Com. v. Davis, D. ( 2021 )

J-S56030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRYL DAVIS :
:
Appellant : No. 1102 EDA 2020
Appeal from the Judgment of Sentence Entered March 12, 2020,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0002676-2016.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRYL DAVIS :
:
Appellant : No. 1103 EDA 2020
Appeal from the Judgment of Sentence Entered March 12, 2020,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0002671-2016.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRYL DAVIS :
:
Appellant : No. 1159 EDA 2020
J-S56030-20
Appeal from the Judgment of Sentence Entered March 12, 2020,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0002677-2016.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 8, 2021
Darryl Davis appeals the judgment of sentence of incarceration imposed
following revocation of his probation. Based on this Court’s recent decision in
Commonwealth v. Simmons, 2461 EDA 2018, ___ A.3d ___, 2021 WL
3641859 (Pa. Super. August 18, 2021) (en banc), we vacate the judgment
of sentence and remand for further proceedings.
On June 9, 2017, Davis entered into negotiated guilty pleas on three
burglary charges.1 For each conviction, the court imposed concurrent
sentences of 11.5 to 23 months of incarceration, followed by four years of
probation.
On April 27, 2018, Davis was paroled. Davis last reported to the
probation department on May 21, 2018. Consequently, he was placed on
absconder status on June 15, 2018, and a bench warrant was issued.
Several months later, on December 1, 2018, Davis was arrested and
charged with aggravated assault and related offenses. Briefly, these new
charges arose from an incident where a woman (the Complainant) came out
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* Retired Senior Judge assigned to the Superior Court.
1 Additionally, Davis pled guilty to three counts of theft.
The court also found
that Davis violated probation on a prior simple assault case. These matters
are not at issue on appeal.
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of a WaWa with milk on her. The Complainant and Davis were arguing back
and forth, and she threw a cup of hot liquid in Davis’ face. Davis punched her
in the face, knocking her unconscious and causing her to bleed.
A detainer was issued until a violation of probation (VOP) hearing could
be held on Davis’ burglary cases. At the Commonwealth’s request, the court
deferred Davis’ VOP hearing on the burglary cases until after disposition on
his new assault charges.
On December 17, 2018, a preliminary hearing was held on Davis’ new
assault charges. The court held that the Commonwealth did not present
sufficient evidence to establish a prima facie case.
The Commonwealth moved to refile the charges in the court of common
pleas, and a hearing was held on May 16, 2019. The court reviewed the
transcript from the original preliminary hearing and commented that there
was no aggravated assault considering that the Complainant threw hot liquid
on Davis, and he responded with just a single punch. Although the
Commonwealth intended to present testimony from the Complainant, after
considering her need for Fifth Amendment counsel, the Commonwealth
withdrew its motion to refile the charges against Davis. The court granted
that motion.2 N.T., 5/16/[19], at 19.
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2 The “Trial Disposition and Dismissal Form” stated that the charges were
“Dismissed – LOE” but indicates in the comments that the “Commonwealth
motion to withdrawn (sic) the refile is GRANTED. All charges are dismissed
lack of evidence.” The release of prisoner order provided that the reason for
Davis’ release was “the “Commonwealth motion to withdraw the refile is
GRANTED. All charges are dismissed lack of evidence.”
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On June 6, 2019, the court conducted Davis’ VOP hearing. After taking
testimony regarding the December 1, 2018 incident, the court found that
Davis violated probation based upon both his new assault charges and
absconding, and revoked his sentence of probation. The court deferred
sentencing.
Ultimately, the court imposed a new sentence of 6 to 12 years of
incarceration, followed by three years of probation, on the three burglary
cases.3 Davis filed a post-sentence motion, which the court denied.
Davis filed this timely appeal. Both Davis and the trial court complied
with Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Davis raises the following three issues:
1. After deferring the violation hearing until after the outcome of
the open case, did not the court err by disregarding the outcome
of the open case, a finding of insufficient evidence of any criminal
activity?
2. Was there not insufficient evidence at the violation hearing to
sustain the Commonwealth's burden to show that [Davis]
committed a new crime?
3. Because [Davis] had not yet begun to serve his consecutively
imposed term of probation, did not the lower court lack authority
under Pennsylvania law to revoke that probation?
See Davis’ Brief at 2. We address Davis’ third issue first as it is dispositive.
Davis claims that the trial court erred in finding that he violated his probation,
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3 Additionally, he received three years of probation on two of his theft cases
to run concurrent to each other and probation for the burglaries. The
sentences for those charges are not at issue in this case.
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revoking his sentence of probation, and resentencing him to a new term of
incarceration. For the reasons set forth below, we agree.
Notably, this Court recently decided Simmons, supra. In that case,
Simmons pled guilty to a firearms violation. The trial court sentenced him to
6 to 23 months in jail, followed by 3 years of probation.
Sometime after, Simmons was paroled. While on parole and before his
sentence of probation began, Simmons was arrested for another firearms
offense, to which he pled guilty. As a result, the court found that Simmons
violated his parole for the first firearms offense and revoked it, anticipatorily
revoked his probationary sentence, and resentenced him to 2 ½ to 5 years
of incarceration.
On appeal, this Court held that where a trial court sentences a defendant
to probation consecutive to a sentence of incarceration, the defendant cannot
prospectively violate the conditions of a probationary order before the
defendant starts serving his sentence of probation. Id. at 10. A defendant’s
sentence of probation, if imposed consecutive to a sentence of incarceration,
does not begin to run until the prior sentence ends. In order to consider
whether a defendant violated probation and potentially revoke it, the violation
must occur while the defendant is serving his sentence of probation. No
statutory authority exists permitting a trial court to anticipatorily revoke, i.e.
before the sentence of probation has started, an order of probation. Id.
Consequently, we expressly overruled Commonwealth v. Wendowski, 420
A.2d 628 (Pa. Super. 1980). Id. at 12.
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Additionally, we concluded that the trial court illegally sentenced
Simmons for his parole violation by imposing a new sentence of incarceration
rather than recommitting him to serve the balance of the previously imposed
sentence of incarceration. Id. (citing Commonwealth v. Mitchell, 632 A.2d
934, 936 (Pa. Super. 1993)). Accordingly, we vacated Simmons’ judgment of
sentence and remanded with instructions that the trial court reinstate the
original order of probation and resentence Simmons for his parole violation.
Id. at 12-13.
Furthermore, the concurrence in Simmons elaborated on the
differences between parole and probation and the separate statutory authority
for each. Thus, when conducting a violation hearing, the court “must question
whether the violation hearing is for an alleged violation of parole or violation
of probation, as the court’s possible sanctions are different.” Id. at 18.
With these principles in mind, we consider Davis’ appeal.
Initially, and importantly, we observe that, when Davis absconded and
assaulted the Complainant, he was on parole and not probation. Davis’
sentence of incarceration did not max out until March 11, 2019.
Consequently, he had not started to serve his sentence of probation. Simply
stated, because Davis’ violations occurred between May and December 2018,
those violations did not constitute probation violations.
Nonetheless, the Commonwealth and the trial court treated Davis’s
violations as violations of his probation. The court issued a notice of probation
violation and conducted a probation violation hearing. N.T., 6/6/19, at 5, 24.
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At the conclusion of that hearing, the court found that Davis was in technical
violation of his probation based upon the assault and his absconding. The
court further found that that Davis was not amenable to supervision and was
a danger to society, and consequently, revoked his sentence of probation and
resentenced him to a new, much lengthier term of incarceration. N.T.,
8/13/19, at 14.
Based upon Simmons, we agree with Davis that his third issue has
merit. Since Davis had not started serving his probation sentence, the trial
court could not revoke Davis’ sentence of probation or impose a new sentence
of incarceration. We, therefore, must vacate Davis’ judgment of sentence for
violation of probation (6 to 12 years’ incarceration plus probation); the court
must reinstate his original order of sentence. 4
Judgment of sentence vacated. Case remanded with instructions to
reinstate the original sentence. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2021
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4 Furthermore, we note that, if the Commonwealth elects to proceed with a
parole violation, and the court finds that Davis violated parole and revokes it,
the only sentencing option would be to recommit Davis for the balance of his
original sentence of incarceration. Simmons, supra.
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