J-A14018-23
2023 PA Super 132
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANA MARIE FADDIS : : Appellant : No. 2666 EDA 2022
Appeal from the Judgment of Sentence Entered October 12, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002719-2014
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
OPINION BY DUBOW, J.: FILED JULY 25, 2023
Appellant, Dana Marie Faddis, appeals from the October 12, 2022
judgment of sentence entered in the Chester County Court of Common Pleas
following her violation of probation. After careful review, we affirm the
judgment of sentence.
This case has an extensive procedural history involving numerous
violations of probation and parole, the majority of which are not relevant to
the instant appeal. Accordingly, we present an abbreviated recitation of the
factual and procedural history.
In November 2014, the court sentenced Appellant to 1-11.5 months of
incarceration for Simple Assault and a consecutive 2-year term of probation
for Resisting Arrest. In August 2020, after several violations of parole,
Appellant completed her sentence for Simple Assault and began her
probationary sentence for Resisting Arrest. J-A14018-23
On January 20, 2021, the court revoked Appellant’s probation after
finding that she had violated it and resentenced Appellant to a term of 3-12
months of incarceration (“January 2021 Incarceration Sentence”) followed by
a consecutive term of one year of probation (“January 2021 Probation
Sentence”).
On December 1, 2021, the court concluded that Appellant violated
parole on her January 2021 Incarceration Sentence and imposed a sentence
of 9 months of incarceration (“December 2021 Incarceration Sentence”).1
While the court acknowledged the January 2021 Probation Sentence during
the hearing, it did not reference the January 2021 Probation Sentence in the
order imposing the December 2021 Incarceration Sentence.2
On October 12, 2022, following the expiration of the December 2021
Incarceration Sentence, the court concluded that Appellant violated her
January 2021 Probation Sentence.3 It revoked probation and sentenced her
to 3-11.5 months of incarceration (“October 2022 Incarceration Sentence”).
In so doing, the court rejected Appellant’s claim that the silence of the
December 2021 Sentencing Order in regard to the January 2021 Probation
Sentence resulted in termination of the January 2021 Probation Sentence. ____________________________________________
1 The court also stated: “Case can be closed at end of parole period if she completes treatment successfully as well as all after care.” Tr. Ct. Order, 12/1/21.
2 N.T., 12/1/21, at 8; Tr. Ct. Order, 12/1/21.
3 Appellant’s parole period under the January 2021 Incarceration Sentence
ended on June 6, 2022.
-2- J-A14018-23
Appellant filed a timely notice of appeal. Both the trial court and
Appellant complied with Pa.R.A.P 1925.
Before this Court, Appellant raises the following question: “Did the trial
court err in revoking probation and imposing sentence when probation term
which was revoked was not contained on the previous written sentencing
order?” Appellant’s Br. at 2.
A.
Appellant challenges the sentence imposed following the revocation of
her January 2021 Probation Sentence. This Court reviews a sentence imposed
following a revocation of probation for an error of law or an abuse of discretion.
Commonwealth v. Shires, 240 A.3d 974, 977 (Pa. Super. 2020). “[W]e 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.” Id. (citation omitted).
The instant case involves interactions between the trial court’s
imposition of sanctions for Appellant’s violations of parole and probation. The
sanctions for these violations are distinct. “[A] court faced with a violation of
probation may impose a new sentence so long as it is within the sentencing
alternatives available at the time of the original sentence.” Commonwealth
v. Holmes, 933 A.2d 57, 59 n.5 (Pa. 2007) (citing 42 Pa.C.S. § 9771(b)). “In
contrast, a court faced with a parole violation must recommit the parolee to
serve the remainder of the original sentence of imprisonment[.]” Id.
-3- J-A14018-23
Moreover, as recently held by this Court in Commonwealth v.
Simmons, 262 A.3d 512, 527-528 (Pa. Super. 2021) (en banc), and affirmed
by the Supreme Court in Commonwealth v. Rosario, 294 A.3d 338 (Pa.
2023), revocation of probation “is permissible solely during the term of the
probation itself.” Id. at 347, see also id. at 349 (holding that “the clear
language of [S]ection 9771 explicitly forbids anticipatory probation
revocation”).
Finally, “[i]t is well-settled that due process protections apply both to
individuals who are on probation[] and to individuals who are on parole[.]”
Commonwealth v. Hoover, 231 A.3d 785, 793 (Pa. 2020) (internal citations
omitted). “[D]ue process[, inter alia,] requires that individuals be given fair
warning of the acts which may lead to revocation of parole or probation.” Id.
B.
Appellant challenges the trial court’s jurisdiction to impose a sentence
for a violation of her January 2021 Probation Sentence. She contends that
the January 2021 Probation Sentence ceased to exist when the court did not
reference it in the December 2021 Order imposing a sentence for her violation
of the January 2021 Incarceration Sentence. While she recognizes that the
court acknowledged the January 2021 Probation Sentence during the
December 2021 hearing, Appellant emphasizes that “[o]ral statements made
by the judge in passing sentence, but not incorporated in the written sentence
signed by [the sentencing judge], are not part of the judgment of sentence.”
-4- J-A14018-23
Appellant’s Br. at 6 (quoting Commonwealth v. Quinlan, 639 A.2d 1235,
1239 (Pa. Super. 1994)).
Moreover, Appellant claims that the due process protections of the
United States and Pennsylvania Constitutions required the court to provide
her with notice of her full sentence, including any outstanding probationary
sentences. She asserts that “[t]he practice of not including sentences on the
last sentencing sheet is very confusing to attorneys, probation officers, and
the court, but most importantly to defendants who have a right to know their
sentence and may face multiple consecutive probationary terms.” Id. at 13.
After careful consideration, we agree with the trial court that Appellant’s
January 2021 Probation Sentence remained intact, regardless of whether the
court referenced that sentence in the December 2021 Sentencing Order.
Indeed, the court correctly recognized that the January 2021 Probation
Sentence was not before the court in December 2021, given that under
Simmons, Appellant could not have violated the consecutive probationary
sentence that she had yet to begin serving. Tr. Ct. Op., 12/9/22, at 3.
Appellant fails to cite any other indication in the record of the court’s intent to
terminate the January 2021 Probation Sentence.
Free access — add to your briefcase to read the full text and ask questions with AI
J-A14018-23
2023 PA Super 132
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANA MARIE FADDIS : : Appellant : No. 2666 EDA 2022
Appeal from the Judgment of Sentence Entered October 12, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002719-2014
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
OPINION BY DUBOW, J.: FILED JULY 25, 2023
Appellant, Dana Marie Faddis, appeals from the October 12, 2022
judgment of sentence entered in the Chester County Court of Common Pleas
following her violation of probation. After careful review, we affirm the
judgment of sentence.
This case has an extensive procedural history involving numerous
violations of probation and parole, the majority of which are not relevant to
the instant appeal. Accordingly, we present an abbreviated recitation of the
factual and procedural history.
In November 2014, the court sentenced Appellant to 1-11.5 months of
incarceration for Simple Assault and a consecutive 2-year term of probation
for Resisting Arrest. In August 2020, after several violations of parole,
Appellant completed her sentence for Simple Assault and began her
probationary sentence for Resisting Arrest. J-A14018-23
On January 20, 2021, the court revoked Appellant’s probation after
finding that she had violated it and resentenced Appellant to a term of 3-12
months of incarceration (“January 2021 Incarceration Sentence”) followed by
a consecutive term of one year of probation (“January 2021 Probation
Sentence”).
On December 1, 2021, the court concluded that Appellant violated
parole on her January 2021 Incarceration Sentence and imposed a sentence
of 9 months of incarceration (“December 2021 Incarceration Sentence”).1
While the court acknowledged the January 2021 Probation Sentence during
the hearing, it did not reference the January 2021 Probation Sentence in the
order imposing the December 2021 Incarceration Sentence.2
On October 12, 2022, following the expiration of the December 2021
Incarceration Sentence, the court concluded that Appellant violated her
January 2021 Probation Sentence.3 It revoked probation and sentenced her
to 3-11.5 months of incarceration (“October 2022 Incarceration Sentence”).
In so doing, the court rejected Appellant’s claim that the silence of the
December 2021 Sentencing Order in regard to the January 2021 Probation
Sentence resulted in termination of the January 2021 Probation Sentence. ____________________________________________
1 The court also stated: “Case can be closed at end of parole period if she completes treatment successfully as well as all after care.” Tr. Ct. Order, 12/1/21.
2 N.T., 12/1/21, at 8; Tr. Ct. Order, 12/1/21.
3 Appellant’s parole period under the January 2021 Incarceration Sentence
ended on June 6, 2022.
-2- J-A14018-23
Appellant filed a timely notice of appeal. Both the trial court and
Appellant complied with Pa.R.A.P 1925.
Before this Court, Appellant raises the following question: “Did the trial
court err in revoking probation and imposing sentence when probation term
which was revoked was not contained on the previous written sentencing
order?” Appellant’s Br. at 2.
A.
Appellant challenges the sentence imposed following the revocation of
her January 2021 Probation Sentence. This Court reviews a sentence imposed
following a revocation of probation for an error of law or an abuse of discretion.
Commonwealth v. Shires, 240 A.3d 974, 977 (Pa. Super. 2020). “[W]e 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.” Id. (citation omitted).
The instant case involves interactions between the trial court’s
imposition of sanctions for Appellant’s violations of parole and probation. The
sanctions for these violations are distinct. “[A] court faced with a violation of
probation may impose a new sentence so long as it is within the sentencing
alternatives available at the time of the original sentence.” Commonwealth
v. Holmes, 933 A.2d 57, 59 n.5 (Pa. 2007) (citing 42 Pa.C.S. § 9771(b)). “In
contrast, a court faced with a parole violation must recommit the parolee to
serve the remainder of the original sentence of imprisonment[.]” Id.
-3- J-A14018-23
Moreover, as recently held by this Court in Commonwealth v.
Simmons, 262 A.3d 512, 527-528 (Pa. Super. 2021) (en banc), and affirmed
by the Supreme Court in Commonwealth v. Rosario, 294 A.3d 338 (Pa.
2023), revocation of probation “is permissible solely during the term of the
probation itself.” Id. at 347, see also id. at 349 (holding that “the clear
language of [S]ection 9771 explicitly forbids anticipatory probation
revocation”).
Finally, “[i]t is well-settled that due process protections apply both to
individuals who are on probation[] and to individuals who are on parole[.]”
Commonwealth v. Hoover, 231 A.3d 785, 793 (Pa. 2020) (internal citations
omitted). “[D]ue process[, inter alia,] requires that individuals be given fair
warning of the acts which may lead to revocation of parole or probation.” Id.
B.
Appellant challenges the trial court’s jurisdiction to impose a sentence
for a violation of her January 2021 Probation Sentence. She contends that
the January 2021 Probation Sentence ceased to exist when the court did not
reference it in the December 2021 Order imposing a sentence for her violation
of the January 2021 Incarceration Sentence. While she recognizes that the
court acknowledged the January 2021 Probation Sentence during the
December 2021 hearing, Appellant emphasizes that “[o]ral statements made
by the judge in passing sentence, but not incorporated in the written sentence
signed by [the sentencing judge], are not part of the judgment of sentence.”
-4- J-A14018-23
Appellant’s Br. at 6 (quoting Commonwealth v. Quinlan, 639 A.2d 1235,
1239 (Pa. Super. 1994)).
Moreover, Appellant claims that the due process protections of the
United States and Pennsylvania Constitutions required the court to provide
her with notice of her full sentence, including any outstanding probationary
sentences. She asserts that “[t]he practice of not including sentences on the
last sentencing sheet is very confusing to attorneys, probation officers, and
the court, but most importantly to defendants who have a right to know their
sentence and may face multiple consecutive probationary terms.” Id. at 13.
After careful consideration, we agree with the trial court that Appellant’s
January 2021 Probation Sentence remained intact, regardless of whether the
court referenced that sentence in the December 2021 Sentencing Order.
Indeed, the court correctly recognized that the January 2021 Probation
Sentence was not before the court in December 2021, given that under
Simmons, Appellant could not have violated the consecutive probationary
sentence that she had yet to begin serving. Tr. Ct. Op., 12/9/22, at 3.
Appellant fails to cite any other indication in the record of the court’s intent to
terminate the January 2021 Probation Sentence. Accordingly, we agree that
the January 2021 Probation Sentence continued to bind Appellant and that the
court had jurisdiction to adjudicate her violation of it.4
____________________________________________
4 Although the trial court opined that a court “is not permitted to address the
anticipatory probationary period,” Tr. Ct. Op. at 8, as noted in Rosario, a trial (Footnote Continued Next Page)
-5- J-A14018-23
Additionally, we reject Appellant’s complaint that the failure to restate
the January 2021 Probation Sentence in the December 2021 Sentencing Order
violated her constitutional due process protections by failing to provide notice
of the remaining sentence. To the contrary, Appellant received the requisite
notice of the probation sentence in the January 2021 Sentencing Order.5
In sum, we conclude that the court had jurisdiction to impose a sentence
for Appellant’s violation of her January 2021 Probation Sentence.
Judgment of Sentence affirmed.
court may address a probationary sentence “at any time” in three limited instances under the plain language of Section 9771(a), specifically it may “terminate continued supervision, lessen the conditions of probation, and increase the conditions of probation upon a finding of an identifiable threat to public safety.” Rosario, 294 A.3d at 347 (citing 42 Pa.C.S. § 9771(a)).
Thus, the court could have terminated the January 2021 Probation Sentence before it began. Indeed, the December 2021 Sentencing Order implied that the January 2021 Probation Sentence could be terminated early, as it stated that the “[c]ase can be closed at the end of parole period if [Appellant] completes treatment[.]” Tr. Ct. Order, 12/1/21. There is no indication, however, that Appellant completed treatment to trigger this provision.
5 Nevertheless, we acknowledge Appellant’s valid concerns regarding defendants’ and other stakeholders’ potential confusion when faced with multiple sentencing orders on the same docket. Indeed, the sentencing court raised similar questions in observing that “Simmons, supra, and its progeny, do not address what should be reflected on the VOP sentencing sheet in light of the fact that the courts are not to consider anticipatory sentences.” Tr. Ct. Op. at 7. To alleviate any confusion, we recommend that courts restate all sentences outstanding on the docket in all violation of parole or probation sentencing orders, absent further guidance from the Supreme Court.
-6- J-A14018-23
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/25/2023
-7-