Com. v. Scantling, T.

• Court: Superior Court of Pennsylvania
• Decided: September 26, 2023
• Docket: 2407 EDA 2022
• Status: Unpublished

Opinion

J-S30022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS SCANTLING : : Appellant : No. 2407 EDA 2022

Appeal from the Judgment of Sentence Entered August 16, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005432-2019, CP-51-CR-0005877-2019, CP-51-CR-0009771-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS SCANTLING : : Appellant : No. 2408 EDA 2022

Appeal from the Judgment of Sentence Entered August 16, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005432-2019, CP-51-CR-0005877-2019, CP-51-CR-0009771-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS SCANTLING : : Appellant : No. 2409 EDA 2022

Appeal from the Judgment of Sentence Entered August 16, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005432-2019, J-S30022-23

CP-51-CR-0005877-2019, CP-51-CR-0009771-2009

BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED SEPTEMBER 26, 2023

Thomas Scantling appeals1 from the judgment of sentence, entered in

the Court of Common Pleas of Philadelphia County, following an anticipatory

probation revocation. After our review, we vacate the new sentence of

incarceration for possessing instruments of crime (PIC)2 and remand with

instructions. We affirm the judgment of sentence in all other respects.

On September 15, 2009, Scantling pled guilty to aggravated assault3

and PIC. On November 13, 2009, the trial court sentenced him to four to ten

years’ incarceration, followed by ten years of probation, for aggravated assault

and a consecutive term of five years of probation for PIC. On May 18, 2019,

Scantling committed another aggravated assault, for which he was

subsequently convicted. At the time he committed/was convicted of the 2019

aggravated assault, Scantling was serving his ten-year term of probation for

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1 Scantling filed three notices of appeal, each containing all three trial court

docket numbers, in compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). See Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020) (approving filing of separate but identical notices of appeal as compliant with dictates of Walker).

2 18 Pa.C.S.A. § 907.

3 18 Pa.C.S.A. § 2702(a).

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the 2009 aggravated assault conviction; the five-year probationary sentence

for the 2009 PIC conviction had not yet begun.

On August 16, 2022, as a result of Scantling’s 2019 aggravated assault

conviction, the trial court held a violation of probation (VOP) sentencing

hearing relating to Scantling’s 2009 convictions. Following the hearing, the

trial court anticipatorily revoked Scantling’s five-year probationary sentence

for PIC and resentenced him to two to four years of incarceration for that

conviction alone. Scantling now challenges that ruling, claiming that the court

unlawfully resentenced him to incarceration on his PIC probationary sentence

based on conduct that occurred before that probation commenced. We are

constrained to agree.

Approximately one year before the VOP court resentenced Scantling,

this Court decided Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super.

2021) (en banc). There, we held that a trial court may not anticipatorily

revoke a consecutively imposed term of probation, for new crimes committed

after sentencing, but before that probation commenced. See id. at 524-25,

527. Rather, a trial court may revoke a probationary sentence only when a

defendant’s conduct violates the specified conditions of the probation being

served at the time of the violation. Id. at 525. In so ruling, the Court reversed

prior precedent permitting anticipatory probation revocation. See id. at 524-

25; see e.g., Commonwealth v. Wendowski, 420 A.2d 628 (Pa. Super.

1980) (holding trial court may anticipatorily revoke consecutively imposed

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term of probation based on conduct that occurred before that probation

commenced).

Here, both parties agree that, at the time of the 2019 aggravated

assault charge, Scantling was still serving his ten-year probationary sentence

for the 2009 aggravated assault conviction and, thus, the consecutive

probationary sentence for the PIC conviction had not yet commenced. In light

of this fact, and pursuant to the Court’s ruling in Simmons, both parties agree

that the VOP court lacked the authority to anticipatorily revoke Scantling’s

probationary sentence for the 2009 PIC conviction and impose a sentence of

incarceration on that count. Both parties also agree that, because the new

sentence of incarceration is illegal, it should be vacated and the original

probationary sentence for that conviction reinstated.

Based on our review, and in accordance with Simmons, we agree that

the VOP court imposed an illegal resentence for the 2009 PIC conviction.

Accordingly, we vacate the new sentence of two to four years’ incarceration

for PIC and remand this case to the VOP court with directions to reinstate the

original probationary term of five years for that conviction. We affirm the

judgment of sentence in all other respects.

Affirmed in part, vacated in part. Case remanded for further

proceedings in accordance with the dictates of this memorandum. Jurisdiction

relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2023

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