Com. v. Stewart, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AMANDA LUWANA STEWART :
:
Appellant : No. 55 WDA 2021
Appeal from the Judgment of Sentence Entered December 3, 2020
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000180-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMANDA LUWANA STEWART :
:
Appellant : No. 56 WDA 2021
Appeal from the Judgment of Sentence Entered December 2, 2020
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0001923-2019
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: OCTOBER 12, 2021
Appellant, Amanda Luwana Stewart, appeals from judgments of
sentence of the Court of Common Pleas of Mercer County (the trial court)
following the revocation of her parole and probation in two criminal
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* Retired Senior Judge assigned to the Superior Court.
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proceedings, CP-43-CR-0000180-2018 (CR-180-2018) and CP-43-CR-
0001923-2019 (CR-1923-2019). For the reasons set forth below, we affirm
the revocation of Appellant’s parole in CR-180-2018 and the judgment of
sentence in CR-1923-2019, but vacate the revocation of probation and the
sentence imposed on Appellant following the revocation of probation in CR-
180-2018.
In CR-180-2018, Appellant entered a guilty plea on November 13, 2018
to the offense of driving under the influence - highest rate of alcohol1 and was
sentenced on December 12, 2018 to 90 days to 1 year of incarceration,
followed by 4 years’ probation. CR-180-2018 Guilty Plea Order, 11/13/18;
CR-180-2018 N.T., 12/12/18, at 16, 20-21; CR-180-2018 Sentencing Order,
12/12/18, at 1-2. The trial court imposed as conditions of Appellant’s
probation that Appellant not possess or consume alcohol or illegal drugs, that
Appellant undergo random drug and alcohol tests, and that Appellant was
prohibited from being present on the premises of any establishment that
serves alcoholic beverages, except as a repair or delivery person or as an
owner or employee. CR-180-2018 N.T., 12/12/18, at 23-24; CR-180-2018
Sentencing Order, 12/12/18, at 3-4.
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1 75 Pa.C.S. § 3802(c).
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In CR-1923-2019, Appellant pled guilty on September 26, 2019 to
possession of drug paraphernalia2 and was sentenced to one year of probation.
Following her conviction in CR-1923-2019, the trial court, on October 24,
2019, found Appellant in violation of her probation and parole in CR-180-2018,
but found that her time in detention and denial of street time constituted a
sufficient sanction and did not revoke her parole or probation. CR-180-2018
N.T., 10/24/19, at 9-10; CR-180-2018 Trial Court Order, 10/24/19.
On June 10, 2020, after Appellant completed her incarceration sentence
in CR-180-2018 and was on probation in that case, the trial court ordered
Appellant detained for violation of her probation in both cases. CR-180-2018
Trial Court Order, 6/10/20; CR-1923-2019 Trial Court Order, 6/10/20; N.T.,
7/9/20, at 21-22. On July 9, 2020, at a joint Gagnon II3 hearing, the trial
court found Appellant had committed technical violations of her probation in
both cases. N.T., 7/9/20, at 18; CR-180-2018 Probation Revocation Order,
7/9/20; CR-1923-2019 Trial Court Order, 7/9/20. In CR-180-2018, the trial
court revoked Appellant’s probation and resentenced her to 30 days to 6
months’ incarceration, followed by 3 years’ probation and ordered that
Appellant’s probation was subject to the conditions of her original probation.
N.T., 7/9/20, at 18-23; CR-180-2018 Sentencing Order, 7/9/20. In CR-1923-
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2 35 P.S. § 780-113(a)(32).
3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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2019, the trial court found that Appellant’s incarceration on the detainer was
sufficient punishment and imposed no further sanction, leaving Appellant’s
probation in that case in place. N.T., 7/9/20, at 18; CR-1923-2019 Trial Court
Order, 7/9/20.
On September 24, 2020, Appellant was paroled from her incarceration
sentence in CR-180-2018. CR-180-2018 Trial Court Order, 9/24/20. In its
order granting parole, the trial court imposed as a condition of parole that
Appellant not consume or possess any alcohol or any controlled substance and
that she not be present in any premises that serves alcohol except as an
employee or in a serving area for food separate from the area for serving
alcohol. Id. On September 25, 2020, Appellant was arrested for violating the
conditions of her parole in CR-180-2018 and her probation in both cases by
consuming alcohol at a bar on the night of September 24, 2020. On October
15, 2020, the trial court held a Gagnon I hearing in both cases at which a
parole and probation agent testified that when she checked on Appellant on
September 25, 2020, Appellant’s breath smelled of alcohol, that a
breathalyzer test was positive, and that Appellant admitted that the previous
night she went into a bar to see a friend and drank alcohol at a friend’s house.
N.T., 10/15/20, at 7-11. The trial court found that the Commonwealth met
its initial burden of showing probable cause to establish a parole violation in
CR-180-2018 and a probation violation in both cases. Id. at 14-16.
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On November 12, 2020, the trial court held a Gagnon II hearing in both
cases. At this start of this hearing, Appellant’s counsel in CR-180-2018
indicated that Appellant was willing to admit that she consumed alcohol in
violation of the conditions of her parole and probation and the trial court, with
counsel’s permission, questioned Appellant on whether she admitted that she
had consumed alcohol on September 24 or September 25, 2020. N.T.,
11/12/20, at 4, 6-9. Appellant initially admitted that she consumed alcohol
on September 24 or September 25, 2020, but later in the questioning stated
that she did not admit consuming alcohol, and the trial court proceeded to
hear testimony on the parole and probation violations. Id. at 6-10. A parole
and probation agent testified that he went with another agent to check on
Appellant on September 25, 2020, that Appellant’s breath at that time smelled
of alcohol, that a breathalyzer test was administered and was positive, and
that Appellant admitted to him that she drank alcohol the previous night. Id.
at 12-15.
Following this testimony, the trial court found that Appellant drank
alcohol in violation of the conditions of her probation and revoked her
probation in both cases. N.T., 11/12/20, at 17-19; CR-180-2018 Trial Court
Order, 11/12/20; CR-1923-2019 Trial Court Order, 12/2/20. Based on the
evidence at the November 12, 2020 Gagnon II hearing, the trial court on
December 2, 2020 also issued an order revoking Appellant’s parole in CR-180-
2018 and recommitting her to serve the balance of her 30-day-to-6 month
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incarceration sentence in CR-180-2018. N.T., 12/2/20, at 4; CR-180-2018
Trial Court Amended Order, 12/2/20.
On December 2, 2020, the trial court held a sentencing hearing with
respect to the probation revocations. In CR-180-2018, the trial court
resentenced Appellant to 15 months to 3 years’ imprisonment, consecutive to
all other sentences. N.T., 12/2/20, at 37-38; CR-180-2018 Trial Court
Sentencing Order, 12/2/20. In CR-1923-2019, the trial court resentenced
Appellant to 2 to 4 months’ imprisonment, consecutive to all other sentences.
N.T., 12/2/20, at 38; CR-1923-2019 Trial Court Sentencing Order, 12/2/20.
Appellant filed timely appeals in both cases.
In this Court, Appellant challenges the validity of the trial court’s
revocation of her parole in CR-180-2018 and its revocation of her probation
in both cases and raises the following two issues:
1. Did the trial court err in revoking Stewart’s parole and probation
where the relevant parole- and probation-revocation petitions
alleged that she consumed alcohol and the evidence as actually
credited and discredited by the revocation court was insufficient
to support a finding that she did so, including because it required
reliance on inherently ambiguous testimony, unreasonable
inferences, and speculation, and was equally consistent with her
having done so as not?
2. Did the trial court err in revoking Stewart’s parole [sic] at CP-
43-CR-1923-2019 on the ground that she consumed alcohol
where not consuming alcohol was not a specific condition of her
probation?
Appellants’ Brief at 5. We conclude that the first of these issues is without
merit and that the second issue is waived. However, because it is clear from
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the record that the revocation of probation in CR-180-2018 was without
statutory authority and that the sentence imposed for that revocation of
probation was an illegal sentence under Commonwealth v. Simmons, __
A.3d __, 2021 PA Super 166 (filed August 18, 2021) (en banc), we vacate
Appellant’s judgment of sentence in CR-180-2018.
Both of the issues raised by Appellant are claims that the evidence was
insufficient to permit the trial court to find that she violated her parole or
probation. The standard that this Court applies in reviewing such claims is
clear. This Court determines whether the evidence admitted at the revocation
hearing and reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth, are sufficient to support a finding by a
preponderance of the evidence that the defendant violated a condition of her
parole or probation. Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.
Super. 2014); Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super.
2007). This Court, in making this determination, may not substitute its
judgment for the credibility judgment of the trial court. Colon, 102 A.3d at
1041; Perreault, 930 A.2d at 558.
Appellant contends in her first issue that the evidence was insufficient
to show that she consumed alcohol because a letter referenced by the trial
court in revoking her probation was not admitted in evidence, her statements
at the hearing concerning consumption of alcohol were contradictory and
unsworn, and the other evidence was insufficient to prove she had consumed
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alcohol. We do not agree that the evidence was insufficient to prove that she
consumed alcohol.
In addition to Appellant’s letter and her statements at the Gagnon II
hearing, the Commonwealth introduced testimony of a parole and probation
agent that on September 25, 2020, Appellant smelled of alcohol and admitted
to him that she drank alcohol the night before. N.T., 11/12/20, at 12-14. The
trial court found that testimony credible and made it clear that it would have
found that Appellant consumed alcohol based on this testimony alone, without
considering Appellant’s letter and statements at the hearing. N.T., 11/12/20,
at 17-18; N.T., 12/2/20, at 16; Trial Court Opinion at 7.4 The testimony of
the agent that Appellant admitted to him that she drank alcohol is sufficient
by itself to support the trial court’s finding that Appellant consumed alcohol.
Perreault, 930 A.2d at 558 (evidence sufficient to support revocation of
probation for violation of condition that defendant not possess or view
materials that depict sexual conduct where two witnesses testified that
defendant admitted to them that he watched X-rated movies). Appellant is
therefore entitled to no relief on her first issue.
In her second issue, Appellant contends that even if the evidence that
she consumed alcohol was sufficient, there was no evidence that she violated
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4 The trial court did not base its findings that Appellant violated her parole and
probation on the agent’s testimony that a breathalyzer test was positive. N.T.,
11/12/20, at 17.
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a condition of her probation in CR-1923-2019 because, unlike the parole and
probation orders in CR-180-2018, the order of probation in CR-1923-2019 did
not contain any condition prohibiting her from possessing or consuming
alcohol. The Commonwealth argues that this issue is waived because
Appellant did not include it in her Pa.R.A.P. 1925(b) statement. We agree
that this issue is waived.
The trial court ordered Appellant to file a concise statement of the errors
complained of on appeal in both cases. CR-180-2018 Trial Court Order,
1/5/21; CR-1923-2019 Trial Court Order, 1/5/21. Where a trial court orders
the filing of such a statement, Rule 1925 of the Rules of Appellate Procedure
requires that the appellant “concisely identify each error that the appellant
intends to assert with sufficient detail to identify the issue to be raised for the
judge.” Pa.R.A.P. 1925(b)(4)(ii). Rule 1925 further provides that “[i]ssues
not included in the Statement … are waived.” Pa.R.A.P. 1925(b)(4)(vii). “In
order to preserve a challenge to the sufficiency of the evidence on appeal, an
appellant’s Rule 1925(b) statement must state with specificity the element or
elements upon which the appellant alleges that the evidence was insufficient.”
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (citation
omitted).
Appellant’s Rule 1925(b) statements, which were identical in both cases
and bore both captions, asserted only the following single claim of error with
respect to the revocations of probation:
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This Honorable Court erred in revoking Stewart's parole and
probation where the relevant parole- and probation-revocation
report alleged she consumed alcohol at a Sharon bar on
September 24, 2020, and the evidence introduced at an ensuing
Gagnon-II hearing as credited and discredited by this Honorable
Court in its role as factfinder was insufficient to support a finding
that she did so, both under ordinary sufficiency constructs and
because such evidence was insolubly ambiguous, inherently
contradictory, and/or required this Honorable Court as factfinder
to engage in unreasonable inferences, speculation, and/or
conjecture to determine that she did so, and/or where such
evidence was equally consistent with her having not consumed
alcohol as it was with her having done so, thus violating her
federal and state constitutional rights to due process of law.
Accord In re: J.B., 189 A.3d 390 (Pa. 2018).
Concise Statement of Errors Complained of on Appeal at 1.5 This raises only
a claim that the evidence was insufficient to show that Appellant consumed
alcohol and does not assert or encompass any claim that the evidence of the
conditions of Appellant’s probation was insufficient or that the probation order
in CR-1923-2019 did not prohibit possession or consumption of alcohol.
Because Appellant failed to raise her second issue in her 1925(b) statement,
it is waived and cannot constitute a ground for reversal of the judgment of
sentence in CR-1923-2019. Pa.R.A.P. 1925(b)(4)(vii); Garland, 63 A.3d at
342, 344.
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5 Appellant’s 1925(b) statement listed four other claims of error, but those
related only to the sentences that the trial court imposed and the trial court’s
denial of Appellant’s request for a transcript. None of these other four issues
asserted any claim of insufficiency of the evidence or error in the revocation
of Appellant’s probation in either case.
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The fact that the two issues raised by Appellant merit no relief, however,
does not end our review because it is clear from the face of the record that
the sentence of 15 months to 3 years’ imprisonment imposed by the trial court
in CR-180-2018 is an illegal sentence. The issue of whether a sentence is
illegal is not subject to waiver and may be raised by this Court, even if the
appellant has not raised that issue. Commonwealth v. Pi Delta Psi, Inc.,
211 A.3d 875, 889 (Pa. Super. 2019); Commonwealth v. Tanner, 61 A.3d
1043, 1046 (Pa. Super. 2013). “The legality of a criminal sentence is non-
waivable, and this Court may ‘raise and review an illegal sentence sua
sponte.’” Pi Delta Psi, Inc., 211 A.3d at 889 (quoting Commonwealth v.
Muhammed, 992 A.2d 897 (Pa. Super. 2010)). A sentence imposed for an
invalid revocation of probation is an illegal sentence. Simmons, __ A.3d at
__, slip op. at *3-*4 & n.3.
A court may revoke a defendant’s probation only upon proof that the
defendant violated a condition of her probation. 42 Pa.C.S. § 9771(b);
Commonwealth v. Foster, 214 A.3d 1240, 1243, 1250-51 (Pa. 2019);
Simmons, __ A.3d at __, slip op. at *10-*11. When a trial court orders that
a sentence of probation is to run consecutive to a term of imprisonment, the
defendant’s conduct while she is still on parole from the imprisonment
sentence cannot constitute a violation of probation because the probation
conditions cannot take effect until the imprisonment sentence has been fully
served. Simmons, __ A.3d at __, slip op. at *19-*23, *27-*28.
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Here, the record shows that Appellant’s probation sentence in CR-180-
2018 was consecutive to a sentence of imprisonment and that she was not
serving the probation sentence at the time that she committed the conduct on
which the revocation of probation in CR-180-2018 was based. The sentence
that the trial court imposed on Appellant on July 9, 2020 was a sentence of
“not less than 30 days nor more than 6 months in the Mercer County Jail,
followed by 3 years of probation.” N.T., 7/9/20, at 20 (emphasis added);
CR-180-2018 Sentencing Order, 7/9/20 (emphasis added). Appellant was
paroled from her imprisonment sentence on September 24, 2020, but she was
still serving that sentence until January 9, 2021. N.T., 12/2/20, at 4. The
alcohol consumption on September 24, 2020 or September 25, 2020 that the
trial court found violated Appellant’s probation thus occurred before her prison
sentence ended and when she was not yet on probation in CR-180-2018.
Therefore, while the trial court properly revoked Appellant’s parole in CR-180-
2018 and recommitted her serve the remainder of her imprisonment sentence,
there could be no violation of a condition of Appellant’s probation in CR-180-
2018 and the revocation of probation and sentence of 15 months to 3 years’
imprisonment in that case must be vacated. Simmons, __ A.3d at __, slip
op. at *19-*23, *27-*30.6
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6 We recognize that the trial court’s revocation of Appellant’s probation in CR-
180-2018 was in accordance with this Court’s precedents at that time and that
(Footnote Continued Next Page)
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Because Appellant is entitled to no relief on the two issues that she has
raised, we affirm the judgment of sentence in CR-1923-2019 and affirm the
revocation of her parole in CR-180-2018. However, because the trial court
lacked authority to revoke Appellant’s probation in CR-180-2018, its sentence
of 15 months to 3 years’ imprisonment in CR-180-2018 is an illegal sentence.
Accordingly, we vacate Appellant's judgment of sentence in CR-180-2018 and
remand that case with instructions to reinstate the July 9, 2020 probation
sentence.
Judgment of sentence in CP-43-CR-0000180-2018 vacated. Case
remanded with instructions to reinstate the July 9, 2020 probation sentence.
Judgment of sentence in CP-43-CR-0001923-2019 affirmed. Jurisdiction
relinquished.
Judge Olson joins this memorandum.
Judge Nichols concurs in the result.
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our en banc decision in Simmons overruling those precedents was not handed
down until this case was on appeal. New judicial decisions that change the
law, however, are applicable to cases on direct appeal. Commonwealth v.
Chesney, 196 A.3d 253, 257 (Pa. Super. 2018).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2021
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