not altered the statute for
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thirty-four years following the decision). In circumstances, such as here,
where the legislature has declined the opportunity to elucidate an ambiguous
text, adherence to our precedent promotes notions of fairness and stability.
Accordingly, I would not unsettle forty years of established jurisprudence.
Instead, I would leave any amendment of § 9771 to the General Assembly.
Therefore, I respectfully dissent from the Majority’s decision to vacate
Appellant’s sentence and remand with instructions to reinstate the original
order of probation.
Judge Murray joins this dissenting memorandum.
This decision was reached prior to the retirement of Judge Shogan.
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