Com. v. Hamilton, R.

• Court: Superior Court of Pennsylvania
• Decided: March 13, 2025
• Docket: 643 WDA 2024
• Status: Unpublished

Opinion

J-S06037-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT W. HAMILTON : : Appellant : No. 643 WDA 2024

Appeal from the Judgment of Sentence Entered April 7, 2022 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000498-2019

BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: March 13, 2025

Appellant, Robert W. Hamilton, appeals nunc pro tunc from the

aggregate judgment of sentence of 19½ to 39 years’ incarceration, imposed

after a jury convicted him of various sexual offenses committed against three

of his grandchildren. On appeal, Appellant argues that his sentence must be

vacated because the trial court imposed illegal conditions on his parole. After

careful review, we agree with Appellant and, thus, we vacate his judgment of

sentence in part, and affirm in part.

The facts underlying Appellant’s convictions are not germane to our

disposition of the issue he raises on appeal. We only note that in July of 2021,

a jury convicted Appellant of multiple counts of various sexual offenses,

including involuntary deviate sexual intercourse, sexual assault, and indecent

assault. After a hearing, Appellant was determined to be a Sexually Violent

Predator (SVP) subject to lifetime registration under the Sexual Offender J-S06037-25

Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.42.

On April 7, 2022, Appellant was sentenced to an aggregate term of 19½ to 39

years’ incarceration. After imposing Appellant’s sentence of incarceration, the

court stated the following conditions:

THE COURT: … [Appellant] shall obtain an updated mental health evaluation that focuses on Sex Offender treatment. Again, [Appellant’s] required to register, the [c]ourt having found that he is a[n SVP].

During the term of this sentence[, Appellant] shall consume no alcohol, be in no place where alcohol is served or sold, have no alcoholic beverages, drug paraphernalia, or controlled substance which there is no valid prescription for, either at his residence or any vehicle he’s an occupant of.

He shall have absolutely no contact whatsoever with any of the victims or their immediate family members.

He shall have no contact with any juveniles.

N.T. Sentencing, 4/7/22, at 21.

Additionally, the court’s written sentencing order contained the following

language:

It is further ordered that as a condition of [Appellant’s] parole [he] shall comply with the [c]ourt’s standard conditions of supervision, and in addition, the following special conditions:

That [Appellant] shall obtain an updated mental health evaluation (focusing on sex offender treatment) and follow through with any recommended treatment and counseling and pay the costs thereof.

That during the terms of this sentence [Appellant] shall consume no alcohol and shall not be in any place where alcohol is either served or sold nor have any alcoholic beverages whatsoever at his residence or in any vehicle that he is an occupant of. That [Appellant] shall have no drug paraphernalia or controlled substances which there is not a

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valid prescription for either at his residence or in any vehicle that he is an occupant of.

***

That [Appellant] shall have no unsupervised contact with any juvenile.

That [Appellant] shall [have] absolutely no contact whatsoever with any of the victim’s [sic] or their immediate family.

That [Appellant] shall have a DNA sample of blood or tissue drawn and provided to the state DNA Data Base and the state DNA Data Bank and under no circumstances shall [Appellant] be released from incarceration unless and until such a DNA sample has been withdrawn. That [Appellant] shall pay the costs of $250 for having a DNA sample of blood or tissue drawn and processed by the Pennsylvania State Police DNA Laboratory.

Sentencing Order, 4/7/22, at 3 (unnumbered).

After Appellant’s sentencing, his attorney withdrew. Ultimately, new

counsel was appointed and Appellant’s right to file an appeal was reinstated.

See Appellant’s Brief at 6. Appellant filed a nunc pro tunc notice of appeal

within 30 days of the reinstatement of his right to do so. He and the court

thereafter complied with Pa.R.A.P. 1925. Herein, Appellant states one issue

for our review: “Whether the [trial] court erred in imposing an illegal sentence

by issuing conditions of parole where no authority existed for such

issuance[?]” Appellant’s Brief at 4.1

____________________________________________

1 Appellant sets forth a second issue in the “Statement of Questions Involved”

portion of his brief, wherein he simply states that, “[a]fter careful review of the [trial] court’s [Rule] 1925[(a) o]pinion, thorough review of the record, and detailed review of [the] applicable caselaw, all other issues in Appellant’s [Rule] 1925[(b) s]tatement are withdrawn.” Id.

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Appellant argues that the trial court imposed an illegal sentence when

it imposed conditions on his parole, namely, that he “not consume alcohol,

not be in any establishments that serve alcohol, not possess alcohol, not have

any unsupervised contact with minors, and not have any contact with the

victims or their immediate families….” Id. at 9. Appellant asserts that where,

as here, “a [d]efendant is sentenced to a maximum term of incarceration of

more than two years, the [d]efendant receives a state sentence, making his

eligibility for parole, as well as all terms or conditions of parole, subject to the

exclusive jurisdiction of the Pennsylvania Board of Probation and Parole

[(PBPP)].” Id. (citing Commonwealth v. Mears, 972 A.2d 1210, 1212 (Pa.

Super. 2009) (citation omitted)). According to Appellant, there is no statutory

authority permitting the court to impose conditions of parole on individuals,

such as him, who are sentenced to a maximum term of incarceration of two

or more years. Thus, he contends that the trial court’s imposition of parole

conditions was illegal.

In response, the Commonwealth concedes that if the conditions imposed

by the court are conditions of Appellant’s parole, then the court lacked

authority to impose those conditions and “they would be considered advisory

only.” Commonwealth’s Brief at 12. However, the Commonwealth argues

that the court’s statements at the sentencing proceeding demonstrate that

the conditions were not ordered as part of Appellant’s parole but, rather, as

part of his sentence of incarceration. The Commonwealth insists that the

imposition of sentencing conditions that apply while a defendant is

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incarcerated should be, and is, within the trial court’s authority and discretion.

In support of its position, the Commonwealth argues that, “[b]y statute, a

Judge is tasked with imposing a sentenc[e] with consideration to the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs

of the defendant[,] and the guidelines for sentencing and resentencing

adopted by the Pennsylvania Commission.” Id. at 14-15 (citing 42 Pa.C.S. §

9721). The Commonwealth questions, “Why should [a Judge], then, be

prevented from imposing the conditions that consider those factors?” Id. at

15. Indeed, the Commonwealth maintains that a trial court must have the

authority to impose conditions of a defendant’s state incarceration, even if

it becomes the exclusive jurisdiction of the PBPP to impose conditions once

the defendant is paroled. It reasons that,

[t]he actions of an offender cannot be left in limbo between the time of the sentencing and the time he meets with the parole board. The Judge should be able to ensure all … the necessary and proper portions of a sentence are imposed — including preventing a sexually violent predator from contacting child victims.

Id.

We begin our assessment of Appellant’s issue by recognizing that “[t]he

matter of whether the trial court possesses the authority to impose a particular

sentence is a matter of legality [of the sentence].” Commonwealth v.

Dennis, 164 A.3d 503, 510 (Pa. Super. 2017) (citation and quotation marks

omitted). Moreover, it is well settled that,

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[i]f no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court’s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001-02 (Pa. Super. 2006)

(citations omitted).

As Appellant correctly observes, “[w]here the trial court imposes a

maximum imprisonment sentence of two or more years, the [PBPP] has

exclusive authority over the terms of the defendant’s parole.”

Commonwealth v. Merced, 308 A.3d 1277, 1283 (Pa. Super. 2024), appeal

denied, 326 A.3d 394 (Pa. 2024) (citing 61 Pa.C.S. § 6132; Commonwealth

v. Coulverson, 34 A.3d 135, 141 (Pa. Super. 2011) (recognizing “that the

[PBPP] has exclusive authority to determine parole when the offender is

sentenced to a maximum term of imprisonment of two or more years”)

(cleaned up)). Therefore, trial courts do not have statutory authority to

impose conditions on a state parole sentence, and “‘any condition the

sentencing court purport[s] to impose on [a defendant’s] state parole is

advisory only.’” Coulverson, 34 A.3d at 141-42 (quoting Mears, 972 A.2d

at 1211 (additional citation omitted)); see also 61 Pa.C.S. § 6134(b)(1), (2).

Pursuant to this legal authority, it is clear that the portion of the trial court’s

written sentencing order that purported to impose conditions on Appellant’s

parole must be vacated, as the court lacked authority to order such conditions.

Furthermore, even if the Commonwealth is correct that the court

intended to impose the conditions on Appellant’s sentence of incarceration,

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and not his parole, we must reject its claim that the court possessed the

authority to do so. Indeed, this Court has explicitly held that “the authority

to impose a … special condition of a defendant’s state incarceration rests with

the Pennsylvania Department of Corrections [(DOC)].” Merced, 308 A.3d at

1284 (citing Commonwealth v. Richardson, 296 A.3d 623 (Pa. Super.

2023) (unpublished memorandum) (vacating a state prison sentence when

the trial court imposed conditions that the defendant refrain from contacting

the victims);2 Commonwealth v. Olivo-Vazquez, No. 730 MDA 2020,

unpublished memorandum (Pa. Super. filed Jan. 5, 2021) (finding the trial

court lacked statutory authority to impose a non-contact provision as part of

an appellant’s state incarceration sentence)).

Moreover, we discern no statutory authority to support the

Commonwealth’s position that the trial court could impose conditions on

Appellant’s sentence of incarceration. Notably, in 42 Pa.C.S. § 9754(b) of the

Sentencing Code, our legislature explicitly authorized the trial court to impose

conditions on a defendant’s probationary sentence, yet there are no similar

provisions relating to conditions on a sentence of confinement. As Appellant

correctly points out, “where someone is sentenced to a term of total

confinement, 42 Pa.C.S.[] § 9756 is controlling[,]” and

[t]here, limited reference is made [only] to a court’s authority to authorize a reentry plan if a maximum sentence is less than two ____________________________________________

2 See Pa.R.A.P. 126(b) (stating that non-precedential decisions filed after May

1, 2019, may be cited for their persuasive value).

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years. There is no authorization for conditions if a maximum sentence is two years or greater.

Appellant’s Brief at 10 (emphasis added); see also 42 Pa.C.S. § 9756.

We reject the Commonwealth’s argument that 42 Pa.C.S. § 9721(b)

authorizes the court to impose conditions on a sentence of confinement.

Section 9721(b) directs the court to consider certain factors in deciding what

type of sentence to impose, such as probation, incarceration, or a fine.

See 42 Pa.C.S. § 9721(a) (setting forth the sentencing alternatives the court

may impose); 42 Pa.C.S. § 9721(b) (“In selecting from the alternatives set

forth in subsection (a), the court shall follow the general principle that the

sentence imposed should call for total confinement that is consistent with

section 9725 (relating to total confinement) and the protection of the public,

the gravity of the offense as it relates to the impact on the life of the victim

and on the community, and the rehabilitative needs of the defendant.”). There

is no language in section 9721 that can be read as providing the trial court

with the authority to impose conditions on a sentence of confinement where

the maximum term of incarceration exceeds two years. Instead, the

Sentencing Code supports our conclusion in Merced that the power to impose

conditions on a sentence of state incarceration rests solely with the DOC.3

3 To address the Commonwealth’s concern that, without the court’s conditions,

Appellant will be able to contact the victims during his incarceration, we point out that the DOC has rules which “prohibit inmates from corresponding with victims of their criminal acts or the immediate family members of their victims via mail without prior written approval.” Olivo-Vazquez, No. 730 MDA 2020, (Footnote Continued Next Page)

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Finally, we note that in the trial court’s opinion, it addressed only the

conditions that Appellant not consume alcohol and that he obtain a mental

health evaluation. First, the court conceded that it lacked authority to impose

the no-alcohol condition on Appellant’s parole, but it nevertheless concluded

that no relief is due because the condition was “advisory to the [PDPP] only….”

Trial Court Opinion, 10/17/22, at 6. However, the court’s sentencing order

does not reflect the court’s intention to merely advise the PDPP; instead, it

states that Appellant “shall comply” with the no-alcohol condition, and others,

as “special conditions” of “[his] parole….” Sentencing Order at 3

(unnumbered). Therefore, the no-alcohol mandate, as well as the other

‘special conditions’ of Appellant’s parole, must be vacated.

Second, the court concluded that it had authority to impose the

condition that Appellant obtain a mental health evaluation because it is not a

requirement of his parole, but “a condition of [Appellant’s] sentence”

stemming from his being deemed an SVP. Id. (citing 42 Pa.C.S. § 9718.1

(requiring a person designated as an SVP to “attend and participate in a [DOC]

program of counseling or therapy designed for incarcerated sex offenders if

the person is incarcerated in a State institution” for certain sexual offenses)).

unpublished memorandum at *4 (citing DOC Procedures Manual, DC-ADM 803 Section 1 (A)(5)(f)(4), (5)). “Further, inmates are prohibited from initiating phone calls to a complainant unless the complainant submits a written request approved by the facility manager.” Id. (citing DOC Procedures Manual, DC- ADM 818 Section 2(B)(2)(e)).

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However, section 9718.1 does not mention a mental health evaluation, only

counseling and therapy. Moreover, section 9718.1 clearly authorizes the DOC

to “develop and provide the program of counseling or therapy for offenders[,]”

and vests in the DOC “the sole discretion with respect to counseling or

therapy program contents and administration, including the scheduling of an

offender’s attendance and participation.” 42 Pa.C.S. § 9718.1(c) (emphasis

added). Nothing in section 9718.1 authorizes the trial court to impose

mental health evaluations, or other treatment conditions, as part of a sexual

offender’s state sentence of incarceration. Accordingly, the court’s condition

that Appellant obtain a mental health evaluation must also be vacated.

In sum, because Appellant was sentenced to a maximum term of more

than two years, the PBPP has exclusive authority over the terms of his parole,

and the DOC has exclusive authority over the conditions of his state

incarceration sentence. See Merced, 308 A.3d at 1283. Consequently, the

conditions set forth by the court at the sentencing hearing, and/or in its

written sentencing order, are illegal and must be vacated. As our disposition

does not disturb Appellant’s sentence of incarceration, we affirm that portion

of his judgment of sentence. We need not remand for resentencing.

Judgment of sentence vacated in part, affirmed in part. Jurisdiction

relinquished.

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DATE: 3/13/2025

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