Commonwealth v. Mitchell

955 A.2d 433, 2008 Pa. Super. 190, 2008 Pa. Super. LEXIS 2056, 2008 WL 3582731
CourtSuperior Court of Pennsylvania
DecidedAugust 15, 2008
Docket1920 EDA 2007
StatusPublished
Cited by24 cases

This text of 955 A.2d 433 (Commonwealth v. Mitchell) 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
Commonwealth v. Mitchell, 955 A.2d 433, 2008 Pa. Super. 190, 2008 Pa. Super. LEXIS 2056, 2008 WL 3582731 (Pa. Ct. App. 2008).

Opinions

OPINION BY

GANTMAN, J.:

¶ 1 Appellant, Yusef Mitchell, appeals from the judgment of sentence, entered in the Philadelphia County Court of Common Pleas, following revocation of his “special” probation. Appellant asks us to determine whether the Pennsylvania Board of Probation and Parole (“Board”) had exclusive jurisdiction over his special probation for purposes of revocation and re-sentencing following revocation. Consistent with established Pennsylvania law, we hold the trial court retained the power, authority, or jurisdiction to determine whether Appellant violated his special probation, to revoke it, and to re-sentence Appellant following revocation of the special probation, notwithstanding the Board’s duties of supervision. Accordingly, we affirm.

¶2 The relevant facts and procedural history of this appeal are as follows. Appellant entered a guilty plea to various drug, firearms, and conspiracy offenses. [435]*435On November 20, 2000, the court sentenced Appellant to three (3) to six (6) years’ state incarceration on the possession of a controlled substance with intent to deliver (“PWID”) offense, followed by four (4) years of probation on the firearms offense, followed by ten (10) years of probation on the conspiracy offense. According to the record, the Board was designated to supervise Appellant’s conspiracy probation.

¶ 3 The trial court continued:

On April 8, 2006, Appellant was arrested for [PWID], The police report indicated that he was arrested with twenty-two zip-lock packets of crack cocaine and nine packets of heroine. He was later convicted on these charges and, on March 8, 2007, was sentenced by [another jurist] to llk to 3 years’ incarceration. On March 14, 2007, the [Board] lodged a detainer against Appellant and took him into custody. On June 8, 2007, the [Board] revoked Appellant’s parole and ordered that he serve twelve months backtime.
Appellant was brought before this [c]ourt for a VOP [Violation of Probation] hearing on June 28, 2007. Although defense counsel argued that this [c]ourt had no jurisdiction to hold the hearing, revoke Appellant’s probation or sentence him on the VOP, we disagreed. We heard argument from defense counsel and the Commonwealth and found that we retained jurisdiction on the probation violation from this [c]ourt’s sentence of November 20, 2000. A VOP hearing took place at which we found Appellant’s arrest and conviction on drug charges was a violation of his probation. We sentenced Appellant on June 28, 2007,[1] and this [a]ppeal followed.

(Trial Court Opinion, filed October 9, 2007, at 1-3) (internal citations and footnote omitted).2 The court did not order Appellant to file a concise statement of matters complained of on appeal, and Appellant filed none.

¶ 4 Appellant raises the following issues for our review:

DOES NOT THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE HAVE THE EXCLUSIVE POWER TO REVOKE A SPECIAL STATE PROBATIONARY SENTENCE PURSUANT TO 61 [P.S.] § 331.17?
WAS NOT THE TRIAL COURT ... WITHOUT LEGAL AUTHORITY TO REVOKE A SPECIAL STATE PROBATIONARY SENTENCE?

(Appellant’s Brief at 3).

¶ 5 Appellant argues his sentence of special probation fell under the supervision of [436]*436the Board; therefore, 61 P.S. § '331.17 controls. Appellant avers proper interpretation of Section 331.17 grants exclusive authority to the Board in all matters regarding state sentences greater than two years. Appellant was given a state sentence of incarceration. Therefore, Appellant assumes only the Board can revoke his probation.

¶ 6 Specifically, Appellant reasons Section 331.17 gives the Board exclusive power to supervise any person on probation and vests exclusive authority with the Board to parole and re-parole. Because the statute also states that special probation cases are to be treated in same manner as parole cases, Appellant attributes the exclusive authority to revoke probation under Board supervision to the Board and not to the trial court. According to Appellant, to treat the Board’s power over probation in a different way than its power over parole would contravene the plain meaning of the statute. Therefore, Appellant interprets Section 331.17 to mean that once the trial court imposed a special state probationary sentence, the court relinquished the power to deal with any subsequent probation violations and transferred that power to the Board; hence, the trial court lacked legal authority to conduct Appellant’s VOP hearing or revoke his special probation.

¶ 7 Appellant further asserts Commonwealth v. Kelly, 931 A.2d 694 (Pa.Super.2007), appeal denied, 596 Pa. 727, 945 A.2d 168 (2008) misinterpreted Section 331.17. Likewise, Appellant distinguishes Kelly as decided upon a sufficiently unique factual basis. Appellant claims Kelly involved a different question, concerning the authority of the county probation department to detain the defendant for violating his three “special” probationary sentences, which were also subject to Board supervision. Because the present case concerns whether the trial court has the power to revoke a state supervised special probation, Appellant submits his issue is decidedly dissimilar, subject to plenary review, and Kelly is not binding authority. Overall, Appellant concludes the judgment of sentence imposed in this matter is illegal and must be vacated.

¶ 8 In response, the Commonwealth insists the trial court did not divest itself of authority to revoke Appellant’s special probation just because the court requested Board supervision. To the contrary, the court derives its authority to revoke Appellant’s probation upon proof of violation from 42 Pa.C.S.A. § 9771(b). Further, Section 331.17 by its own terms does not remove power from the trial court to ascertain a violation or revoke probation, even when the Board is given supervisory responsibility over the probation. The Commonwealth asserts that nowhere in the statute does Section 331.17 give the Board the power to revoke probation; the revocation power of the Board under Section 331.17 is limited to matters of parole. As to probation, Section 331.17 restricts the Board’s power to supervision.

¶ 9 The Commonwealth also directs our attention to Kelly, supra. Opposing Appellant’s position, however, the Commonwealth claims Kelly affirmed the concept that the trial court retains the power to address violations of and to revoke “special” probation under circumstances like those in the present case. Therefore, the Commonwealth submits Kelly is both relevant and dispositive. Further, the Commonwealth stresses the issue in the present case is jurisdictional, which necessitates the use of the same de novo standard and plenary scope of review as Kelly. According to the Commonwealth, Appellant cannot distinguish Kelly on any relevant grounds and cannot point to anything but his own inter[437]*437pretation of Section 331.17 to support his stance. The Commonwealth concludes the trial court at all times retained the power, authority, and jurisdiction to assess whether Appellant violated his “special” probation, to revoke it, and to re-sentence Appellant following revocation, regardless of the Board’s supervisory duties.

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Commonwealth v. Mitchell
955 A.2d 433 (Superior Court of Pennsylvania, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
955 A.2d 433, 2008 Pa. Super. 190, 2008 Pa. Super. LEXIS 2056, 2008 WL 3582731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mitchell-pasuperct-2008.