Com. v. Diaz, T.

Superior Court of Pennsylvania

Com. v. Diaz, T.

DecidedNovember 19, 2021

Docket1928 EDA 2020

StatusUnpublished

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Com. v. Diaz, T., (Pa. Ct. App. 2021).

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Opinion

J-S33007-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TANIESHA DIAZ : : Appellant : No. 1928 EDA 2020

Appeal from the Judgment of Sentence Entered September 14, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002898-2018

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 19, 2021

Taniesha Diaz appeals from the aggregate judgment of sentence of

three to six years of incarceration followed by three years of probation, which

the trial court imposed after revoking her parole and probation. Based upon

this Court’s recent decision in Commonwealth v. Simmons, ___ A.3d ___,

2021 PA Super 166, 2021 WL 3641859 (Pa.Super. Aug. 18, 2021) (en banc),

we vacate Appellant’s judgment of sentence and remand for the trial court to

reinstate its April 4, 2019 order of probation and resentence Appellant for her

parole violation.

On April 4, 2019, Appellant pled guilty to one count each of burglary and

conspiracy in exchange for concurrent sentences of eleven and one-half to

twenty-three months of incarceration, with immediate parole to house arrest,

followed by three years of probation, at each count. On January 9, 2020, J-S33007-21

while on parole, Appellant tested positive for PCP. At the Gagnon II1 hearing,

Appellant was found to be in violation of her probation and the order of

probation was revoked. On September 14, 2020, the court imposed

concurrent terms of three to six years of incarceration followed by three years

of probation at each count. Appellant filed a motion for reconsideration,

seeking a sentence in the mitigated range of the guidelines, specifically a

“mental health inpatient sentence,” because she has remorse, strong family

relationships, and strong ties to the community. Motion for Re-Consideration

of Sentence of VOP, 9/16/20, at 3-4. Before the trial court ruled on the post-

sentence motion, Appellant timely filed the instant appeal.2 Both Appellant

and the trial court complied with Pa.R.A.P. 1925.3

____________________________________________

1 “A Gagnon I hearing is a pre-revocation hearing to determine if probable cause exists that a violation was committed. After this determination is made, a Gagnon II hearing is conducted where the Commonwealth is required to establish that the defendant did violate his parole/probation.” Commonwealth v. Stafford, 29 A.3d 800, 802 n.1 (Pa.Super. 2011) (cleaned up) (citing Gagnon v. Scarpelli, 411 U.S. 778 (1973)). Instantly, Appellant did not order the transcripts of her Gagnon proceedings for purposes of this appeal. Accordingly, we rely on the trial court’s opinion for the date and disposition of the Gagnon II hearing. See Trial Court Opinion, 12/10/20, at 2 (“On February 5, 2020, a Gagnon II hearing was held and Appellant was found to be in violation of probation and probation was revoked. A pre-sentence report and mental health evaluation was ordered.”).

2 Pursuant to Pa.R.Crim.P. 708(E), Appellant’s filing of a post-sentence motion did not toll the time for filing an appeal, and Appellant timely and properly filed her notice of appeal despite the pendency of the motion.

3This Court initially dismissed Appellant’s appeal for failure to file a brief, but upon application, reinstated the appeal.

-2- J-S33007-21

Appellant raises three issues for our review, which are mooted by our

application of Simmons, as we must first address the legality of Appellant’s

revocation sentence. See Simmons, supra at *1 n.3 (noting that challenges

to an illegal sentence may be raised by this Court sua sponte). As indicated

hereinabove, the judgment of sentence from which Appellant has appealed

was imposed following the trial court’s decision to revoke Appellant’s parole

and probation. Specifically, Appellant was originally sentenced to eleven and

one-half to twenty-three months of incarceration, with a consecutive order of

probation to follow the term of incarceration, at each count. The conduct that

served as the basis for the revocation, namely Appellant’s positive test result

for PCP, was committed during Appellant’s parole. Since her probationary

term was set to commence on April 24, 2021, the trial court revoked the order

of probation before the consecutive probationary term had commenced.

We observe that this anticipatory revocation of Appellant’s order of

probation was permissible at the time the trial court issued its revocation order

under longstanding precedent established by this Court. Indeed, for more

than four decades, beginning with this Court’s decision in Commonwealth v.

Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980), the law of this

Commonwealth was that, for revocation purposes, a term of probation

included all time from when probation was granted until the probationary term

had been fully served. However, in Simmons, supra, an en banc panel of

this Court overruled Wendowski and its progeny, holding as follows:

-3- J-S33007-21

Simply stated, Wendowski was incorrect in holding that a trial court may anticipatorily revoke an order of probation and in reasoning that “a term of probation may and should be construed for revocation purposes as including the term beginning at the time probation is granted.” Wendowski, 420 A.2d at 630 (quotations omitted). No statutory authority exists to support this understanding. Rather, the plain language of the relevant statutes provides that: a trial court may only revoke an order of probation “upon proof of the violation of specified conditions of the probation;” the “specified conditions” of an order of probation are attached to, or are a part of, the order of probation; and, when the trial court imposes an “order of probation” consecutively to another term, the entirety of the “order of probation” – including the “specified conditions” – do not begin to commence until the prior term ends.

Simmons, supra at *10. This Court further explained that, pursuant to

Simmons, a “trial court lack[s] statutory authority to anticipatorily revoke [a

defendant’s] probation for an alleged ‘technical probation violation’ that

occurred before [his or her] period of probation began.” Commonwealth v.

Reavis, 1360 EDA 2018, 2021 WL 3668883, at *1 (Pa.Super. Aug. 18, 2021)

(en banc) (non-precedential decision). A sentence imposed without statutory

authority is an illegal sentence. See, e.g., Commonwealth v. Finnecy, 249

A.3d 903, 912 (Pa. 2021).

Here, Appellant’s order of probation was revoked because she violated

the special probation conditions applicable to the not-yet-commenced

probationary tail of her sentence. However, pursuant to Simmons, Appellant

was not required to comply with the conditions of probation before she began

serving that probationary term, and therefore her noncompliance did not

-4- J-S33007-21

permit the anticipatory revocation of her order of probation.4 Therefore, as

was the appellant in Simmons, Appellant is entitled to relief in the form of

having her current judgment of sentence vacated and her April 4, 2019 order

of probation reinstated.5 See Simmons, supra at *13 (vacating the

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