Opinion
No. 876 MDA 2014
07-29-2015
COMMONWEALTH of Pennsylvania, Appellee v. Shahnawaz M. MATHIAS, Jr., Appellant.
Shannon K. McDonald, West Chester, for appellant. James E. Zamkotowicz, Assistant District Attorney, York, for Commonwealth, appellee.
Shannon K. McDonald, West Chester, for appellant.
James E. Zamkotowicz, Assistant District Attorney, York, for Commonwealth, appellee.
BEFORE: SHOGAN, WECHT, and STRASSBURGER, JJ.
Retired Senior Judge assigned to the Superior Court.
Opinion
OPINION BY STRASSBURGER, J.:
Shahnawaz M. Mathias, Jr., (Appellant) appeals from a judgment of sentence entered after the trial court purported to revoke his probation. We conclude that the imposition of the judgment was illegal. Consequently, we vacate Appellant's judgment of sentence.
The procedural background underlying this matter is rather complicated. This Court previously summarized it as follows.
... On May 15, 2006, Appellant pleaded guilty to indecent assault and unlawful contact with a minor, and on November 15, 2006, the trial court imposed an aggregate sentence of five years' probation. Twelve days thereafter, Appellant filed a post-sentence motion seeking withdrawal of his “plea because he discovered that, as a condition of his probation,” his travel and contact with his minor children were limited and he was not permitted to consume alcohol. The trial court denied this motion on January 18, 2007. Appellant then filed a counseled application on June 6, 2007 to modify his probation, challenging the probationary condition that he first obtain permission before travelling outside the York County area, and seeking instead merely to provide notice before traveling. The court denied this application on June 8, 2007.
Appellant took appeals from both orders which were consolidated by this Court. The Commonwealth argued that Appellant's motion to modify the conditions of his “probation was akin to an untimely post-sentence motion, and therefore, [his] appeal from the ... order, which denied the application, was also untimely.” On September 19, 2007, this Court issued an order quashing that appeal.
However, in an unpublished memorandum dated August 4, 2008, this Court declined to find Appellant's appeal from the latter order untimely. We reasoned that the court had jurisdiction under 42 Pa.C.S. § 9771(a) to consider Appellant's second application for relief, “which essentially sought to lessen a condition of [his] probation related to his traveling.” Nevertheless, this Court found Appellant's issue waived for counsel's untimely filing of a court-ordered Pa.R.A.P.1925(b) statement. Our Supreme Court denied allowance of appeal from this decision on July 1, 2009.
One day after this Court issued our memorandum, on August 5, 2008, Appellant filed a counseled PCRA petition, alleging that he “recently ... discovered that the [victim] has [recanted] to one or more persons her accusations by admitting that the alleged crime was a falsehood perpetuated [sic ] to obtain a financial advantage.” The petition further
averred, “That information was reduced to an affidavit signed by one Jason Hollar,” which he attached, and that Appellant was “attempting to ascertain the identity of at least two ... other individuals to whom [the victim] has recanted[.]” On August 13th, the trial court dismissed the petition without prejudice, reasoning that the appeal before this Court was still pending.
We summarize that subsequently, Appellant filed numerous petitions with the trial court seeking relief from the terms of his probation. Some of the denials of these petitions resulted in appeals to this Court. This Court quashed two of the appeals, in each holding that the relief Appellant sought related to his judgment of sentence, and thus his notices of appeal were untimely. A third appeal related to the trial court's denial of a motion to modify Appellant's probation so that he could “exercise custodial rights to his children.” This Court held that Appellant's motion for reconsideration of the denial of this motion was untimely and thus his notice of appeal was untimely. We therefore quashed. The last appeal stemmed from the court's denial of a petition to terminate probation, which was filed while the third appeal was pending. This Court quashed, holding that because the pending appeal “also concerned the terms of his probation,” “the trial court was without jurisdiction to rule on” the latest petition.
On May 7, 2013, approximately one month after the last Superior Court decision, Appellant filed [another], counseled PCRA petition....
Commonwealth v. Mathias, 93 A.3d 510 (Pa.Super.2013) (unpublished memorandum at 2–5) (citations and footnotes omitted). The PCRA court dismissed the PCRA petition, and this Court affirmed that order on December 13, 2013. Id.
While the order dismissing the PCRA petition still was on appeal, the defendant commits offenses or Appellant filed a “Petition to Change Treatment Providers.” In addition, the York County Adult Probation Department (the Department) apparently filed a petition in which it sought a hearing to resolve how much credit time Appellant should receive toward his probation sentence.
As a condition of Appellant's probation, he was required to attend counseling.
In a petition filed on October 17, 2013, which was entitled “Petition for Hearing on Stay and Related Items,” Appellant highlighted, inter alia, that he has been under probationary supervision since 2005, despite the fact that he was sentenced to only five years of probation in 2006. According to Appellant, he has not been credited for time that accrued during his various appeals to this Court.
Appellant's claim that he was on probation since 2005 appears to be the product of a typographical error, given that he was not sentenced to serve probation until 2006.
The trial court held a hearing on December 3, 2013. Several witnesses testified at that hearing, including Albert Sabol. Mr. Sabol was the Chief Adult Probation Officer at the Department for eleven years when he retired in December of 2012. According to Mr. Sabol, in 2002, then President Judge Chronister of the York County Court of Common Pleas issued an unwritten directive “that when a case is on appeal in an upper court, [ ] the local court lacks jurisdiction and cannot change or alter a sentence, and he directed that [the Department] no longer supervise cases that have taken an appeal.” N.T., 12/3/2013, at 46–47. Mr. Sabol testified that this directive was issued, in part, to avoid having to reimburse probationers whose appeals are successful for costs they incurred as a result of their probationary sentences. In any event, pursuant to Judge Chronister's unwritten directive, the Department adopted a policy of not supervising persons sentenced to serve probation when those persons appeal a trial court's decision.
In an order entered on December 5, 2013, the trial court determined that, because of the multiple appeals Appellant has taken related to his probation, as of December 3, 2013, Appellant had served only 666 days of his five-year probation sentence, leaving him with 1,159 days of supervision to complete. Furthermore, the trial court denied Appellant's request to change counseling centers.
On December 13, 2013, Appellant filed a motion to reconsider the December 5, 2013 order. Therein, Appellant contended, inter alia, that Judge Chronister's “unwritten directive” is unconstitutional. The trial court denied that motion on December 27, 2013. On January 27, 2014, Appellant filed a notice of appeal wherein he stated his intent to appeal the order denying his motion for reconsideration. In a per curiam order filed on May 5, 2014, this Court quashed the appeal as untimely filed. Commonwealth v. Mathias, Jr., 208 MDA 2014.
In the meantime, on March 14, 2014, the Department filed a petition in the trial court wherein it sought a hearing to determine whether Appellant had violated his probation by failing to enter and successfully complete an approved sexual offender treatment program. The trial court held a hearing regarding the petition on April 21, 2014.
At the beginning of the hearing, Appellant's counsel reminded the court that Appellant's appeal regarding the constitutionality of the “unwritten directive” still was pending in this Court. Counsel also moved to quash the Department's petition. As to this motion, counsel argued that the Department was alleging that Appellant violated his probation by failing to attend counseling while his appeal was pending, despite the fact that, pursuant to the “unwritten directive,” Appellant was not being supervised at that time.
At the conclusion of the hearing, the trial court determined that Appellant violated his probation. The court, therefore, revoked his probation. The court sentenced Appellant to serve 6 to 23 months in prison. Appellant timely filed a motion for reconsideration. Therein, Appellant contended, inter alia, that his sentence was excessive. The trial court denied the motion.
Appellant timely filed a notice of appeal. The trial court directed Appellant to comply with Pa.R.A.P. 1925(b), and Appellant subsequently filed a 1925(b) statement. The trial court responded by filing an opinion pursuant to Pa.R.A.P. 1925(a). In his brief to this Court, Appellant asks us to consider the questions that follow.
1. Whether the probation directive challenged herein is facially unconstitutional because it forces defendants to unknowingly choose between their right to an appeal and their right to have their sentence speedily carried out?
2. Whether the probation directive challenged in this appeal is procedurally unconstitutional under the due process clause as applied to [Appellant] because he never received actual or constructive notice of the times he was on or off probation, and because of the further impacts generated by his specific conviction, which are now set to continue for years more than he originally agreed to through his guilty plea?
3. Whether this unwritten directive impermissibly removes substantive due process from convicted persons, and [Appellant] specifically, while they remain under the department of probation's supervision?
4. Whether probation may implement a directive without written procedure or policy regarding that directive, and, relatedly, whether that unwritten policy is impermissibly vague or is subject to interpretation such that it would not be arbitrarily applied?
5. Is the sentence of 6–23 months for a technical violation of probation an abuse of discretion on the part of the trial court?
Appellant's Brief at 11–12 (Appellant's answer's omitted).
Under his first four issues, Appellant raises a number of constitutional challenges to the “unwritten directive” and the Department's policy of not supervising Appellant's probation while his various appeals were pending. He, however, ultimately contends that his sentence is illegal because his five-year term of probation had expired when the trial court revoked his probation and sentenced him. We need not reach the merits of Appellant's constitutional challenges in order to agree with him that he is serving an illegal sentence.
It is well settled that courts should “avoid constitutional issues if the claim may be resolved on alternative grounds [.]” Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505, 519 (2005). We further note that the trial court and the Commonwealth suggest that Appellant waived his constitutional challenges. However, it is well settled that “[c]hallenges to an illegal sentence can never be waived and may be reviewed sua sponte by the Superior Court.” Commonwealth v. Johnson, 873 A.2d 704, 708 n. 1 (Pa.Super.2005).
“Issues relating to the legality of a sentence are questions of law[.] ... Our standard of review over such questions is de novo [,] and our scope of review is plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.Super.2014).
While it is easy to get distracted by, inter alia, the procedural complexity of this case, our determination that Appellant's sentence is illegal flows from a fairly straightforward analysis. On November 15, 2006, the trial court sentenced Appellant to serve an aggregate of five years of probation. Over seven years after the imposition of this sentence, the trial court purported to revoke that five-year probation sentence and to resentence Appellant to a period of imprisonment. Yet, the certified record is devoid of any order staying Appellant's original sentence. Moreover, prior to the 2014 order revoking the probation, the trial court never revoked Appellant's probation or resentenced him.
The Department may very well have a policy of not supervising probation when an appeal is pending; however, that policy did not act to stay Appellant's sentence and does not alter the fact that, during the pendency of his appeals, Appellant was serving his sentence.
The record indicates that the Department's policy is fueled in large part by a misguided belief that, pursuant to Pa.R.A.P. 1701, the court lacked jurisdiction to supervise Appellant or to revoke his probation when an appeal was pending. For instance, at a proceeding that took place on January 30, 2012, the trial court cited Rule 1701 in support of its belief that a court loses jurisdiction to find a probation violation when an appeal is pending.
As an initial matter, there simply is no language in Rule 1701 that justifies the Department's policy of not supervising a probationer while an appeal is pending. As to whether a court can revoke probation while an appeal is pending, Rule 1701 does generally state that, “after an appeal is taken ..., the trial court ... may no longer proceed further in the matter.” Pa.R.A.P. 1701(a). However, the rule explicitly allows a court, after an appeal has been taken, to enforce an order entered in the matter. Pa.R.A.P. 1701(b)(2). Thus, when Appellant's appeals were pending, the trial court clearly could enforce the terms of Appellant's sentence of probation.
When the trial court revoked Appellant's probation and resentenced him, Appellant's term of probation had expired. Consequently, the trial court lacked the authority to revoke the probation, and the sentence of imprisonment is illegal. See, e.g., Commonwealth v. Mitchell, 955 A.2d 433, 435 (Pa.Super.2008) (“Under Pennsylvania law, an order of probation can be changed or revoked ‘if, at any time before the defendant has completed the maximum period of probation, or before he has begun service of his probation’ the defendant commits offenses or otherwise demonstrates he is unworthy of probation.”) (emphasis added) (citations and quotation marks omitted). We, therefore, vacate the judgment of sentence.
Judgment of sentence vacated.
Judge WECHT joins this opinion.
Judge SHOGAN files a concurring opinion in which Judge STRASSBURGER joins.
CONCURRING OPINION BY SHOGAN, J.:
I share the concern expressed by the Majority regarding unwritten York County probation procedures and fully join the Majority Opinion. However, I write separately to address an additional procedural oddity which, while not affecting the outcome, bears mention.
While we do not reach the constitutionality of the unwritten rule in York County, I am compelled to note that such a rule, if enforced, is grossly irresponsible. The community trusts that probationers are supervised, and a unilateral and secret edict jeopardizes that trust and the safety of the community. While admittedly obiter dicta , I am left to question what responsibility the county would have in a case where a probationer, who is effectively released from supervision under the unwritten rule, commits a new crime that could have been prevented through the supervision he or she was ordered to receive. This hypothetical calls into question any cost-saving intentions the former president judge and director of probation may have hoped to achieve.
The Commonwealth asserts that Appellant was aware that his probation was stayed, if not by the unwritten York County Rule, by an order granting bail. Commonwealth's Brief at 9 n. 2. It appears as though Appellant, in his effort to challenge his sentence of probation, posted bail while on probation. N.T., 9/7/07, at 5–6; N.T., 9/28/07, at 3. Thus, the record reveals that Appellant was on bail in this matter from September 7, 2007 through July 1, 2009, when the Supreme Court denied allowance of appeal and the trial court remanded Appellant to the York County Department of Probation. Commonwealth v. Mathias, 602 Pa. 656, 980 A.2d 110, 27 MAL 2009 (2009) ; Order, 7/9/09. We are unsure why Appellant would want bail while serving a sentence of probation, and the reason why the trial court ordered bail under the facts of this case is not clear. What is clear, however, is that Appellant posted bail and was ostensibly released from the conditions of his probation for the 663 days between September 7, 2007 and July 1, 2009.
Bail is typically only contemplated where a sentence of total confinement is entered. See Pa.R.Crim.P. Rule 521. Here, however, it appears that while the trial court discussed remanding Appellant into custody, bail was ordered, and total confinement was not imposed at the instant trial court docket number. N.T., 9/7/07, at 5–6.
The Pennsylvania Rules of Appellate Procedure provide that:
Unless bail is revoked, a bail bond shall be valid until the full and final disposition of the case, including all avenues of direct appeal to the Supreme Court of Pennsylvania.
Comment: The intent of this rule is to continue the validity of the bail bond through all avenues of direct appeal in the state courts, but to exclude state post-conviction collateral proceedings, federal appeals and post-conviction habeas corpus proceedings, or any other collateral attacks.
Pa.R.Crim.P. Rule 534 and comment.
--------
Therefore, if Appellant was in fact released from the conditions of probation, those 663 days may not count toward his maximum probation sentence of five years. This calculation would result in Appellant completing his five-year sentence of probation on September 8, 2013. These extra 663 days do not, however, alter the Majority's conclusion that the Commonwealth's March 14, 2014 petition, concerning an alleged probation violation, was filed after Appellant completed his sentence. Therefore, I agree with the Majority that Appellant's April 21, 2014 judgment of sentence must be vacated as there was no probation for the trial court to revoke.
Judge STRASSBURGER joins this concurring opinion.