Commonwealth, Aplt. v. Rosario, K.

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IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 3 WAP 2022
:
Appellant : Appeal from the Order of the
: Superior Court entered September
: 10, 2021 at No. 1271 WDA 2020,
v. : Vacating the Order of the Court of
: Common Pleas of Washington
: County entered August 14, 2020 at
KEITH ROSARIO, : No. CP-63-CR-000223-2015 and
: remanding.
Appellee :
: ARGUED: October 26, 2022
COMMONWEALTH OF PENNSYLVANIA, : No. 4 WAP 2022
:
Appellant : Appeal from the Order of the
: Superior Court entered September
: 10, 2021 at No. 1272 WDA 2020,
v. : Vacating the Order of the Court of
: Common Pleas of Washington
: County entered August 14, 2020 at
KEITH ROSARIO, : No. CP-63-CR-001543-2013 and
: remanding.
Appellee :
: ARGUED: October 26, 2022
COMMONWEALTH OF PENNSYLVANIA, : No. 5 WAP 2022
:
Appellant : Appeal from the Order of the
: Superior Court entered September
: 10, 2021 at No. 1273 WDA 2020,
v. : Vacating the Order of the Court of
: Common Pleas of Washington
: County entered August 14, 2020 at
KEITH ROSARIO, : No. CP-63-CR-001262-2013 and
: remanding.
Appellee :
: ARGUED: October 26, 2022
OPINION
JUSTICE DOUGHERTY DECIDED: MAY 16, 2023
We granted discretionary review to consider the legality of the practice of
anticipatory revocation of probation, which involves the cancellation of a probation
sentence before it begins. As detailed below, we hold the plain language of the statute
governing probation revocation prohibits this practice. Accordingly, we affirm the order
of the Superior Court.
I.
On May 4, 2015, Rosario pleaded guilty to carrying a firearm without a license,
delivering crack cocaine, and delivering marijuana. The trial court sentenced him to two
and a half to five years’ imprisonment for the gun conviction, a consecutive term of five
years’ probation for the crack cocaine offense, and one year of probation for the marijuana
conviction to run concurrently with the five-year probation. In May of 2017, Rosario was
paroled. Four months later, on September 5, 2017, while Rosario was still on parole for
his gun conviction but before his probation sentences for his drug crimes began, he
kidnapped a man and shot him in the back of the head. In connection with these new
crimes, the Commonwealth charged him with attempted homicide and related offenses,
and he was held for court.1 Based on the new charges against him, on May 7, 2018, the
trial court revoked Rosario’s parole and probations in the present cases. Thereafter, on
February 21, 2019, the trial court resentenced him to consecutive terms of the balance of
1 A jury subsequently convicted Rosario of attempted homicide, two counts of aggravated
assault, two counts of kidnapping, and criminal conspiracy, on June 3, 2019. Following
a remand from the Superior Court for resentencing, on March 25, 2022, he was sentenced
to an aggregate term of 25 to 50 years’ imprisonment in that separate case.
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his two and a half to five-year sentence for carrying a firearm without a license, five to ten
years’ imprisonment for delivering crack cocaine, and five years’ probation for delivering
marijuana. On April 16, 2020, however, the Superior Court vacated the judgment of
sentence and remanded for resentencing. On remand, on August 14, 2020, the trial court
imposed the same consecutive sentences for the gun and crack cocaine convictions but
increased the sentence for delivering marijuana to a consecutive term of two to five years’
imprisonment.
Rosario appealed to the Superior Court, raising two discretionary sentencing
claims. First, he claimed the trial court “did not make any of the required factual findings
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pursuant to 42 Pa.C.S. §[§]9721(b)[,2] 9725,[3] and the records of the violation and
sentencing hearings do not support such findings.” Appellant’s Superior Court Brief at
2 Subsections (a) and (b) of section 9721 provide:
(a) General rule.--In determining the sentence to be imposed the court shall, except as
provided in subsection (a.1), consider and select one or more of the following alternatives,
and may impose them consecutively or concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6), (7) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.
* * *
(b) General standards.--In selecting from the alternatives set forth in subsection (a), the
court shall follow the general principle that the sentence imposed should call for total
confinement that is consistent with section 9725 (relating to total confinement) and the
protection of the public, the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of the defendant. The court
shall also consider any guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing and taking effect under section 2155 (relating
to publication of guidelines for sentencing, resentencing and parole, risk assessment
instrument and recommitment ranges following revocation). In every case in which the
court imposes a sentence for a felony or misdemeanor, modifies a sentence, resentences
a person following revocation of probation or resentences following remand, the court
shall make as a part of the record, and disclose in open court at the time of sentencing,
a statement of the reason or reasons for the sentence imposed. In every case where the
court imposes a sentence or resentence outside the guidelines adopted by the
Pennsylvania Commission on Sentencing under sections 2154 (relating to adoption of
guidelines for sentencing), 2154.1 (relating to adoption of guidelines for restrictive
conditions), 2154.3 (relating to adoption of guidelines for fines), 2154.4 (relating to
adoption of guidelines for resentencing) and 2154.5 (relating to adoption of guidelines for
parole) and made effective under section 2155, the court shall provide a
contemporaneous written statement of the reason or reasons for the deviation from the
guidelines to the commission, as established under section 2153(a)(14) (relating to
powers and duties). Failure to comply shall be grounds for vacating the sentence or
resentence and resentencing the defendant.
42 Pa.C.S. §9721(a),(b) (footnote omitted).
3 Section 9725 provides:
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15. Second, he claimed the “sentence was excessive and based upon improper factors.”
Id. at 21. Although Rosario did not also challenge the authority of the trial court to revoke
his parole and probations, the panel addressed this issue sua sponte.4 Initially, the panel
noted that when a maximum sentence is two years or more, authority to grant or revoke
parole is “vested in the Parole Board.” Commonwealth v. Rosario, 1271-1273 WDA 2020,
2021 WL 4129781 at *4 (Pa. Super. Sept. 10, 2021) (unpublished memorandum), quoting
Commonwealth v. Miller, 770 A.2d 362, 363 (Pa. Super. 2001). The panel held that
“[b]ecause [Rosario’s] original maximum sentence [for carrying a firearm without a
license] was five years’ imprisonment, the Parole Board has exclusive jurisdiction over
[his] parole.” Id. at *5. Accordingly, the panel concluded, the trial court’s order revoking
his parole and recommitting him to serve the balance of his sentence was a “nullity” and
“sua sponte vacate[d] th[e] sentence as illegal.” Id.
The court shall impose a sentence of total confinement if, having regard to the nature and
circumstances of the crime and the history, character, and condition of the defendant, it
is of the opinion that the total confinement of the defendant is necessary because:
(1) there is undue risk that during a period of probation or partial confinement the
defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively
by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.
42 Pa.C.S. §9725.
4 An appellate court can raise and address the legality of a sentence sua sponte. See
Commonwealth v. Hill, 238 A.3d 399, 407 (Pa. 2020) (“[A]n appellate court can address
an appellant’s challenge to the legality of his sentence even if that issue was not
preserved in the trial court; indeed, an appellate court may raise and address such an
issue sua sponte.”).
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Turning to the propriety of the probation revocations, the panel observed the
Superior Court “has affirmed anticipatory revocations of probation[.]” Id., citing
Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super. 1999), and Commonwealth v.
Wendowski, 420 A.2d 628, 630 (Pa. Super. 1980). However, the panel noted, the
Superior Court sitting en banc, “recently overruled Wendowski, Ware, and other cases
affirming anticipatory revocations of probation” in Commonwealth v. Simmons, 262 A.3d
512 (Pa. Super. 2021) (en banc). The panel recounted that the Simmons court explained:
No statutory authority exists to support [anticipatory probation revocation].
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.
Id., quoting Simmons, 262 A.3d at 524-25.
Here, the panel observed, when the trial court revoked Rosario’s probationary
sentences on May 7, 2018, he was still on parole for the firearm conviction, and had not
yet started serving his terms of probation, which ran consecutively to his gun sentence.
“Under Simmons,” the panel held, “the [trial] court lacked the authority to revoke
[Rosario’s] probationary sentences[.]” Id. at *6. Accordingly, the panel sua sponte
vacated the sentences for the crack cocaine and marijuana convictions, and remanded
to the trial court “to reinstate the original May 4, 2015 orders of probation.” Id. In sum
then, the panel vacated all three sentences, and ordered reimposition of the original
orders of probation for the drug offenses.
II.
This Court granted the Commonwealth’s petition for allowance of appeal, which
raised two questions: “(1) Did the Superior Court err and abuse its discretion and
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misapprehend and ignore or misapply the doctrine of stare decisis in its Simmons
decision by overturning over 40 years of case law permitting the revocation of consecutive
probation sentences not yet commenced where there has been a substantive violation
and conviction in a new case?” and “(2) Did the Superior Court abuse its discretion and
misapprehend and misapply the statutory authority it cited in Simmons, which statutes do
not clearly and unambiguously speak to or demand the result of prohibiting violation of
probation sentences that have not yet commenced when a substantive violation has
occurred?” Commonwealth v. Rosario, 271 A.3d 1285 (Pa. 2022) (per curiam). The issue
of whether the anticipatory revocation of probation is permitted under Pennsylvania law
is a question of law. Accordingly, our standard of review is de novo and our scope of
review is plenary. See, e.g., Pennsylvania Environmental Defense Foundation v.
Commonwealth, 279 A.3d 1194, 1202 (Pa. 2022).
The Commonwealth argues the panel should be reversed, and trial courts should
be allowed to revoke probation sentences before they begin. It contends the en banc
Superior Court panel in Simmons erred in overruling the panel decisions in Wendowski
and its progeny upholding anticipatory probation revocation. It asserts “overruling a prior
precedent requires the consultation of a number of factors: the quality of the precedent’s
reasoning, the workability of the rule it established, its consistency with other related
decisions, the reliance on the decision, and the age of the decision.” Commonwealth’s
Brief at 15. Yet, the Commonwealth claims, Simmons “undertook no independent
analysis” of these factors and instead overruled the extant line of precedent in “conclusory
fashion.” Id. at 16. In the Commonwealth’s view, these considerations call for adherence
to Wendowski and the decisions following it. With respect to the quality of the reasoning
of these cases, the Commonwealth maintains “mischief would ensue if criminals could
commit crimes with impunity knowing that their probationary sentence was not subject to
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being revoked and they were not subject to being resentenced for committing new
crimes.” Id. at 16. The Commonwealth additionally contends the rule established by
these precedents is workable given that the General Assembly has repeatedly amended
the probation-related statutes of 42 Pa.C.S. §9754,5 and 42 Pa.C.S. §9771,6 yet “never
5 Section 9754 provides:
(a) General rule.--In imposing an order of probation the court shall specify at the time of
sentencing the length of any term during which the defendant is to be supervised, which
term may not exceed the maximum term for which the defendant could be confined, and
the authority that shall conduct the supervision. The court shall consider probation
guidelines adopted by the Pennsylvania Commission on Sentencing under sections 2154
(relating to adoption of guidelines for sentencing) and 2154.1 (relating to adoption of
guidelines for restrictive conditions).
(b) Conditions generally.--The court shall attach reasonable conditions authorized by
section 9763 (relating to conditions of probation) as it deems necessary to ensure or
assist the defendant in leading a law-abiding life.
(c) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.
(d) Sentence following violation of probation.--The sentence to be imposed in the
event of the violation of a condition shall not be fixed prior to a finding on the record that
a violation has occurred.
42 Pa.C.S. §9754.
6 Section 9771 provides:
(a) General rule.--The court has inherent power to at any time terminate continued
supervision, lessen the conditions upon which an order of probation has been imposed
or increase the conditions under which an order of probation has been imposed upon a
finding that a person presents an identifiable threat to public safety.
(b) Revocation.--The court may increase the conditions, impose a brief sanction under
section 9771.1 (relating to court-imposed sanctions for violating probation) or revoke an
order of probation upon proof of the violation of specified conditions of the probation.
Upon revocation the sentencing alternatives available to the court shall be the same as
were available at the time of initial sentencing, due consideration being given to the time
spent serving the order of probation. The attorney for the Commonwealth may file notice
at any time prior to resentencing of the Commonwealth’s intention to proceed under an
applicable provision of law requiring a mandatory minimum sentence.
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made a change in the language that would negate or express any disagreement with, let
alone call into question, Wendowski or its progeny.” Id. at 17. The Commonwealth posits
Wendowski is consistent with this Court’s decisions in Commonwealth v. Foster, 214 A.3d
1240 (Pa. 2019), and Commonwealth v. Vivian, 231 A.2d 301 (Pa. 1967). It also argues
appellate courts, trial courts, and parties have long relied on this decision. It emphasizes
“the Superior Court’s line of precedent runs from Wendowski in 1980 up until Simmons in
August 2021[,]” a period of over forty years. Id. at 18. In addition to faulting Simmons for
“conduct[ing] no stare decisis analysis[,]” the Commonwealth warns that under this
decision, “a parolee like Rosario could commit innumerable new crimes (and be convicted
for them) while on the parole portion of a sentence and face no more punishment than
revocation of his parole.” Id. at 19-20.
The Commonwealth also argues Simmons “misapplied” 42 Pa.C.S. §9721, as well
as sections 9754 and 9771. Id. at 21. It notes there is no language in sections 9721 or
9754 restricting resentencing, and section 9771 does not “plainly and explicitly prohibit
the revocation of consecutive probation sentences.” Id. at 24. A sentence of probation,
the Commonwealth advocates, is conditional by its very nature, and the general condition
(c) Limitation on sentence of total confinement.--The court shall not impose a
sentence of total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime
if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.
(d) Hearing required.--There shall be no revocation or increase of conditions of sentence
under this section except after a hearing at which the court shall consider the record of
the sentencing proceeding together with evidence of the conduct of the defendant while
on probation. Probation may be eliminated or the term decreased without a hearing.
42 Pa.C.S. §9771.
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that the defendant refrain from committing new crimes attaches at the time the sentence
is imposed. It insists section 9771 “reads no differently[,]” and concluding otherwise
“incorrectly place[s] language into that clear and unambiguous statute.” Id. at 27.
Furthermore, it contends the occasion and necessity for these statutes was “the
punishment and rehabilitation of offenders, which is undermined by the Simmons court’s
opinion . . . essentially giving a free pass to those who reoffend and are convicted of new
offenses[.]” Id. at 29.
Amicus curiae the Pennsylvania District Attorneys Association (PDAA) joins the
Commonwealth in arguing for reversal. The PDAA submits the panel erred in relying on
Simmons because Simmons misapplied the rules of statutory construction. Amicus
asserts the requirement that a defendant must be currently serving probation in order to
have his probation revoked “effectively add[s]” language to section 9771, and “is directly
contradictory to the accepted interpretation and practice created in 1980 in . . .
Wendowski, to which our legislature acquiesced.” Amicus Brief at 13. Moreover, the
PDAA criticizes Simmons for “fail[ing] to properly acknowledge and apply the doctrine of
stare decisis.” Id. at 14. It claims the en banc panel in Simmons simply disagreed with
Wendowski and its progeny, which was “insufficient to overcome the doctrine of stare
decisis and 40 years of precedent.” Id. at 18. The PDAA insists Simmons will permit
defendants to “violate the law with impunity” until their probationary terms begin. Id. In
addition, amicus argues “Simmons significantly limits the sentencing options available to
lower courts” because “[w]ithout the ability to violate a consecutive probation sentence, .
. . if a court believes that a state sentence[7] might be warranted, the[ ] only option
available is to impose a state sentence and afford no opportunity for defendants to
demonstrate that they can be compliant with a lesser level of supervision.” Id. at 19.
7Generally, terms of incarceration of two years or more are served in state prison. See
42 Pa.C.S. §9762(b).
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Lastly, the PDAA asserts a “multitude” of sentences “were constructed with the
Wendowski decision as the guiding principle.” Id.
In response, Rosario argues for affirmance of the panel’s decision applying
Simmons. He asserts the Simmons court was not bound by stare decisis because it was
sitting en banc, whereas Wendowski and its follow-on precedents were decisions by
three-judge panels. He notes it is well settled that the Superior Court, sitting en banc,
may overrule a decision of a three-judge panel of that court. Moreover, Rosario contends,
since this Court’s standard of review in assessing the legality of the anticipatory
revocation of probation is de novo, “any assessment concerning the propriety of the
intermediate court’s failure to follow its own precedent on that issue is immaterial.”
Appellee’s Brief at 11, quoting McGrath v. Bureau of Professional and Occupational
Affairs, 173 A.3d 656, 661 n.7 (Pa. 2017). He rejects the policy assertion of the
Commonwealth and PDAA that disallowing anticipatory revocation will “open the gates to
anti-social conduct that can be committed with impunity, with criminals knowing nothing
will happen to them.” Id. at 13. On the contrary, Rosario contends, a defendant who
commits a new crime while on parole is subject not only to revocation of his parole and
recommitment to serve his backtime, but also a separate sentence for his new offense if
he is convicted.
Furthermore, Rosario maintains the “plain and unambiguous language” of section
9721 and “related statutes” make “clear that a defendant can be revoked for violating
conduct only while he is on probation, and not before he is serving the consecutively
imposed term.” Id. at 16. He notes section 9721(a) provides that an order of probation
may be imposed consecutively or concurrently, not both. However, he argues, “[i]f a
judge considers conduct in violation of parole to also be a violation of probation of a
consecutively imposed term of probation that has not yet begun, and revokes that
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probation, in effect the consecutively imposed term of probation has been impermissibly
modified to be a concurrent term of probation under Section 9721(a).” Id. at 18. Rosario
claims as well that anticipatory revocation “effectively lengthens the term of probation
beyond the stated consecutive term,” and thus violates the mandate of section 9754(a)
that probation shall be ordered for a fixed period of time. Id. at 19. He emphasizes
revocation is “conspicuously absent” from the actions a court may take at any time with
respect to probation identified in section 9771(a). Id. at 22. He asserts section 9771(d)
specifies there shall be no probation revocation except after a hearing considering the
defendant’s conduct while on probation, and the word “‘while’ . . . normally means ‘during
the time[.]’” Id. at 23, quoting In re Naugle’s Estate, 112 A. 24, 25 (Pa. 1920). Because
the plain language of the statutes does not permit anticipatory revocation, Rosario
advances, the doctrine of legislative acquiescence cannot support this procedure,
especially considering that penal statutes must be strictly construed.
III.
In this and most cases, section 9771 of the Sentencing Code, 42 Pa.C.S. §9771,
governs the revocation of probation. See Foster, 214 A.3d at 1246-47 (“[S]ection 9771 .
. . governs revocation of probation[.]”).8 Our construction of section 9771, as with any
statute, is guided by the Statutory Construction Act. See 1 Pa.C.S. §§1501-1991. Under
the Act, “[t]he object of all interpretation and construction of statutes is to ascertain and
effectuate the intention of the General Assembly.” 1 Pa.C.S. §1921(a). “The plain
language of a statute generally provides the best indication of legislative intent.”
Commonwealth v. Lehman, 243 A.3d 7, 16 (Pa. 2020). “When the words of a statute are
8Under 42 Pa.C.S. §9771.1, “the court of common pleas of a judicial district may establish
a program to impose swift, predictable and brief sanctions on persons who violate their
probation.” 42 Pa.C.S §9771.1(a). Following a third violation of probation under such a
program, a court may revoke the order of probation. See 42 Pa.C.S. §9771.1(i)(1).
Section 9771.1 is not implicated here.
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clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext
of pursuing its spirit.” 1 Pa.C.S. §1921(b). In ascertaining the plain meaning, “we
consider the statutory language at issue not in isolation, but in the context in which it
appears.” Commonwealth by Shapiro v. Golden Gate National Senior Care LLC, 194
A.3d 1010, 1027 (Pa. 2018). In addition, words and phrases are construed according to
rules of grammar and according to their common and approved usage, except for
technical words and phrases and those that have acquired a peculiar and appropriate
meaning or are specifically defined. See 1 Pa.C.S. §1903(a). “Only when the words of
a statute are not explicit will we resort to other considerations to discern legislative intent.”
Commonwealth v. Janssen Pharmaceutica, Inc., 8 A.3d 267, 275 (Pa. 2010); see also
Commonwealth v. Cousins, 212 A.3d 34, 39 (Pa. 2019) (“We will only look beyond the
plain meaning of the statute where the words of the statute are unclear or ambiguous.”),
quoting Commonwealth v. Ramos, 83 A.3d 86, 91 (Pa. 2013).
The plain language of section 9771, which is set forth supra in footnote 6, reflects
the legislative intent to permit the revocation of probation only after the relevant
probationary term has begun.9 Subsection (a) lists but three actions concerning probation
a court may take “at any time”: terminate continued supervision, lessen the conditions of
probation, and increase the conditions of probation upon a finding of an identifiable threat
to public safety. 42 Pa.C.S. §9771(a). Tellingly, subsection (a) does not include the
revocation of probation as something the court may do “at any time.” The implication of
this omission is that revocation cannot be ordered at any time but rather is subject to
temporal limitations, i.e., revocation is permissible solely during the term of the probation
9 The General Assembly amended section 9771 in 2019, following the revocation of
Rosario’s probations in 2018. The language of section 9771 foreclosing anticipatory
probation revocation appears in both the pre- and post-amendment versions of the
statute.
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itself. See Thompson v. Thompson, 223 A.3d 1272, 1277 (Pa. 2020) (“Under the doctrine
of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute
implies the exclusion of other matters.”) (internal quotation and citation omitted).10
Moreover, subsection (b) states the court may “revoke an order of probation upon
proof of the violation of specified conditions of the probation.” 42 Pa.C.S. §9771(b)
(emphasis added). That is, only a violation of the probation itself may trigger revocation,
not a violation of the probation order before the probation term has started. Had the
legislature intended a violation of the conditions of the order of probation to be sufficient
for revocation, it would have said so, and the pertinent language of subsection (b) would
instead permit revocation upon proof of the violation of specified conditions of the order
of probation. See Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011) (“[A]s a matter
of statutory interpretation, although one is admonished to listen attentively to what a
10 The dissent argues “the reason revocation cannot occur ‘at any time’ is not a temporal
limitation, but the hearing requirement.” Dissenting Opinion at 8. On the contrary, as with
revocation, a hearing is required before the court can increase the conditions of probation.
See 42 Pa.C.S. §9771(d) (“There shall be no revocation or increase of conditions of
sentence under this section except after a hearing at which the court shall consider the
record of the sentencing proceeding together with evidence of the conduct of the
defendant while on probation.”) (emphasis added). Section 9771(d), by its broad terms,
applies to all increases in the conditions of probation without limitation, including
increases premised on an identifiable threat to public safety. Yet section 9771(a) explicitly
permits such increases based on a safety threat to occur at any time. See 42 Pa.C.S.
§9771(a) (“The court has inherent power to at any time terminate continued supervision,
lessen the conditions upon which an order of probation has been imposed or increase
the conditions under which an order of probation has been imposed upon a finding
that a person presents an identifiable threat to public safety.”) (emphasis added).
Thus, inclusion in section 9771(d)’s hearing requirement does not dictate exclusion from
section 9771(a). The reason revocation was omitted from section 9771(a)’s list of
procedures that can occur at any time was not because of the hearing requirement in
section 9771(d), but because it was the legislature’s intent to permit revocation only
during the probationary term and not before it begins.
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statute says[;][o]ne must also listen attentively to what it does not say.”), quoting Kmonk–
Sullivan v. State Farm Mut. Auto. Ins. Co., 788 A.2d 955, 962 (Pa. 2001).11
Also, subsection (b) requires the court resentencing a defendant following
revocation of probation to give “due consideration . . . to the time spent serving the order
of probation.” 42 Pa.C.S. §9771(b) (emphasis added). Yet, if the probationary term has
not even commenced, then no time at all has been spent serving the probation sentence.
A probation sentence does not commence from the date of imposition if the sentencing
court has expressly ordered otherwise. See Pa.R.Crim.P. 705. The requirement to
consider in resentencing the time spent serving the probation sentence is incompatible
with anticipatory probation revocation.12
11 The dissent asserts “the legislature could have just as easily had the revocation statute
require proof of the violation of specified conditions while on probation.” Dissenting
Opinion at 6 n.5 (emphasis in original). However, adding this language would have been
redundant. The legislature’s pointed use of the phrase “the probation” instead of the
phrase “order of probation” employed earlier in the same sentence indicates it did not
mean for these phrases to have identical meanings. Had the legislature intended a
violation of the order of probation to suffice for revocation, it would have simply repeated
this phrase. Instead, the legislature used a different phrase – “the probation” – indicating
its intent to require a violation of the actual probation sentence rather than the mere order
of probation. See Commonwealth v. Elliott, 50 A.3d 1284, 1290 (Pa. 2012) (“[W]hen the
legislature uses . . . different words, we must . . . presume that ‘it must have meant for the
words to have separate meanings.’”), quoting Drabic v. Commonwealth, Dep’t of Transp.,
Bureau of Driver Licensing, 906 A.2d 1153, 1157 (Pa. 2006); see also Probation, BLACK’S
LAW DICTIONARY (11th ed. 2019) (defining “probation” as “[a] court-imposed criminal
sentence that, subject to stated conditions, releases a convicted person into the
community instead of sending the criminal to jail or prison, usu. on condition of routinely
checking in with a probation officer over a specified period of time” and “[t]he period of
time during which a sentence of probation is in effect”).
12 The dissent proposes that “when a defendant violates the terms of probation prior to
the start of the probationary period, the court simply must consider the fact that the
defendant spent no time serving the order of probation when deciding the appropriate
revocation sentence.” Dissenting Opinion at 8 n.7. But the plain language of section
9771(b) does not contemplate a circumstance where the defendant has spent no time at
all serving his probation sentence. This provision does not call for consideration of any
time spent serving probation. Nor does it require the court to consider the time spent
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Furthermore, subsection (d) provides: “[t]here shall be no revocation” of probation
“except after a hearing at which the court shall consider . . . evidence of the conduct of
the defendant while on probation.” 42 Pa.C.S. §9771(d) (emphasis added). The word
“shall” commonly connotes a mandatory requirement. See Chanceford Aviation
Properties, L.L.P. v. Chanceford Tp. Bd. of Supervisors, 923 A.2d 1099, 1104 (Pa. 2007)
(“The word ‘shall’ by definition is mandatory, and it is generally applied as such.”). In
addition, when used as a conjunction as it is here, “while” generally means “during the
time.” See Naugle’s Estate, 112 A. at 25 (“The word ‘while,’ as shown by the dictionaries,
normally means ‘during the time[.]’”). Thus, under the express terms of subsection (d),
the court cannot revoke probation unless the court has considered the defendant’s
conduct during the time he was serving probation. An assessment of the defendant’s
conduct while on probation, however, is possible only if the probationary term has in fact
actually begun. If the probation has not commenced, then perforce there is no conduct
of the defendant while on probation for the court to consider. In other words, in the
anticipatory revocation context, the statutory mandate to consider the defendant’s
conduct on probation is impossible to satisfy. In this way, subsection (d) limits the
revocation of probation to the cancellation of probationary terms currently being served,
and forecloses the anticipatory revocation of probation sentences yet to begin. 13 The
serving the probationary sentence, if any. Rather, subsection (b) obliges the court to
consider the time spent on probation. It presumes a situation where the defendant has
actually spent time serving the probationary term, and does not envisage anticipatory
revocation where there is no such time.
13The dissent maintains section 9771(d) “does not prevent the court from considering the
conduct of the defendant prior to the term of probation.” Dissenting Opinion at 8. That
may be, but whatever discretion the court has to consider pre-term-of-probation conduct
would not eliminate the requirement to consider the defendant’s conduct during the term
of probation itself. This statutory obligation cannot be fulfilled in the anticipatory
revocation context. The dissent also alleges “subsection (d) does not foreclose
revocation prior to the start of the probationary term, there is simply no ‘conduct of the
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plain text of section 9771 clearly (and repeatedly) prohibits the anticipatory revocation of
probation.
Although we conclude the clear language of section 9771 explicitly forbids
anticipatory probation revocation, any hypothetical ambiguity in this regard is clarified by
consideration of statutes in pari materia and the rule of lenity. “Statutes or parts of
statutes are in pari materia when they relate to the same persons or things or to the same
class of persons or things.” 1 Pa.C.S. §1932(a). “Statutes in pari materia shall be
construed together, if possible, as one statute.” 1 Pa.C.S. §1932(b). “It must not be
overlooked that the rule requiring statutes in pari materia to be construed together is only
a rule of construction to be applied as an aid in determining the meaning of a doubtful
statute, and that it cannot be invoked where the language of a statute is clear and
unambiguous.” In re McFarland’s Estate, 105 A.2d 92, 95-96 (Pa. 1954); see also
Goodwin v. Goodwin, 280 A.3d 937, 948 n.7 (Pa. 2022) (“[T]he rule requiring in pari
materia construction of statutes applies in instances of ambiguous statutory language.”).
Like section 9771, other statutes relating to probation also include language inconsistent
with the anticipatory revocation of probation.
To wit, section 9721(a) authorizes the court to impose a sentence of probation
“consecutively or concurrently[.]” 42 Pa.C.S. §9721(a) (emphasis added). The word “or”
is disjunctive and “means one or the other of two or more alternatives.” In re Paulmier,
937 A.2d 364, 373 (Pa. 2007). Accordingly, section 9721(a) permits a probation sentence
defendant while on probation’ for the court to consider at that time.” Id. at 8, quoting 42
Pa.C.S. §9771(d). This ignores the mandatory nature of section 9771(d). This provision
does not say the revocation court may consider the defendant’s conduct while on
probation, or that it is permissible for the court to do so. Again, the statute states in no
uncertain terms that “the court shall consider the . . . evidence of the conduct of the
defendant while on probation.” 42 Pa.C.S. §9771(d) (emphasis added). Section 9771(d)
sets forth a compulsory obligation to consider the defendant’s conduct on probation. The
revocation court has no discretion to opt out of this obligatory consideration, either
because probation has not yet started or for any other reason.
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that is either consecutive or concurrent to one or more other sentences, not consecutive
and concurrent. Yet when, as here, the court anticipatorily revokes a consecutive
probationary term for a violation of a separate sentence the defendant is currently serving,
the probation sentence is effectively both concurrent and consecutive, in contravention
of the plain language of section 9721(a).
Moreover, section 9754(a) mandates: “[i]n imposing an order of probation the court
shall specify at the time of sentencing the length of any term during which the defendant
is to be supervised[.]” 42 Pa.C.S. §9754(a). This language requires the imposition of
probation for a fixed period of time. Revoking probation before it starts effectively
lengthens the term of probation beyond the fixed term specified at sentencing. Similarly,
the court is statutorily required to “specify at the time of sentencing . . . the length of the
term of restrictive conditions” of probation. 42 Pa.C.S. §9763(a).14 Thus, like section
9754, section 9763 envisions a definite probation sentencing scheme. In tension with
these statutes, anticipatory revocation provides for an indefinite regime whereby the
probationary term is not necessarily confined to a fixed period of time beginning on a date
certain.
Finally, “[u]nder the rule of lenity, when a penal statute is ambiguous, it must be
strictly construed in favor of the defendant.” Cousins, 212 A.3d at 39; see also 1 Pa.C.S.
14 The full text of subsection 9763(a) provides:
(a) General rule.--In imposing probation, the court shall consider guidelines adopted by
the Pennsylvania Commission on Sentencing under section 2154 (relating to adoption of
guidelines for sentencing) or 2154.1 (relating to adoption of guidelines for restrictive
conditions) and specify at the time of sentencing the conditions of probation, including the
length of the term of restrictive conditions under subsection (c) or (d). The term of
restrictive conditions under subsection (c) shall be equal to or greater than the mandatory
minimum term of imprisonment required by statute.
42 Pa.C.S. §9763(a).
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§1928(b)(1). “[T]he rule of lenity has its limits, as it ‘does not require that the words of a
penal statute be given their narrowest possible meaning or that legislative intent be
disregarded.’” Commonwealth v. Nevels, 235 A.3d 1101, 1105 (Pa. 2020), quoting
Commonwealth v. Packer, 798 A.2d 192, 196 (Pa. 2002). Moreover, “the rule applies if
at the end of the process of construing what [the legislature] has expressed, there is a
grievous ambiguity or uncertainty in the statute[.]” Shaw v. United States, 580 U.S. 63,
71 (2016) (internal quotations and citations omitted). Undoubtedly, section 9771 is a
penal statute. See Nesbit v. Clark, 116 A. 404, 406 (Pa. 1922) (“A penal statute is one
which imposes a penalty or forfeiture for transgressing its provisions, or for doing a thing
prohibited[.]”). Hence, to the extent section 9771 remains, after exhausting all other tools
of statutory interpretation, hopelessly ambiguous as to whether it authorizes the
anticipatory revocation of a probation, the rule of lenity calls for the conclusion it does not.
Pursuant to the plain meaning of section 9771, as confirmed by the in pari materia
doctrine and rule of lenity, defendants may not be preemptively penalized for violating
probation sentences they have not yet even begun to serve.
The arguments of the dissent, Commonwealth, and amicus do not persuade us
otherwise. The dissent’s reliance on Commonwealth v. Nicely, 638 A.2d 213 (Pa. 1994)
is misplaced. In Nicely, the appellees were ordered to pay additional supervision fees
while they were serving their probation sentences. See id. at 215. Thus, Nicely involved
the modification of conditions of probationary sentences currently being served, which,
as the Court there specifically noted, see id. at 217, is permitted under 42 Pa.C.S.
§9771(a). Nicely did not involve, much less endorse, the revocation of probation before
it starts.
The dissent’s citation to Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973) also
misses the mark. Kates predated the promulgation of section 9771, which was enacted
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in 1974 as 18 Pa.C.S. §1371 and renumbered section 9771 in 1980. Moreover, each of
the defendants in Kates were serving their probation sentences when they were arrested
for new offenses. See Kates, 305 A.2d at 703-04. Hence, as in Nicely, there was no
cause for the Kates Court to even consider the propriety of anticipatory probation
revocation, let alone endorse this procedure.15
Contrary to the Commonwealth’s assertion, Vivian does not support construing
section 9771 to permit the anticipatory revocation of probation. Like Kates, Vivian also
predates the enactment of section 9771. In addition, while the facts of Vivian involved
the anticipatory revocation of probationary sentences, the defendant in that case did not
challenge the propriety of revoking probation before it begins. Instead, Vivian claimed
the trial court violated double jeopardy by changing his probation sentences to terms of
imprisonment. See Vivian, 231 A.2d at 305 (“It is now asserted that the prison sentences
imposed on February 23, 1966, modifying the court order of probation on February 14,
1966, violated due process and constituted double jeopardy in violation of the provisions
of Article 1, s 10 of the Pennsylvania Constitution, P.S., and the Fifth Amendment to the
United States Constitution.”). The Vivian Court held “the trial court in its discretion had
the right to change its order of probation and impose a prison sentence without violating
the proscription against double jeopardy included in the Fifth Amendment to the United
States Constitution[.]” Id. at 306 (internal citation omitted). Because it was not at issue
in the case, Vivian said nothing at all regarding the legality of anticipatory probation
revocation. When an issue is “not . . . raised in briefs or argument nor discussed in the
opinion of the Court . . . , the case is not a binding precedent on this point.” United States
v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952).
15 Indeed, the dissent acknowledges “it is obvious” Nicely and Kates do not “decide
today’s issue.” Dissenting Opinion at 5 n.3.
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The Commonwealth’s dependence on Foster is also unavailing. Foster involved
the question of “what constitutes a permissible basis for a court to find an individual in
violation of probation” under section 9771. Foster, 214 A.3d at 1243. That is, Foster
concerned what may justify the revocation of probation, not when revocation may be
ordered. Ultimately, this Court held “a court may find a defendant in violation of probation
only if the defendant has violated one of the ‘specific conditions’ of probation included in
the probation order or has committed a new crime.” Id. at 1250. Thus, “the question of
anticipatory revocation was not before the Foster Court[,]” Simmons, 262 A.3d at 538
(Bowes, J., concurring and dissenting), and the Court offered no view on this distinct
issue.
While acknowledging “the statute at issue” is section 9771, Dissenting Opinion at
2, the dissent nevertheless insists sections 9754(b) and 9763(b) “make clear that the
conditions of probation are not limited to the probationary term,” id. at 6. To the contrary,
as noted, see supra n. 5, section 9754(b) simply provides: “The court shall attach
reasonable conditions authorized by section 9763 (relating to conditions of probation) as
it deems necessary to ensure or assist the defendant in leading a law-abiding life.” 42
Pa.C.S. §9754(b). Section 9763(b), in turn, states: “The court may attach any of the
following conditions upon the defendant as it deems necessary[,]” and then specifies the
conditions. 42 Pa.C.S. 9763(b).16 These statutes concern what conditions may be
16 The conditions are:
(1) To meet family responsibilities.
(2) To be devoted to a specific occupation, employment or education
initiative.
(3) To participate in a public or nonprofit community service program.
(4) To undergo individual or family counseling.
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imposed on probation, i.e., “reasonable conditions” that the trial court “deems necessary,”
not when these conditions apply. They do not mandate, “clear[ly]” or otherwise, that the
conditions immediately spring into existence when the court enters an order of probation.
Indeed, for many defendants, like Rosario, who are sentenced to a term of imprisonment
followed by a consecutive period of probation, it would be impossible to comply straight
away upon sentencing with all of the conditions noted in section 9763(b). For instance, it
is not possible for an incarcerated defendant to attend or reside in a rehabilitative facility
or other intermediate punishment program, or to report to the court or a designated
person.17
(5) To undergo available medical or psychiatric treatment or to enter and
remain in a specified institution, when required for that purpose.
(6) To attend educational or vocational training programs.
(7) To attend or reside in a rehabilitative facility or other intermediate
punishment program.
(8) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.
(9) To not possess a firearm or other dangerous weapon unless granted
written permission.
(10) To make restitution of the fruits of the crime or to make reparations, in
an affordable amount and on a schedule that the defendant can afford
to pay, for the loss or damage caused by the crime.
(11) To be subject to intensive supervision while remaining within the
jurisdiction of the court and to notify the court or designated person of
any change in address or employment.
(12) To report as directed to the court or the designated person and to permit
the designated person to visit the defendant’s home.
(13) To pay a fine.
(14) To participate in drug or alcohol screening and treatment programs,
including outpatient programs.
(15) To do other things reasonably related to rehabilitation.
(16), (17) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.
42 Pa.C.S. §9763(b).
The dissent contends the existence of “an impossible condition” of probation “does not
17
make all other possible conditions . . . a nullity until every condition is possible.”
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The Commonwealth and amicus are wrong to suggest the en banc panel majority
in Simmons was bound by stare decisis. “[A]n en banc panel of an intermediate court is
authorized to overrule a three-judge panel decision of the same court.” McGrath, 173
A.3d at 661 n.7. In any event, “any purported failure on the part of the Superior Court . .
. to follow its own precedent is immaterial to our de novo resolution of the legal issue
presented.” Commonwealth v. Smith, 186 A.3d 397, 401 n.6 (Pa. 2018); see also
McGrath, 173 A.3d at 661 n.7 (“[W]here, as here, this Court undertakes de novo resolution
of a legal issue, any assessment concerning the propriety of the intermediate court’s
failure to follow its own precedent on that issue is immaterial.”).
The Commonwealth’s championing of Wendowski, and the line of three-judge
Superior Court panel decisions following it,18 is unconvincing. These decisions do not, of
course, bind this Court any more than they bound the en banc panel in Simmons. See In
re Estate of duPont, 2 A.3d 516, 524 (Pa. 2010) (“[T]his Court is not bound by the Superior
Court’s holdings[.]”). Nor are they persuasive. Wendowski did not even acknowledge
what was then section 1371, much less explicate how this statute authorized anticipatory
probation revocation. It is axiomatic, and should hardly need reiteration, that proper
Dissenting Opinion at 6-7 n.5. We agree a condition of probation may be operative even
though compliance with one or more other conditions is not possible. But this hardly
means the conditions of probation apply immediately upon the issuance of the sentencing
order even before the probation itself has actually started. And, to be sure, this conclusion
finds no support in the text of either section 9754(b) or section 9763(b), which concern
the substance, not the timing, of probation conditions.
18See Commonwealth v. Mitchell, 955 A.2d 433 (Pa. Super. 2008); Commonwealth v.
Hoover, 909 A.2d 321 (Pa. Super. 2006); Commonwealth v. Castro, 856 A.2d 178 (Pa.
Super. 2004); Ware, 737 A.2d 251; Commonwealth v. Miller, 516 A.2d 1263 (Pa. Super.
1986); Commonwealth v. Dickens, 475 A.2d 141 (Pa. Super. 1984).
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disposition of a legal question governed by a statute requires analysis of said statute. In
lieu of the appropriate statutory analysis, the panel instead principally relied on
nonbinding decisions from other jurisdictions not involving section 1371. See Wendowski,
420 A.2d at 630. Moreover, as discussed, the single Pennsylvania case cited by the
Wendowski panel, Vivian, does not support its holding.
In Dickens, the panel reasoned “the decision in Wendowski is not contrary to
statutory law in Pennsylvania” because the provision of “42 Pa.C.S. §9771(b), which
authorize[s] a court to ‘revoke an order of probation upon proof of the violation of specified
conditions of the probation,’ do[es] not prevent revocation for violation of a condition which
occurs prior to the specific probation being revoked.” Dickens, 475 A.2d at 144, quoting
42 Pa.C.S. §9771(b). On the contrary, as discussed, in specifying there must be a
violation of the “probation” itself, as opposed to the “order of probation,” before probation
may be revoked, this language does indeed foreclose anticipatory revocation. In any
case, other language in section 9771 – the pointed omission of revocation from
subsection (a)’s enumeration of court actions which may be taken at “any time,” the
requirement in subsection (b) of court consideration of the defendant’s time spent serving
probation, the mandate in subsection (d) for court consideration of the defendant’s
conduct while on probation – clearly precludes the anticipatory revocation of probation.
The Miller panel rejected the argument Wendowski and Dickens “should be re-
examined in light of 42 Pa.C.S. §9771(d)” because “[t]he purpose of this section of the
statute is to require a hearing before a court revokes probation.” Miller, 516 A.2d at 1265.
But our rules of statutory construction forbid disregarding the clear language of a statute
under the pretext of pursuing its “spirit,” or purpose. See 1 Pa.C.S. §1921(b). Again, the
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plain text of subsection (d) obliges the revocation court to consider “evidence of the
conduct of the defendant while on probation.” 42 Pa.C.S. §9771(d) (emphasis added).
There cannot be such evidence unless and until the probationary term has actually
commenced.
The remaining decisions in the Wendowski line offer no fresh analysis, but rather
simply rely on prior flawed precedent. Specifically, Ware relies on Wendowski and
Dickens, see Ware, 737 A.2d at 253-54; Castro relies on Ware, see Castro, 856 A.2d at180 n.1; Hoover relies on Miller and Wendowski, see Hoover, 909 A.2d at 323; and
Mitchell relies on Miller and Hoover, see Mitchell, 955 A.2d at 435 n.2.
It is true, as the dissent, Commonwealth, and amicus each emphasize, that since
Wendowski, the legislature has renumbered and amended section 9771 without
materially changing the statute, but we do not presume legislative acquiescence in
anticipatory revocation. The rules of statutory construction call for the presumption “[t]hat
when a court of last resort has construed the language used in a statute, the General
Assembly in subsequent statutes on the same subject matter intends the same
construction to be placed upon such language.” 1 Pa.C.S. §1922(4). Importantly,
however, this presumption, like any consideration beyond the statutory text, is operative
only when the statute is unclear or ambiguous. See Commonwealth v. Dickson, 918 A.2d
95, 108 n.15 (Pa. 2007) (plurality) (Ҥ 1922(4) . . . speak[s] to one of several means by
which we discern legislative intent when the language in question is less than
conclusive.”). Where, as here, “the legislative intent [is] manifest in its most trustworthy
source, the statutory language, we cannot simply fall back on an attenuated assertion of
sub silentio legislative acquiescence[.]” Id. at 101.
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The dissent “agree[s] that the plain language of the statute controls[,but] assuming
arguendo that the language of the statute is ambiguous, . . . cannot imagine a more
definitive example of legislative acquiescence than here.” Dissenting Opinion at 10. This
overstates things considerably. Again, by its express terms, section 1922(4) is limited to
decisions by the “court of last resort.” 1 Pa.C.S. §1922(4). The court of last resort in
Pennsylvania is, of course, the Pennsylvania Supreme Court. Thus, the “definitive”
example of legislative acquiescence would be legislative silence in response to a series
of decisions by this Court. Here, on the other hand, the Wendowski line of cases consists
exclusively of three-Judge panel decisions of the Superior Court; this Court has never
once endorsed anticipatory revocation. We acknowledge this Court’s decision years ago
endorsing an extension of the presumption of legislative acquiescence to Superior Court
decisions. See In re Estate of Lock, 244 A.2d 677, 682-83 (Pa. 1968). Yet extending
section 1922(4) beyond its terms to Superior Court cases pivots on the questionable
notion that this Court’s determination not to review a case reflects its endorsement of the
panel’s decision. This Court, however, may deny allowance of appeal for reasons wholly
unrelated to its agreement with the outcome below. See Dickson, 918 A.2d at 107 n.14
(“A denial [of allocatur] may merely reflect that the particular controversy was not the
proper vehicle for deciding a question of law or that it was not presented in the proper
posture.”) (internal citation and quotation omitted; brackets in original). While permissible
under Lock,19 a presumption based solely on Superior Court case law is far from
19Although Lock has not been overruled, and we decline to do so here since we did not
grant allowance of appeal on the question and the abrogation of Lock is not addressed in
the briefing, we nonetheless note, as we have previously, that there are “valid concerns
regarding the soundness of” this decision, Dickson, 918 A.2d at 108 n.15, including its
[J-67A-2022, J-67B-2022 and J-67C-2022] - 26
“definitive,” and falls well short of resolving any purported ambiguity in section 9771 in
favor of the Commonwealth, especially given the applicability of the in pari materia
doctrine and rule of lenity.
We disagree our plain language construction of section 9771 will give a “free pass
to [defendants] who reoffend” while on parole but before their consecutive probation
sentences begin, or permit reoffenders to “violate the law with impunity[.]”
Commonwealth’s Brief at 29; Amicus Brief at 18; see also Dissenting Opinion at 11 (“I
also agree with the Commonwealth that it is an absurd result to suggest that a defendant
could commit a new crime with impunity[.]”). For one thing, a defendant who violates his
county or state parole by committing a new crime is subject to revocation of his parole
and recommitment to prison. See 42 Pa.C.S. §9776(e); 61 Pa.C.S. §6138(a). In addition,
he is subject to separate punishment for his new offense. In this case, for example,
Rosario has been sentenced to 25 to 50 years’ imprisonment for his new crimes.
The dissent maintains revocation of parole and recommitment to prison and a
separate punishment for the new offense do not “rectify the true problem that, by
committing a new crime, the defendant has shown a probationary term is not a sufficient
method of rehabilitation.” Dissenting Opinion at 11. But of course a parolee recommitted
to prison, or a defendant sentenced to a new term of imprisonment, is not placed on
probation; he is incarcerated. Under either scenario “the true problem” of a criminal being
placed on probation despite being demonstrably unsuited for supervised release is
nonexistent. We are similarly unmoved by the dissent’s hypotheticals of a defendant who
tension with the plain language of section 1922(4) and reliance on the dubious
assumption that this Court’s denial of allocatur indicates agreement with the court below.
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“assault[s] a corrections officer or fellow inmate while incarcerated” and “a defendant
convicted of stalking [who] go[es] directly to his victim’s home the day he is released on
parole[.]” Id. at 12 n.9. In these circumstances, as in the present case, we see “little
practical effect to revocation of probation.” Id. The prisoner’s assault would presumably
adversely impact his parole eligibility and subject him to fresh convictions and sentences.
Similarly, the convicted stalker would presumably be subject to parole revocation and
reincarceration as well as punishment for any new offenses stemming from his contact
with the victim. Under these hypothetical examples, as in the case sub judice, the
defendants will not enjoy immunity for their crimes, and public safety will not be
compromised.
We disagree as well with the Commonwealth’s argument that construing section
9771 to bar anticipatory revocation reads words into the statute. Section 9771’s existing
plain language requires court consideration of the defendant’s conduct while on probation
and time spent serving probation. See 42 Pa.C.S. §9771(b),(d). These requirements
clearly limit the timing of revocation to the post-commencement-of-probation context.
Indeed, interpreting section 9771 to permit anticipatory revocation would ignore these
provisions and read them right out of the statute, in contravention of the rule of
construction that “[e]very statute shall be construed, if possible, to give effect to all its
provisions.” 1 Pa.C.S. §1921(a).
It is not correct, as amicus contends, that in the absence of the authority to
anticipatorily revoke probation, a sentencing court which “believes that a state sentence
might be warranted” is hamstrung to impose such a sentence without giving the defendant
the opportunity to demonstrate he “can be compliant with a lesser level of supervision.”
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Amicus Brief at 19. On the contrary, the court can impose a pure probation sentence or
a split sentence involving a term of incarceration of less than two years and a period of
probation. See 42 Pa.C.S. §9721(a). In either case, if the defendant subsequently
violates the probation, the court can then revoke the probation and impose a state
sentence. See 42 Pa.C.S. §9771(b). Hence, a sentencing court can defer a state
sentence and retain the discretion to order state confinement upon a future violation of
probation without the extra-statutory power to anticipatorily revoke probation.
Finally, while we recognize there was widespread reliance on Wendowski and its
progeny for many years up until the recent Simmons decision, and the abrogation of
anticipatory revocation represents a significant change in sentencing practice, these
considerations do not dissuade us from concluding the procedure is illegal. Reliance
interests are pertinent to the question of whether to adhere to stare decisis. See
Commonwealth v. Alexander, 243 A.3d 177, 196 (Pa. 2020). Stare decisis is not
implicated here; we are addressing the legality of anticipatory probation revocation as a
matter of first impression for this Court. What’s more, no amount of past prevalence may
justify the persistence of a practice that is clearly illegal. See Alexander, 243 A.3d at 200
(“[T]he Commonwealth is clearly not entitled to the persistence of an illegal practice.”).
Such is the case here. Pursuant to the plain language of section 9771, it is clear that the
anticipatory revocation of probation is unlawful and must accordingly be prohibited,
irrespective of whether “[t]he rule established in Wendowski developed into a routinely
enforced principle that was employed by our trial and appellate courts for over four
decades.” Amicus Brief at 16.
IV.
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For the foregoing reasons, we hold the anticipatory revocation of a probation
sentence that has yet to start is illegal under Pennsylvania law. Accordingly, the Superior
Court’s order is affirmed.
Chief Justice Todd and Justices Donohue and Wecht join the opinion.
Justice Mundy files a dissenting opinion in which Justice Brobson joins.
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