Com. v. Doctor, T.

J-S36034-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL DOCTOR :
:
Appellant : No. 1597 EDA 2020
Appeal from the Judgment of Sentence Entered July 28, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003444-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL DOCTOR :
:
Appellant : No. 1598 EDA 2020
Appeal from the Judgment of Sentence Entered July 28, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005642-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL DOCTOR :
:
Appellant : No. 1599 EDA 2020
Appeal from the Judgment of Sentence Entered July 28, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005643-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S36034-21
:
v. :
:
:
TERRELL DOCTOR :
:
Appellant : No. 1600 EDA 2020
Appeal from the Judgment of Sentence Entered July 28, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009141-2017
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 2, 2022
Appellant, Terrell Doctor, appeals from judgments of sentence of the
Court of Common Pleas of Philadelphia County (the trial court) following the
revocation of his probation in four consolidated criminal proceedings. For the
reasons set forth below, we vacate Appellant’s judgments of sentence and
remand all four cases for reinstatement of the original orders of probation.
On January 29, 2018, Appellant entered negotiated guilty pleas in four
criminal cases, CP-51-CR-0003444-2017 (CR-3444-2017), CP-51-CR-
0005642-2017 (CR-5642-2017), CP-51-CR-0005643-2017 (CR-5643-2017),
and CP-51-CR-0009141-2017 (CR-9141-2017). In CR-3444-2017, Appellant
pled guilty to robbery, aggravated assault, conspiracy, and carrying a firearm
without a license and was sentenced to an aggregate 2 to 5 years’
imprisonment followed by 7 years’ probation. N.T., 1/29/18, at 4-5, 7, 12-
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* Retired Senior Judge assigned to the Superior Court.
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13, 18-19, 24-25; CR-3444-2017 Sentencing Order, 1/29/18. In CR-5642-
2017, Appellant pled guilty to robbery and carrying a firearm without a license
and was sentenced to an aggregate 2 to 5 years’ imprisonment followed by 7
years’ probation. N.T., 1/29/18, at 5, 7, 14-15, 19, 25; CR-5642-2017
Sentencing Order, 1/29/18. In CR-5643-2017, Appellant pled guilty to
resisting arrest and was sentenced to 2 years’ probation. N.T., 1/29/18, at 5-
7, 15-17, 19-20, 25-26; CR-5643-2017 Sentencing Order, 1/29/18. In CR-
9141-2017, Appellant pled guilty to robbery, conspiracy, and carrying a
firearm without a license and was sentenced to an aggregate 2 to 5 years’
imprisonment followed by 7 years’ probation. N.T., 1/29/18, at 6-7, 17-18,
20, 26; CR-9141-2017 Sentencing Order, 1/29/18.
The trial court ordered that the sentences of imprisonment in CR-3444-
2017, CR-5642-2017, and CR-9141-2017 were to run concurrently and that
the probation sentences were concurrent with respect to each other, but that
all the probation periods were to be served consecutive to the 2 to 5 year
prison sentences. N.T., 1/29/18, at 4-6, 23-25; CR-3444-2017 Sentencing
Order, 1/29/18; CR-5642-2017 Sentencing Order, 1/29/18; CR-9141-2017
Sentencing Order, 1/29/18. In CR-5643-2017, the trial court ordered that
Appellant’s probation was to be served concurrently with the probation
portions of his sentences in CR-3444-2017, CR-5642-2017, and CR-9141-
2017. N.T., 1/29/18, at 5-6, 23-26; CR-5643-2017 Sentencing Order,
1/29/18. In all four cases, the trial court imposed as a condition of probation
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that Appellant was required to “submit to random home and vehicle checks
for weapons and drugs.” CR-3444-2017 Sentencing Order, 1/29/18; CR-
5642-2017 Sentencing Order, 1/29/18; CR-5643-2017 Sentencing Order,
1/29/18; CR-9141-2017 Sentencing Order, 1/29/18; see also N.T., 1/29/18,
at 22-23.
Appellant was paroled from his 2 to 5 year prison sentences by the
Pennsylvania Board of Probation and Parole (state parole board) on June 29,
2019. In August 2019, while on parole, Appellant was arrested and charged
with possession of a firearm by a person prohibited and other offenses. N.T.,
1/9/20, at 8-9; Trial Court Opinion at 5. On February 10 and 13, 2020, before
Appellant was tried on those new charges and over Appellant’s objection that
the hearing should be deferred until the new criminal charges were resolved,
the trial court held violation of probation hearings in CR-3444-2017, CR-5642-
2017, CR-5643-2017, and CR-9141-2017.1 On February 13, 2020, based on
the evidence at those hearings, the trial court found that Appellant was in
possession of a firearm in the August 2019 incident, that this constituted a
violation of the conditions of his probation in CR-3444-2017, CR-5642-2017,
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1 It is not clear from the record whether the new criminal charges have yet
been resolved. Appellant states in his brief, filed in July 2021, that, at that
time, the new charges were listed to be tried on November 8, 2021.
Appellant’s Brief at 11.
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CR-5643-2017, and CR-9141-2017, and revoked Appellant’s probation in all
four cases. N.T., 2/13/20, at 46-48.2
On July 22, 2020, the trial court sentenced Appellant to an aggregate
15 to 30 years’ imprisonment followed by 21 years’ probation in these four
cases. Appellant filed timely post sentence motions in all four cases seeking
reconsideration of his sentences. On July 28, 2020, the trial court granted the
post sentence motions in part, vacated the July 22, 2020 sentences, and
resentenced Appellant to an aggregate 71/2 to 15 years’ imprisonment
followed by 7 years’ probation. CR-3444-2017 Sentencing Order, 7/28/20;
CR-5642-2017 Sentencing Order, 7/28/20; CR-5643-2017 Sentencing Order,
7/28/20; CR-9141-2017 Sentencing Order, 7/28/20.
Appellant timely appealed in all four cases and this Court sua sponte
consolidated these appeals. In his brief in these appeals, Appellant argues that
the judgments of sentence must be vacated on the grounds that (1) the trial
court should have deferred the violation of probation hearing until after the
resolution of the new criminal charges; (2) the new sentences were excessive;
and (3) the evidence was insufficient to show a violation of a condition of
Appellant’s probation. Appellant’s Brief at 2-3. The Commonwealth argues
that Appellant’s sentences must be vacated under this Court’s decision in
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2 Because Appellant’s parole was from a state sentence, revocation of
Appellant’s parole was under the jurisdiction of the state parole board and the
hearing and revocation were limited to Appellant’s probation sentences.
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Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super. 2021) (en banc).
We agree with the Commonwealth that it is clear from the record that
Appellant was not serving his probation sentences in August 2019 and that
under Simmons, the revocation of probation in these cases was without
statutory authority and the sentences imposed for those revocations of
probation are illegal sentences. We therefore vacate Appellant’s judgments of
sentence on that ground and need not and do not address Appellant’s issues.
While Appellant, whose brief was filed before Simmons was decided,
did not argue this issue, 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
it. 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, 262 A.3d at 515-16 & n.3.
A court may revoke a defendant’s probation only upon proof that the
defendant violated a condition of his probation. 42 Pa.C.S. § 9771(b);
Commonwealth v. Foster, 214 A.3d 1240, 1243, 1250-51 (Pa. 2019);
Simmons, 262 A.3d at 519. When a court orders that a sentence of probation
is to run consecutive to a term of imprisonment, the defendant’s conduct while
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he 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, 262 A.3d at
523-25, 527.
Here, the record shows that Appellant’s probation sentences in all four
case were consecutive to his sentences of imprisonment and that he was still
on parole in August 2019. The trial court’s January 29, 2018 sentencing
orders in CR-3444-2017, CR-5642-2017, and CR-9141-2017 expressly
provided that all periods of probation were consecutive to the 2 to 5 year
imprisonment portions of those sentences and its January 29, 2018 sentencing
order in CR-5643-2017 expressly provided that the 1 to 2 year period of
probation that it imposed was to be served concurrently with the probation
sentence in CR-5642-2017. CR-3444-2017 Sentencing Order, 1/29/18; CR-
5642-2017 Sentencing Order, 1/29/18; CR-9141-2017 Sentencing Order,
1/29/18; CR-5643-2017 Sentencing Order, 1/29/18.3 Appellant was paroled
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3 Although the trial court at the February 2020 hearings asserted that
Appellant was serving his probation sentence in CR-5643-2017 in August
2019, N.T., 2/13/20, at 5, 49, those subsequent characterizations of
Appellant’s sentence cannot alter the clear language of the January 29, 2018
sentencing order. Commonwealth v. Borrin, 80 A.3d 1219, 1226-27 (Pa.
2013). Indeed, the trial court in its opinion recognized that Appellant’s
probation sentence in CR-5643-2017 was consecutive to the 2 to 5 year prison
sentences in the other three cases. Trial Court Opinion at 4 (stating that the
January 29, 2018 sentencing orders provided that “[a]ll periods of state and
county supervised periods of probation were imposed to run concurrently with
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from the 2 to 5 year prison sentences in June 2019 and he could not finish
serving those prison sentences until 2022 at the earliest, as he was arrested
in these four cases in February 2017 and June 2017. Therefore, because he
was not yet serving the probation sentences, Appellant’s actions in August
2019 could not be in violation of a condition of his probation in any of these
cases and the revocation of probation and new sentences in all four cases
must be vacated. Simmons, 262 A.3d at 523-25, 527.4
Because the trial court lacked authority to revoke Appellant’s probation
based on his actions in August 2019, while he was still serving his prison
sentences on parole and his probation had not yet begun in any of the four
cases, the sentences that it imposed in July 2020 were illegal sentences.
Accordingly, we vacate Appellant's judgments of sentence and remand that
case with instructions to reinstate the January 29, 2018 probation sentences
in all four cases.
Judgments of sentence vacated. Case remanded with instructions to
reinstate the original probation sentences. Jurisdiction relinquished.
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each other but consecutively running to all periods of state supervised periods
of confinement”).
4 We recognize that revocations of probation before the defendant began
serving his probation sentence were permitted under this Court’s precedents
at the time of the probation revocation hearing here and that 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: 2/02/2022
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