J-S10003-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEVIN JAMES HAMPTON : : Appellant : No. 1530 MDA 2019
Appeal from the Judgment of Sentence Entered August 23, 2019 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-CR-0000494-2017
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED: NOVEMBER 12, 2021
Devin Hampton appeals from his judgment of sentence of 15 months to
30 months’ incarceration, which the trial court imposed after anticipatorily
revoking Hampton’s probation for violating the conditions of his parole.
Counsel filed an Anders1 brief and an application to withdraw from
representation. Based on this Court’s recent en banc decision in
Commonwealth v. Simmons, 2461 EDA 2018, ___ A.3d ___ , 2021 WL
3641859 (Pa. Super. filed August 18, 2021) (en banc), we deny counsel’s
application to withdraw and vacate Hampton’s judgment of sentence with
instructions to reinstate Hampton’s original order of probation. We also
remand for resentencing.
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967). J-S10003-20
Hampton pled guilty to aggravated assault and the court sentenced him
to ten to 23 months’ incarceration, to be followed by 12 months of probation.
The sentencing court gave Hampton credit for 320 days served and granted
him immediate parole.
Hampton violated his parole by testing positive for drugs and failing to
report to his parole officer. At his revocation hearing on August 23, 2019,
Hampton admitted to these violations. The notes of testimony from the
revocation hearing made it clear that Hampton was still on parole, and
therefore not yet serving his probationary term when these violations
occurred. See N.T. Revocation Hearing, 8/23/19, at 3. Following the hearing,
the court revoked Hampton’s probation and resentenced him to 15 to 30
months’ incarceration. The court did not specifically revoke Hampton’s parole
in its order.
Hampton filed a timely notice of appeal. His appointed counsel filed an
Anders brief, stating that there were no non-frivolous issues to appeal, and
a corresponding application to withdraw from representation. As a threshold
matter, we acknowledge that counsel’s brief and application meet the
requirements that have been laid out for counsel seeking to withdraw from
representation on direct appeal. See Commonwealth v. Orellana, 86 A.3d
-2- J-S10003-20
877, 879-880 (Pa. Super. 2014).2 After this Court determines that “counsel’s
[application] and brief satisfy Anders, we will then undertake our own review
of the appeal to determine if it is wholly frivolous.” Commonwealth v.
Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
In her brief, counsel identified two issues that Hampton wished to raise
on appeal:
I. Whether the Sentencing Court committed an error of law or abused its discretion when it re-sentenced [Hampton] on the probation portion of [his] split sentence when [Hampton] was still on parole?
II. Whether the sentence imposed upon [Hampton], following the admission of probation violations, constitutes an illegal sentence because the Court sentenced [Hampton] to more incarceration time than initially ordered?
Anders Brief at 5.
Counsel concluded in her brief that both of these issues were meritless.
As for Hampton’s second issue, counsel stated that Hampton’s resentencing
was well within the statutory maximum for the felony two aggravated assault
he had pled guilty to and therefore the court had not sentenced him to an
2 Specifically, counsel seeking to withdraw from representation on direct appeal under Anders must file a brief that: 1) provides a summary of the procedural history and facts; 2) refers to anything in the record that counsel believes arguably supports the appeal; 3) sets forth counsel’s conclusions that the appeal is frivolous, and the reasons for that conclusion. See id. Counsel must also provide a copy of the Anders brief to his client, with an accompanying letter that advises the client of his right to: 1) retain new counsel to pursue the appeal; 2) proceed pro se; or 3) raise additional points deemed worthy of the Court’s attention. See id. at 880. Counsel for Hampton substantially complied with these requirements here.
-3- J-S10003-20
illegal sentence simply because it resentenced him to a lengthier term than
the original sentence. Regarding Hampton’s first claim, counsel stated that it
had no merit because this Court has held that a court may anticipatorily
revoke an order of probation when the defendant violates his parole after
sentencing but before the period of probation has begun. See
Commonwealth v. Wendowski, 420 A.2d 628 (Pa. Super. 1980).
Following the filing of counsel’s brief, however, this Court expressly
overruled Wendowski in our en banc decision in Simmons. See Simmons
at *8, *12. The defendant in Simmons, who had his probation revoked after
committing a crime while still on parole and before his consecutive probation
period had started, argued that the court erred when it found that he violated
a condition of an order of probation that had not yet commenced. The
Simmons Court agreed, and found that Wendowski had been wrongly
decided.3 We 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.’ No statutory authority exists to support this understanding. Rather, the plain language of the relevant statutes [in the Sentencing Code] 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 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 ____________________________________________
3 In agreeing with the defendant, Simmons recognized that Simmons’s claim
implicated the legality of his sentence. See id. at *1 n.3.
-4- J-S10003-20
of probation’ - including the ‘specified conditions’ - do not begin to commence until the prior term ends.
Simmons at *10 (citation omitted).
Given that the trial court imposed Simmons’s term of probation
consecutive to his term of imprisonment, and had revoked his probation based
on conduct that occurred while he was still on parole and before his probation
sentence had commenced, the Simmons Court vacated Simmons’s judgment
of sentence with instructions to reinstate the original order of probation. See
id. at *13.
Applying Simmons to this case, it is clear that we must also vacate
Hampton’s judgment of sentence with instructions to the court to reinstate his
original order of probation. Just as the court in Simmons did, the trial court
here imposed a term of probation consecutive to Hampton’s term of
imprisonment and then revoked Hampton’s probation on the basis of
Free access — add to your briefcase to read the full text and ask questions with AI
J-S10003-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEVIN JAMES HAMPTON : : Appellant : No. 1530 MDA 2019
Appeal from the Judgment of Sentence Entered August 23, 2019 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-CR-0000494-2017
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED: NOVEMBER 12, 2021
Devin Hampton appeals from his judgment of sentence of 15 months to
30 months’ incarceration, which the trial court imposed after anticipatorily
revoking Hampton’s probation for violating the conditions of his parole.
Counsel filed an Anders1 brief and an application to withdraw from
representation. Based on this Court’s recent en banc decision in
Commonwealth v. Simmons, 2461 EDA 2018, ___ A.3d ___ , 2021 WL
3641859 (Pa. Super. filed August 18, 2021) (en banc), we deny counsel’s
application to withdraw and vacate Hampton’s judgment of sentence with
instructions to reinstate Hampton’s original order of probation. We also
remand for resentencing.
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967). J-S10003-20
Hampton pled guilty to aggravated assault and the court sentenced him
to ten to 23 months’ incarceration, to be followed by 12 months of probation.
The sentencing court gave Hampton credit for 320 days served and granted
him immediate parole.
Hampton violated his parole by testing positive for drugs and failing to
report to his parole officer. At his revocation hearing on August 23, 2019,
Hampton admitted to these violations. The notes of testimony from the
revocation hearing made it clear that Hampton was still on parole, and
therefore not yet serving his probationary term when these violations
occurred. See N.T. Revocation Hearing, 8/23/19, at 3. Following the hearing,
the court revoked Hampton’s probation and resentenced him to 15 to 30
months’ incarceration. The court did not specifically revoke Hampton’s parole
in its order.
Hampton filed a timely notice of appeal. His appointed counsel filed an
Anders brief, stating that there were no non-frivolous issues to appeal, and
a corresponding application to withdraw from representation. As a threshold
matter, we acknowledge that counsel’s brief and application meet the
requirements that have been laid out for counsel seeking to withdraw from
representation on direct appeal. See Commonwealth v. Orellana, 86 A.3d
-2- J-S10003-20
877, 879-880 (Pa. Super. 2014).2 After this Court determines that “counsel’s
[application] and brief satisfy Anders, we will then undertake our own review
of the appeal to determine if it is wholly frivolous.” Commonwealth v.
Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
In her brief, counsel identified two issues that Hampton wished to raise
on appeal:
I. Whether the Sentencing Court committed an error of law or abused its discretion when it re-sentenced [Hampton] on the probation portion of [his] split sentence when [Hampton] was still on parole?
II. Whether the sentence imposed upon [Hampton], following the admission of probation violations, constitutes an illegal sentence because the Court sentenced [Hampton] to more incarceration time than initially ordered?
Anders Brief at 5.
Counsel concluded in her brief that both of these issues were meritless.
As for Hampton’s second issue, counsel stated that Hampton’s resentencing
was well within the statutory maximum for the felony two aggravated assault
he had pled guilty to and therefore the court had not sentenced him to an
2 Specifically, counsel seeking to withdraw from representation on direct appeal under Anders must file a brief that: 1) provides a summary of the procedural history and facts; 2) refers to anything in the record that counsel believes arguably supports the appeal; 3) sets forth counsel’s conclusions that the appeal is frivolous, and the reasons for that conclusion. See id. Counsel must also provide a copy of the Anders brief to his client, with an accompanying letter that advises the client of his right to: 1) retain new counsel to pursue the appeal; 2) proceed pro se; or 3) raise additional points deemed worthy of the Court’s attention. See id. at 880. Counsel for Hampton substantially complied with these requirements here.
-3- J-S10003-20
illegal sentence simply because it resentenced him to a lengthier term than
the original sentence. Regarding Hampton’s first claim, counsel stated that it
had no merit because this Court has held that a court may anticipatorily
revoke an order of probation when the defendant violates his parole after
sentencing but before the period of probation has begun. See
Commonwealth v. Wendowski, 420 A.2d 628 (Pa. Super. 1980).
Following the filing of counsel’s brief, however, this Court expressly
overruled Wendowski in our en banc decision in Simmons. See Simmons
at *8, *12. The defendant in Simmons, who had his probation revoked after
committing a crime while still on parole and before his consecutive probation
period had started, argued that the court erred when it found that he violated
a condition of an order of probation that had not yet commenced. The
Simmons Court agreed, and found that Wendowski had been wrongly
decided.3 We 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.’ No statutory authority exists to support this understanding. Rather, the plain language of the relevant statutes [in the Sentencing Code] 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 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 ____________________________________________
3 In agreeing with the defendant, Simmons recognized that Simmons’s claim
implicated the legality of his sentence. See id. at *1 n.3.
-4- J-S10003-20
of probation’ - including the ‘specified conditions’ - do not begin to commence until the prior term ends.
Simmons at *10 (citation omitted).
Given that the trial court imposed Simmons’s term of probation
consecutive to his term of imprisonment, and had revoked his probation based
on conduct that occurred while he was still on parole and before his probation
sentence had commenced, the Simmons Court vacated Simmons’s judgment
of sentence with instructions to reinstate the original order of probation. See
id. at *13.
Applying Simmons to this case, it is clear that we must also vacate
Hampton’s judgment of sentence with instructions to the court to reinstate his
original order of probation. Just as the court in Simmons did, the trial court
here imposed a term of probation consecutive to Hampton’s term of
imprisonment and then revoked Hampton’s probation on the basis of
violations that occurred while Hampton was still on parole and before his
period of probation began. This constituted error under the plain dictates of
Simmons and we therefore vacate Hampton’s judgment of sentence and
remand with instructions for the court to reinstate its original order of
probation.
Hampton also argues that the court erred by resentencing him to a
lengthier term of imprisonment than the one originally imposed. We agree.
While the court did not specifically revoke Hampton’s parole in its order, it is
evident that was the court’s intent. As such, the court illegally resentenced
-5- J-S10003-20
Hampton to a new term of imprisonment, and we therefore also remand for
resentencing. See Simmons at *12 (stating that when a court revokes
parole, it cannot impose a new sentence but instead, can only require the
defendant to serve the balance of the sentence previously imposed).
We recognize that when an Anders brief has been filed and we disagree
with counsel that an appeal is frivolous, as is plainly the case here, we would
ordinarily remand for counsel to file an advocate’s brief. See Wrecks, 175
A.3d at 721. However, counsel’s Anders brief was filed before Simmons was
issued, bringing a change to the relevant law, and it is clear that Simmons
controls the disposition of this case. Moreover, where the issue implicates the
legality of the sentence, such as here, we may correct the illegality sua sponte.
See Commonwealth v. Wolfe, 140 A.3d 651, 654 (Pa. 2016). Given these
circumstances, we see no need to order the filing of an advocate’s brief and
instead, vacate the judgment of sentence and remand with instructions to the
court to reinstate the original order of probation and resentence Hampton
pursuant to Simmons. See Commonwealth v. Hankerson, 118 A.3d 415,
421-422 (Pa. Super. 2015) (vacating an illegal sentence and remanding for
resentencing without ordering the filing of an advocate’s brief).
Counsel’s application to withdraw from representation is denied.
Judgment of sentence vacated. Case remanded with instructions to reinstate
the original order of probation and for resentencing. Jurisdiction relinquished.
Judge Kunselman joins the memorandum.
-6- J-S10003-20
President Judge Emeritus Ford Elliott did not participate in the
consideration or decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/12/2021
-7-