Com. v. Fisher, N. ( 2021 )

J-A07013-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NICHOLAS L. FISHER :
:
Appellant : No. 1183 MDA 2020
Appeal from the Judgment of Sentence Entered September 5, 2019
In the Court of Common Pleas of Lycoming County Criminal Division at No(s):
CP-41-CR-0001598-2006
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 10, 2021
Nicholas J. Fisher appeals from his August 27, 2019 judgment of
sentence of one and one-half to three years of incarceration that was
imposed after he was resentenced following revocation of probation. We
vacate Appellant’s judgment of sentence and remand.
In the above-captioned case, Appellant was charged with two counts
of aggravated assault, two counts of simple assault, and one count of
endangering the welfare of children (“EWOC”) “arising out of incidents in
which a three-month old child sustained broken bones and brain injuries.”
Trial Court Opinion, 10/27/20, at 1. He entered an open plea to one count
of aggravated assault and one count of EWOC in exchange for the remaining
charges being dropped. In an order dated August 9, 2007, the court
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* Former Justice specially assigned to the Superior Court.
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sentenced Appellant to five to ten years of imprisonment for aggravated
assault followed by a consecutive seven-year term of probation for EWOC.
Appellant was paroled in 2011. The sentencing court has prepared an
apt summary of the events that followed:
[During his initial period of parole through August 2015,
Appellant] violated the conditions of his parole at least 10
separate times. During that period of time, he absconded for
approximately six months. He left Pennsylvania and went to
Florida. While he was incarcerated on that absconding violation,
he obtained a residence in Florida with his mother and the case
was transferred through the interstate compact.
Once [Appellant] arrived in Florida in February of 2016, he
worked, although, approximately four months later he tested
positive for amphetamines . . . . It was intended that he be
evaluated and attend and complete . . . recommended
treatment. However, [Appellant] absconded from supervision
shortly thereafter within a matter of weeks. He left Florida with
his mother alleging that [she] was in a very unhealthy . . . and
perhaps even a dangerous relationship. They resided in
Tennessee for approximately a year and [one-]half and then
returned to Pennsylvania for approximately another year and
[one-]half until [Appellant] was apprehended on April 24,
2019.[1]
Id. at 1-2. Appellant’s parole was revoked and he was recommitted to serve
the balance of his remaining sentence of incarceration. Although Appellant’s
probationary sentence had not yet begun, the Lycoming County Adult
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1 Appellant absconded on or about July 12, 2016, when a Florida parole
officer discovered that he was no longer living at his approved residence. He
was apprehended in Williamstown, Pennsylvania.
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Probation/Parole Office recommended that the court revoke Appellant’s
probation and resentence him in connection with the EWOC charge.
On August 27, 2019, a hearing was held to consider revoking
Appellant’s probation. Appellant did “not materially deny the allegations”
detailed above. N.T. Resentencing, 8/27/19, at 4. In an order filed
September 5, 2019, the sentencing court anticipatorily revoked his probation
and resentenced Appellant to one and one-half to three years of
incarceration on the EWOC count, which was set to run consecutive to his
remaining sentence, on the aggravated assault charge. Appellant filed a
motion for reconsideration arguing, inter alia, that his sentence was
excessive and contrary to the norms of the Pennsylvania Sentencing Code.
The sentencing court denied Appellant’s motion.
On October 2, 2019, Appellant filed an untimely appeal from his
resentencing, which was quashed.2 Thereafter, he filed a timely pro se
petition pursuant to the Post-Conviction Relief Act (“PCRA”) seeking the
restoration of his appellate rights due to the per se ineffectiveness of his
original attorney. Ultimately, the court reinstated Appellant’s direct
appellate rights following his resentencing and he was permitted to file a
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2 See Pa.R.Crim.P. 708(E) (“The filing of a motion to modify sentence will
not toll the 30-day appeal period.”).
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notice of appeal nunc pro tunc to this Court.3 Both he and the trial court
have complied with their obligations pursuant to Pa.R.A.P. 1925.
Appellant has raised one issue: “Whether the sentencing court
imposed a manifestly excessive and unduly harsh sentence on [Appellant]
for a probation violation because he had already been violated by the State
Board and he had not committed any new crimes.” Appellant’s brief at 6.
Preliminarily, we must consider the applicability of Commonwealth v.
Simmons, ___ A.3d ___, 2021 PA Super 166, 2021 WL 3641859 (Pa.Super.
2021) (en banc). Therein, this Court held that Pennsylvania sentencing
courts lack the statutory authority to revoke a probationary sentence when a
defendant commits a new crime before their probation has commenced. Id.
at *12. Appellant does not assert that the sentencing court lacked the
statutory authority to revoke his probation. However, our holding in
Simmons implicates the legality of his sentence. Consequently, it is non-
waivable and we may raise it sua sponte. Id. at *1 n.3.
As detailed above, Appellant’s probation was revoked for technical
violations committed while he was serving parole, e.g., absconding from
supervision, use of narcotics, and failure to maintain employment. When the
sentencing court revoked his probation, he was still serving a sentence of
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3 Appellant’s appeal nunc pro tunc was filed on September 17, 2020, but
the court’s order reinstating his direct appellate rights was not entered until
September 18, 2020. Pursuant to Pa.R.A.P. 905(a)(5), we will treat
Appellant’s notice of appeal as having been filed on September 18, 2020.
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incarceration and had not yet begun to serve his term of probation. At the
time that the court revoked his probation, long-standing precedent provided
that “a term of probation may and should be construed for revocation
purposes as including the term beginning at the time probation is granted.”
Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980); see
also Simmons, supra at *7 (collecting cases).
This holding empowered sentencing courts to “anticipatorily” revoke
the probation of defendants who committed new crimes, or violated the
special conditions of their probation, even before they had begun to serve it.
In Simmons, we disavowed Wendowski and its progeny, as follows:
Simply stated, Wendowski was incorrect in holding that a trial
court may anticipatorily revoke an order of probation and in
reasoning that “a term of probation may and should be construed
for revocation purposes as including the term beginning at the
time probation is granted.” Wendowski, 420 A.2d at 630(quotations omitted). No statutory authority exists to support
this understanding. Rather, the plain language of the relevant
statutes provides that: a trial court may only revoke an order of
probation “upon proof of the violation of specified conditions of
the probation;” the “specified conditions” of an order of probation
are attached to, or are a part of, the order of probation; and,
when the trial court imposes an “order of probation”
consecutively to another term, the entirety of the “order of
probation” – including the “specified conditions” – do not begin to
commence until the prior term ends.
Simmons, supra at *10 (discussing 42 Pa.C.S. §§ 9721(a), 9754(c),
9771(b)). On the same day Simmons was published, this Court also issued
Commonwealth v. Reavis, 2021 WL 3668883 (Pa.Super. 2021) (en banc)
(non-precedential decision), which extrapolated Simmons to find that a
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sentencing court “lacked statutory authority to anticipatorily revoke [a
defendant’s] probation for an alleged ‘technical probation violation’ that
occurred before [the] period of probation began.”4 Id. at *1.
These holdings were decided during the pendency of Appellant’s direct
appeal. Thus, he is entitled to the benefit of this newly announced principle
of Pennsylvania law. See, e.g., Commonwealth v. Hays, 218 A.3d 1260,
1266 (Pa. 2019) (holding that “an appellate decision [that] overrules prior
law and announces a new principle” applies retroactively to cases in which
the issue is properly raised). Since this issue implicates the legality of
Appellant’s sentence preservation in the court below was not necessary.
Applying Simmons and Reavis to the instant case, Appellant’s
consecutive term of probation had not yet begun when he committed the
aforementioned violations. Even at the time that his probation was revoked,
Appellant was still serving the remainder of his sentence of incarceration.
Accordingly, Appellant was not subject to the “specified conditions” of
probation at the time of his alleged noncompliance and the sentencing court,
therefore, was not permitted anticipatorily to revoke his probation.
Based upon the foregoing discussion, Appellant is entitled to have his
current judgment of sentence vacated and the August 9, 2007 order of
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4 Pursuant to Pa.R.A.P. 126(b), we may cite a non-precedential
memorandum of this Court filed after May 1, 2019 for its persuasive value.
Id. Such a holding, however, does not constitute binding precedent.
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probation reinstated.5 See Simmons, supra at *13 (vacating the
defendant’s judgment of sentence and remanding with instructions to
reinstate the original order of probation); Reavis, supra at *1 (same).
Judgment of sentence vacated. Case remanded with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/10/2021
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5 Given the nature of our holding, we need not address Appellant’s
argument as to the alleged excessiveness of his now-vacated sentence.
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