Com. v. Cook, R.

J-A07029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REGINALD COOK :
:
Appellant : No. 1171 EDA 2021
Appeal from the Judgment of Sentence Entered May 10, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000788-2016
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 1, 2022
Reginald Cook appeals from the judgment of sentence imposed following
the revocation of his parole and probation. Cook argues his sentence is illegal
or unsupported by the evidence because, according to Cook, the
Commonwealth did not present evidence of a violation of his parole beyond a
mere arrest. He also argues his sentence is illegal because the court
anticipatorily revoked his probation. Cook also filed an Application for Relief
asking us to “consider the portion of his brief addressing the legality of his
sentence,” citing Commonwealth v. Simmons, 262 A.3d 512 (Pa.Super.
2021) (en banc). Application for Relief, 2/8/22, at 2 ¶ 10. We grant the
Application for Relief but affirm the judgment of sentence.
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Cook pleaded guilty on August 2, 2016, to one count of firearms not to
be carried without a license.1 The court sentenced him to a negotiated
sentence of time served to 23 months’ imprisonment with a consecutive term
of two years of probation. Cook was released on parole but he repeatedly
violated it, and the court recommitted him in December 2016, September
2017, and January 2020.
The Montgomery County Adult Probation department served Cook with
a fourth notice of parole violation in December 2020. It alleged he had been
arrested and charged with driving under the influence of alcohol or a controlled
substance (“DUI”), in violation of 75 Pa.C.S.A. § 3802.
At a hearing, the prosecutor stated that Cook would be stipulating “to
the violations, I believe just to the arrest,” and defense counsel agreed. N.T.,
5/10/21, at 3. Defense counsel conducted a colloquy to ensure Cook
understood he was stipulating to having violated his parole, and relieving the
Commonwealth of its burden to prove he violated his parole by a
preponderance of the evidence, but not confessing that he had committed any
crime:
Q. All right. Do you understand that you are here today for what’s
called a Gagnon[2] Hearing? There’s an allegation that you have
violated your probation and parole. Do you understand?
A. Yes.
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1 18 Pa.C.S.A. § 6106(a)(2).
2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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Q. And do you understand that before you can be found in
violation of your probation and parole, you’re entitled to two
hearings, a Gagnon I and Gagnon II? At the Gagnon I Hearing,
the Commonwealth or the district attorney has the burden of
showing that there’s probable cause to believe that you violated.
Do you understand?
A. Yes.
Q. And do you understand that by waiving or giving up your right
to that hearing, you’re relieving them of that burden?
A. Say that again?
Q. Do you understand that by waiving or giving up the right to
that hearing, you’re relieving them of their burden of proving you
guilty? Do you understand?
A. Yes.
Q. At the second hearing, the Gagnon II, the district attorney has
to show by a preponderance of the evidence, which means more
likely than not that you violated. And by stipulating, we’re
agreeing that you’re in violation. You’re relieving them of that
burden as well. Do you understand?
A. Yes.
...
Q. All right. Do you understand you’re basically agreeing to your
arrest? You’re not agreeing to the underlying behavior, because
your charges are still pending in Philadelphia. Do you understand
that?
A. Yes.
Id. at 5-7 (italics added); see also id. at 11 (Cook responding “Yes” when
asked whether he agreed to the sentence).
The court found Cook “knowingly, intelligently, and voluntarily
stipulated that he is in violation of his supervision.” Id. at 10. The court also
specified that Cook had violated both his parole and his probation, and it
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revoked both. Id. It recommitted Cook to serve the remainder of his prison
term and consecutive term of probation.
Cook did not file a post-sentence motion but filed a timely notice of
appeal.3 He raises the following issues:
I. Was the sentence imposed by the Court on May 10, 2021 an
illegal sentence since the Commonwealth failed to present
evidence of the actual terms and conditions of [Cook]’s probation
and parole as required by Com[monwealth] v. Koger, [255 A.3d
1285 (Pa.Super. 2021), appeal granted, No. 270 WAL 2021, 2022
WL 1014268 (Pa. Apr. 5, 2022)]; failed to establish a violation of
a specific condition of probation as required by Koger, and failed
to establish a new criminal conviction for [Cook]?
II. Was the evidence at the May 10, 2021 Gagnon II hearing
insufficient to establish a Gagnon violation since the
Commonwealth failed to present evidence of the actual terms and
conditions of [Cook]’s probation and parole as required by
[Koger]; failed to establish a violation of a specific condition of
probation as required by Koger, and failed to establish a new
criminal conviction for [Cook]?
III. Was the lower court’s anticipatory revocation of [Cook]’s
probation an illegal sentence since [Cook] was still on parole at
the time of his alleged violation and had not yet begun serving his
probationary term?
Cook’s Br. at 3 (some italics added; answers below omitted).
In his first two issues, Cook argues his sentence violates
Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019), and Commonwealth
v. Koger. Cook asserts that pursuant to these cases, a court may not find a
violation of probation or parole unless it has advised the defendant of his
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3 Cook filed an Application for Remand, requesting to amend his Pa.R.A.P.
1925(b) statement. We denied the Application for Remand without prejudice
to Cook’s right to raise any preserved issues before this panel.
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specific conditions of probation or parole and the Commonwealth has
established by a preponderance of the evidence that the defendant has
violated one of those conditions or has committed a new crime. Cook’s Br. at
13-15, 18. Cook argues that here, he did not admit to committing a new crime,
but only to having been arrested, and asserts that evidence of a mere arrest
is not a sufficient basis for revocation. In support he cites Commonwealth
v. Allshouse, 969 A.2d 1236 (Pa.Super. 2009), and Commonwealth v.
Sims, 770 A.2d 346 (Pa.Super. 2001). See Cooks’ Br. at 16, 19. He further
argues that although he stipulated that his arrest was a violation of his parole,
a defendant cannot agree to an illegal sentence. Id. at 16.
We review a trial court’s finding of a parole violation for an abuse of
discretion. Koger, 255 A.3d at 1289. We review a challenge to the legality of
the resulting sentence under a de novo standard. Commonwealth v.
Stanley, 259 A.3d 989, 992 (Pa.Super. 2021).
In Foster, the Supreme Court considered the application of Sections
9754 and 9771 of the Judicial Code,4 which govern the requirements for
revocation of probation and parole. The Court explained that those provisions
allow for revocation “only if the defendant has violated one of the specific
conditions of probation included in the probation order or has committed a
new crime.” Foster, 214 A.3d at 1250 (quotation marks omitted). Because
the trial court in that case had revoked the defendant’s probation based on
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4 See 42 Pa.C.S.A. §§ 9754, 9771.
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social media postings, without finding the defendant had violated any specific
condition of his probation or committed a new criminal offense, the Supreme
Court found it had erred in revoking the defendant’s probation. Id. at 1243,
1251. In Koger, we relied on Foster and found the trial court erred in
revoking the defendant’s probation where it had not specifically advised him
of the specific conditions of his probation at his sentencing hearing and
therefore could not have found sufficient evidence of a violation of a specific
condition. Koger, 255 A.3d at 1290-91.
Here, unlike in Foster or Koger, we are not faced with a mere
admission of conduct that had not been prohibited as a specific condition of
parole. Rather, the Commonwealth alleged that Cook had committed a new
crime and Cook conceded that he was in violation of his parole. The holdings
of Foster and Koger are inapposite.
Although Cook asserts that a “mere arrest” is not a sufficient factual
basis to support revocation of his parole, Cook did not simply admit to an
arrest. Rather, Cook conceded he violated his parole and agreed to waive his
right to require the Commonwealth to prove a violation by the preponderance
of the evidence. His reliance on Allshouse and Sims is therefore misplaced.
See Allshouse, 969 A.2d at 1242-43 (finding evidence presented to support
revocation at Gagnon II hearing insufficient where trial court had relied on
inadmissible hearsay testimony and activity that had not been prohibited as a
condition of probation); Sims, 770 A.2d at 352 (holding mere waiver of
probable cause showing at Gagnon I hearing did not provide basis for finding
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violation of probation by a preponderance of the evidence at Gagnon II
hearing). Cook has not advanced any authority undermining a defendant’s
ability to admit to being in violation of parole and waive the right to hold the
Commonwealth to its burden.
In his third issue, Cook argues that his sentence is illegal because the
court anticipatorily revoked his sentence of probation in violation of
Commonwealth v. Simmons. See Cook’s Br. at 20. As stated above, Cook
has filed an application requesting we consider the Simmons case, which was
decided after Cook filed his notice of appeal. Although Cook did not raise below
whether the trial court exceeded its sentencing authority in anticipatorily
revoking Cook’s probation, this is a question of law that may be raised for the
first time on appeal. See Simmons, 262 A.3d at 515 n.3. We therefore grant
Cook’s Application for Relief and consider whether his sentence violates
Simmons.
In Simmons, an en banc panel of this Court held that when a trial court
imposes a split sentence of confinement followed by probation, and the
defendant violates parole prior to the commencement of the probationary
term, the trial court lacks the authority to anticipatorily revoke the defendant’s
probation or impose a new sentence of confinement. The court may only
recommit the defendant to serve the remainder of his term of confinement
and the original subsequent term of probation. Id. at 527-28.
Here, the trial court found, based on Cook’s stipulation, that he was in
violation of his parole and it revoked both Cook’s parole and his probation.
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However, the court did not impose a new sentence, but merely recommitted
Cook to serve the balance of his previous sentence of confinement followed
by the same term of probation that it had “revoked.” In so doing, the court
did not violate Simmons.
Application for Relief granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/2022
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