Com. v. Williamson, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TERRY ROBERT WILLIAMSON :
:
Appellant : No. 788 MDA 2020
Appeal from the Judgment of Sentence Entered May 1, 2020
In the Court of Common Pleas of Lackawanna County
Criminal Division at CP-35-CR-0000781-2012
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 17, 2021
Terry Robert Williamson (Appellant) appeals from the judgment of
sentence imposed after the trial court revoked his probation. In addition,
Appellant’s counsel (Counsel) has petitioned to withdraw from representation
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Given this
Court’s recent decision in Commonwealth v. Simmons, --- A.3d ----, 2021
WL 3641859 (Pa. Super. Aug. 18, 2021) (en banc), we vacate Appellant’s
judgment of sentence, deny Counsel’s petition to withdraw, and remand for
reinstatement of the prior probation order.1
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1 This Court recently decided a similar appeal, finding Simmons “directly on
point,” denying counsel’s request to withdraw, and remanding for the
reinstatement of probation. See Commonwealth v. Herrera, 787 MDA
2020, 2021 WL 4060441 (Pa. Super. Sept. 7, 2021) (unpublished
memorandum).
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In 2012, Appellant was charged with attempted theft, criminal mischief,
drug paraphernalia, and possession of marijuana.2 Appellant pled guilty and
was sentenced to Drug Court. However, on November 25, 2014, Appellant
was terminated from Drug Court and resentenced to 4 years of probation.
Appellant’s probation was subsequently revoked, and on June 14, 2017, he
was resentenced to 8 to 24 months of incarceration, followed by 2 years of
probation. While incarcerated, Appellant was involved in a fight with other
inmates. As a result, the trial court preemptively revoked his 2-year
probationary sentence and imposed a sentence of 1 to 2 years of
incarceration. Appellant timely appealed.3
On June 23, 2021, Counsel filed with this Court a petition to withdraw
from representation in which Counsel avers that Appellant’s appeal is
frivolous. On August 6, 2021, Appellant filed a pro se response restating the
issues raised in the Anders brief. Our review reveals Counsel has complied
with the technical requirements of Anders and Santiago. See Petition to
Withdraw as Counsel, 6/23/21; Anders Brief at 5-19. We thus proceed to
determine whether Appellant’s claims are frivolous.
Counsel presents the following issues on Appellant’s behalf:
A. WHETHER THE TRIAL COURT ERRED WHEN IT REVOKED
[APPELLANT’S] SPECIAL PROBATION BEFORE IT HAD
COMMENCED.
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2 18 Pa.C.S.A. § 901(a), 18 Pa.C.S.A. § 3304(a)(2), 35 P.S. § 780-113(a)(32),
and 35 P.S. § 780-113(a)(31).
3 Both the trial court and Appellant have complied with Pa.R.A.P. 1925.
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B. WHETHER THE TRIAL COURT FAILED TO STATE ON THE
RECORD THE REASONS FOR THE SENTENCE IMPOSED ON
[APPELLANT’S] SPECIAL PROBATION VIOLATION AS
REQUIRED BY 42 PA. C.S. §9721(B).
C. WHETHER THE SENTENCE ON [APPELLANT’S] VIOLATION IS
EXCESSIVE, HARSH, ARBITRARY AND CONTRARY TO THE
FUNDAMENTAL NORMS OF SENTENCING IN THIS
COMMONWEALTH, ESPECIALLY SINCE HE ALREADY WAS
DISCIPLINED FOR THE ASSAULTIVE BEHAVIOR BY THE
DOC.
D. WHETHER THE IMPOSITION OF 12 TO 24 MONTHS
INCARCERATION FOLLOWING THE REVOCATION OF
APPELLANT’S SPECIAL PROBATION VIOLATED THE DOUBLE
JEOPARDY CLAUSE OF THE FIFTH AMENDMENT AS APPLIED
TO THE STATES THROUGH THE FOURTEENTH AMENDMENT.
Anders Brief at 4 (reordered for disposition).
Appellant’s first claim is that his sentence is illegal because the trial court
improperly “revoked [Appellant’s] special probation before it started.”
Anders Brief at 7. In particular:
The Appellant asserts that he never violated the terms of his
special probation because the violation occurred while he was still
incarcerated prior to the commencement of his term of probation.
Counsel for the Appellant understands that based upon
Commonwealth v. Ware, 737 A.2d 251 (Pa. Super. 1999) and
its progeny, this appeal is frivolous. As noted by the Ware Court:
“The fact that appellant had not commenced serving probation
when the new offense occurred did not prevent the court from
revoking its prior order placing appellant on probation.” Ware,
737 A.2d at 253.
A similar issue was before this Court in Commonwealth v.
Wendowski, [] 420 A.2d 628 ([Pa. Super.] 1980). The court in
Wendowski there held that for revocation purposes the term of
probation included the time beginning when probation was
granted. The Court stated:
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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 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.’ Burns v.
United States, 287 U.S. 216, 222 [] (1932).
[] Wendowski, 420 A.2d at 630 (additional citations omitted).
Anders Brief at 13-14.
Counsel “correctly represents that this anticipatory revocation of
Appellant’s order of probation was permissible at the time the trial court issued
it revocation order under longstanding precedent established by this Court.”
See Herrera, supra, at *3. However, during the pendency of this appeal
and after Counsel filed the Anders brief, this Court decided Simmons. We
have held that a “party whose case is pending on direct appeal is entitled to
the benefit of changes in law which occur before the judgment becomes final.”
Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (citations
omitted). Accordingly, Simmons informs our disposition. We explained:
Wendowski held that a court may anticipatorily revoke an order
of probation when the defendant commits a new crime after
sentencing, but before the period of probation has begun. As
explained above, this holding finds no support in our statutes and
is contrary to the plain language of Sections 9721, 9754, and 9771
of the Sentencing Code. Thus, to paraphrase our Supreme Court
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in Dickson: “[t]hat we have declined, until now, to address
[Wendowski and its progeny] on this issue, while perhaps
regrettable, cannot be used as a brickbat to prevent us from
bringing the decisional law of this Commonwealth into line with
the plain language of” the statutes. Dickson, 918 A.2d at
108. Here, since Wendowski and its progeny are contrary to the
plain language of the statutes, we follow Dickson and decline to
apply the discretionary presumption of legislative acquiescence.
Moreover, since Wendowski and its progeny are contrary to the
plain language of the relevant statutes, we
overrule Wendowski and its progeny.
Simmons, 2021 WL 3641859 at *10-12; see also Herrera, 2021 WL
4060441 at *4 (“[P]ursuant to Simmons, a trial court lacks statutory
authority to anticipatorily revoke a defendant’s probation . . . before his or
her period of probation began.”) (citation omitted).
Consistent with Simmons, Appellant’s first issue is no longer frivolous
because the trial court revoked Appellant’s probation before it began, and
although Counsel complied with the requirements of Anders, we are
constrained to deny Counsel’s petition to withdraw because Appellant’s appeal
is not frivolous. See Commonwealth v. Tukhi, 149 A.3d 881, 889 (Pa.
Super. 2016) (denying counsel’s petition to withdraw when review of the
record reveals non-frivolous issue).
Further, as Appellant is entitled to relief, we vacate the judgment of
sentence and remand for reinstatement of the June 14, 2017 order of
probation.4 See Simmons, 2021 WL 3641859 at *12; Herrera, 2021 WL
4060441 at *4-5.
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4 Given our disposition, we need not examine Appellant’s remaining issues.
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Petition to withdraw denied. Judgment of sentence vacated. Case
remanded with instructions. Jurisdiction relinquished.
Judge Musmanno joins the memorandum.
Judge Stabile notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2021
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