Com. v. Larison, J.

• Court: Superior Court of Pennsylvania
• Decided: February 18, 2025
• Docket: 3005 EDA 2023
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFREY R. LARISON : : Appellant : No. 3005 EDA 2023

Appeal from the Judgment of Sentence Entered October 23, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004524-2021

BEFORE: STABILE, J., McLAUGHLIN, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED FEBRUARY 18, 2025

Jeffrey R. Larison (“Larison”) appeals from the judgment of sentence

imposed following the revocation of his parole. We vacate the judgment of

sentence and remand for further proceedings.

We briefly summarize the relevant factual and procedural history. On

April 25, 2022, Larison entered an open guilty plea to driving under the

influence—high rate of alcohol,1 after he crashed his vehicle into a parked

tractor trailer. On August 9, 2022, the trial court imposed a sentence of forty-

eight hours to six months’ imprisonment and ordered Larison to pay restitution

of $51,167.97 to the insurer of the company that owned the tractor trailer.

Larison filed a timely post-sentence motion for reconsideration of the

restitution portion of his sentence. At the hearing on the post-sentence

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1 75 Pa.C.S.A. § 3802(b). J-S40032-24

motion, the parties stipulated that the trial court should make restitution a

part of Larison’s direct sentence, and the Commonwealth indicated that it did

not intend for regular payments of restitution to be a condition of his

supervision. See N.T., 11/22/22, at 4-5 (prosecutor stating she agreed with

defense counsel that restitution should be a part of Larison’s direct sentence

because it was not the Commonwealth’s intention that he “be continuously

violated over and over again for not paying” restitution).

On December 27, 2022, the trial court entered a stipulated order that

granted in part the motion for reconsideration, reducing the amount of

restitution to $46,167.97 and providing that restitution was “a part of

[Larison’s] direct sentence” and “not imposed as a condition of probation.”

Order, 12/27/22, at 2; see Commonwealth v. Hall, 80 A.3d 1204, 1215

(Pa. 2013) (stating that a sentencing court may impose restitution either as a

direct sentence or as a condition of probation). The order further indicated

that “[p]er [] 42 Pa.C.S.[A.] § 9728(b), a civil judgment for this restitution

amount is automatically entered upon execution of” the order. Order,

12/27/22, at 2 n.1.

On January 6, 2023, the trial court issued a bench warrant for Larison

based on his arrest on new charges and his failure to comply with the

conditions of supervision. After a Gagnon II hearing2 on April 25, 2023, the

2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973). “When a parolee or probationer is detained pending a revocation hearing, due process requires a (Footnote Continued Next Page)

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trial court found Larison in violation of his parole and recommitted him to full

back-time of 158 days with immediate parole. The court further directed

Larison to “[c]omply with rules and regulations governing [p]arole,” which

now included the payment of “$46,167.91 restitution [] at the rate of

$100/month,” as well as community service. Sentencing Order, 4/25/23.

Larison indicated his agreement with the revised conditions of supervision at

the Gagnon II hearing and did not file a notice of appeal from the April 25,

2023 judgment of sentence. See N.T., 4/25/23, at 4.

On October 23, 2023, the trial court convened a second Gagnon II

hearing based on Larison’s failure to complete community service. However,

Larison’s parole officer received a report on the day of the hearing, indicating

that he had fulfilled his community service requirement. See N.T., 10/23/23,

at 3, 13-14. The Commonwealth argued that the court should nevertheless

revoke Larison’s parole based on his nonpayment of restitution. See id. at 4-

5, 18. Larison waived any objection to the lack of notice of this alleged

violation and did not dispute his failure to make any restitution payments.

See id. at 14-15, 19. The court revoked Larison’s parole based upon

nonpayment of restitution and reimposed the sentence of 158 days of back-

determination at a pre-revocation hearing, a Gagnon I hearing, that probable cause exists to believe that a violation” occurred. Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (emphasis omitted). When there is a finding of probable cause, the court must hold a second, more comprehensive hearing, referred to as a Gagnon II hearing, before making a final revocation decision. See id.

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time, with immediate parole. Larison filed a timely notice of appeal. Both he

and the trial court have complied with Pa.R.A.P. 1925.

Larison presents the following issues for our review:

1. Did the trial court err in determining that nonpayment of restitution was a violation of supervision where restitution was imposed as part of [Larison’s] direct sentence but payment of restitution was not a condition of supervision?

2. Did the trial court err in revoking parole on the basis of nonpayment of restitution without first determining if [Larison’s] nonpayment was willful?

Larison’s Brief at 4 (suggested answers omitted).

Larison first argues that the trial court erred by revoking his parole for

failure to pay restitution when the trial court made payment of restitution a

part of his direct sentence. We review a sentence imposed following

revocation of parole to determine “whether the revocation court erred, as a

matter of law, in deciding to revoke parole and, therefore, to recommit the

defendant to confinement.” Commonwealth v. Kalichak, 943 A.2d 285,

291 (Pa. Super. 2008). As stated above, a sentencing court may impose

restitution either as a direct sentence or as a condition of probation. See

Hall, 80 A.3d at 1215.

When deciding whether to revoke parole, the revocation court must

determine “whether the parolee violated parole and, if so, whether parole

remains a viable means of rehabilitating the defendant and deterring future

antisocial conduct, or whether revocation, and thus recommitment, are in

order.” Id. at 290. A court may only revoke parole after finding that the

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defendant violated a condition of parole for which he had notice. See

Pa.R.Crim.P. 708(B)(2); see also Commonwealth v. Koger, 295 A.3d 699,

707 (Pa. 2023). “The Commonwealth must prove the violation by a

preponderance of the evidence and, once it does so, the decision to revoke

parole is a matter for the court’s discretion.” Kalichak, 943 A.2d at 291.

Section 1106, which governs restitution when imposed as a part of the

direct sentence, states in relevant part:

(a) General rule.—Upon conviction for any crime wherein:

(1) property of a victim has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime . . .

. . . the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

(b) Condition of probation or parole.—Whenever restitution has been ordered pursuant to subsection (a) and the offender has been placed on probation or parole, the offender’s compliance with such order may be made a condition of such probation or parole.

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(f) Noncompliance with restitution order.—Whenever the offender shall fail to make restitution as provided in the order of a judge, the probation section . . . shall notify the court within 20 days of such failure. . . . Upon such notice of failure to make restitution . . . , the court shall order a hearing to determine if the offender is in contempt of court or has violated his probation or parole.

18 Pa.C.S.A. § 1106(a)-(b), (f).

Larison argues that the trial court erred by finding him in violation of “a

parole condition that does not exist.” Larison’s Brief at 16. Larison maintains

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that: (1) the trial court imposed restitution as a part of his direct sentence;

and (2) the intent of the parties, as memorialized in the court’s original August

9, 2022 sentencing order, as modified on December 27, 2022, was for Larison

to avoid a parole violation due to nonpayment of restitution. Where the court

did not make payment of restitution a condition of supervision, Larison

contends, the proper means for enforcement of his obligation to pay was a

contempt proceeding.

The trial court addressed Larison’s claim, concluding that the December

27, 2022 stipulated order lacked any language that precluded the court from

revoking his parole based on nonpayment of restitution. See Trial Court

Opinion, 2/26/24, at 12.3

Based on our review of the record, we conclude that the trial court did

not err in finding that Larison violated a condition of his parole that he make

regular restitution payments. See Kalichak, 943 A.2d at 291. Larison

correctly observes that the trial court did not make payment of restitution a

condition of his supervision at the time of the original sentencing. However, ____________________________________________

3 While Larison asserted in his Pa.R.A.P. 1925(b) concise statement that the

trial court also lacked jurisdiction to revoke his parole following the entry of civil judgment on the original restitution sentence, he abandoned that argument where his brief contains only a vague, one-sentence reference to the civil judgment as an alternate method for collection of restitution. See Larison’s Brief at 24; see also Pa.R.A.P. 1925(b) statement, 1/8/24, at 2 (unnumbered). In any event, we agree with the trial court that 42 Pa.C.S.A. § 9728(b), which establishes the procedure for entry of a civil judgment for a restitution sentence, does not preclude a sentencing court from enforcing its restitution order as a condition of parole supervision. See Trial Court Opinion, 2/26/24, at 11-12.

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Larison ignores that consistent with Section 1106(b), after the court revoked

his parole and recommitted him on April 25, 2023, the trial court imposed a

parole condition that he make regular restitution payments in its new

sentencing order. See 18 Pa.C.S.A. § 1106(b) (“Whenever restitution has

been ordered [as a direct sentence] and the offender has been placed on []

parole, the offender’s compliance with such order may be made a condition of

such [] parole.”).

The December 27, 2022 imposition of restitution as a part of Larison’s

direct sentence did not preclude, in the event Larison violated his parole, a

subsequent parole condition to make regular restitution payments. As the

trial court explained, the language of the stipulated order did not prohibit the

revocation of Larison’s parole based on nonpayment of restitution. See Trial

Court Opinion, 2/26/24, at 11-12. Furthermore, by its plain language, Section

1106(f) authorized the trial court to revoke Larison’s parole following his

failure to make restitution payments as required by the April 25, 2023

sentencing order. See 18 Pa.C.S.A. § 1106(f) (“Upon [] notice of failure to

make restitution . . . , the court shall order a hearing to determine if the

offender is in contempt of court or has violated his [] parole.”) (emphasis

added).

Accordingly, where Larison was on notice that payment of restitution

was a condition of his parole, the trial court’s placement of such condition was

consistent with the restitution statute, and there was no dispute that he failed

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to make the required restitution payments, Larison’s first issue does not merit

relief.

In his second issue, Larison argues that the trial court erred in revoking

his parole absent a determination that his failure to pay restitution was willful

and not merely the result of an inability to pay. Upon review, the trial court

concedes that it did not find that Larison’s nonpayment was willful and

requests a remand for a new violation of parole hearing. See Trial Court

Opinion, 2/26/24, at 6. The Commonwealth concurs. See Commonwealth’s

Brief at 18.

Our law is clear that a court may not revoke probation or parole based

on an offender’s nonpayment of restitution absent a determination that the

failure to pay was willful. See 18 Pa.C.S.A. § 1106(c)(2)(iii) (providing the

court “[s]hall not order incarceration of a defendant for failure to pay

restitution if the failure results from the offender’s inability to pay.”); see also

Bearden v. Georgia, 461 U.S. 660, 672 (1983) (holding that a court shall

not revoke probation based on failure to pay restitution or fines without finding

that the probationer’s nonpayment was willful); Commonwealth v. Dorsey,

476 A.2d 1308, 1312 (Pa. Super. 1984) (applying Bearden in appeal from

revocation of parole and holding that court may not revoke parole for

nonpayment of costs and fines absent a finding of willfulness).

[A] proper analysis [regarding the nonpayment] should include an inquiry into the reasons surrounding the [offender’s] failure to pay, followed by a determination of whether the [offender] made a willful choice not to pay[.] After making those determinations, if the court finds the [offender] could not pay despite sufficient

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bona fide efforts to acquire resources to do so, the court should then consider alternatives to incarceration[.]

Commonwealth v. Allshouse, 969 A.2d 1236, 1242 (Pa. Super. 2009)

(citation omitted).

Based on our review, we conclude that the trial court erred in revoking

Larison’s parole without assessing his ability to pay restitution. The trial court

did not find that Larison’s nonpayment was willful, and in fact the court

appeared to credit his testimony that he was unable to make any restitution

payments due to his outstanding child support obligations. See N.T.,

10/23/23, at 19, 25-26 (trial court stating that it was “sympathetic to

[Larison’s] financial obligations” to his children and did not want to “penalize

[him] for paying [his] child support first . . . before this insurance company is

reimbursed”). Therefore, we vacate Larison’s judgment of sentence and

remand for the trial court to conduct a new violation of parole hearing, at

which it shall make the requisite findings regarding Larison’s ability to pay.

Judgment of sentence vacated. Case remanded. Jurisdiction

relinquished.

Date: 2/18/2025

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