Com. v. Stewart, A.

• Court: Superior Court of Pennsylvania
• Decided: October 12, 2021
• Docket: 55 WDA 2021
• Status: Unpublished

Opinion

J-S27037-21

J-S27038-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMANDA LUWANA STEWART : : Appellant : No. 55 WDA 2021

Appeal from the Judgment of Sentence Entered December 3, 2020 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0000180-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMANDA LUWANA STEWART : : Appellant : No. 56 WDA 2021

Appeal from the Judgment of Sentence Entered December 2, 2020 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0001923-2019

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: OCTOBER 12, 2021

Appellant, Amanda Luwana Stewart, appeals from judgments of

sentence of the Court of Common Pleas of Mercer County (the trial court)

following the revocation of her parole and probation in two criminal

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* Retired Senior Judge assigned to the Superior Court. J-S27037-21

proceedings, CP-43-CR-0000180-2018 (CR-180-2018) and CP-43-CR-

0001923-2019 (CR-1923-2019). For the reasons set forth below, we affirm

the revocation of Appellant’s parole in CR-180-2018 and the judgment of

sentence in CR-1923-2019, but vacate the revocation of probation and the

sentence imposed on Appellant following the revocation of probation in CR-

180-2018.

In CR-180-2018, Appellant entered a guilty plea on November 13, 2018

to the offense of driving under the influence - highest rate of alcohol1 and was

sentenced on December 12, 2018 to 90 days to 1 year of incarceration,

followed by 4 years’ probation. CR-180-2018 Guilty Plea Order, 11/13/18;

CR-180-2018 N.T., 12/12/18, at 16, 20-21; CR-180-2018 Sentencing Order,

12/12/18, at 1-2. The trial court imposed as conditions of Appellant’s

probation that Appellant not possess or consume alcohol or illegal drugs, that

Appellant undergo random drug and alcohol tests, and that Appellant was

prohibited from being present on the premises of any establishment that

serves alcoholic beverages, except as a repair or delivery person or as an

owner or employee. CR-180-2018 N.T., 12/12/18, at 23-24; CR-180-2018

Sentencing Order, 12/12/18, at 3-4.

1 75 Pa.C.S. § 3802(c).

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In CR-1923-2019, Appellant pled guilty on September 26, 2019 to

possession of drug paraphernalia2 and was sentenced to one year of probation.

Following her conviction in CR-1923-2019, the trial court, on October 24,

2019, found Appellant in violation of her probation and parole in CR-180-2018,

but found that her time in detention and denial of street time constituted a

sufficient sanction and did not revoke her parole or probation. CR-180-2018

N.T., 10/24/19, at 9-10; CR-180-2018 Trial Court Order, 10/24/19.

On June 10, 2020, after Appellant completed her incarceration sentence

in CR-180-2018 and was on probation in that case, the trial court ordered

Appellant detained for violation of her probation in both cases. CR-180-2018

Trial Court Order, 6/10/20; CR-1923-2019 Trial Court Order, 6/10/20; N.T.,

7/9/20, at 21-22. On July 9, 2020, at a joint Gagnon II3 hearing, the trial

court found Appellant had committed technical violations of her probation in

both cases. N.T., 7/9/20, at 18; CR-180-2018 Probation Revocation Order,

7/9/20; CR-1923-2019 Trial Court Order, 7/9/20. In CR-180-2018, the trial

court revoked Appellant’s probation and resentenced her to 30 days to 6

months’ incarceration, followed by 3 years’ probation and ordered that

Appellant’s probation was subject to the conditions of her original probation.

N.T., 7/9/20, at 18-23; CR-180-2018 Sentencing Order, 7/9/20. In CR-1923-

2 35 P.S. § 780-113(a)(32).

3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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2019, the trial court found that Appellant’s incarceration on the detainer was

sufficient punishment and imposed no further sanction, leaving Appellant’s

probation in that case in place. N.T., 7/9/20, at 18; CR-1923-2019 Trial Court

Order, 7/9/20.

On September 24, 2020, Appellant was paroled from her incarceration

sentence in CR-180-2018. CR-180-2018 Trial Court Order, 9/24/20. In its

order granting parole, the trial court imposed as a condition of parole that

Appellant not consume or possess any alcohol or any controlled substance and

that she not be present in any premises that serves alcohol except as an

employee or in a serving area for food separate from the area for serving

alcohol. Id. On September 25, 2020, Appellant was arrested for violating the

conditions of her parole in CR-180-2018 and her probation in both cases by

consuming alcohol at a bar on the night of September 24, 2020. On October

15, 2020, the trial court held a Gagnon I hearing in both cases at which a

parole and probation agent testified that when she checked on Appellant on

September 25, 2020, Appellant’s breath smelled of alcohol, that a

breathalyzer test was positive, and that Appellant admitted that the previous

night she went into a bar to see a friend and drank alcohol at a friend’s house.

N.T., 10/15/20, at 7-11. The trial court found that the Commonwealth met

its initial burden of showing probable cause to establish a parole violation in

CR-180-2018 and a probation violation in both cases. Id. at 14-16.

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On November 12, 2020, the trial court held a Gagnon II hearing in both

cases. At this start of this hearing, Appellant’s counsel in CR-180-2018

indicated that Appellant was willing to admit that she consumed alcohol in

violation of the conditions of her parole and probation and the trial court, with

counsel’s permission, questioned Appellant on whether she admitted that she

had consumed alcohol on September 24 or September 25, 2020. N.T.,

11/12/20, at 4, 6-9. Appellant initially admitted that she consumed alcohol

on September 24 or September 25, 2020, but later in the questioning stated

that she did not admit consuming alcohol, and the trial court proceeded to

hear testimony on the parole and probation violations. Id. at 6-10. A parole

and probation agent testified that he went with another agent to check on

Appellant on September 25, 2020, that Appellant’s breath at that time smelled

of alcohol, that a breathalyzer test was administered and was positive, and

that Appellant admitted to him that she drank alcohol the previous night. Id.

at 12-15.

Following this testimony, the trial court found that Appellant drank

alcohol in violation of the conditions of her probation and revoked her

probation in both cases. N.T., 11/12/20, at 17-19; CR-180-2018 Trial Court

Order, 11/12/20; CR-1923-2019 Trial Court Order, 12/2/20. Based on the

evidence at the November 12, 2020 Gagnon II hearing, the trial court on

December 2, 2020 also issued an order revoking Appellant’s parole in CR-180-

2018 and recommitting her to serve the balance of her 30-day-to-6 month

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incarceration sentence in CR-180-2018. N.T., 12/2/20, at 4; CR-180-2018

Trial Court Amended Order, 12/2/20.

On December 2, 2020, the trial court held a sentencing hearing with

respect to the probation revocations. In CR-180-2018, the trial court

resentenced Appellant to 15 months to 3 years’ imprisonment, consecutive to

all other sentences. N.T., 12/2/20, at 37-38; CR-180-2018 Trial Court

Sentencing Order, 12/2/20. In CR-1923-2019, the trial court resentenced

Appellant to 2 to 4 months’ imprisonment, consecutive to all other sentences.

N.T., 12/2/20, at 38; CR-1923-2019 Trial Court Sentencing Order, 12/2/20.

Appellant filed timely appeals in both cases.

In this Court, Appellant challenges the validity of the trial court’s

revocation of her parole in CR-180-2018 and its revocation of her probation

in both cases and raises the following two issues:

1. Did the trial court err in revoking Stewart’s parole and probation where the relevant parole- and probation-revocation petitions alleged that she consumed alcohol and the evidence as actually credited and discredited by the revocation court was insufficient to support a finding that she did so, including because it required reliance on inherently ambiguous testimony, unreasonable inferences, and speculation, and was equally consistent with her having done so as not?

2. Did the trial court err in revoking Stewart’s parole [sic] at CP- 43-CR-1923-2019 on the ground that she consumed alcohol where not consuming alcohol was not a specific condition of her probation?

Appellants’ Brief at 5. We conclude that the first of these issues is without

merit and that the second issue is waived. However, because it is clear from

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the record that the revocation of probation in CR-180-2018 was without

statutory authority and that the sentence imposed for that revocation of

probation was an illegal sentence under Commonwealth v. Simmons, __

A.3d __, 2021 PA Super 166 (filed August 18, 2021) (en banc), we vacate

Appellant’s judgment of sentence in CR-180-2018.

Both of the issues raised by Appellant are claims that the evidence was

insufficient to permit the trial court to find that she violated her parole or

probation. The standard that this Court applies in reviewing such claims is

clear. This Court determines whether the evidence admitted at the revocation

hearing and reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth, are sufficient to support a finding by a

preponderance of the evidence that the defendant violated a condition of her

parole or probation. Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.

Super. 2014); Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super.

2007). This Court, in making this determination, may not substitute its

judgment for the credibility judgment of the trial court. Colon, 102 A.3d at

1041; Perreault, 930 A.2d at 558.

Appellant contends in her first issue that the evidence was insufficient

to show that she consumed alcohol because a letter referenced by the trial

court in revoking her probation was not admitted in evidence, her statements

at the hearing concerning consumption of alcohol were contradictory and

unsworn, and the other evidence was insufficient to prove she had consumed

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alcohol. We do not agree that the evidence was insufficient to prove that she

consumed alcohol.

In addition to Appellant’s letter and her statements at the Gagnon II

hearing, the Commonwealth introduced testimony of a parole and probation

agent that on September 25, 2020, Appellant smelled of alcohol and admitted

to him that she drank alcohol the night before. N.T., 11/12/20, at 12-14. The

trial court found that testimony credible and made it clear that it would have

found that Appellant consumed alcohol based on this testimony alone, without

considering Appellant’s letter and statements at the hearing. N.T., 11/12/20,

at 17-18; N.T., 12/2/20, at 16; Trial Court Opinion at 7.4 The testimony of

the agent that Appellant admitted to him that she drank alcohol is sufficient

by itself to support the trial court’s finding that Appellant consumed alcohol.

Perreault, 930 A.2d at 558 (evidence sufficient to support revocation of

probation for violation of condition that defendant not possess or view

materials that depict sexual conduct where two witnesses testified that

defendant admitted to them that he watched X-rated movies). Appellant is

therefore entitled to no relief on her first issue.

In her second issue, Appellant contends that even if the evidence that

she consumed alcohol was sufficient, there was no evidence that she violated

4 The trial court did not base its findings that Appellant violated her parole and

probation on the agent’s testimony that a breathalyzer test was positive. N.T., 11/12/20, at 17.

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a condition of her probation in CR-1923-2019 because, unlike the parole and

probation orders in CR-180-2018, the order of probation in CR-1923-2019 did

not contain any condition prohibiting her from possessing or consuming

alcohol. The Commonwealth argues that this issue is waived because

Appellant did not include it in her Pa.R.A.P. 1925(b) statement. We agree

that this issue is waived.

The trial court ordered Appellant to file a concise statement of the errors

complained of on appeal in both cases. CR-180-2018 Trial Court Order,

1/5/21; CR-1923-2019 Trial Court Order, 1/5/21. Where a trial court orders

the filing of such a statement, Rule 1925 of the Rules of Appellate Procedure

requires that the appellant “concisely identify each error that the appellant

intends to assert with sufficient detail to identify the issue to be raised for the

judge.” Pa.R.A.P. 1925(b)(4)(ii). Rule 1925 further provides that “[i]ssues

not included in the Statement … are waived.” Pa.R.A.P. 1925(b)(4)(vii). “In

order to preserve a challenge to the sufficiency of the evidence on appeal, an

appellant’s Rule 1925(b) statement must state with specificity the element or

elements upon which the appellant alleges that the evidence was insufficient.”

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (citation

omitted).

Appellant’s Rule 1925(b) statements, which were identical in both cases

and bore both captions, asserted only the following single claim of error with

respect to the revocations of probation:

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This Honorable Court erred in revoking Stewart's parole and probation where the relevant parole- and probation-revocation report alleged she consumed alcohol at a Sharon bar on September 24, 2020, and the evidence introduced at an ensuing Gagnon-II hearing as credited and discredited by this Honorable Court in its role as factfinder was insufficient to support a finding that she did so, both under ordinary sufficiency constructs and because such evidence was insolubly ambiguous, inherently contradictory, and/or required this Honorable Court as factfinder to engage in unreasonable inferences, speculation, and/or conjecture to determine that she did so, and/or where such evidence was equally consistent with her having not consumed alcohol as it was with her having done so, thus violating her federal and state constitutional rights to due process of law. Accord In re: J.B., 189 A.3d 390 (Pa. 2018).

Concise Statement of Errors Complained of on Appeal at 1.5 This raises only

a claim that the evidence was insufficient to show that Appellant consumed

alcohol and does not assert or encompass any claim that the evidence of the

conditions of Appellant’s probation was insufficient or that the probation order

in CR-1923-2019 did not prohibit possession or consumption of alcohol.

Because Appellant failed to raise her second issue in her 1925(b) statement,

it is waived and cannot constitute a ground for reversal of the judgment of

sentence in CR-1923-2019. Pa.R.A.P. 1925(b)(4)(vii); Garland, 63 A.3d at

342, 344.

5 Appellant’s 1925(b) statement listed four other claims of error, but those related only to the sentences that the trial court imposed and the trial court’s denial of Appellant’s request for a transcript. None of these other four issues asserted any claim of insufficiency of the evidence or error in the revocation of Appellant’s probation in either case.

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The fact that the two issues raised by Appellant merit no relief, however,

does not end our review because it is clear from the face of the record that

the sentence of 15 months to 3 years’ imprisonment imposed by the trial court

in CR-180-2018 is an illegal sentence. The issue of whether a sentence is

illegal is not subject to waiver and may be raised by this Court, even if the

appellant has not raised that issue. Commonwealth v. Pi Delta Psi, Inc.,

211 A.3d 875, 889 (Pa. Super. 2019); Commonwealth v. Tanner, 61 A.3d

1043, 1046 (Pa. Super. 2013). “The legality of a criminal sentence is non-

waivable, and this Court may ‘raise and review an illegal sentence sua

sponte.’” Pi Delta Psi, Inc., 211 A.3d at 889 (quoting Commonwealth v.

Muhammed, 992 A.2d 897 (Pa. Super. 2010)). A sentence imposed for an

invalid revocation of probation is an illegal sentence. Simmons, __ A.3d at

__, slip op. at *3-*4 & n.3.

A court may revoke a defendant’s probation only upon proof that the

defendant violated a condition of her probation. 42 Pa.C.S. § 9771(b);

Commonwealth v. Foster, 214 A.3d 1240, 1243, 1250-51 (Pa. 2019);

Simmons, __ A.3d at __, slip op. at *10-*11. When a trial court orders that

a sentence of probation is to run consecutive to a term of imprisonment, the

defendant’s conduct while she is still on parole from the imprisonment

sentence cannot constitute a violation of probation because the probation

conditions cannot take effect until the imprisonment sentence has been fully

served. Simmons, __ A.3d at __, slip op. at *19-*23, *27-*28.

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Here, the record shows that Appellant’s probation sentence in CR-180-

2018 was consecutive to a sentence of imprisonment and that she was not

serving the probation sentence at the time that she committed the conduct on

which the revocation of probation in CR-180-2018 was based. The sentence

that the trial court imposed on Appellant on July 9, 2020 was a sentence of

“not less than 30 days nor more than 6 months in the Mercer County Jail,

followed by 3 years of probation.” N.T., 7/9/20, at 20 (emphasis added);

CR-180-2018 Sentencing Order, 7/9/20 (emphasis added). Appellant was

paroled from her imprisonment sentence on September 24, 2020, but she was

still serving that sentence until January 9, 2021. N.T., 12/2/20, at 4. The

alcohol consumption on September 24, 2020 or September 25, 2020 that the

trial court found violated Appellant’s probation thus occurred before her prison

sentence ended and when she was not yet on probation in CR-180-2018.

Therefore, while the trial court properly revoked Appellant’s parole in CR-180-

2018 and recommitted her serve the remainder of her imprisonment sentence,

there could be no violation of a condition of Appellant’s probation in CR-180-

2018 and the revocation of probation and sentence of 15 months to 3 years’

imprisonment in that case must be vacated. Simmons, __ A.3d at __, slip

op. at *19-*23, *27-*30.6

6 We recognize that the trial court’s revocation of Appellant’s probation in CR-

180-2018 was in accordance with this Court’s precedents at that time and that (Footnote Continued Next Page)

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Because Appellant is entitled to no relief on the two issues that she has

raised, we affirm the judgment of sentence in CR-1923-2019 and affirm the

revocation of her parole in CR-180-2018. However, because the trial court

lacked authority to revoke Appellant’s probation in CR-180-2018, its sentence

of 15 months to 3 years’ imprisonment in CR-180-2018 is an illegal sentence.

Accordingly, we vacate Appellant's judgment of sentence in CR-180-2018 and

remand that case with instructions to reinstate the July 9, 2020 probation

sentence.

Judgment of sentence in CP-43-CR-0000180-2018 vacated. Case

remanded with instructions to reinstate the July 9, 2020 probation sentence.

Judgment of sentence in CP-43-CR-0001923-2019 affirmed. Jurisdiction

relinquished.

Judge Olson joins this memorandum.

Judge Nichols concurs in the result.

our en banc decision in Simmons overruling those precedents was not handed down until this case was on appeal. New judicial decisions that change the law, however, are applicable to cases on direct appeal. Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/12/2021

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