Com. v. Baumann, J.

J-A19008-23
2023 PA Super 276COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHON BAUMANN :
:
Appellant : No. 1923 EDA 2022
Appeal from the Judgment of Sentence Entered June 27, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000208-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHON BAUMANN :
:
Appellant : No. 1925 EDA 2022
Appeal from the Judgment of Sentence Entered June 27, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000209-2020,
CP-51-CR-0000210-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHON BAUMANN :
:
Appellant : No. 1926 EDA 2022
Appeal from the Judgment of Sentence Entered June 27, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000209-2020,
CP-51-CR-0000210-2020
J-A19008-23
BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*
OPINION BY BOWES, J.: FILED DECEMBER 28, 2023
Jonathon Baumann appeals from the judgment of sentence of eleven
and one-half to twenty-three months of imprisonment imposed after his three-
year probationary term was revoked. For the reasons that follow, we reverse
the revocation order, vacate the June 2022 violation of probation (“VOP”)
judgment of sentence, and re-impose Appellant’s January 2021 sentence.
On January 21, 2021, Appellant entered negotiated guilty pleas in three
consolidated matters. In total, he pled guilty to one count each of unlawful
contact with a minor, indecent exposure, and impersonating a public servant,
and two counts of luring a child into a motor vehicle. He was sentenced to
serve eleven and one-half to twenty-three months of incarceration, followed
by three years of county probation. The conditions of his probation mandated
that he: stay away from the victims; pay imposed mandatory court costs;
register with the Pennsylvania State Police and abide by all Tier II sexual
offender requirements; comply with DNA, finger printing, palm printing, and
photo requirements; avoid unsupervised contact with minors; and submit to
supervision by the Sexual Offender’s Unit. See Sentencing Order, 1/21/21,
at 1.
Appellant was released from custody on November 17, 2021, and
immediately began the probationary portion of his sentence. The condition
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* Retired Senior Judge assigned to the Superior Court.
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regarding Appellant’s supervision by the Sexual Offender’s Unit required his
participation in the TAP program, which is a form of therapeutic treatment for
sexual offenders to reduce the likelihood of reoffending. In order to comply
with the requirements of the TAP program, Appellant was required to undergo
an intake assessment. After the assessment, Appellant had three options:
(1) admit to his sexual offenses and initiate treatment; (2) enter into
treatment for those who initially deny their offenses, with the condition that
he admit to them at some point; or (3) undergo a polygraph examination
which, if passed, would remove the need for treatment. See N.T. Hearing,
6/27/22, at 9–10; N.T. Hearing, 7/25/22, at 8–10; Gagnon1 II Summary,
6/27/22.
Due to issues with insurance coverage, Appellant had to reschedule his
first intake appointment from March 2022 to April 2022. Appellant opted to
pay with cash at his April appointment, but due to his late arrival, the
appointment was rescheduled to June 1, 2022. See N.T. Hearing, 5/4/22, at
5–6, 10. In the meantime, Appellant’s probation officer requested a status
hearing on April 16, 2022, in order to monitor Appellant’s compliance with his
treatment requirements. The probation officer filed a Gagnon II summary,
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1 As will be discussed more fully infra, “in Gagnon v. Scarpelli, 411 U.S. 778(1973), the United States Supreme Court held that probationers are entitled
to two hearings when a violation of probation is alleged.” Commonwealth
v. Mayfield, 247 A.3d 1002, 1003 n.2 (Pa. 2021) (citation altered). These
are colloquially referred to as Gagnon I and Gagnon II hearings.
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which detailed Appellant’s intake difficulties and noted twenty-one outstanding
traffic warrants in Montgomery and Bucks counties. It did not, however, list
any direct violations of the conditions of his probation. The summary
recommended a thirty-day “status of treatment compliance.” Gagnon II
Summary, 4/26/22.
On May 4, 2022, the VOP court held Appellant’s first probation status
hearing. Appellant explained that while he secured full-time employment, he
was unsuccessful in establishing a permanent residence. The court directed
Appellant to provide a stable address and documentation reflecting his
employment status to his probation officer. As for the TAP program, Appellant
indicated that he was confused by insurance requirements and was late to his
April intake appointment because he got lost while traveling there. Appellant
stated that he had already rescheduled and paid for his intake appointment,
and he intended to arrive early to ensure the appointment proceeded
successfully. See N.T. Hearing, 5/4/22, at 9–16.
Appellant’s probation officer relayed to the court Appellant’s intention to
undergo a polygraph examination, which cost $300.00 to administer. To avoid
delaying his treatment any further, the Commonwealth requested that
Appellant have the funds with him at his intake appointment. The VOP court
did not instruct Appellant to do anything specific regarding the polygraph
examination at the hearing or by written order thereafter. However, an entry
on the docket from the hearing date stated in pertinent part: “Defendant
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ordered to provide stable home address within [thirty] days of today’s date to
probation officer. Defendant ordered to provide clear and concise
documentation regarding place of employment to probation officer. Defendant
ordered to attend TAP intake evaluation appointment on 6/1/22. Funds for
possible polygraph must be in place.” Docket Entry, 5/4/22.
Appellant’s second probation status hearing was held on June 27, 2022.
The Gagnon II summary filed that day, which again contained no direct
violations of the conditions of probation, relayed the following:
After court, this officer spoke with a staff member at TAP
informing them that [Appellant] is required to pay for his
polygraph at his intake appointment. Due to the fact that [he]
was going to be paying for his intake as he does not have
Philadelphia insurance, staff members decided to skip over the
formal intake and send [him] straight to the polygraph[;] this
way, this officer had as much information as possible for today’s
hearing. [Appellant’s] polygraph was scheduled for 6/07/2022 at
1:45PM. On 5/27/2022, [Appellant] left this officer a voicemail
stating he spoke with his lawyer and it is in his best interest to no
longer take the polygraph. This officer then contacted TAP to
ensure [he] could still attend his original intake scheduled for
6/01/2022, which he was able to [do]. [Appellant] was given the
option to enter into treatment for individuals who deny their
offenses, schedule a polygraph, or provide an admission. [He]
opted to participate in weekly group therapy for individuals who
deny part or all of their offenses. [Appellant] had his first session
on 6/16/2022. A copy of [Appellant’s] intake assessment will be
made available at this hearing.
Gagnon II Summary, 6/27/22 (cleaned up).
At the hearing, Appellant’s probation officer confirmed that Appellant
provided proof of residence and the requested documentation reflecting his
employment status. With respect to the TAP treatment program, Appellant
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explained to the court that he “wasn’t under the impression that [the
polygraph] was court ordered. . . . They told me it was up to me. . . . But I
decided I was going to admit to my crimes and just go to therapy. So they
told me I don’t have to take the polygraph.” N.T. Hearing, 6/27/22, at 7–9.
At the conclusion of the hearing, the VOP court found Appellant had
violated his probation by failing to take the polygraph. Specifically, the court
stated that “[Appellant] w[as] ordered by this Court to . . . secure the funding
at a minimum with the polygraph test if [he] did not take it[.]” Id. at 15.
Appellant expressed that he was confused about what was required for the
TAP program and that he “can pay for [a polygraph]. It’s no problem.” Id.
at 18. Unmoved by this, the court revoked Appellant’s probation and
sentenced him to another term of eleven-and-one-half to twenty-three
months in jail, followed by two years of probation. Id. at 18–19.
Appellant filed for reconsideration, which the court denied. This timely
appeal followed.2 Both Appellant and the VOP court complied with Pa.R.A.P.
1925. Appellant raises three issues for our consideration:
1) Did not the [VOP] court err when it found [Appellant] in
violation of his probation for failure to comply with sex
offender treatment or to obtain a polygraph as part of that
treatment where neither requirement was a condition of his
probation?
2) Was not the [VOP] court’s assertion for the first time in its
opinion to this Court that it found [Appellant] in violation of
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2 Appellant filed a notice of appeal at each implicated docket. We subsequently
granted his request to consolidate the appeals.
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his probation for failing to register as a sex offender and
other issues prior to May 4, 2022 an error and abuse of
discretion because the court provided him with no notice
that he faced violation for these issues and no evidence of
such violations was presented during the hearings?
3) Was not the new probationary sentence for impersonating a
public servant (docket CP-51-CR-0000209-2020) illegal
where [Appellant] had already completed his sentence prior
to the revocation hearings?
Appellant’s brief at 3.
When reviewing a court’s decision to revoke probation, we employ the
following principles:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
An abuse of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
When assessing whether to revoke probation, the trial court must
balance the interests of society in preventing future criminal
conduct by the defendant against the possibility of rehabilitating
the defendant outside of prison. In order to uphold a revocation
of probation, the Commonwealth must show by a preponderance
of the evidence that the defendant violated his probation.
Commonwealth v. Simmons, 56 A.3d 1280, 1283–84 (Pa.Super. 2012)
(cleaned up).
Appellant first contends that the VOP court erred in revoking his
probation for failure to comply with sex offender treatment or to obtain a
polygraph, as neither requirement was a condition of his probation. See
Appellant’s brief at 19. For its part, the Commonwealth asserts that the VOP
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court erred in revoking Appellant’s probation when he did not commit a new
crime or violate a specific condition of probation by failing to take the
polygraph examination. See Commonwealth’s brief at 9. We agree that
Appellant was not required to undergo the polygraph examination as a
condition of his probation, and therefore the court erred in revoking
Appellant’s probation on this basis.
It is well-established in our Commonwealth that only upon proof of a
violation of the “specified conditions” of a probation order may a court revoke
the defendant’s probation. 42 Pa.C.S. § 9771(b). Our Supreme Court has
held that “the VOP court must find, based on the preponderance of the
evidence, that the probationer violated a specific condition of probation or
committed a new crime to be found in violation.” Commonwealth v. Foster,
214 A.3d 1240, 1243 (Pa. 2019) (cleaned up). Pennsylvania Rule of Criminal
Procedure 708 likewise provides that probation shall not be revoked absent “a
finding of record that the defendant violated a condition of probation[.]”
Pa.R.Crim.P. 708(B)(2).
At Appellant’s June 27, 2022, probation status hearing, the court was
clear that it revoked Appellant’s probation for failing to undergo a polygraph
examination. See N.T. Hearing, 6/27/22, at 14–16 (focusing on “specifically,
his failure to participate in the polygraph testing and examination”). We note
that Appellant committed sexually predatory crimes and sex offender
treatment was a valid condition of his probation. The requirement that
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Appellant submit to the TAP treatment program was an extension of sex
offender treatment and likewise a valid condition. Id. However, submitting to
a polygraph examination was but one of three options available to Appellant
in order to comply with the TAP program and its treatment regimens. Id. at
10; Gagnon II Summary, 6/27/22. At no point was Appellant required to
undergo a polygraph examination as his sole means of complying with the
conditions of his probation. Appellant remained in compliance when he began
treatment with the deniers therapy group. See N.T. Hearing, 6/27/22, at 9.
In its Rule 1925(a) opinion, the VOP court contended that it modified
the conditions of Appellant’s probation during the May 2022 status hearing by
imposing the additional requirement that Appellant have funds available for,
and undergo, a polygraph examination. See VOP Court Opinion, 11/2/22, at
14–15. We observe that the court never expressly instructed Appellant at the
hearing or by written order that the polygraph was mandatory. Id. at 19
(directing Appellant merely to “be prepared, otherwise” to undergo a
polygraph examination). Rather, the only place where the VOP court
purported to impose this condition was through the following docket entry:
“Defendant ordered to attend TAP intake evaluation appointment on 6/1/22.
Funds for possible polygraph must be in place.” Docket Entry, 5/4/22
(emphasis added).
Based on the foregoing, we readily agree with Appellant and the
Commonwealth that the VOP court revoked Appellant’s probation on the basis
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of a condition, i.e., taking the polygraph examination, that was never
imposed. Such action is not only violative of 42 Pa.C.S. § 9771(b), which
necessitates proof of violations of a specified condition of probation to warrant
revocation, but it also undermines this Commonwealth’s jurisprudence
governing probation revocation. See, e.g., Foster, supra at 1250-51. As
such, we hold that the VOP court erred in finding Appellant in violation of his
probation.
Appellant next asserts the VOP court abused its discretion when, in its
Rule 1925(a) opinion to this Court, it relied upon alleged probation violations
that were not charged in the written notice, including violations of sex offender
registration requirements, failure to provide proof of residence to his probation
officer, and outstanding traffic tickets, to support its revocation order.
Appellant contends he was never provided notice that he faced a probation
violation for these issues, and that no evidence of such violations was
presented at his status hearings. See Appellant’s brief at 26-28. By the same
token, the Commonwealth asserts that “to the extent the [VOP] court purports
to rely on those grounds for revocation, it improperly infringes on [Appellant’s]
due process rights.” Commonwealth’s brief at 12 n.3. Once again, we agree.
Due process in VOP proceedings “requires a determination at a pre-
revocation hearing, [also known as] a Gagnon I hearing, that probable cause
exists to believe that a violation has been committed.” Commonwealth v.
Sims, 770 A.2d 346, 349 (Pa.Super. 2001) (cleaned up). “Where a finding of
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probable cause is made, a second, more comprehensive hearing, a Gagnon
II hearing, is required before a final revocation decision can be made.”
Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa.Super. 2000) (cleaned
up). Gagnon II hearings entail two separate considerations. First, it must
be determined whether the probationer violated a condition of probation, as
demonstrated by evidence containing “probative value.” Ferguson, supra at
617 (cleaned up). Second, if it is found that the probationer did violate a
condition of probation, the court must determine whether the “probationer
[should] be recommitted to prison or . . . other steps be taken to protect
society and improve chances of rehabilitation[.]” Id. (cleaned up).
In light of these more comprehensive considerations, Gagnon II
hearings afford the probationer additional due process safeguards, such as:
(a) written notice of the claimed violations of probation or
parole; (b) disclosure to the probationer or parolee of evidence
against him; (c) opportunity to be heard in person and to present
witness and documentary evidence; (d) the right to confront and
cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation); (e) a
neutral and detached hearing body . . . ; and (f) a written
statement by the factfinders as to the evidence relied on and
reasons for revoking probation or parole.
Ferguson, supra at 617-18 (cleaned up, emphasis added). Indeed, pursuant
to Pa.R.Crim.P. 708(A), Gagnon II proceedings must be “initiated by a
written request for revocation filed with the clerk of courts.” Pa.R.Crim.P. 708
Comment. We have expounded upon the written notice requirement as
follows:
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The purpose of requiring prior written notice is to ensure that the
probationer can sufficiently prepare his case, both against the
allegations of violations, and against the argument that the
violations, if proved, demonstrate that probation is no longer an
effective rehabilitative tool and should be revoked. The
requirement bears directly on the ability to contest revocation.
Commonwealth v. Carter, 523 A.2d 779, 780 (Pa.Super. 1987) (cleaned
up). See also Commonwealth v. Gaiski, 272 A.3d 485, 2022 WL 165958,
at *7 (Pa.Super. 2022) (non-precedential decision) (same).
This Court has held that the VOP court erred if it revoked probation
based upon a violation of which the defendant had no written notice. See
Carter, supra at 781 (determining the court erred in finding Carter had
committed a technical violation where “the record demonstrate[d] that Carter
received no notice of any alleged technical violation of his probation before he
appeared before the court”); Gaiski, supra at *7 (finding the court erred in
revoking Gaiski’s probation based upon alleged violations where “[t]here
[wa]s no evidence in the record that these other purported bases for revoking
[Gaiski’s] probation were included in the revocation petition, or presented . . .
at the Gagnon I hearing”).
In this case, revocation proceedings were never requested pursuant to
Pa.R.Crim.P. 708(A), and the proceedings unfolding in the VOP court wholly
and utterly failed to comply with the Rules of Criminal Procedure and Gagnon.
Even if we were to assume that the Gagnon II summaries complied with Rule
708(A) and the written notice requirement, the VOP court was explicit during
what purported to be a Gagnon II hearing that its decision to revoke
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Appellant’s probation was solely based upon his failure to undergo a polygraph
examination. See N.T. Hearing, 6/27/22, at 14–16 (“His failure and lack of
cooperation in doing so and, specifically, his failure to participate in the
polygraph testing and examination.”). However, in its opinion to this Court,
the VOP court maintained that it also found Appellant violated his probation
for: (1) failing to provide a verifiable home address and register as a sex
offender; (2) failing to report as required under the relevant sexual offender
registration law; (3) failing to provide his work address; (4) having twenty-
one outstanding traffic warrants in Montgomery and Bucks counties; and (5)
migrating outside Philadelphia County. See VOP Court Opinion, 11/2/22, at
7.
The VOP court’s purported reliance on these bases is belied by the
certified record. Neither the April nor the June Gagnon II summaries issued
by the probation office listed any direct violations of probation of which
Appellant would have been on notice. The April summary referenced the
traffic warrants. Even assuming that the traffic tickets constituted a violation
of a specific condition of probation and the April summary provided Appellant
written notice, they cannot support a probation violation because the sole
evidence presented by the Commonwealth at the purported Gagnon II
hearing, on which the VOP court indisputably and exclusively relied in revoking
Appellant’s probation, was his failure to undergo the polygraph examination.
Plainly, the additional purported grounds for revoking Appellant’s probation
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were embedded into the VOP court’s Rule 1925(a) opinion in response to
Appellant’s claim that his failure to undergo the polygraph examination did
not violate a specific condition of his probation. Those reasons were raised
for the first time by the VOP court in response to this appeal. Accordingly, we
conclude the VOP court circumvented the proper procedures attendant to
probation revocations and erred to the extent it relied upon these bases in
revoking Appellant’s probation.
Based on the foregoing, we reverse the order revoking Appellant’s
probation, vacate the June 27, 2022 VOP judgment of sentence, and re-
impose Appellant’s January 21, 2021 sentence. Since we have vacated the
VOP sentence, we need not address the third issue raised by Appellant.3
Order reversed. VOP judgment of sentence vacated. Original judgment
of sentence reinstated.
Date: 12/28/2023
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3 We note with dismay that the VOP court and, regrettably, this Court, denied
Appellant’s requests for release on bail pending appeal. As a result, Appellant
was forced to serve a sentence of imprisonment that never should have been
imposed in the first place.
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