Com. v. Zrillo, F.

J-A24028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK ZRILLO :
:
Appellant : No. 20 EDA 2022
Appeal from the Judgment of Sentence Entered November 23, 2021
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002136-2017
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 11, 2023
Frank Zrillo appeals the Monroe County Court of Common Pleas’
judgment of sentence following the revocation of his probation. Prior to
revoking Zrillo’s probation, the trial court held a revocation hearing, during
which Zrillo admitted to violating certain conditions of his probation. Zrillo now
essentially asserts the trial court abused its discretion by revoking his
probation because the court failed to inform him what the conditions of his
probation were at his original sentencing. We affirm.
The facts leading up to the revocation of Zrillo’s probation are not in
dispute. Zrillo pleaded guilty but mentally ill to terroristic threats and simple
assault in May 2019. The trial court sentenced Zrillo in October 2019 to nine
to 18 months’ imprisonment for the terroristic threats conviction. Because
Zrillo had served his minimum sentence, the court immediately paroled him
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and conditioned his parole on Zrillo remaining at the Merakey Behavioral
Health Inpatient Housing until successfully discharged. The court also
sentenced Zrillo to a consecutive 18-month term of probation for the simple
assault conviction, with the probation being subject to the rules and
regulations of the Monroe County Probation Department. As a special condition
of probation, Zrillo was ordered to remain at the Merakey Behavioral Health
Residential Housing until successfully discharged.
After Zrillo’s probation period for the simple assault charge began, the
Commonwealth filed a petition for violation of probation. The petition alleged
Zrillo had violated several of his probation conditions, including allegations
that Zrillo had: failed to report to his probation officer; failed to comply with
the law as he had been charged with harassment on April 3, 2021; and failed
to abstain from using controlled substances, having tested positive for
marijuana and methamphetamine on multiple occasions. The petition also
alleged Zrillo had been involuntarily committed to mental health facilities
several times in 2020 and once in 2021, and had been unsuccessfully
discharged from Merakey.
The trial court held a hearing on the revocation petition on April 29,
2021. The focus of the hearing was primarily on the appropriate placement
for Zrillo, given his lengthy history of being in and out of mental health
facilities and housing. The court agreed it would defer resentencing so that
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defense counsel could explore what treatment options and resources remained
available for Zrillo.
However, the court stated it would still adjudicate the violation petition.
In that regard, Zrillo admitted he had violated his probation by failing to report
to his probation officer and by testing positive for controlled substances. See
N.T., 4/29/21, at 16. The court revoked Zrillo’s probation, and stated that it
did not matter to the court whether Zrillo admitted to each and every violation
because “if he’s admitting to one violation, he’ll be revoked, and he’s going to
be resentenced.” Id. at 17.1
The court resentenced Zrillo on November 19, 2021, to six to 24 months’
incarceration on the simple assault conviction. The court did not resentence
Zrillo on the terroristic threats charge, as he had served his maximum
sentence for that charge.
Zrillo filed a motion for reconsideration of his sentence, which the court
denied. He then filed a timely notice of appeal. Zrillo also filed a motion for
parole. The court granted that motion on December 21, 2021, and paroled
Zrillo to the Merakey Extended Acute Care Program. Both Zrillo and the trial
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1 Zrillo did not include the notes of testimony from his probation revocation
hearing in the certified record, as is his burden to do. See Commonwealth
v. Shreffler, 249 A.3d 575, 584 (Pa. Super. 2021). However, upon informal
inquiry from our Prothonotary, this Court was able to supplement the certified
record to include the notes of testimony from the hearing.
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court complied with Pa.R.A.P. 1925. In its Rule 1925(a) opinion, the trial court
noted it was “very familiar” with Zrillo after “many years of litigation” and that
the revocation sentence it had imposed allowed Zrillo to have the proper
supervision and the medical treatment he needed. Trial Court Opinion,
1/21/22, at 2 (unpaginated).
Zrillo raises a single issue on appeal.2 He claims the court abused its
discretion by revoking his probation in violation of Commonwealth v. Koger,
255 A.3d 1285 (Pa. Super. 2021), appeal granted, 276 A.3d 202 (Pa. April 5,
2022). This claim does not entitle Zrillo to any relief.
In Koger, this Court reiterated that the Commonwealth must prove a
violation of probation by the preponderance of the evidence and, once it does
so, the decision to revoke probation is a matter for the sound discretion of the
trial court. See id. at 1289. Koger also reiterated that a trial court may only
find a defendant in violation of probation if the defendant either violated one
of the specific conditions of probation included in the probation order or if he
has committed a new crime. Id. at 1290. The defendant in Koger (“Koger”)
had not been charged with any new offense. See id. at 1289. As such, Koger
argued that the court erred by revoking his probation because the
Commonwealth had failed to meet its burden of proving he violated any of the
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2Zrillo specifically withdraws a second claim challenging the propriety of his
sentence given his “extreme mental health issues.” See Appellant’s Brief at
13.
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specific conditions of his probation given that the court had not advised him
of those conditions at the time of sentencing. See id.
This Court agreed. We noted that our Court had previously remanded
the matter so the trial court could clarify whether it had advised Koger, at
sentencing, of the conditions he would be subject to while on probation. The
court responded that it had not advised Koger of the general conditions of his
probation at the time of sentencing. Rather, pursuant to local practice, a
probation officer had advised Koger of those conditions after he was
sentenced. We held that the court’s shifting of its duty to advise the defendant
of the conditions of his probation at the time of sentencing to a probation
officer violated 42 Pa.C.S.A. § 9754(b), which provides that the “court shall
attach reasonable conditions authorized by section 9763 (relating to
conditions of probation) as it deems necessary to ensure or assist the
defendant in leading a law-abiding life.” Koger, 255 A.3d at 1290, 1291
(citation omitted). We found, in turn, that because the court did not impose
the conditions Koger was alleged to have violated, the Commonwealth could
not have met its burden of proving Koger had violated any such conditions.
See id. at 1291.
Zrillo argues the court’s revocation of his probation violated Koger. His
argument in support of that broad assertion is less than clear. Zrillo
acknowledges his original sentencing order sentenced him to probation
subject to the rules and regulations of the Monroe County Probation
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Department. He contends Koger held that the inclusion of this language in a
sentencing order does not comply with the court’s statutory duty pursuant to
Section 9754(b). But this is not what Koger held. Koger does not indicate
that this or equivalent language was placed in the sentencing order, and
therefore at issue, in Koger. See id. at 1287. In fact, the decision indicates
the opposite by pointing out in a footnote that, “to its credit,” the trial court
had implemented new procedures to ensure all defendants are “advised by
the court, at the time of sentencing, that the court is imposing the general
rules, regulations and conditions governing probation and parole in
Washington County” and by further including the conditions in writing in all
sentencing orders. Id. at 1290 n.5 (citation omitted).
In any event, Koger is inapplicable to Zrillo’s situation for more glaring
reasons. First and foremost, Zrillo, unlike Koger, admitted at his revocation
hearing that he had violated certain conditions of his probation. One of the
conditions Zrillo admitted to violating was the use of controlled substances.
This is a criminal offense, and Koger makes clear the trial court can revoke
probation when a defendant has committed a new criminal offense. Because
Zrillo admitted he had violated the terms of his probation by participating in
new criminal conduct, he has, as the Commonwealth points out, waived any
challenge to the revocation of his probation on that basis. See
Commonwealth v. Cooper, 277 A.3d 1190, 1195 (Pa. Super. 2022) (holding
the defendant waived his right to challenge the finding that he had violated
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his parole because he had stipulated that he violated his parole by committing
a new criminal offense); Commonwealth’s Brief at 6 (arguing that Zrillo waived
a challenge to the underlying violation by “admitting to violating the terms of
probation by participating in criminal conduct”).
Moreover, by admitting he had violated his probation conditions, Zrillo
was inherently also admitting he was aware of those conditions and that he
was required to follow them. He has therefore waived any claim that he had
no knowledge of the probation conditions he was required to follow but
admittedly had not. At the same time, by admitting to the violations, Zrillo
has also waived any claim that the Commonwealth failed to meet its burden
of proving the violations under Koger. The Commonwealth made clear it had
witnesses prepared to testify at the revocation hearing, but such testimony
was found to be unnecessary in light of Zrillo’s admissions that he had violated
his probation. See N.T., 4/29/21, at 3, 6. He cannot now argue, under these
circumstances, that the Commonwealth failed to meet its burden to prove he
violated his probation. No relief is due.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2023
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