Com. v. Dunn, K.

J-A22027-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEANU LACROIX DUNN :
:
Appellant : No. 180 MDA 2021
Appeal from the Judgment of Sentence Entered January 7, 2021
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000524-2019
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: DECEMBER 30, 2021
Appellant, Keanu Lacroix Dunn, appeals from the judgment of sentence
entered on January 7, 2021. In accordance with our recent en banc opinion
in Commonwealth v. Simmons, ___ A.3d ___, 2021 WL 3641859 (Pa.
Super. 2021) (en banc), we vacate Appellant’s judgment of sentence and
remand both for resentencing and for the trial court to reinstate Appellant’s
original order of probation.
On June 26, 2019, Appellant entered an open guilty plea to two counts
of terroristic threats and one count of possession of a weapon on school
property.1 On August 7, 2019, the trial court sentenced Appellant to serve
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1 18 Pa.C.S.A. §§ 2706(a)(1), 2706(a)(3), and 912(b), respectively.
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an aggregate term of 11-and-one-half to 23 months in jail, followed by 60
months of probation, for his convictions.2
On May 19, 2020, Appellant was placed on parole. The trial court’s
parole order declares:
[Appellant] is placed on parole effective May 19, 2020, for a
period of 8 months 21 days under the supervision of the
Franklin County Probation Department on the conditions that
[Appellant] lives as a law-abiding citizen [and] complies with
the Rules and Special Conductions of Probation-Parole
approved by the [trial] court. . . .
Trial Court Order, 5/15/20, at 1. Under the terms of this order, Appellant’s
parole would not expire until the end of the day on February 9, 2021.
On October 12, 2020, Appellant was recommitted to jail because of new
criminal charges. While he was in jail, Appellant committed instances of
“assaultive behavior.” As a result, on November 10, 2020, the Commonwealth
filed a petition to revoke Appellant’s parole and to anticipatorily revoke
Appellant’s probation. As is relevant to the case at bar, the Commonwealth
sought to revoke Appellant’s parole and probation because: “[Appellant] is in
violation of Probation/Parole[] Rule 2 requiring [Appellant] to not engage in
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2 Specifically, the trial court sentenced Appellant to serve: at Count 1
(terroristic threats under 18 Pa.C.S.A. § 2706(a)(1)), 11.5 to 23 months in
jail, followed by 36 months of probation; at Count 2 (terroristic threats under
18 Pa.C.S.A. § 2706(a)(3)), 11.5 to 23 months in jail, followed by 36 months
of probation, with the sentence to be served concurrently to that imposed at
Count 1; and, at Count 3 (possession of a weapon on school property), 24
months of probation, with the sentence to be served consecutively to that
imposed at Count 1. See Written Sentencing Order, 8/7/19, at 1-3.
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any assaultive and/or threatening behavior in that: . . . [Appellant] was issued
two misconducts at the Franklin County Jail on 10/18/20 where [Appellant]
threatened bodily injury.” Violation Notice, 11/10/20, at 1.
The trial court held a violation of probation and parole hearing on
January 7, 2021. As the trial court explained, the following evidence was
presented during this hearing:
At [Appellant’s] violation hearing, the Commonwealth
introduced testimony from Frank Gordon ("Gordon"), a
former correctional officer with the Franklin County Jail at the
time [Appellant] was incarcerated. A summary of his
testimony is as follows:
Gordon described several incidents concerning [Appellant]
which he witnessed first-hand. He testified that the first
incident occurred on October 18, 2020. That morning, when
Gordon let [Appellant] out for day space, [Appellant] became
disrespectful towards him. Further, Gordon saw [Appellant]
proceed to talk to another inmate and heard him say, "I'm
going to fuck those guys up." [N.T. Violation Hearing,
1/7/21, at 5]. Thereafter, [Appellant] made a telephone call,
during which Gordon heard him say, "[T]hose fucking CO's
are pissing me off. I'm about to fuck them all up." Id.
According to Gordon, [Appellant] was placed on disciplinary
status due to this incident.
Gordon then described another incident with [Appellant]
about an hour-and-a-half later the same day. Gordon stated
that [Appellant] continued to be disrespectful, saying "[O]h,
you ain't done dealing with me." Id. at 6. Gordon also
observed [Appellant] kicking his cell door several times, and
a shift commander even called down to the unit to ask what
the noise was. According to Gordon, [Appellant] damaged
jail property, and in another incident, had broken the window
in his cell door.
Gordon then described a final incident on October 30, 2020.
He explained that he was making rounds when he heard a
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loud noise followed by a scuffling noise. Gordon testified that
when he went to the cell [Appellant] shared with another
inmate, he observed [Appellant] "down on top of his cell
bunk, on top of the inmate . . . had [the inmate] in a choke
hold." Id. Gordon told the [trial c]ourt that he ordered
[Appellant] and the other inmate to stop fighting, but
[Appellant] did not get up. When they did get up, Gordon
avers that "they were still assaultive to each other and they
had to be separated, basically." Id. When asked for
clarification on how the inmates continued to be assaultive
toward each other, Gordon responded that "[t]hey were still
engaged in fighting. [Appellant] was still engaged in actively
trying to choke hold [the other inmate]." Id. at 6-7.
Gordon's testimony then continued as follows:
[ATTORNEY FOR THE COMMONWEALTH]: And did you see
him throwing punches at that point in time or anything of
that nature?
[GORDON]: [Appellant] just had his, you know, arms
wrapped around [the other inmate]'s neck.
[ATTORNEY FOR THE COMMONWEALTH]: And when you
say, had his arms wrapped around his neck, was he using
his hands or was he behind him choking him, how was—
in what position was he doing that?
[GORDON]: He was off to the side. He didn't use his
hands. Kind of his forearm. Upper-arm area.
Id. at 7. At the conclusion of his testimony, Gordon confirmed
that he personally witnessed each of these behaviors by
[Appellant], as he was assigned on those housing units each
time. He also positively identified [Appellant] on the Zoom
hearing as the individual he was testifying about.
On cross-examination, counsel for [Appellant] asked Gordon
whether [Appellant] was punished at the jail for the incidents
Gordon had described. Gordon replied that [Appellant] was
written up for and subsequently adjudicated guilty on all
three of those incidents through Franklin County Jail
procedures.
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The following exchange then occurred between counsel for
[Appellant] and Gordon:
[COUNSEL FOR APPELLANT]: Okay. On the October 30
incident with [the other inmate], was this [the other
inmate] was fighting with [Appellant] and [Appellant] was
fighting with [the other inmate], this was a mutual
combat-type situation?
[GORDON]: From what I understand, [the other inmate]
had been asleep; he was housed on the bottom bunk.
[COUNSEL FOR APPELLANT]: I'm just asking what you
saw.
[GORDON]: Correct, yes. I'm going to get to that. So [the
other inmate] was housed on the bottom bunk and when
I got to the cell, [Appellant] was on top of [the other
inmate]'s bunk where he was housed. Had him in that
choke hold.
[COUNSEL FOR APPELLANT]: Okay. But you didn't see the
beginning of the fight?
[GORDON]: No. I just – I only came to the cell because I
heard the loud noise and the scuffling.
[COUNSEL FOR APPELLANT]: Okay. And am I correct that
no criminal charges were filed as a result of these
incidents?
[GORDON]: I'm not aware of any, no.
[COUNSEL FOR APPELLANT]: Okay.
[GORDON]: That would have been [the other inmate]'s
doing.
[COUNSEL FOR APPELLANT]: And—
[GORDON]: But just to clarify, Attorney, we still provide
a misconduct for the incident, whether or not charges are
filed by the person assaulted.
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[COUNSEL FOR APPELLANT]: Correct. And [] that
misconduct was carried out at the Franklin County Jail,
back in October or November, I assume?
[GORDON]: Correct, October 30, 2020.
[COUNSEL FOR APPELLANT]: Okay. And punishment for
something like that would be placed on status, quote
unquote, in the hole?
[GORDON]: Disciplinary segregation, correct. Yes.
Id. at 9-10.
Trial Court Opinion, 3/23/21, at 6-10.
On January 7, 2021, the trial court concluded that Appellant was “in
violation of the terms and conditions of his split sentence.” Trial Court Order,
1/8/21, at 1. The trial court then resentenced Appellant to serve an aggregate
term of 18 to 84 months in prison. N.T. Violation Hearing, 1/7/21, at 15.
After Appellant filed a timely notice of appeal, the trial court ordered
Appellant to file a concise statement of errors complained of on appeal, in
accordance with Pennsylvania Rule of Appellate Procedure 1925(b). See Trial
Court Order, 2/5/21, at 1. Appellant’s Rule 1925(b) statement included a
number of discretionary aspects of sentencing claims and one vague
sufficiency of the evidence claim. The sufficiency claim declared:
Whether the [trial c]ourt [] erred in finding [Appellant] in
violation of his probation because the violation had not been
proven by sufficient evidence[?]
Appellant’s Rule 1925(b) Statement, 2/26/21, at 2.
Appellant raises the following claims on appeal:
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1. Whether the [trial c]ourt [] erred in finding [Appellant] in
violation of his probation because the violation had not been
proven by sufficient evidence[?]
2. [Whether the trial court abused its discretion when it
imposed a manifestly unreasonable sentence?]
Appellant’s Brief at 4-5.3
In Commonwealth v. Simmons, ___ A.3d ___, 2021 WL 3641859(Pa. Super. 2021) (en banc), an en banc panel of this Court overruled prior
precedent first articulated in Commonwealth v. Wendowski, 420 A.2d 628(Pa. Super. 1980) (holding that a trial court may anticipatorily revoke an order
of probation and resentence accordingly prior to the commencement of
probationary supervision). In reviewing the applicable statutes, the
Simmons Court determined that when a trial court imposes an order of
probation to run consecutive to a term of confinement, the defendant is
“required to serve his entire term of total confinement before he beg[ins] to
serve his probationary term.” Id. at *8. Thus, the Simmons Court held, the
conditions of an order of probation “cannot take effect until the term of
imprisonment ends.” Id. at *9. Accordingly, where an appellant is on parole
and his probationary period has yet to begin, a trial court cannot anticipatorily
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3 Appellant raises three separate discretionary aspects of sentencing claims
on appeal. In the interest of brevity, we have consolidated the separate claims
into a single claim.
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find that appellant was in violation of the conditions of his probation. 4 Id. at
*12.
Here, as described above, Appellant was on parole, and not probation,
in October 2020, when the incidents giving rise to his violation occurred.
Consequently, the trial court lacked authority to find that Appellant violated a
condition of his probationary sentence before it commenced. See id. at *9.
As such, the trial court erred in resentencing Appellant for the anticipatory
violation of his probation. As the trial court possessed only the authority to
find Appellant in violation of his parole, we are constrained to vacate
Appellant's judgment of sentence to the extent the court found Appellant in
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4 As we explained in Simmons, where the trial court finds the defendant in
anticipatory violation of the conditions of his probation and then resentences
the defendant for this alleged violation, the trial court is imposing an illegal
sentence. This is because the trial court does not have statutory authority to
find that the defendant violated probationary conditions which have not yet
commenced and, “to the extent the trial court amend[s an] original order of
probation to run concurrently, rather than consecutively, the trial court
illegally modif[ies a defendant’s] sentence, as the trial court [does] not have
jurisdiction to modify [a] sentence more than 30 days after imposition.”
Simmons, 2021 WL 3641859, at *1; see also Commonwealth v. Bischof,
616 A.2d 6, 10 (Pa. Super. 1992) (“a modification of a sentence imposed on
a criminal defendant which increases the punishment constitutes further or
double jeopardy”) (quotations and citations omitted); Commonwealth v.
Everett, 419 A.2d 793, 794 (Pa. Super. 1980) (“[s]ince the original [order
of] probation was illegal, the sentence of imprisonment imposed for violation
of that probation was illegal”). Further, although Appellant has not raised an
illegal sentencing claim on appeal, we may consider this issue sua sponte, as
“challenges to an illegal sentence can never be waived and may be raised sua
sponte by this Court.” Simmons, 2021 WL 3641859, at *1 n.3.
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violation of a condition of his probation and resentenced him for the alleged
probation violation.
Appellant has neither raised nor developed a claim alleging that the trial
court erred in finding him in violation of his parole.5 Thus, we affirm
Appellant's judgment of sentence to the extent it revoked his parole.
However, we must vacate Appellant’s judgment of sentence in part, as the
trial court did not have the authority to resentence Appellant for a parole
violation. See Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super.
2008) (“Unlike a probation revocation, a parole revocation does not involve
the imposition of a new sentence. Indeed, there is no authority for a
parole-revocation court to impose a new penalty. Rather, the only option for
a court that decides to revoke parole is to recommit the defendant to serve
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5 Within Appellant’s brief, Appellant claims that the evidence was insufficient
to support the revocation of his probation because the Commonwealth did not
introduce the specific conditions of his probation at the hearing. See
Appellant’s Brief at 7-10. Even if we viewed Appellant’s claim as
encompassing the revocation of his parole, we would still be forced to conclude
that Appellant waived his claim on appeal. This is because Appellant’s Rule
1925(b) statement vaguely challenged the sufficiency of the evidence, without
“specify[ing] the element or elements upon which the evidence was
insufficient.” Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.
2008) (“[i]f Appellant wants to preserve a claim that the evidence was
insufficient, then the 1925(b) statement needs to specify the element or
elements upon which the evidence was insufficient. This Court can then
analyze the element or elements on appeal. [Where a] 1925(b) statement []
does not specify the allegedly unproven elements[,] ... the sufficiency issue is
waived [on appeal]”) (quotations and citations omitted).
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the already-imposed, original sentence”).6 Further, as in Simmons, we
remand with instructions to reinstate the original order of probation and for
resentencing.
Judgment of sentence vacated. Case remanded with instructions to
reinstate the original order of probation and for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2021
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6Our holding renders Appellant’s discretionary aspect of sentencing claims
moot.
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