Com. v. Miller, R.

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2021
• Docket: 300 EDA 2020
• Status: Unpublished

Opinion

J-S16010-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT MILLER : : Appellant : No. 300 EDA 2020

Appeal from the Judgment of Sentence Entered December 11, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009849-2016

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: Filed: September 9, 2021

Appellant, Robert Miller, appeals from the judgment of sentence of one

to two years’ incarceration, imposed after the trial court anticipatorily revoked

his term of probation based on Appellant’s violating the conditions of his

parole. Appellant contends that the court lacked statutory authority to revoke

his term of probation that he was not yet serving, thus rendering his sentence

illegal. Based on this Court’s recent en banc decisions in Commonwealth v.

Simmons, No. 2461 EDA 2018 (Pa. Super. filed Aug. 18, 2021) (en banc),

and Commonwealth v. Reavis, 1360 EDA 2018, unpublished memorandum

(Pa. Super. filed Aug. 18, 2021) (en banc), we agree with Appellant. Thus,

we vacate Appellant’s judgment of sentence and remand with instructions.

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* Former Justice specially assigned to the Superior Court. J-S16010-21

On February 28, 2017, Appellant pled guilty to aggravated assault. In

accordance with the plea agreement, the trial court sentenced him to 6 to 23

months’ incarceration, followed by 4 years’ probation. Appellant was released

on parole on June 5, 2017. However, over the ensuing two years, he violated

the terms and conditions thereof multiple times by using drugs and failing to

report to his parole officer. At two violation of parole hearings, the court found

Appellant in violation, but permitted him to remain on parole. Nevertheless,

Appellant continued to disregard the terms and conditions of his parole.

Ultimately, on December 11, 2019, the court revoked Appellant’s parole and

anticipatorily revoked his probation. For Appellant’s revocation of probation,

the court resentenced him to 1 to 2 years’ incarceration.

Appellant timely appealed, and he complied with the trial court’s order

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. The court filed its Rule 1925(a) opinion on December 3, 2020. Herein,

Appellant states one issue for our review: “Did not the [trial] court lack

authority under Pennsylvania law to revoke a consecutive sentence of

probation that Appellant had not yet begun to serve?” Appellant’s Brief at 3.

As both parties acknowledge, at the time they filed their briefs in this

case, the same issue Appellant raises herein was being considered by an en

banc panel of this Court in Simmons and Reavis. On August 18, 2021, our

Court decided Simmons, declaring

that Commonwealth v. Wendowski, 420 A.2d 628 (Pa. Super. 1980)[,] and its progeny wrongly held that a court may anticipatorily revoke an order of probation when the defendant

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commits a new crime after sentencing, but before the period of probation has commenced. As we explained in Simmons, Wendowski’s holding finds no support in our statutes and is contrary to the plain language of Sections 9721, 9754, and 9771 of the Sentencing Code.[1] Therefore, we overruled Wendowski and its progeny.

Reavis, No. 1360 EDA 2018, unpublished memorandum at 2-3.

In Reavis, “[t]he issue … concern[ed] the anticipatory revocation of

probation for an alleged ‘technical probation violation.’” Id. Accordingly, the

Reavis panel followed Simmons and “conclude[d] that the trial court lacked

statutory authority to anticipatorily revoke [Reavis’s] probation for an alleged

‘technical probation violation’ that occurred before [Reavis’s] period of

probation began.” Id. The panel vacated Reavis’s judgment of sentence and

remanded “with instructions to reinstate the original order of probation.” Id.

(quoting Commonwealth v. Griggs, 461 A.2d 221, 225 (Pa. Super. 1983)).

As in Simmons and Reavis, we conclude that the court in this case

imposed an illegal sentence when it anticipatorily revoked Appellant’s

probationary sentence based on an alleged technical probation violation that

occurred before his probation sentence began. Accordingly, we vacate his

judgment of sentence and remand for the court to reinstate the original order

of probation.

Judgment of sentence vacated. Case remanded with instructions to

reinstate the original order of probation. Jurisdiction relinquished.

1 See 42 Pa.C.S. §§ 9721, 9754, and 9771.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/21

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