J-A29033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
ROBERT EDWIN SHOUP,                        :
                                           :
                   Appellant               :           No. 1941 WDA 2014

      Appeal from the Judgment of Sentence entered on October 29, 2014
               in the Court of Common Pleas of Jefferson County,
                Criminal Division, No: CP-33-CR-0000043-2014;

BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 25, 2015

        Robert Edwin Shoup (“Shoup”) appeals from the judgment of sentence

entered following the revocation of his probation. We vacate the judgment

of sentence.

        On May 12, 2014, as a result of a plea agreement, Shoup pled guilty

to the crimes of resisting arrest, providing false identification to police, and

possession of drug paraphernalia.1 In accordance with the plea agreement,

for his conviction of resisting arrest, the trial court sentenced Shoup to two

years of probation.    For his convictions of providing false identification to

police officers and possessing drug paraphernalia, the trial court imposed

two, one-year terms of probation, to be served concurrent to each other and




1
    18 Pa.C.S.A. §§ 5104, 4914; 35 P.S. § 780-113(a)(32).
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concurrent with Shoup’s sentence for resisting arrest.      At the time of his

guilty plea, Shoup was 46 years old.

      In July 2014, Shoup failed to report to his probation officer. On July

30, 2014, the probation department left written notice, at Shoup’s last

reported address, for Shoup to report to his probation officer on July 31,

2014. While leaving the notice, a neighbor indicated that about two weeks

prior, Shoup had moved from that address. In August 2014, a warrant was

issued for Shoup’s arrest, based upon the violation of a condition of his

probation.    In October 2014, Shoup was arrested in Colorado, and

subsequently extradited back to Pennsylvania.

      Shoup waived his Gagnon I hearing, admitting to technical violations

of his probation based upon his relocation to Colorado.2 N.T., 10/15/14, at

6-7. At the Gagnon II hearing, the trial court revoked Shoup’s probation

2
 In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the United States Supreme
Court held that a defendant accused of violating the terms of his probation is
entitled to two hearings prior to formal revocation and re-sentencing:

      When a parolee or probationer is detained pending a revocation
      hearing, due process requires a determination at a pre-
      revocation hearing, a Gagnon I hearing, that probable cause
      exists to believe that a violation has been committed. Where a
      finding of probable cause is made, a second, more
      comprehensive hearing, a Gagnon II hearing, is required before
      a final revocation decision can be made.

Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super. 2001). The
Gagnon II hearing requires two inquiries: (1) whether the probationer has,
in fact, violated one of the conditions of his probation, and, if so, (2) should
the probationer “be recommitted to prison or should other steps be taken to
protect society and improve chances of rehabilitation[.]” Id. (quoting
Gagnon, 411 U.S. at 784).


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for each of his convictions, and resentenced Shoup to total confinement. For

his conviction of resisting arrest, the trial court imposed a prison term of one

to two years.    For his conviction of possession of drug paraphernalia, the

trial court imposed a consecutive prison term of six to 12 months. For his

conviction of providing false identification to police, the trial court imposed a

prison term of six to twelve months, to be served consecutive to Shoup’s

sentence for possession of drug paraphernalia. As a result, for two technical

violations of his probation, the trial court sentenced Shoup to an aggregate

prison term of two to four years, plus fines, costs and restitution.

      Shoup timely filed a Notice of Appeal, and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal.

      Shoup now presents the following claims for our review:

      I.     Whether the trial court erred in revoking [Shoup’s]
             probation based upon first-time, technical, non-reporting
             violations of probation conditions imposed by the Jefferson
             County Probation Office, and not the trial court?

      II.    Whether the trial court erred in sentencing Shoup to a
             term of total confinement based upon first-time, technical,
             non-reporting violations of probation[,] when there was no
             conviction of a new crime during the probationary term,
             the technical violations at issue did not indicate that it was
             likely Shoup would commit another crime if not
             imprisoned, and such a sentence was not essential to
             vindicate the authority of the trial court?

      III.   Whether the trial court erred in sentencing [] Shoup to a
             manifestly excessive aggregate sentence of total
             confinement of two (2) to four (4) years, the statutory
             maximum available sentence, based upon first-time,
             technical, non-reporting violations of probation resulting
             from Shoup’s moving to Colorado[,] to obtain gainful


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             employment and be with family[,] without prior notification
             to [the p]robation [office]?

Brief for Appellant at 4.

      Shoup first challenges the legality of his sentence, arguing that the

trial court lacked the legal authority to revoke his sentences of probation.3

Id. at 14.   Shoup argues that only a trial court may impose conditions of

probation, and that probation cannot be revoked based upon a violation of

conditions imposed by a probation officer, and not the trial court. Id. at 16.

According to Shoup, the trial court revoked his probation based upon

technical violations of his probation related to his relocation to Colorado. Id.

Shoup relies upon this Court’s decisions in Commonwealth v. Vilsaint, 893

A.2d 753 (Pa. Super. 2006), and Commonwealth v. MacGregor, 912 A.2d

315 (Pa. Super. 2006), in support.

      The “[r]evocation of a probation sentence is a matter committed to the

sound discretion of the trial court and that court’s decision will not be

disturbed on appeal in the absence of an error of law or an abuse of

discretion.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super.

2007).


3
  In his Pa.R.A.P. 1925(b) Concise Statement, Shoup did not specifically
identify this claim that his sentence is illegal. Rather, Shoup generally
asserted that the trial court erred by imposing prison time for technical
violations of his probation. However, claims pertaining to the legality of
sentence are non-waivable, may be leveled for the first time on appeal, even
where such claim is not identified in the appellant’s Pa.R.A.P. 1925(b)
concise statement of matters complained of on appeal. Commonwealth v.
Foster, 960 A.2d 160, 163 (Pa. Super. 2008).


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         Initially, we are cognizant that pursuant to 42 Pa.C.S.A. § 9754(b),

when imposing a sentence of probation, the trial court “shall attach such of

the reasonable conditions authorized by subsection (c) of this section as it

deems necessary to insure or assist the defendant in leading a law-abiding

life.”       42 Pa.C.S.A. § 9754(b).      Subsection (c) enumerates fourteen

conditions a sentencing court may impose upon a defendant when it imposes

probation.        Subsection (c) includes, in relevant part, the        following

conditions:

         (9) To remain within the jurisdiction of the court and to notify
         the court or the probation officer of any change in his address or
         his employment.

         (10) To report as directed to the court or the probation officer
         and to permit the probation officer to visit his home.

         …

         (13) To satisfy any other conditions reasonably related to the
         rehabilitation of the defendant and not unduly restrictive of his
         liberty or incompatible with his freedom of conscience.


Id. § 9754(c)(9), (10), (13).

         The Sentencing Code authorizes a court to revoke an order of

probation where a defendant violates a specified condition of probation:

         § 9771. Modification or revocation of order of probation

         …

         (b) Revocation.—The court may revoke               an order of
         probation upon proof of the violation               of specified
         conditions of the probation. Upon revocation       the sentencing
         alternatives available to the court shall be the   same as were


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      available at the time of initial sentencing, due consideration
      being given to the time spent serving the order of probation.

42 Pa.C.S.A. § 9771 (emphasis added).

      A trial court, however, may not revoke probation where the defendant

violated a condition of probation not imposed by the trial court. In Vilsaint,

this Court considered whether probation could be revoked where a

defendant violated a condition of probation specified by the probation

department, but not specified in the trial court’s probation order:

      [T]he legislature has specifically empowered the court,
      not the probation offices and not any individual probation
      officers, to impose the terms of probation. … If a probation
      officer cannot properly impose a special condition of probation,
      then it is fundamentally unfair to incarcerate a person, in this
      case for the remainder of his 96 month sentence, for “violating”
      a condition never officially imposed. Indeed, it seems impossible
      to violate a non-imposed condition.

Vilsaint, 893 A.2d at 757 (emphasis added).

      Subsequently, in MacGregor, this Court vacated an appellant’s

judgment of sentence, where “the conditions [that the] appellant was

charged with violating were not imposed by the court.             Rather, the

conditions upon which the Commonwealth sought revocation were recited on

a preprinted form applicable to parole, and were drafted by, and signed by a

parole agent as the issuing authority.”       MacGregor, 912 A.2d at 318

(footnote omitted).

      In Commonwealth v. Elliott, 50 A.3d 1284 (Pa. 2012), our Supreme

Court reconciled section 9754 with sections 6131 and 6151 of the Prisons



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and Parole Code,4 which mandate that the Probation Board and its agents

establish    and     implement     uniform   standards   and   conditions    for   the

supervision     of   probationers.      Distinguishing   between    “conditions     of

probation” and “conditions of supervision,” the Supreme Court held that “the

[Probation] Board and its agents may impose conditions of supervision that

are germane to, elaborate on, or interpret any conditions of probation

that are imposed by the trial court.”        Elliott, 50 A.3d at 1292.      Thus, the

“[Pennsylvania] Board [of Probation and Parole] or its agents may impose

more specific conditions of supervision pertaining to that probation, so long

as those supervision conditions are in furtherance of the trial court’s

conditions of probation.”            Commonwealth v. Elliott, 50 A.3d 1284,

1292 (Pa. 2012) (emphasis added).

        Our review of the record discloses that, in sentencing Shoup to

probation,    the    trial court   imposed    the   following “special condition”:

“[Shoup] shall be subject to the standard terms and conditions of person on

probation supervision by the Jefferson County Adult Probation Department.”

Judgment of Sentence, 5/12/14.           These “standard terms and conditions”

were not identified by the trial court, nor were they appended to the trial

court’s judgment of sentence.         The trial court did not include a condition

requiring Shoup to notify the probation office of a change in his address or

his employment, as authorized by section 9754(c)(9).


4
    61 P.S. § 1, et seq.; 61 Pa.C.S.A. § 1, et seq.


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      At the Gagnon I hearing, Shoup admitted “to technical violations

regarding relocation to Colorado.”      N.T., 10/15/14, at 6-7.       At the

Gagnon II hearing, the trial court stated the following:

      Most importantly, … we’re here in a situation where you left
      Jefferson County without permission. And not only left your
      residence, which, you know, we have a few that are just down
      the street or maybe in the same town or township, but here you
      went to Colorado. You did get a job—I did get the letter [from
      Shoup’s Colorado employer]—but you violated your probation in
      that regard, and you violated it several states [sic] requiring
      extradition.

           So I think to vindicate the authority of the Court, there
      needs to be a sentence of total confinement.

N.T., 10/29/14, at 9. However, the condition allegedly violated by Shoup,

i.e., that he could not relocate without permission, was not expressly

imposed by the trial court in its May 12, 2014 judgment of sentence.

Further, the “standard terms and conditions” referred to by the trial court in

its sentence are not of record.    As such, the record does not support a

determination that the “standard terms and conditions” include a prohibition

against relocation without permission, or that such condition is “germane to,

elaborate[s] on, or interpret[s]” any condition imposed by the trial court.

See Elliott, 50 A.3d at 1292.

      As our Pennsylvania Supreme Court has recognized, only “the court,

not the probation offices and not any individual probation officers, [may]

impose the terms [and conditions] of probation.” MacGregor, 912 A.2d at

317; accord Elliott, 50 A.3d at 1291. Further, “it is fundamentally unfair



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to incarcerate a person … for ‘violating’ a condition never officially imposed.”

Vilsaint, 893 A.2d at 757. Because the trial court’s probation sentence did

not identify or impose a condition regarding relocation, it would be

fundamentally unfair for Shoup to be found in violation of such condition. 5

Accordingly, we conclude that the trial court lacked the authority to impose

its October 29, 2014 judgment of sentence.

      Even if the probation office’s relocation restrictions were germane to,

elaborated on, or interpreted a condition imposed by the trial court, we

would conclude that the trial court’s abused its discretion in revoking

Shoup’s probation and sentenced him to total confinement.

      The imposition of sentence following the revocation of probation
      is vested within the sound discretion of the trial court, which,
      absent an abuse of that discretion, will not be disturbed on
      appeal.     An abuse of discretion is more than an error in
      judgment—a sentencing court has not abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.

                                     ***

      When assessing whether to revoke probation, the trial court
      must balance the interests of society in preventing future
      criminal conduct by the defendant against the possibility of
      rehabilitating the defendant outside of prison. In order to uphold
      a revocation of probation, the Commonwealth must show by a
      preponderance of the evidence that a defendant violated his
      probation.



5
 It bears mention that the Commonwealth did not file a brief in this appeal,
and did not appear at argument to support the trial court’s revocation of
probation and Judgment of Sentence.


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Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012)

(citation omitted).

      At the Gagnon I hearing, Shoup’s counsel informed the trial court that

Shoup had obtained employment in Colorado.            N.T., 10/15/14, at 5.

Defense counsel stated,

            I would point out that in Colorado, [Shoup is] gainfully
      employed as a diesel mechanic at Cornerstone Fleet Services
      [“Cornerstone”]. And I think any prolonged incarceration would
      jeopardize that employment and, further, render him unable to
      pay his restitution.

           With respect to the technical violations, I think those can
      be remedied pretty quickly with just a change of address and
      some updating information with adult probation and parole.

Id.

      At the Gagnon II hearing, Shoup testified that he resides in Aurora,

Colorado, where he is gainfully employed as a diesel mechanic by

Cornerstone. N.T., 10/29/14, at 4. As a diesel mechanic, Shoup stated, he

performs major motor work and complete truck service. Id. Shoup testified

that he also is helping his girlfriend raise her adopted child in Colorado. Id.

at 4-5. In addition, Shoup stated that his mother and brother also reside in

Colorado. Id. at 4.

      At the hearing, Shoup presented a letter from his current employer,

indicating that Shoup

      is very good at what he does. He’s been reliable and dependable
      in all aspects of his job. He is reporting to work daily on time to
      complete customer repairs completely and correctly….



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Id. at 5. Shoup further testified that,

      after pleading guilty [to the charges] …, I didn’t realize at the
      time, but the person that was involved in this that I had an
      altercation with, I ended up losing … my job at Freightliner that I
      had worked for, for approximately 24 years. I lost my house
      over it all also, and I was afraid of losing my tools that I worked
      hard to get.

            And I was all alone here. All my family ended up moving
      out there.

            And I got scared and ran, shouldn’t [sic] have….

      …

             I went to Colorado because my brother told me there was
      plenty of work out there. I hadn’t seen my brother but probably
      four times in the last 25 to 30 years. He was in the military for a
      lot of years and lived out west. My mother has been out there
      with bad health, and I had a chance at a new start where I
      wouldn’t be around the stuff I was around.

             I should have done it differently. I should have went to
      probation. I was afraid of losing my job and my house[,] that I
      would get locked up, and I didn’t have a way to take care of my
      tools. Since the last time, I lost everything. That’s why I left
      without telling them. I shouldn’t have done it that way, but
      that’s what my mind told me was the smart thing to [sic]. And it
      wasn’t.

Id. at 6. In addition, Shoup stated that he supports his girlfriend, her child,

and his mother. Id. at 7. Shoup indicated that he works six days a week,

and was able to obtain a place to live in Colorado. Id. Notwithstanding this

evidence, the trial court sentenced Shoup to two to four years of total

confinement, based upon his “lengthy” criminal history and to vindicate the

court’s authority. Id. at 9-10.




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     In light of Shoup’s successful efforts at rehabilitation, and the lack of

evidence to the contrary, the trial court’s revocation of probation is

inexplicable and unfathomable.6          In this case, a sentence of total

confinement is not supported by the record, violates the fundamental norms

underlying the sentencing process, and constitutes an abuse of discretion.

Accordingly, even if Shoup had violated a condition imposed by the trial

court, we would conclude that the trial court abused its discretion in

revoking Shoup’s probation, and imposing a two- to four-year prison term.

     In summary, we conclude that the trial court lacked the authority to

revoke Shoup’s probation. Accordingly, we vacate the trial court’s May 12,

2014 judgment of sentence as illegal.

     Judgment of sentence vacated.

     Ford Elliott, P.J.E., joins the memorandum.

     Bowes, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2015




6
  It seems myopic and short-sighted to expend tens of thousands of dollars
to imprison Shoup, when the record shows that he is gainfully employed.


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