Com. v. Miller, S.

• Court: Superior Court of Pennsylvania
• Decided: July 19, 2022
• Docket: 1689 EDA 2021
• Status: Unpublished

Opinion

J-A11014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVEN JOHNSON MILLER : : Appellant : No. 1689 EDA 2021

Appeal from the Judgment of Sentence Entered July 20, 2021 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004634-2017

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

MEMORANDUM BY BOWES, J.: FILED JULY 19, 2022

Steven Johnson Miller appeals from the July 20, 2021 order revoking his

prior consecutive probationary sentences for simple assault and recklessly

endangering another person (“REAP”) and imposing concurrent sentences of

time served to twenty-three months of incarceration, respectively. We affirm.

In 2017, officers of the East Norriton Police Department arrested

Appellant for fracturing the arm of his girlfriend’s two-month-old baby. On

June 28, 2018, Appellant entered a negotiated guilty plea to simple assault

and REAP, in exchange for two consecutive sentences of two years of

probation. Appellant also agreed to attend parenting classes as a special

condition of his probation. In June 2020, Appellant’s first probationary term

on the simple assault charge expired.

In October 2020, while serving his second probationary term on REAP,

Appellant was arrested and charged with assaulting two minors in Cumberland J-A11014-22

County, Pennsylvania. As a result of these new charges, Appellant’s assaultive

behavior, and his failure to complete the aforementioned parenting classes,

the Montgomery County Adult Probation Department moved to revoke both of

Appellant’s probationary sentences, including the expired term, by notice filed

on February 3, 2021.

On July 20, 2021, the revocation court held a hearing on the motion,

wherein Appellant stipulated to violating his probation by failing to attend

parenting classes. See N.T. Violation Hearing, 7/20/21, at 10. The

Commonwealth withdrew the other two bases for violation after the

Cumberland County District Attorney’s Office declined to prosecute Appellant.

Based upon Appellant’s stipulation, the court revoked Appellant’s probation at

both charges and resentenced him to two concurrent sentences of time served

to twenty-three months of incarceration. Appellant received credit for the

time he spent detained for the revocation.

Appellant filed a timely notice of appeal. Without requesting leave of

court, Appellant later purported to file a post-sentence motion nunc pro tunc.

While his motion was pending, Appellant submitted a court-ordered concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

and the revocation court forwarded its Rule 1925(a) opinion. Thereafter, the

court denied the post-sentence motion as untimely pursuant to Pa.R.Crim.P.

720(A)(1).

Appellant raises two issues, which we have reordered for ease of our

review:

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1. Whether it is an illegal sentence where Appellant’s supervision was revoked on the second of two consecutive terms of probation for violating a specific condition of his supervision – a condition that still could have been completed because the probationary term had not yet expired?

2. Whether it is an illegal sentence where Appellant’s first of two consecutive terms of probation was revoked for violating a specific condition but there was no requirement by when he had to complete the condition and the Commonwealth did not move to revoke until almost six months after the probationary term had expired?

Appellant’s brief at 4 (cleaned up).

Although presented as separate issues, both of Appellant’s claims

essentially contend that the evidence was insufficient to prove that he violated

the terms of his probation. See Appellant’s brief at 11-14, 17-19. Specifically,

Appellant alleges that the Commonwealth failed to establish that he was

required to complete the parenting classes by a specific date, either before his

simple assault sentence expired or before he finished serving his REAP

sentence. Id. Thus, he reasons, the Commonwealth could not prove that he

violated a specific condition of either probationary term. Id.

Challenges to the sufficiency of the evidence supporting the revocation

of probation are questions of law subject to plenary review. See

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa.Super. 2007).

Accordingly, we must determine whether the evidence admitted at the

revocation hearing and all reasonable inferences drawn therefrom, viewed in

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the light most favorable to the Commonwealth, is sufficient to support the

conclusion that the probationer violated the terms of his probation. Id.

The trial court found that Appellant had waived both of these issues due

to his failure to raise any objection to contest his probation violation at the

revocation hearing. See Trial Court Opinion, 9/21/21, at unnumbered 2. We

agree. It is well-established that objections not raised during a counselled

revocation proceeding will not be considered on appeal. See

Commonwealth v. Collins, 424 A.2d 1254, 1254 (Pa. 1981) (per curiam);

see also Pa.R.A.P. 302(a) (“Issues not raised in lower court are waived and

cannot be raised for the first time on appeal.”). Moreover, when an appellant

agrees not to contest the alleged probation violations, he surrenders

“important rights.” Commonwealth v. Bell, 410 A.2d 843, 844 (Pa.Super.

1979) (finding an appellant’s challenge to a probation revocation resentence

failed where the appellant did not contest the violations at the revocation

hearing).

The certified record reflects that Appellant, who was represented by

counsel, waived his right to a Gagnon I hearing and stipulated to violating

the specific terms of his probation by failing to complete parenting classes.1

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1 See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Starr, 234 A.3d 755, 762 (Pa.Super. 2020) (explaining that when a probationer is detained based on an alleged probation violation, due process requires a Gagnon I hearing to determine if there is probable cause that probationer committed a violation of his probation, followed by a second more (Footnote Continued Next Page)

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See N.T. Revocation Hearing, 7/20/21, at 9-10. After conducting a colloquy

to ensure that Appellant’s stipulation and waiver of a Gagnon I hearing was

knowing and voluntary, the court accepted the stipulation and revoked

Appellant’s probation. Id. at 12-14. Importantly, Appellant does not contend

that this stipulation was unknowing or involuntary. Thus, we conclude that

both of Appellant’s issues warrant no relief.

Alternatively, Appellant challenges the authority of the court to revoke

his probation on the expired simple assault sentence. See Appellant’s brief at

15-16. Specifically, Appellant contends that the Commonwealth’s delay in

seeking revocation deprived him of a speedy hearing and rendered his

sentence illegal. While raised for the first time on appeal, Appellant argues

that this issue is not waived since the Commonwealth’s failure to act “with

reasonable promptness” deprived the revocation court of the necessary

authority to revoke his sentence. Id. at 16. Id. However, we discern that

Appellant has conflated claims challenging the timing of the underlying

violation, which are non-waivable, with allegations concerning delays in the

overall revocation process, which are subject to waiver if not asserted at the

revocation hearing.

Pennsylvania law is settled that a defendant can be found to have

violated his probation after the term expires, so long as the conduct which

comprehensive Gagnon II hearing wherein the trial court determines whether to revoke probation).

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forms the basis for the violation occurred during the probationary period. See

Commonwealth v. Wright, 116 A.3d 133, 137 (Pa.Super. 2015). Thus,

claims that a defendant had completed his probation before committing the

alleged probation violation impact the revocation court’s authority and,

therefore, are nonwaivable. See Commonwealth v. Weir, 239 A.3d 25, 35-

36 (Pa. 2020) (“Where a claim concerns the sentencing court’s authority to

impose a sentence, it is reviewable as of right on direct appeal, without regard

to preservation of the claim.”); Commonwealth v. Mathias, 121 A.3d 558,

563 (Pa.Super. 2015) (finding sentence imposed for a violation of probation

was illegal where the term of probation expired before the alleged violation

occurred).

Once it is determined that the court has the authority to revoke a

defendant’s sentence, the court evaluates the individual circumstances of a

case to determine the propriety of a post-probation allegation of violation.

See Commonwealth v. Smith, 860 A.2d 142, 143 (Pa.Super. 2004). In

contrast to the case law above, our Supreme Court has held that claims

asserting unreasonable delays in the revocation proceedings are subject to

waiver if not raised at the revocation hearing. See Commonwealth v.

Marchesano, 544 A.2d 1333, 1336 (Pa. 1988) (“[A]ssuming appellee’s

original counsel had timely asserted his delay claim it would have been

evaluated . . . by an inquiry into the circumstances of the individual case.”);

Collins, supra at 1254 (finding written notice and speedy revocation hearing

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claims not raised by specific exception in the revocation court were waived for

purposes of appellate review); Commonwealth v. Ziegler, 428 A.2d 220

(Pa.Super. 1981) (holding that a speedy revocation hearing claim was waived

if not raised at a revocation hearing).2

Herein, Appellant has never argued that the probation violations

occurred after his simple assault sentence expired. Accordingly, while framed

as a nonwaivable claim implicating the legality of his sentence, Appellant’s

assertion of unreasonable delay does not implicate the revocation court’s

2 Before Commonwealth v. Collins, 424 A.2d 1254, 1254 (Pa. 1981), issues of promptness and notice at the probation hearing were viewed as due process challenges not subject to waiver. See Commonwealth v. Alexander, 331 A.2d 836, 839 (Pa.Super. 1974) (“it would be a derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-then-formal hearing or waive his right to do so.”); see also Commonwealth v. Spence, 381 A.2d 949, 951 n.2 (Pa.Super. 1977) (extending Alexander so that the waiver doctrine also covered speedy revocation hearing claims, finding there was no rational basis to distinguish between the two since they were both required by due process). In overruling Alexander, sub silentio, the Collins court did not discuss the discretionary versus legality dichotomy, but instead implied that these claims were discretionary by finding them subject to trial-level issue preservation requirements. See Commonwealth v. King, 430 A.2d 990, 991 (Pa.Super. 1981) (holding that Collins overruled those cases holding that a written notice claim could not be waived by failure to raise it at the revocation hearing sub silentio). The cases that followed Collins also do not discuss the issue of sentence legality. See Commonwealth v. Brown, 190 A.3d 688, *4 (Pa.Super. 2018) (unpublished memorandum) (finding claims concerning inadequate notice waived for failure to properly preserve without discussing whether the claim went to sentence legality or discretion); see also Commonwealth v. Moore, 239 A.3d 52, *4 (Pa.Super. 2020) (non- precedential memorandum) (concluding that claim challenging delay in revocation hearing after expiration of sentence was waived when appellant did not raise it at the hearing without mentioning sentence legality or discretion).

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authority. Id. Since Appellant failed to raise claims that the notice receipt

and revocation hearing were unreasonably delayed at the revocation hearing,

these issues are waived.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/19/2022

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