Com. v. Miller, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT MILLER :
:
Appellant : No. 300 EDA 2020
Appeal from the Judgment of Sentence Entered December 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009849-2016
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: Filed: September 9, 2021
Appellant, Robert Miller, appeals from the judgment of sentence of one
to two years’ incarceration, imposed after the trial court anticipatorily revoked
his term of probation based on Appellant’s violating the conditions of his
parole. Appellant contends that the court lacked statutory authority to revoke
his term of probation that he was not yet serving, thus rendering his sentence
illegal. Based on this Court’s recent en banc decisions in Commonwealth v.
Simmons, No. 2461 EDA 2018 (Pa. Super. filed Aug. 18, 2021) (en banc),
and Commonwealth v. Reavis, 1360 EDA 2018, unpublished memorandum
(Pa. Super. filed Aug. 18, 2021) (en banc), we agree with Appellant. Thus,
we vacate Appellant’s judgment of sentence and remand with instructions.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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On February 28, 2017, Appellant pled guilty to aggravated assault. In
accordance with the plea agreement, the trial court sentenced him to 6 to 23
months’ incarceration, followed by 4 years’ probation. Appellant was released
on parole on June 5, 2017. However, over the ensuing two years, he violated
the terms and conditions thereof multiple times by using drugs and failing to
report to his parole officer. At two violation of parole hearings, the court found
Appellant in violation, but permitted him to remain on parole. Nevertheless,
Appellant continued to disregard the terms and conditions of his parole.
Ultimately, on December 11, 2019, the court revoked Appellant’s parole and
anticipatorily revoked his probation. For Appellant’s revocation of probation,
the court resentenced him to 1 to 2 years’ incarceration.
Appellant timely appealed, and he complied with the trial court’s order
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. The court filed its Rule 1925(a) opinion on December 3, 2020. Herein,
Appellant states one issue for our review: “Did not the [trial] court lack
authority under Pennsylvania law to revoke a consecutive sentence of
probation that Appellant had not yet begun to serve?” Appellant’s Brief at 3.
As both parties acknowledge, at the time they filed their briefs in this
case, the same issue Appellant raises herein was being considered by an en
banc panel of this Court in Simmons and Reavis. On August 18, 2021, our
Court decided Simmons, declaring
that Commonwealth v. Wendowski, 420 A.2d 628 (Pa. Super.
1980)[,] and its progeny wrongly held that a court may
anticipatorily revoke an order of probation when the defendant
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commits a new crime after sentencing, but before the period of
probation has commenced. As we explained in Simmons,
Wendowski’s holding finds no support in our statutes and is
contrary to the plain language of Sections 9721, 9754, and 9771
of the Sentencing Code.[1] Therefore, we overruled Wendowski
and its progeny.
Reavis, No. 1360 EDA 2018, unpublished memorandum at 2-3.
In Reavis, “[t]he issue … concern[ed] the anticipatory revocation of
probation for an alleged ‘technical probation violation.’” Id. Accordingly, the
Reavis panel followed Simmons and “conclude[d] that the trial court lacked
statutory authority to anticipatorily revoke [Reavis’s] probation for an alleged
‘technical probation violation’ that occurred before [Reavis’s] period of
probation began.” Id. The panel vacated Reavis’s judgment of sentence and
remanded “with instructions to reinstate the original order of probation.” Id.(quoting Commonwealth v. Griggs, 461 A.2d 221, 225 (Pa. Super. 1983)).
As in Simmons and Reavis, we conclude that the court in this case
imposed an illegal sentence when it anticipatorily revoked Appellant’s
probationary sentence based on an alleged technical probation violation that
occurred before his probation sentence began. Accordingly, we vacate his
judgment of sentence and remand for the court to reinstate the original order
of probation.
Judgment of sentence vacated. Case remanded with instructions to
reinstate the original order of probation. Jurisdiction relinquished.
____________________________________________
1 See 42 Pa.C.S. §§ 9721, 9754, and 9771.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/21
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