Com. v. Hoy, N., III

J-A19004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NORMAN STEWART HOY, III :
:
Appellant : No. 1109 MDA 2021
Appeal from the Judgment of Sentence Entered August 16, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001181-2019
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 5, 2022
Norman Stewart Hoy, III appeals his August 16, 2021 judgment of
sentence of five years of probation, which was imposed after his former
probationary sentence was revoked. We affirm.
We glean the following facts and procedural history from the certified
record. On October 21, 2019, Appellant pleaded guilty to driving under the
influence (“DUI”) at the highest rate of blood alcohol concentration (“BAC”),
which was his second DUI offense. Ultimately, the court imposed a sentence
of five years of probation, along with financial sanctions and a short period of
house arrest. On May 25, 2021, the York County Adult Probation and Parole
Department (“the Department”) sought and garnered a detainer due to
Appellant allegedly violating the conditions of his probation by, inter alia,
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A19004-22
possessing and ingesting cocaine. Thereafter, the Department filed a petition
to revoke Appellant’s probation on the same grounds. A violation of probation
(“VOP”) hearing was conducted on August 16, 2021, after which the VOP court
revoked Appellant’s sentence and imposed a new, five-year term of probation.
The next day, Appellant filed a timely notice of appeal to this Court. Both
Appellant and the VOP court complied with the mandates of Pa.R.A.P. 1925.
Appellant has raised the following issues in this Court:
1. Whether the [VOP] court erred in violating [Appellant’s]
probation . . . where the Commonwealth failed to produce
sufficient evidence establishing what the actual terms and
conditions of probation and parole were and [Appellant] had
not been convicted of a new offense.
2. Whether the [VOP] court abused its discretion in violating
[Appellant’s] probation . . . where the Commonwealth failed
to produce sufficient evidence establishing what the actual
terms and conditions of [Appellant’s] probation and parole
were and [Appellant] had not been convicted of a new
offense.
3. Whether the revocation sentence imposed is illegal and
imposed without authority because of the Commonwealth’s
failure to prove that [Appellant] violated any actual term or
conditions of his probation . . . and [Appellant] was not given
credit for any time served.[1]
____________________________________________
1 For the first time in his brief to this Court, Appellant asserts that the VOP
court did not award him credit for the time he served incarcerated on detainer.
See Appellant’s brief at 6. As a general proposition, Appellant is entitled to
credit for the time he spent incarcerated in this manner. See
Commonwealth v. Williams, 662 A.2d 658, 659 (Pa.Super. 1995)
(concluding that a defendant was entitled to credit for all time served on a
“probation violation detainer”) (citing 42 Pa.C.S. § 9760 (“Credit for time
served”)). Furthermore, this issue implicates the legality of Appellant’s
(Footnote Continued Next Page)
-2-
J-A19004-22
Appellant’s brief at 2. Although stated separately, the gravamen of Appellant’s
argument is a single issue that we will address collectively, namely that the
VOP court violated Commonwealth v. Koger, 255 A.3d 1285 (Pa.Super.
2021). Therein, this Court held that a probationer cannot be found in violation
of probation conditions that are not properly communicated by the VOP court.
See id. at 1286 (“[B]ecause the court did not advise Appellant of the
conditions of his probation and parole at the time of the initial sentencing, the
court could not have found he violated these conditions.”). Appellant’s
argument on this point is straightforward:
[T]he VOP court erred by finding there was sufficient evidence for
violation because the sentencing court failed to advise him of the
conditions of his probation . . . . Therefore, because the
sentencing court did not specifically communicate the conditions,
the VOP court could not have found he violated one of the specific
conditions of probation not included in the initial sentencing order.
Accordingly, this Honorable Court should reverse the revocation
of probation and parole and vacate the sentence imposed[.]
Appellant’s brief at 4 (cleaned up). We disagree.
In reviewing Appellant’s claims of error, we will bear the following well-
established legal principles in mind:
____________________________________________
sentence and, therefore, it is not subject to waiver. See Commonwealth v.
Davis, 852 A.2d 392, 399 (Pa.Super. 2004) (“An attack upon the court’s
failure to give credit for time served is an attack upon the legality of the
sentence and cannot be waived.”). Our review discloses that the VOP court’s
sentencing order provided that Appellant would “receive credit as required by
law for all time spent in custody.” Order, 8/16/21. Moreover, Appellant has
not advanced any claim of a miscalculation. Absent any indication Appellant
has not received proper credit pursuant to § 9760, no relief is due.
-3-
J-A19004-22
In an appeal from a sentence imposed after the court has revoked
probation, we can review the validity of the probation
proceedings, the legality of the sentence imposed following
revocation, and any challenge to the discretionary aspects of the
sentence imposed. Further, revocation of a probation sentence is
a matter committed to the sound discretion of the [VOP] court and
that court’s decision will not be disturbed on appeal in the absence
of an error of law or an abuse of discretion.
Commonwealth v. Shires, 240 A.3d 974, 977 (Pa.Super. 2020) (cleaned
up). Probation revocation is governed by 42 Pa.C.S. § 9771(b), which
provides that the VOP court may “revoke an order of probation upon proof of
the violation of specified conditions of the probation.” A sentencing court is
empowered to impose “reasonable” conditions of probation that it “deems
necessary to ensure or assist the defendant in leading a law-abiding life.” 42
Pa.C.S § 9754(b); see also 42 Pa.C.S. § 9763 (“Conditions of probation”). In
addition to any specific conditions imposed by the sentencing court,
Pennsylvania law also imposes “a general condition of probation—that the
defendant lead ‘a law-abiding life,’ i.e., that the defendant refrain from
committing another time.” Commonwealth v. Foster, 214 A.3d 1240, 1250
(Pa. 2019) (citing 42 Pa.C.S. § 9754(b)).
Violation of either this “general” requirement of lawfulness, or a specific
probation condition properly imposed, may justify revocation. Id. at 1251
(“Revocation and resentencing are warranted if, in the face of a new criminal
act or the violation of a condition of probation, the court finds that probation
is no longer achieving its desired aims of rehabilitation and deterring criminal
activity.”). Thus, “[i]n order to revoke a defendant’s probation, the [VOP]
-4-
J-A19004-22
court “must find, based on the preponderance of the evidence, that the
probationer violated a specific condition of probation or committed a new
crime[.]” Commonwealth v. Parson, 259 A.3d 1012, 1019 (Pa.Super.
2021) (emphasis added). With respect to the appropriate quantum of proof,
we note that “preponderance of the evidence is a more likely than not inquiry,
supported by the greater weight of evidence; something a reasonable person
would accept as sufficient to support a decision.” Id. (cleaned up). This Court
has discussed the implications of this lowered burden of proof, as follows:
[A] VOP hearing is not a trial and, as such, does not deal with
questions of “guilt” or “innocence” as those terms are understood
commonly in the criminal law. Indeed, the degree of proof
necessary to achieve revocation of an offender's probation is far
less than that required to sustain a criminal conviction, and
evidence not normally admissible at trial, or even necessarily
criminal in nature, may be presented by the Commonwealth to
meet this burden.
Commonwealth v. A.R., 990 A.2d 1, 6 (Pa.Super. 2010).
Appellant’s argument implicates the probation conditions allegedly
imposed by the VOP court, which the court described at Appellant’s plea and
sentencing hearing, as follows:
THE COURT: All right. I’ll accept the plea. In 1181 of 2019,
[Appellant] is guilty of [DUI]. It’s a five-year IP sentence. There’s
90 days house arrest, with 90 days of alcohol monitoring. He has
33 days credit. It’s a $1,500 fine. Standard DUI conditions
will apply. Court costs are assessed.
N.T. Guilty Plea and Sentencing, 10/21/19, at 5. On the sentencing order filed
by the VOP court, it stated only that Appellant would be subject to “DUI
conditions.” Order, 10/21/19, at 1. The specific aspects of these intended
-5-
J-A19004-22
restrictions were not set forth with particularity either at the hearing or in any
other filing from the VOP court. Due to the court’s failure to enumerate the
specific conditions imposed, Appellant argues that he cannot be found in
violation of his probation pursuant to Koger.
We note, however, that the Department’s justifications for revoking
Appellant’s probation included credible allegations that he possessed and
consumed cocaine. See Petition to Revoke, 7/15/21, at 2 (unpaginated).
Specifically, on May 19, 2021, a drug test administered by the Department
revealed Appellant had been abusing cocaine. Id. In response to this positive
result, Appellant admitted to the Department that he had possessed and used
cocaine on May 18, 2021. Id. We emphasize these facts are not in dispute.
While Appellant is correct in observing the VOP court did not impose any
specific conditions of probation that could justify revocation pursuant to
Koger, the mere lack of such specific conditions does not exempt Appellant
from the general requirement applicable to all Pennsylvania probation terms,
i.e., refraining from committing new crimes. See Commonwealth v. Cook,
1171 EDA 2021, 2022 WL 2389191 (Pa.Super. July 1, 2022) (non-precedential
decision at 6) (observing Koger does not apply where defendant is alleged to
have committed new criminal offenses). Here, Appellant’s actions constituted
a crime under Pennsylvania law, to wit, simple possession of cocaine. See 35
P.S. § 780-104(2)(i)(4) (establishing that any “preparation of coca leaves” is
a Schedule II controlled substance); 35 P.S. § 780-113(a)(16) (prohibiting
-6-
J-A19004-22
the simple possession of a controlled substance). Given the low burden of
proof, these events constituted a sufficient basis to revoke Appellant’s
probation.2 See Cook, supra at 6.
Based on the foregoing, we find that the VOP court was well within its
authority to revoke Appellant’s probation as a result of this new criminal
conduct. Therefore, we discern no abuse of discretion or error of law in the
VOP court’s revocation of Appellant’s probation. No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/05/2022
____________________________________________
2 Our rationale differs from that of the VOP court, which suggests it was
appropriate to leave the delineation of the specific conditions of Appellant’s
probation up to the Department. See VOP Court Opinion, 10/20/21, at 11
(asserting that Appellant’s probation violation stemmed from “conditions
imposed by the [Department]”). However, this Court has concluded that a
sentencing court may not abdicate this responsibility. See Koger, supra at
1291 (holding that a sentencing court “may not delegate its statutorily
proscribed duties to probation and parole offices and is required to
communicate any conditions of probation or parole as a prerequisite to
violating any such condition”). Thus, we cannot countenance the VOP court’s
reasoning. Nonetheless, we may affirm on any valid basis appearing of record.
See Commonwealth v. Radecki, 180 A.3d 441, 451 (Pa.Super. 2018).
-7-