Com. v. Harper, N.

• Court: Superior Court of Pennsylvania
• Decided: October 4, 2022
• Docket: 1662 MDA 2021
• Status: Unpublished

Opinion

J-A19042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NIGEL RAMON HARPER : : Appellant : No. 1662 MDA 2021

Appeal from the Judgment of Sentence Entered November 18, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005214-2020

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY BOWES, J.: FILED: OCTOBER 4, 2022

I fully agree with the learned Majority’s conclusion that Appellant’s claim

regarding the legality of his sentence is not moot. See Commonwealth v.

Foster, 214 A.3d 1240, 1246 (Pa. 2019). I write separately to note my

disagreement with the Majority’s additional conclusion that Appellant’s

completion of outpatient treatment was a specific condition of his probation

such that the trial court was permitted to revoke and impose a revocation

sentence for his failure to complete it. Pursuant to 42 Pa.C.S. § 9754(b), the

trial court was required to communicate any conditions of probation to the

defendant in its order imposing the defendant’s initial term of probation.

However, the conditions of Appellant’s probation were not sufficiently

communicated to him. Thus, I would reverse the trial court’s order.

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* Former Justice specially assigned to the Superior Court. J-A19042-22

Appellant pleaded guilty to one count of driving under the influence

(“DUI”) as a first-time, first-tier offender. See N.T. Guilty Plea & Sentencing,

4/20/21, at 2. He was sentenced to six months of probation. During these

proceedings, Appellant’s attorney noted Appellant had received an evaluation

recommending outpatient treatment for drug and alcohol abuse in Maryland.

Id. (“Even though he doesn’t need a drug and alcohol evaluation for this

disposition, he does have one completed. He got it at a treatment center in

Maryland. He’s recommended outpatient and begins tomorrow.”). In

response, the trial court directed Appellant to provide a copy of the evaluation

to York County Probation Department of Adult Services (“York County

Probation”). Id. The court, however, did not explicitly include the completion

of outpatient treatment as a condition of Appellant’s probation, stating only

that Appellant would be required to comply with “standard conditions related

to a DUI offense.” Id. at 6. No further explanation was provided.

Several months later, the Commonwealth filed a probation violation

petition alleging that Appellant had failed to complete certain required

counseling or treatment. See Petition for Violation, 9/22/21, at 2. At the

revocation hearing, Appellant’s counsel argued that such treatment was not

included in the probation conditions imposed by the trial court. The trial court

did not credit this argument. See N.T. Revocation Hearing, 11/18/21, at 2-3

(“Sorry, but counsel acknowledged that he’s already had a drug and alcohol

evaluation done and that he was recommended for outpatient treatment,

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which was beginning the next day, so he was well aware of the situation.”).

Thus, it revoked Appellant’s probation.

The Majority concludes that the passing mentions of Appellant’s

Maryland drug and alcohol evaluation quoted above were sufficient to place

him on notice that such treatment would be a requisite part of his probation

conditions. See Majority Memorandum at 10-11. I disagree.

Our legislature has provided that, in imposing an order of probation, a

trial court “shall attach reasonable conditions authorized by section 9763

(relating to conditions of probation) as it deems necessary to ensure or assist

the defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(b). Our

Supreme Court has ruled that the failure of a trial court to include an order

“specifying the conditions of probation in the record” constitutes “a violation

of this statutory mandate.” Foster, supra at 1244 n.5. Furthermore, this

Court recently concluded that the sentencing court “may not delegate its

statutorily proscribed duties to probation and parole offices and is required to

communicate any conditions of probation or parole as a prerequisite to

violating any such condition.” Commonwealth v. Koger, 255 A.3d 1285,

1291 (Pa.Super. 2021), appeal granted, 276 A.3d 202 (Pa. 2022).

Aside from referencing “the standard conditions related to a DUI

offense,” the trial court made no pronouncements or filings detailing the

specific probation requirements imposed upon Appellant. Cf. N.T. Guilty Plea

& Sentencing, 4/20/21, at 4-6. At best, the court’s statements during

Appellant’s sentencing were ambiguous and left Appellant to guess at what

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the trial court might have meant by referring to such “standard” probation

conditions. Such generalized statements are insufficient to fulfill a court’s

statutory duty to imposes specific conditions under § 9754(b). Furthermore,

I note that the trial court seemed to delegate responsibility for imposing these

treatment conditions by directing Appellant to hand over his evaluation to York

County Probation, without any further elucidation. Id. at 2. Such practice is

not permitted pursuant to Koger, supra at 1291 (disapproving of court

abdicating responsibility for imposing probation conditions to other officials).

Furthermore, defense counsel’s mere acknowledgement of a pre-

existing drug and alcohol evaluation from Maryland is an insufficient substitute

for a clear and unambiguous statement from the trial court that outpatient

treatment was to be a mandatory condition of Appellant’s probation. As

Appellant argues aptly in his brief, “[n]owhere in the court’s statements is

there any indication that [Appellant] was required to complete treatment, let

alone that the failure to do so could result in revocation of his probation.”

Appellant’s brief at 14 (emphasis in original).

Instead, this case strikes me as a fair analogue to our holding in Koger,

supra at 1290 (“[T]he trial court erred in failing to specifically advise

Appellant of the conditions of his probation . . . at the time of his initial

sentencing.”). In the absence of any specific probation conditions related to

outpatient treatment actually imposed by the sentencing court, I would hold

the court erred in revoking Appellant’s probation. See Foster, supra at 1250

(“[A] court may find a defendant in violation of probation only if the defendant

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has violated one of the specific conditions of probation included in the

probation order or has committed a new crime. The plain language of the

statute does not allow for any other result.” (emphasis added)).

Based on the foregoing, I respectfully dissent.

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