Com. v. Shires, D., II

J-S41034-19
2020 PA Super 238COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DENNIS L. SHIRES, II, :
:
Appellant : No. 233 MDA 2019
Appeal from the Judgment of Sentence Entered July 6, 2017
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0002155-1998
BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*
OPINION BY STRASSBURGER, J.: FILED SEPTEMBER 28, 2020
Dennis L. Shires, II (Appellant), appeals nunc pro tunc from his July 6,
2017 judgment of sentence, which the trial court imposed after revoking
Appellant’s probation. Appellant’s counsel originally filed in this Court a
petition to withdraw and a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We denied counsel’s petition and remanded for the filing of new briefs on the
issue of whether Appellant’s violations of the conditions of supervision
imposed by the State Board of Probation and Parole (the Board) were
sufficient to revoke his probation. Counsel has filed a merits brief and the
Commonwealth declined to file a responsive brief. After review, we conclude
that the trial court erred by revoking Appellant’s probation based upon his
violations of the conditions of supervision when those conditions were
neither court-ordered nor germane to the condition of probation set by the
*Retired Senior Judge assigned to the Superior Court.
J-S41034-19
trial court in 2002. Accordingly, we vacate Appellant’s judgment of sentence,
reverse the order revoking his probation, and reinstate his 2002 judgment of
sentence.
This Court previously provided a full recitation of the procedural
history. See Commonwealth v. Shires, 221 A.3d 1284 (Pa. Super. 2019)
(remanding for a compliant Anders brief or merits brief) (unpublished
memorandum) (Shires I) and Commonwealth v. Shires, ___ A.3d ___,
2020 WL 3041625 (Pa. Super. 2020) (remanding due to issue of arguable
merit) (unpublished memorandum) (Shires II). Briefly, Appellant was
convicted of rape, involuntary deviate sexual intercourse (IDSI), and
aggravated indecent assault related to a 1998 incident in which Appellant
brandished a knife and sexually assaulted a 17-year-old clerk in the adult
video room of a video store. In accordance with a guilty plea agreement, on
October 23, 2002, Appellant was sentenced to 5½ to 11 years of
incarceration for rape, followed by 3½ to 7 years of incarceration for
aggravated indecent assault, followed by “supervision by the [Board]” for a
period of 20 years for IDSI. Order, 10/29/2002, at 1-2. The only condition
of probation imposed at that time was payment of costs, fines, and
restitution. Id.The Board thereafter required Appellant to sign and follow 28
conditions of supervision. These conditions were set forth over the course of
three documents, all of which were signed by Appellant: (1) Conditions
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Governing Special Probation/Parole in February 2010; (2) Optional Special
Conditions for Sex Offenders in May 2016; and (3) Standard Special
Conditions for Sex Offenders in May 2016.
Between 2002 and 2016, there was no docket activity. Without any
precipitating filings or corresponding transcripts, on December 28, 2016, the
trial court entered an order providing that “as additional conditions of
[Appellant’s] special probation, [Appellant] must comply with the conditions
governing probation and parole, the standard special conditions for sex
offenders, and any supplemental standard special conditions of supervision.”
Trial Court Order, 12/28/2016, at 1. According to a notation on the order, it
was served upon the Public Defenders’ Office, who had previously
represented Appellant, but not directly to Appellant.
In 2017, after Appellant completed parole and was serving his
probationary tail, the Board charged Appellant with three violations of
probation.1 Appellant admitted to the conduct at issue at the Gagnon II2
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1 The three allegations were as follows.
The Board first alleged that Appellant admitted to his
probation officer that he had picked up 16-year-old and 18-year-
old females at 3:30 a.m. on February 6, 2017, with the intention
to ask them to expose their breasts to him. …
The Board next alleged that Appellant was discharged from
Triad Treatment Specialists because Appellant had accessed or
possessed pornography, had self-reported persistent reliance on
(Footnote Continued Next Page)
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hearing, but denied that the conduct violated the terms of his probation.
The trial court was not persuaded, and it revoked Appellant’s probation and
sentenced Appellant on July 6, 2017, to three to ten years of incarceration,
to be followed by a period of special probation of ten years.
After a series of procedural missteps discussed in our prior
memoranda, this appeal filed nunc pro tunc presently is before us. As noted
above, in our last memorandum we determined that the issue of whether
the violations of the conditions of supervision imposed by the Board were
sufficient to revoke Appellant’s probation was “not so clearly devoid of merit
to warrant classifying this appeal as frivolous.” Shires II, supra
(unpublished memorandum at 8). Rather, we concluded “that counsel
[should have been] able to put forward good-faith arguments that the trial
court erred by revoking Appellant’s probation based upon Appellant’s
violations of the conditions of his probation.” Id. Appellant has filed a
(Footnote Continued) _______________________
or demonstration of deviant sexual behavior, and had failed to
use therapy to prevent sexually abusive behavior or risk factors
related to the cycle of abuse. …
Finally, the Board alleged that Appellant admitted staying
over at his girlfriend’s house multiple times in the month of
January 2017 despite knowing it was an unapproved residence.
…
Shires II, supra (unpublished memorandum at 2).
2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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merits brief, and the Commonwealth declined to file a brief.3 The issue is
now ripe for our determination.
We begin by reiterating the applicable law. “[I]n an appeal from a
sentence imposed after the court has revoked probation, we can review the
validity of the revocation proceedings, the legality of the sentence imposed
following revocation, and any challenge to the discretionary aspects of the
sentence imposed.” Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.
Super. 2015) (citation omitted). Further, “[r]evocation of a probation
sentence is a matter committed to the sound discretion of the trial court and
that court’s decision will not be disturbed on appeal in the absence of an
error of law or an abuse of discretion.” Commonwealth v. Colon, 102
A.3d 1033, 1041 (Pa. Super. 2014).
Our Supreme Court has distinguished between “conditions of
probation,” which are imposed by a trial court, and “conditions of
supervision,” which are imposed by the Board and its agents. Id. at 1291-
92. The Sentencing Code permits trial courts to set forth “reasonable
conditions authorized by subsection (c) of this section as it deems necessary
to insure or assist the defendant in leading a law-abiding life.” 42 Pa.C.S.
§ 9754(b).
____________________________________________
3 We note the Commonwealth’s failure to file a brief with disapproval. It
sought revocation of Appellant’s probation, and yet it does not even make an
attempt to defend the trial court’s decision.
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Subsection (c) delineates fourteen conditions a sentencing court
may impose upon a defendant in the imposition of probation.
Among these, courts may direct defendants on probation to
attend treatment and addiction programs, pay fines and
restitution, and refrain from frequenting “unlawful or
disreputable places.” Id. § 9754(c)(12), (8), (11), and (6),
respectively. Further, subsection (c)(13) provides a “catch-all”
for trial courts, allowing them to order defendants “[t]o satisfy
any other conditions reasonably related to the rehabilitation of
the defendant and not unduly restrictive of his liberty or
incompatible with his freedom of conscience.” Id. § 9754(c)(13).
Commonwealth v. Elliott, 50 A.3d 1284, 1288 (Pa. 2012).
The Board’s authority to set forth conditions of supervision, on the
other hand, is derived from sections 6131 and 6151 of the Prisons and
Parole Code, which mandate that the Board and its agents establish uniform
standards for the supervision of probationers under its authority and
implement those standards and conditions. Id. (citing 61 Pa.C.S.
§§ 6131(a)(5)(ii) & 6151).
After examining the interplay between the Crimes Codes and Prisons
and Parole Code, our Supreme Court concluded that while only the trial court
could set conditions of probation, “the Board and its agents may impose
conditions of supervision that are germane to, elaborate on, or interpret any
conditions of probation that are imposed by the trial court.” Id. at 1292.
Stated another way, the “trial court may impose conditions of probation in a
generalized manner, and the Board or its agents may impose more specific
conditions of supervision, so long as these supervision conditions are in
furtherance of the trial court’s conditions of probation.” Id. Therefore, “a
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probationer may be detained, arrested, and ‘violated’ for failing to comply
with either a condition of probation or a condition of supervision,” as long as
the condition of supervision does not exceed the Board’s authority to impose
it. Id.
In the instant case, Appellant argues that while he knew the special
conditions were applicable to his expired parole sentence, he was unaware
that they also applied to his probation sentence. Appellant’s Brief at 14-18.
He further argues that because the trial court did not order the imposition of
the conditions, and the conditions were not germane to, and did not
elaborate on or interpret, any conditions of probation imposed by the trial
court, his sentence should be vacated. Id.
There are only two court orders relating to conditions of Appellant’s
probation. The first is the original October 29, 2002 sentencing order, which
sets forth one condition requiring Appellant to pay costs, fines, and
restitution. Order, 10/29/2002, at 1-2. The second is the December 2016
order imposing “the conditions governing probation and parole, the standard
special conditions for sex offenders, and any supplemental standard special
conditions of supervision.” Order, 12/28/2016, at 1.
Appellant argues, however, that the December 2016 order cannot be
considered because there is no evidence of record demonstrating that he
received that order. Appellant’s Brief at 16-18. We agree; at the time the
order was issued and served generically upon the public defender’s office,
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Appellant’s case had been dormant for over a decade and the public
defender’s office had not represented Appellant since his original sentencing
in 2002. The public defender’s office did not have any record of how or why
the order was generated or that it had received it. See Shires II, supra
(unreported memorandum at 3 n.8) (citing N.T., 4/19/2017, at 2-11). Nor
does the certified record indicate how the order came about. See id.
Moreover, the trial court explicitly disregarded the December 2016 order
when it revoked Appellant’s probation because there was no indication that
Appellant had been served with the order. Trial Court Opinion, 9/25/2017,
at 2 n.1 and N.T., 4/19/2017, at 11. Accordingly, the only pertinent
condition of probation is the one imposed in 2002 as part of his original
sentence related to paying costs, fines, and restitution. Thus, we must
examine the conditions of supervision imposed by the Board to see if they
are germane to, elaborate on, or interpret his only court-imposed condition.
According to the Notice of Charges and Hearing Special
Probation/Parole issued by the Board, Appellant’s probation violations were
premised upon three conditions of supervision of the Board. See Notice of
Charges and Hearing Special Probation/Parole, 2/13/2017 (filed
10/23/2019). The first is condition number one in the Optional Special
Conditions for Sex Offenders, which states:
You must not have any contact with anyone under the age of 18
years old without the prior written approval of probation/parole
supervision staff and if applicable, in agreement with your
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treatment provider. You must immediately report any of these
contacts to your parole agent. Contact is defined as follows: (1)
actual physical touching; (2) writing letter, sending messages,
buying presents, sending email, sending instant messages,
sending text messages, calling on a telephone/cell
phone/blackberry; (3) [] verbal communication, such as talking,
as well as nonverbal communication, such as body language
(waving, gesturing, winking), sign language and facial
expressions; (4) direct or indirect contact through a third party.
…
Optional Special Conditions for Sex Offenders, 5/20/2016 (filed
10/23/2019), at 1.
The second is condition number one of the Standard Special Conditions
for Sex Offenders:
You must obtain a sex offender evaluation from a sex offender
treatment provider who is approved by probation/parole
supervision staff. You must comply with and successfully
complete all treatment recommendations including polygraph
examinations, resulting from this evaluation. You must pay the
cost of the evaluation, polygraph(s) and treatment. You must
also provide written authorization for release of confidential
information between your sex offender treatment provider and
the [Board]. …
Standard Special Conditions for Sex Offenders, 5/31/2016 (filed
10/23/2019), at 1.
The third is condition number 11 of the Standard Special Conditions for
Sex Offenders: “You must reside at your approved residence. You must not
sleep or stay overnight at any other address or location without the prior
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written approval of probation/parole supervision staff. …” Standard Special
Conditions for Sex Offenders, 5/31/2016 (filed 10/23/2019), at 2. 4
On their face, these three supervision conditions, which require
Appellant to obtain treatment and restrict his residence and his contact with
minors, plainly are not germane to the sole court-imposed condition of
probation, which merely required Appellant to pay costs, fines, and
restitution. Nor could one say they elaborate on or interpret this condition of
probation. Accordingly, the Board exceeded its authority in imposing these
conditions, and the trial court erred in revoking Appellant’s probation based
upon his violations of these conditions. See Elliott, 50 A.3d at 1292 n.4
(explaining that condition of supervision to avoid minors under 18 at issue in
____________________________________________
4 Before each of the three conditions, the notice also references “Condition
#8: You shall comply with the following special conditions imposed by the
court,” but did not specify where “Condition #8” appears. Notice of Charges
and Hearing Special Probation/Parole, 2/13/2017 (filed 10/23/2019)
(unnecessary capitalization removed). Appellant did sign a form entitled
“Conditions Governing Special Probation/Parole” in 2010 that references a
Condition #8, but that condition simply states that he “shall comply with the
following special conditions imposed by the [c]ourt: Register in compliance
with Megan’s Law.” Conditions Governing Special Probation/Parole,
2/9/2010 (filed 10/23/2019), at 1. Appellant was ordered to register
pursuant to Megan’s Law in 2002. Order, 10/29/2002, at 1. However, our
Supreme Court has rejected the notion that the Board has independent
authority “to impose any condition of supervision it wishes upon a
probationer subject to the sex offender provisions merely because of his
status as a sex offender,” at least when it comes to 42 Pa.C.S. § 9798.3
(section of now-repealed Megan’s Law permitting the Board to use global
positioning technology to track a sex offender’s location). Elliott, 50 A.3d
at 1291-92.
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Commonwealth v. MacGregor, 912 A.2d 315, 316 (Pa. Super. 2006) was
not in furtherance of the sole condition of probation, which was paying a $25
probation administration fee); c.f. Elliott, 50 A.3d at 1292 (holding that the
Board permissibly expounded upon court-ordered no-contact-with-minors
probation condition by imposing a condition of supervision prohibiting Elliott
from entering or loitering within 1,000 feet of areas with a primary activity
involving people under the age of 18). We acknowledge that Appellant has
admitted to engaging in the conduct at issue, but since no legal authority
exists for revocation of his probation, we are constrained to vacate his
judgment of sentence and reverse the order revoking his probation.
Judgment of sentence entered on July 6, 2017, vacated and July 6,
2017 order reversed. October 29, 2002 judgment of sentence reinstated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/28/2020
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