Com. v. Miller, S.

J-A11014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN JOHNSON MILLER :
:
Appellant : No. 1689 EDA 2021
Appeal from the Judgment of Sentence Entered July 20, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004634-2017
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED JULY 19, 2022
Steven Johnson Miller appeals from the July 20, 2021 order revoking his
prior consecutive probationary sentences for simple assault and recklessly
endangering another person (“REAP”) and imposing concurrent sentences of
time served to twenty-three months of incarceration, respectively. We affirm.
In 2017, officers of the East Norriton Police Department arrested
Appellant for fracturing the arm of his girlfriend’s two-month-old baby. On
June 28, 2018, Appellant entered a negotiated guilty plea to simple assault
and REAP, in exchange for two consecutive sentences of two years of
probation. Appellant also agreed to attend parenting classes as a special
condition of his probation. In June 2020, Appellant’s first probationary term
on the simple assault charge expired.
In October 2020, while serving his second probationary term on REAP,
Appellant was arrested and charged with assaulting two minors in Cumberland
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County, Pennsylvania. As a result of these new charges, Appellant’s assaultive
behavior, and his failure to complete the aforementioned parenting classes,
the Montgomery County Adult Probation Department moved to revoke both of
Appellant’s probationary sentences, including the expired term, by notice filed
on February 3, 2021.
On July 20, 2021, the revocation court held a hearing on the motion,
wherein Appellant stipulated to violating his probation by failing to attend
parenting classes. See N.T. Violation Hearing, 7/20/21, at 10. The
Commonwealth withdrew the other two bases for violation after the
Cumberland County District Attorney’s Office declined to prosecute Appellant.
Based upon Appellant’s stipulation, the court revoked Appellant’s probation at
both charges and resentenced him to two concurrent sentences of time served
to twenty-three months of incarceration. Appellant received credit for the
time he spent detained for the revocation.
Appellant filed a timely notice of appeal. Without requesting leave of
court, Appellant later purported to file a post-sentence motion nunc pro tunc.
While his motion was pending, Appellant submitted a court-ordered concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
and the revocation court forwarded its Rule 1925(a) opinion. Thereafter, the
court denied the post-sentence motion as untimely pursuant to Pa.R.Crim.P.
720(A)(1).
Appellant raises two issues, which we have reordered for ease of our
review:
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1. Whether it is an illegal sentence where Appellant’s
supervision was revoked on the second of two consecutive
terms of probation for violating a specific condition of his
supervision – a condition that still could have been
completed because the probationary term had not yet
expired?
2. Whether it is an illegal sentence where Appellant’s first of
two consecutive terms of probation was revoked for
violating a specific condition but there was no requirement
by when he had to complete the condition and the
Commonwealth did not move to revoke until almost six
months after the probationary term had expired?
Appellant’s brief at 4 (cleaned up).
Although presented as separate issues, both of Appellant’s claims
essentially contend that the evidence was insufficient to prove that he violated
the terms of his probation. See Appellant’s brief at 11-14, 17-19. Specifically,
Appellant alleges that the Commonwealth failed to establish that he was
required to complete the parenting classes by a specific date, either before his
simple assault sentence expired or before he finished serving his REAP
sentence. Id. Thus, he reasons, the Commonwealth could not prove that he
violated a specific condition of either probationary term. Id.
Challenges to the sufficiency of the evidence supporting the revocation
of probation are questions of law subject to plenary review. See
Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super. 2007).
Accordingly, we must determine whether the evidence admitted at the
revocation hearing and all reasonable inferences drawn therefrom, viewed in
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the light most favorable to the Commonwealth, is sufficient to support the
conclusion that the probationer violated the terms of his probation. Id.The trial court found that Appellant had waived both of these issues due
to his failure to raise any objection to contest his probation violation at the
revocation hearing. See Trial Court Opinion, 9/21/21, at unnumbered 2. We
agree. It is well-established that objections not raised during a counselled
revocation proceeding will not be considered on appeal. See
Commonwealth v. Collins, 424 A.2d 1254, 1254 (Pa. 1981) (per curiam);
see also Pa.R.A.P. 302(a) (“Issues not raised in lower court are waived and
cannot be raised for the first time on appeal.”). Moreover, when an appellant
agrees not to contest the alleged probation violations, he surrenders
“important rights.” Commonwealth v. Bell, 410 A.2d 843, 844 (Pa.Super.
1979) (finding an appellant’s challenge to a probation revocation resentence
failed where the appellant did not contest the violations at the revocation
hearing).
The certified record reflects that Appellant, who was represented by
counsel, waived his right to a Gagnon I hearing and stipulated to violating
the specific terms of his probation by failing to complete parenting classes.1
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1 See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth
v. Starr, 234 A.3d 755, 762 (Pa.Super. 2020) (explaining that when a
probationer is detained based on an alleged probation violation, due process
requires a Gagnon I hearing to determine if there is probable cause that
probationer committed a violation of his probation, followed by a second more
(Footnote Continued Next Page)
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See N.T. Revocation Hearing, 7/20/21, at 9-10. After conducting a colloquy
to ensure that Appellant’s stipulation and waiver of a Gagnon I hearing was
knowing and voluntary, the court accepted the stipulation and revoked
Appellant’s probation. Id. at 12-14. Importantly, Appellant does not contend
that this stipulation was unknowing or involuntary. Thus, we conclude that
both of Appellant’s issues warrant no relief.
Alternatively, Appellant challenges the authority of the court to revoke
his probation on the expired simple assault sentence. See Appellant’s brief at
15-16. Specifically, Appellant contends that the Commonwealth’s delay in
seeking revocation deprived him of a speedy hearing and rendered his
sentence illegal. While raised for the first time on appeal, Appellant argues
that this issue is not waived since the Commonwealth’s failure to act “with
reasonable promptness” deprived the revocation court of the necessary
authority to revoke his sentence. Id. at 16. Id. However, we discern that
Appellant has conflated claims challenging the timing of the underlying
violation, which are non-waivable, with allegations concerning delays in the
overall revocation process, which are subject to waiver if not asserted at the
revocation hearing.
Pennsylvania law is settled that a defendant can be found to have
violated his probation after the term expires, so long as the conduct which
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comprehensive Gagnon II hearing wherein the trial court determines
whether to revoke probation).
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forms the basis for the violation occurred during the probationary period. See
Commonwealth v. Wright, 116 A.3d 133, 137 (Pa.Super. 2015). Thus,
claims that a defendant had completed his probation before committing the
alleged probation violation impact the revocation court’s authority and,
therefore, are nonwaivable. See Commonwealth v. Weir, 239 A.3d 25, 35-
36 (Pa. 2020) (“Where a claim concerns the sentencing court’s authority to
impose a sentence, it is reviewable as of right on direct appeal, without regard
to preservation of the claim.”); Commonwealth v. Mathias, 121 A.3d 558,
563 (Pa.Super. 2015) (finding sentence imposed for a violation of probation
was illegal where the term of probation expired before the alleged violation
occurred).
Once it is determined that the court has the authority to revoke a
defendant’s sentence, the court evaluates the individual circumstances of a
case to determine the propriety of a post-probation allegation of violation.
See Commonwealth v. Smith, 860 A.2d 142, 143 (Pa.Super. 2004). In
contrast to the case law above, our Supreme Court has held that claims
asserting unreasonable delays in the revocation proceedings are subject to
waiver if not raised at the revocation hearing. See Commonwealth v.
Marchesano, 544 A.2d 1333, 1336 (Pa. 1988) (“[A]ssuming appellee’s
original counsel had timely asserted his delay claim it would have been
evaluated . . . by an inquiry into the circumstances of the individual case.”);
Collins, supra at 1254 (finding written notice and speedy revocation hearing
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claims not raised by specific exception in the revocation court were waived for
purposes of appellate review); Commonwealth v. Ziegler, 428 A.2d 220(Pa.Super. 1981) (holding that a speedy revocation hearing claim was waived
if not raised at a revocation hearing).2
Herein, Appellant has never argued that the probation violations
occurred after his simple assault sentence expired. Accordingly, while framed
as a nonwaivable claim implicating the legality of his sentence, Appellant’s
assertion of unreasonable delay does not implicate the revocation court’s
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2 Before Commonwealth v. Collins, 424 A.2d 1254, 1254 (Pa. 1981), issues
of promptness and notice at the probation hearing were viewed as due process
challenges not subject to waiver. See Commonwealth v. Alexander, 331
A.2d 836, 839 (Pa.Super. 1974) (“it would be a derogation of the minimum
due process rights of an alleged probation violator to require him to raise lack
of notice at a less-then-formal hearing or waive his right to do so.”); see also
Commonwealth v. Spence, 381 A.2d 949, 951 n.2 (Pa.Super. 1977)
(extending Alexander so that the waiver doctrine also covered speedy
revocation hearing claims, finding there was no rational basis to distinguish
between the two since they were both required by due process). In overruling
Alexander, sub silentio, the Collins court did not discuss the discretionary
versus legality dichotomy, but instead implied that these claims were
discretionary by finding them subject to trial-level issue preservation
requirements. See Commonwealth v. King, 430 A.2d 990, 991 (Pa.Super.
1981) (holding that Collins overruled those cases holding that a written notice
claim could not be waived by failure to raise it at the revocation hearing sub
silentio). The cases that followed Collins also do not discuss the issue of
sentence legality. See Commonwealth v. Brown, 190 A.3d 688, *4
(Pa.Super. 2018) (unpublished memorandum) (finding claims concerning
inadequate notice waived for failure to properly preserve without discussing
whether the claim went to sentence legality or discretion); see also
Commonwealth v. Moore, 239 A.3d 52, *4 (Pa.Super. 2020) (non-
precedential memorandum) (concluding that claim challenging delay in
revocation hearing after expiration of sentence was waived when appellant did
not raise it at the hearing without mentioning sentence legality or discretion).
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authority. Id. Since Appellant failed to raise claims that the notice receipt
and revocation hearing were unreasonably delayed at the revocation hearing,
these issues are waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2022
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