Com. v. Williamson, T.

Superior Court of Pennsylvania

Com. v. Williamson, T.

DecidedSeptember 17, 2021

Docket788 MDA 2020

StatusUnpublished

This text of Com. v. Williamson, T. (Com. v. Williamson, T.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Williamson, T., (Pa. Ct. App. 2021).

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Opinion

J-S26023-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRY ROBERT WILLIAMSON : : Appellant : No. 788 MDA 2020

Appeal from the Judgment of Sentence Entered May 1, 2020 In the Court of Common Pleas of Lackawanna County Criminal Division at CP-35-CR-0000781-2012

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 17, 2021

Terry Robert Williamson (Appellant) appeals from the judgment of

sentence imposed after the trial court revoked his probation. In addition,

Appellant’s counsel (Counsel) has petitioned to withdraw from representation

pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Given this

Court’s recent decision in Commonwealth v. Simmons, --- A.3d ----, 2021

WL 3641859 (Pa. Super. Aug. 18, 2021) (en banc), we vacate Appellant’s

judgment of sentence, deny Counsel’s petition to withdraw, and remand for

reinstatement of the prior probation order.1 ____________________________________________

1 This Court recently decided a similar appeal, finding Simmons “directly on

point,” denying counsel’s request to withdraw, and remanding for the reinstatement of probation. See Commonwealth v. Herrera, 787 MDA 2020, 2021 WL 4060441 (Pa. Super. Sept. 7, 2021) (unpublished memorandum). J-S26023-21

In 2012, Appellant was charged with attempted theft, criminal mischief,

drug paraphernalia, and possession of marijuana.2 Appellant pled guilty and

was sentenced to Drug Court. However, on November 25, 2014, Appellant

was terminated from Drug Court and resentenced to 4 years of probation.

Appellant’s probation was subsequently revoked, and on June 14, 2017, he

was resentenced to 8 to 24 months of incarceration, followed by 2 years of

probation. While incarcerated, Appellant was involved in a fight with other

inmates. As a result, the trial court preemptively revoked his 2-year

probationary sentence and imposed a sentence of 1 to 2 years of

incarceration. Appellant timely appealed.3

On June 23, 2021, Counsel filed with this Court a petition to withdraw

from representation in which Counsel avers that Appellant’s appeal is

frivolous. On August 6, 2021, Appellant filed a pro se response restating the

issues raised in the Anders brief. Our review reveals Counsel has complied

with the technical requirements of Anders and Santiago. See Petition to

Withdraw as Counsel, 6/23/21; Anders Brief at 5-19. We thus proceed to

determine whether Appellant’s claims are frivolous.

Counsel presents the following issues on Appellant’s behalf:

A. WHETHER THE TRIAL COURT ERRED WHEN IT REVOKED [APPELLANT’S] SPECIAL PROBATION BEFORE IT HAD COMMENCED. ____________________________________________

2 18 Pa.C.S.A. § 901(a), 18 Pa.C.S.A. § 3304(a)(2), 35 P.S. § 780-113(a)(32),

and 35 P.S. § 780-113(a)(31).

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

-2- J-S26023-21

B. WHETHER THE TRIAL COURT FAILED TO STATE ON THE RECORD THE REASONS FOR THE SENTENCE IMPOSED ON [APPELLANT’S] SPECIAL PROBATION VIOLATION AS REQUIRED BY 42 PA. C.S. §9721(B).

C. WHETHER THE SENTENCE ON [APPELLANT’S] VIOLATION IS EXCESSIVE, HARSH, ARBITRARY AND CONTRARY TO THE FUNDAMENTAL NORMS OF SENTENCING IN THIS COMMONWEALTH, ESPECIALLY SINCE HE ALREADY WAS DISCIPLINED FOR THE ASSAULTIVE BEHAVIOR BY THE DOC.

D. WHETHER THE IMPOSITION OF 12 TO 24 MONTHS INCARCERATION FOLLOWING THE REVOCATION OF APPELLANT’S SPECIAL PROBATION VIOLATED THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT AS APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT.

Anders Brief at 4 (reordered for disposition).

Appellant’s first claim is that his sentence is illegal because the trial court

improperly “revoked [Appellant’s] special probation before it started.”

Anders Brief at 7. In particular:

The Appellant asserts that he never violated the terms of his special probation because the violation occurred while he was still incarcerated prior to the commencement of his term of probation.

Counsel for the Appellant understands that based upon Commonwealth v. Ware, 737 A.2d 251 (Pa. Super. 1999) and its progeny, this appeal is frivolous. As noted by the Ware Court: “The fact that appellant had not commenced serving probation when the new offense occurred did not prevent the court from revoking its prior order placing appellant on probation.” Ware, 737 A.2d at 253.

A similar issue was before this Court in Commonwealth v. Wendowski, [] 420 A.2d 628 ([Pa. Super.] 1980). The court in Wendowski there held that for revocation purposes the term of probation included the time beginning when probation was granted. The Court stated:

-3- J-S26023-21

If, at any time before the defendant has completed the maximum period of probation, or before he has begun service of his probation, he should commit offenses of such nature as to demonstrate to the court that he is unworthy of probation and that the granting of the same would not be in subservience to the ends of justice and the best interests of the public, or the defendant, the court could revoke or change the order of probation. A defendant on probation has no contract with the court. He is still a person convicted of crime, and the expressed intent of the Court to have him under probation beginning at a future time does not ‘change his position from the possession of a privilege to the enjoyment of a right.’ Burns v. United States, 287 U.S. 216, 222 [] (1932).

[] Wendowski, 420 A.2d at 630 (additional citations omitted).

Anders Brief at 13-14.

Counsel “correctly represents that this anticipatory revocation of

Appellant’s order of probation was permissible at the time the trial court issued

it revocation order under longstanding precedent established by this Court.”

See Herrera, supra, at *3. However, during the pendency of this appeal

and after Counsel filed the Anders brief, this Court decided Simmons. We

have held that a “party whose case is pending on direct appeal is entitled to

the benefit of changes in law which occur before the judgment becomes final.”

Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (citations

omitted). Accordingly, Simmons informs our disposition. We explained:

Wendowski held that a court may anticipatorily revoke an order of probation when the defendant commits a new crime after sentencing, but before the period of probation has begun. As explained above, this holding finds no support in our statutes and is contrary to the plain language of Sections 9721, 9754, and 9771 of the Sentencing Code. Thus, to paraphrase our Supreme Court

-4- J-S26023-21

in Dickson: “[t]hat we have declined, until now, to address [Wendowski and its progeny] on this issue, while perhaps regrettable, cannot be used as a brickbat to prevent us from bringing the decisional law of this Commonwealth into line with the plain language of” the statutes. Dickson, 918 A.2d at 108.

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