Com. v. Goad, D.

J-A07030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ALFONCE GOAD :
:
Appellant : No. 633 MDA 2020
Appeal from the Order Entered March 17, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006149-2017
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2021
I cannot agree with my esteemed colleagues’ disposition of this case.
In my view, rather than quash the appeal, this Court should affirm the trial
court’s March 17, 2020 decision to immediately terminate Appellant’s
probation and grant counsel’s Application for Leave to Withdraw as Counsel.
Therefore, I respectfully dissent.
I begin with a review of the events of this case as revealed by the
certified record. Following a retail theft conviction, Appellant was serving a
sentence of two years of probation, from April 3, 2018 to April 2, 2020, plus
fines and costs totaling $2,266.25. See Notice of Alleged Violations of
Probation, 1/23/20, at unnumbered 3. Several times Appellant filed pro se
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* Former Justice specially assigned to the Superior Court.
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motions to have his probation terminated early and to waive the fines and
costs. Specifically, he indicated that he wanted to be released from
supervision, and the additional costs he had to pay in order to be supervised,
so he could accept a job out of state that would enable him to pay the
fines/costs portion of his sentence. See Motion to Have Court Cost and Fines
Waived and Early Release from Probation and/or Unsupervised Probation,
7/31/19. The trial court forwarded the motions to counsel, who took no action
on them.
On January 23, 2020, the Commonwealth initiated probation revocation
proceedings for Appellant’s violation of “Rule 7: Make bi-weekly/monthly
payments.” See Notice of Alleged Violations of Probation, 1/23/20, at
unnumbered 3. The notice indicated that Appellant still owed more than
$2,400, and that his last payment was $25 on January 3, 2020. At the
revocation hearing on March 17, 2020, appointed counsel indicated that
Appellant did not contest the violations. A probation officer, different from the
individual identified in the above-referenced motions, confirmed counsel’s
representation that it was “just a fines and costs issue,” and reiterated the
dates and numbers indicated in the revocation notice. N.T. Revocation
Hearing, 3/17/20, at 2. The probation officer’s recommendation was that
Appellant be “revoked” and “placed on [Monetary Compliance Unit (‘MCU’)] as
he has paid six months in a row and has no special conditions pending.” Id.
at 2. Appellant’s counsel responded: “We are certainly in agreement with
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that recommendation.” Id. The court responded “Very well. I’ll follow [the
probation officer’s] recommendation, place you on the monetary compliance
unit, sir. You made regular payments for a six-month period. Since the
balance is still $2,000 we’d still like you to continue with those payments as
well.” Id. at 2-3. Appellant indicated that he had just paid another $25, so
the balance was less than that, the court said “very well,” Appellant’s counsel
said “keep chipping away,” the court thanked Appellant for his cooperation,
Appellant said thank you, and the proceeding concluded. Id. at 3.
An untitled, preprinted form was filed the same day as the revocation
hearing. At its top, a box is checked indicating that it pertained to a
revocation, but the “Sentencing” box remained unchecked, as did the box for
“Sentence Deferred.” The word “Revoke” is circled and “Probation” checked
next to it. Written next to “Notes” is the indication “must pay F/C” and “After
6 mo of payments to F/C move to monetary compliance.” There is an illegible
signature on a blank line next to “Judge.” The document is docketed as
“Revocation Penalties Imposed” without indicating whether it is a sentencing
order, another type of order, or merely a housekeeping form.
Appellant then filed a pro se notice of appeal from the March 17, 2020
“order,” stating therein that he “was revoked” eighteen days before his
probation term “maxed out,” that the court ignored his petitions for early
termination and waiver of costs and fines, and that, if the court had ruled on
them, either there would not have been a revocation hearing or he could have
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appealed the denial. See Notice of Appeal, 4/17/20. Although counsel had
not been granted leave to withdraw, the trial court served Appellant, but not
counsel, with a Pa.R.A.P. 1925(b) order, and Appellant filed a pro
se statement in response. The trial court’s Pa.R.A.P. 1925(a) opinion
represented that Appellant’s probation had been revoked, that Appellant was
sentenced to continue paying fines and costs, and that if Appellant made six
months of payments, he would then be transferred to monetary compliance,
where the probation department “monitors payment but conducts no active
supervision.” Trial Court Opinion, 5/22/20, at 2. It then opined that Appellant
waived his issues by not ordering the transcript. Id. In the alternative, the
trial court suggested that we affirm the agreed-upon sentence of no new
supervision and a repayment plan. Id. at 3. Appellant, but not counsel, was
served with the opinion, although counsel still had not been granted leave to
withdraw.
This Court noted that Appellant was pro se and that the record did not
reflect that he waived his right to counsel; therefore we remanded for a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998)
(“When a waiver of the right to counsel is sought at the post-conviction and
appellate stages, an on-the-record determination should be made that the
waiver is a knowing, intelligent, and voluntary one.”). Following the Grazier
hearing, the trial court appointed a public defender who requested the
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transcripts. Counsel entered an appearance in this Court and filed a petition
to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967).
In the Anders brief, counsel attempted to clarify that, while the court
at the revocation hearing indicated that it was going to follow the probation
officer’s recommendation, which was revocation, “[t]he court did not actually
articulate that it was revoking [Appellant’s] probation.” Anders brief at 7.
Counsel further suggested that “it is clear that the court was not resentencing
[Appellant].” Id. Counsel explained that the preprinted form included in the
certified record while signed by the presiding judge, is not “a formal written
order.” Id. at n.1. Counsel indicated that form does state that probation was
revoked, but it imposes no new sentence, and incorrectly indicates that the
transfer to MCU would take place in the future rather than immediately. Id.
at n.1, 2.
Counsel additionally offered some details about the MCU. Counsel
stated that a transfer to the MCU is not a new sentence, as MCU is not a form
of probation, supervised or otherwise; that the transfer to MCU is permanent
and noncompliance cannot result in reinstatement of probation, and that the
only possible sanction for failure to comply with the MCU obligations would be
a charge of contempt of court pursuant to 42 Pa.C.S. § 9772.1
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1 That statute provides, inter alia, that “Unless there is proof that failure to
pay a fine or that portion of the fine that is due is excusable, the court may
after a hearing find the defendant guilty of contempt and sentence him to not
(Footnote Continued Next Page)
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In positing that the appeal was wholly frivolous, counsel suggested that
the trial court would have committed reversible error in revoking Appellant’s
probation without determining that his failure to pay costs and fines was
willful. Ultimately, counsel concluded that, since the trial court in effect
terminated, rather than revoked, Appellant’s probation by transferring him to
MCU, the issue is moot because the court put Appellant in the same position
as if it had granted his pro se motion for early termination of probation. See
Anders brief at 11-13.
In our now-withdrawn initial disposition, this Court considered the
appeal to be one from a judgment of sentence entered following the finding
of probation violations but merely continuing the existing order of probation.
Memorandum, 4/21/21, at 1. We agreed that there was no merit in the issue
identified by counsel concerning the court’s failure to determine Appellant’s
ability to pay because the court did not revoke or change the terms of
Appellant’s probation, but merely “continued Appellant’s probation and
installment payment plan.” Id. at 4. We then indicated that we had done an
independent review of the record and found “no arguably meritorious issues
that warrant further consideration.” Id. This Court did “remind” the trial
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more than six months imprisonment, if a term of confinement of that amount
could have been imposed for the offense charged.” 42 Pa.C.S. § 9772. This
Court has held that a trial court must determine that the defendant had the
ability to pay and nonpayment was willful before imposing imprisonment. See
Commonwealth v. Smetana, 191 A.3d 867, 873 (Pa.Super. 2018).
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court that Appellant’s “two Pa.R.Crim.P. 706(D)” motions remained pending,
and that “[i]t is important that the trial court promptly resolve these
motions.”2 Id. at 5 n.4.
Although we had granted him leave to withdraw, counsel filed an
application for reargument. Therein counsel noted that this Court
“misapprehended the procedural facts of record.” Application for Reargument
at 5. Specifically, counsel indicated that we “wrongly stated that the lower
court continued [Appellant’s] probation,” rather than specifying that the trial
court imposed no new sentence and actually terminated the existing probation
by immediately transferring Appellant to MCU. Id. Then, counsel contended,
this Court took the legally erroneous position that a revocation solely for
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2 The rule provides as follows:
In cases in which the court has ordered payment of a fine or costs
in installments, the defendant may request a rehearing on the
payment schedule when the defendant is in default of a payment
or when the defendant advises the court that such default is
imminent. At such hearing, the burden shall be on the defendant
to prove that his or her financial condition has deteriorated to the
extent that the defendant is without the means to meet the
payment schedule. Thereupon the court may extend or accelerate
the payment schedule or leave it unaltered, as the court finds to
be just and practicable under the circumstances of record. When
there has been default and the court finds the defendant is not
indigent, the court may impose imprisonment as provided by law
for nonpayment.
Pa.R.Crim.P. 706(D).
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failure to pay and imposition of a new sentence is permissible without
determining that the nonpayment was willful. Id. at 5-6.
Counsel also filed in the trial court a motion to correct the record, noting
the issues raised in the reargument application. Counsel requested that the
trial court enter an order and certify it to this Court as a supplemental record:
(1) indicating that Appellant did not receive a new sentence on March 17,
2020; (2) clarifying that Appellant had actually been immediately placed into
MCU on March 17, 2020, such that his existing probation was terminated on
that date; and (3) stating that any contrary statements in the Rule 1925(a)
opinion and the untitled form filed on March 17, 2020 “are to be disregarded.”
Motion to Correct/Modify the Appellate Record, 5/4/21, at 5.
The trial court’s resultant order did not so specifically address each of
the issues identified by counsel. The order instead directly addressed
Appellant’s outstanding pro se motions to terminate supervision and waive
costs and fines as moot, noting this Court’s indication that it should promptly
resolve them. The trial court denied the motions as moot, indicating that the
substance of the motions was addressed at the March 17, 2020 revocation
hearing. The court explained that Appellant “was removed from supervision
and placed on Monetary Compliance” and “agreed to pay $25/month towards
the outstanding balance of fines and costs.” Order 5/12/21, at 1. The order
further confirmed counsel’s representations about the effect of the MCU
transfer, namely that “[p]lacement into [MCU] results in the termination of
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the probation supervision,” and that thereafter “[t]he probation cannot be
reinstated and the only remaining means of addressing non-payment would
be a contempt action.” Id. at n.2.
The Majority has now taken the position that the untitled form
completed on March 17, 2020 is an “Order revoking [Appellant’s] probation,”
in which the trial court directed that Appellant would transfer to MCU “after
six months.” Majority Memorandum at 4. The Majority holds that “[a]
prospective transfer to the MCU is not a recognized sentence under the
sentencing code,” and thus, because, with exceptions not applicable here,
criminal appeals lie from judgments of sentence, it is not an appealable order.
Id. The Majority therefore concludes that the appeal must be quashed. I
respectfully disagree.
If the Majority were correct that the trial court revoked Appellant’s
probation and ordered a prospective sentence that is not authorized by the
sentencing code, the proper remedy would be for this Court to vacate the
sentence as illegal and remand for resentencing. See, e.g., Commonwealth
v. Hill, 66 A.3d 359, 362 (Pa.Super. 2013) (“If a court does not possess
statutory authorization to impose a particular sentence, then the sentence is
illegal and must be vacated.” (cleaned up)).
However, I do not think the Majority’s characterization of the appeal as
being from an order revoking probation is accurate. It is clear from the face
of the certified record that the trial court at the March 17, 2020 hearing
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unambiguously expressed in open court that its order was to terminate
Appellant’s nearly-completed probation and to transfer him to the MCU
immediately, not prospectively, since he had already made six months of
regular payments. See N.T. Revocation Hearing, 3/14/20, at 2-3 (“I'll follow
[the probation officer’s] recommendation, place you on the monetary
compliance unit, sir. You made regular payments for a six-month period.”).
Furthermore, the certified record confirms that an immediate termination and
transfer to the MCU is what actually transpired. See Order, 5/12/21 (denying
Appellant’s motions for early release from probation as moot because the
matter was addressed at the March 17, 2020 hearing when Appellant “was
removed from supervision and placed on Monetary Compliance”). To the
extent that the written March 17, 2020 “order” differs from the trial court’s
actual on-the-record ruling, I would direct the trial court to enter a new order
correcting the patent and obvious mistake. See, e.g., Commonwealth v.
Holmes, 933 A.2d 57, 65-67 (Pa. 2007) (holding that trial courts have the
inherent power to correct mistakes that are patent and clearly incompatible
with the record).
An order adjudicating a motion for the early termination of probation is
a final, appealable order. See, e.g., Commonwealth v. Concordia, 97 A.3d
366, 368 (Pa.Super. 2014) (adjudicating Commonwealth’s appeal from order
terminating probation); Commonwealth v. Johnson, 229 A.3d 318, 2020
WL 996905, at *2 (Pa.Super. 2020) (non-precedential decision) (exercising
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jurisdiction over denial of motion for early termination of probation).
Accordingly, rather than quash, I would adjudicate the merits of the appeal.
In my view, counsel has complied with the technical requirements of
Anders, and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).3
Furthermore, I agree with counsel that the appeal is wholly frivolous.
Appellant agreed to the disposition ordered by the trial court, which comported
with his requests to terminate his supervision so he would be able to seek out-
of-state employment that would enable him to make his installment
payments. See N.T. Revocation Hearing, 3/17/20, at 1; Motion to Have Court
Cost and Fines Waived and Early Release from Probation and/or Unsupervised
Probation, 7/31/19. Appellant cannot complain to have received that for
which he asked.
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3 Specifically, I conclude that counsel, in addition to filing an application to
withdraw that he served upon Appellant and advising Appellant of his right to
pursue the appeal pro se or with private counsel, has satisfied the following
requirements:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
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To the extent that Appellant sought to have the trial court completely
waive the outstanding costs and fines, the issue was not raised at the March
17, 2020 hearing, and it is therefore waived for purposes of this appeal. See
Pa.R.A.P. 302 (“Issues not raised in the trial court are waived and cannot be
raised for the first time on appeal.”). Furthermore, such a request is not a
remedy available through Pa.R.Crim.P. 706(D), which, as quoted supra,
addresses only allowing an indigent defendant to alter a payment schedule to
comport with his or her financial condition. Rule 706(D) does not allow a court
to go back and modify a judgment of sentence outside the normal channels,
i.e., a timely post-sentence motion or a petition filed pursuant to the Post
Conviction Relief Act.
For the reasons stated above, I would affirm and grant counsel leave to
withdraw, directing the trial court upon remand to correct the error on the
face of its March 17, 2020 “order.” Therefore, I respectfully dissent.
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