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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                    v.                  :
                                        :
GARY LEE ROSE,                          :        No. 1785 MDA 2014
                                        :
                         Appellant      :


             Appeal from the Judgment of Sentence, July 21, 2014,
                in the Court of Common Pleas of Clinton County
               Criminal Division at No. CP-18-CR-0000062-2011


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 25, 2015

     Gary Lee Rose appeals from the judgment of sentence of July 21,

2014, following revocation of his County Intermediate Punishment sentence.

We affirm.

     On December 30, 2010, appellant was arrested for driving under the

influence (“DUI”), a misdemeanor of the first degree (“2011 case”).

Appellant had a prior record score of four which included two prior DUI

offenses during the preceding ten years. On September 9, 2011, appellant

pleaded guilty1 to DUI and on the same day was placed in the County

Intermediate Punishment (“County IP”) program under the supervision of



1
  Appellant filed a motion to withdraw his plea which was denied. Appellant
appealed to this court. In an unpublished memorandum opinion filed
June 25, 2012, at No. 2259 MDA 2011, we affirmed.
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the Clinton County Adult Probation Office2 for a period of five years, with

nine months’ incarceration to be served at the Clinton County Correctional

Facility.

      On January 12, 2012, prior to the start of the 2011 County IP sentence

and while he was out on bail, appellant was again arrested for DUI (“2012

case”). He had a prior record score of five, and the gravity score for that

offense was five.

      Appellant began the nine-month incarceration portion of his 2011

County      IP   sentence   at   the   Clinton   County   Correctional   Facility   on

January 30, 2012.

      On May 7, 2012, appellant entered a guilty plea in the 2012 case, and

on that same date he was sentenced to serve a sentence of twelve months

to sixty months in a State Correctional Institution (“2012 State sentence”).

Appellant was deemed eligible for the Recidivism Risk Reduction Incentive

(“RRRI”) Program. The trial court imposed a minimum sentence under the

RRRI Program of three quarters of the original minimum sentence (nine

months).         The 2012 State sentence (nine months RRRI) was to run

consecutively to the nine-month incarceration portion of the 2011 County IP

sentence. At the May 7, 2012, sentencing hearing in the 2012 case, the trial

court explained:



2
  Appellant was sentenced to participation in the Clinton County IP program
in accordance with 42 Pa.C.S.A. § 9763.


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           You have to do the 62-2011 [2011 case]
           incarceration first. Then you start this nine months
           under the RRRI sentence second. And then you’ll be
           eligible for parole when you do the minimum
           sentence. And the State Board of Probation and
           Parole will handle your parole. I’ll have nothing to
           do with it.

Hearing transcript, 5/7/12 at 18.

     On June 5, 2012, appellant was transferred from the Clinton County

Correctional Facility to SCI-Huntington to serve, consecutively, the balance

of the incarceration portion of his 2011 County IP sentence and nine-month

2012 State RRRI minimum sentence. The nine-month incarceration portion

of his 2011 County IP sentence expired in October 2012.3        Nine months

later, on July 30, 2013, when appellant completed his minimum nine-month

RRRI sentence, the State Board of Probation and Parole (“Parole Board”)

paroled appellant. At that point, appellant was under the supervision of both

the County Probation Office (on his 2011 County IP case) and Parole Board

(on his 2012 case).4


3
 The probationary portion of the 2011 County IP sentence in the 2011 case
was still to be served.
4
  In the 2011 case, the trial court had requested “Special Probation/Parole
Supervision” (Form BPP-325) pursuant to 61 Pa.C.S.A. § 6132. However,
the Parole Board specifically declined acceptance of appellant for supervision
in the 2011 case. Pursuant to the Board’s regulations, 37 Pa.Code § 65.1,
the Parole Board has discretion to accept a case for supervision.

           Acceptance of a case for supervision or presentence
           investigation from a county which, on December 31,
           1985, maintained adult probation offices and parole
           systems, will be at the Board’s discretion. The Board


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     On March 4, 2014, during his parole supervision and while he was

awaiting the start of the probationary portion of his 2011 County IP

sentence, a Clinton County Probation agent and a State Parole Board agent

visited appellant for the purpose of drug testing. Appellant tested positive

for controlled substances, specifically, opiates, oxycodone, amphetamine,

and cocaine.     (R-24.)   Both the State and the County immediately issued

detainers for their sentences. The Parole Board recommitted appellant as a

technical parole violator to serve six months’ backtime. Appellant was to be

automatically re-paroled without further action of the Board on September 4,

2012, with a parole maximum date of October 30, 2014. (Notice of Parole

Board decision, 4/3/14, at 1; R-25.)




           will ordinarily accept a case that meets the following
           criteria:

           (1)     For supervision:

                   (i)     A felony conviction and a sentence
                           to serve a probationary term of at
                           least 2 years.

                   (ii)    A felony conviction and parole from
                           a sentence with a balance of at
                           least 6 months.

                   (iii)   A case otherwise under the Board’s
                           jurisdiction.

      By letter dated November 8, 2013, the Parole Board notified the trial
court that “[t]he Board is not empowered to supervise [County] intermediate
punishment.” (Letter from Parole Board to the trial court, 11/8/13 at 1;
R-23.)


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      Meanwhile, on March 7, 2014, the Clinton County Adult Probation Unit

filed a Motion to Revoke appellant’s County IP sentence. On July 21, 2014,

after a hearing, the trial court granted the motion and revoked the 2011

County IP sentence. The trial court re-sentenced appellant in the 2011 case

as follows:

              2.      [Appellant] shall undergo imprisonment in a
                      State Correctional Institution for a definite
                      time, the minimum of which shall be
                      twenty-one (21) months and the maximum of
                      which shall be sixty (60) months and stand
                      committed      to    the  State    Correctional
                      Institutional (sic) at Camp Hill, Pennsylvania,
                      for compliance of this sentence. The sentence
                      of imprisonment shall be deemed to run
                      consecutively to the sentence issued to
                      number 86-2012. [Appellant] is entitled to two
                      hundred seventy-three (273) day (sic) credit
                      that [appellant] had previously served in this
                      matter.

              3.      The Court finds that [appellant] is an eligible
                      offender for the Recidivism Risk Reduction
                      Incentive Program (RRRI); and pursuant to
                      42 Pa.C.S.A. 5305, the Court imposes a
                      recidivism risk reduction incentive minimum
                      sentence    of    fifteen (15)  months     and
                      twenty-two (22) days, which is three quarters
                      of [appellant’s] minimum sentence.

Trial court order, 7/21/14 at 4-5.

      On July 31, 2014, appellant filed a motion to modify sentence in the

2011 case.         The trial court vacated its July 21, 2014, sentencing order

pending a hearing on the motion to modify sentence. A hearing was held on

September 22, 2014.          On September 23, 2014, the trial court denied



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appellant’s motion to modify sentence and reinstated its July 21, 2014,

sentencing order in its entirety.

      On appeal, appellant raises one issue:

            [1.]   Did the [trial] court have jurisdiction to
                   re-sentence [appellant] while he was on State
                   Parole supervision, and prior to when the
                   probationary portion of the intermediate
                   punishment sentence was to start?

Appellant’s brief at 7.

      In an appeal from a sentence imposed after the court has revoked IP

sentence, we can review the validity of the revocation proceedings, the

legality of the sentence imposed following revocation, and any challenge to

the discretionary aspects of the sentence imposed.       Commonwealth v.

Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en banc). In this case,

appellant challenges the trial court’s authority or jurisdiction to re-sentence

him which goes to the legality of the sentence.     See Commonwealth v.

Cappellini, 690 A.2d 1220 (Pa.Super. 1997).

      Appellant argues that the Parole Board had exclusive authority to

parole him because he was sentenced to a maximum term of two years or

longer, Commonwealth v. Tilghman, 652 A.2d 390 (Pa.Super. 1995);

Commonwealth v. Call, 378 A.2d 412 (Pa.Super. 1977), and that the

Parole Board acquired exclusive parole authority when the Department of

Corrections aggregated his sentences.          Gillespie v. Commonwealth

Department of Corrections, 527 A.2d 1061 (Pa.Cmwlth. 1987).                 He



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asserts   that   the    Parole   Board   granted   him   automatic   re-parole   on

September 4, 2014, in both cases, and that the trial court usurped the

exclusive jurisdiction of the Parole Board when it revoked his County IP

sentence and re-sentenced him.           Appellant further contends that the trial

court divested itself of the authority to revoke his County IP sentence and

re-sentence him because it was “the Court’s intent that the [Parole Board]

would handle [appellant’s] supervision for both cases.” (Appellant’s brief at

12.)

       At the outset, we do not agree that appellant was under the exclusive

jurisdiction of the Parole Board in the 2011 case at the time he committed

the technical violation. The essence of “parole” is the release from prison

before the completion of sentence.             Lee v. Pennsylvania Board of

Probation and Parole, 885 A.2d 634 (Pa.Cmwlth. 2005). While a person is

on “parole” he is in fact still serving his sentence.        Commonwealth v.

Frankenhauser, 375 A.2d 120 (Pa.Super. 1977).

       When appellant was released on parole on July 30, 2013, he had

served the nine-month incarceration portion of his 2011 County IP sentence,

and was waiting to serve the probationary portion. Appellant could not be

“paroled” from the incarceration portion of his County IP sentence because it

had expired by operation of law in October of 2012. There was nothing for

the Parole Board to assess in terms of whether and if appellant should be

released early.        Once on parole in the 2012 State case, nothing in



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Section 6132 of the Prisons and Parole Code (“Parole Code”), 61 Pa.C.S.A.

§ 6132, gave the Parole Board power or jurisdiction to assess whether

appellant violated the terms of the remainder of his County IP sentence or to

revoke it.

      Instead, that power lies exclusively with the trial court which derives

its authority to revoke appellant’s County IP sentence upon proof of violation

from 42 Pa.C.S.A. § 9773. Section 9773 provides:

             § 9773. Modification or revocation of county
             intermediate punishment sentence

             (a)   General rule.--The court may at any
                   time terminate a sentence of county
                   intermediate punishment or increase or
                   decrease the conditions of a sentence
                   pursuant to section 9763 (relating to
                   sentence    of   county   intermediate
                   punishment).

             (b)   Revocation.--The court may revoke a
                   sentence      of    county    intermediate
                   punishment upon proof of a violation of
                   specific conditions of the sentence. Upon
                   revocation and subject to section
                   9763(d), the sentencing alternatives
                   available to the court shall be the same
                   as the alternatives available at the time
                   of initial sentencing. Upon a revocation
                   of county intermediate punishment for
                   any reason specified by law, the attorney
                   for the Commonwealth may file notice, at
                   any time prior to resentencing, of the
                   Commonwealth’s intention to proceed
                   under an applicable provision of law
                   requiring     a    mandatory      minimum
                   sentence. Consideration shall be given
                   to the time served in the county
                   intermediate punishment program.


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            (c)    Hearing required.--A court shall not
                   revoke or increase the conditions of a
                   sentence      of   county     intermediate
                   punishment without a hearing at which
                   the court shall consider the record of the
                   initial sentencing proceeding as well as
                   the conduct of the defendant while
                   serving     a    sentence     of    county
                   intermediate punishment. A hearing is
                   not required to decrease the conditions
                   of the sentence.

42 Pa.C.S.A. § 9773.

      It is essential that the trial court maintain the ability to incarcerate

persons for whom intermediate punishment is no longer a viable means of

rehabilitation.   Commonwealth v. Serrano, 727 A.2d 1168 (Pa.Super.

1999). A trial court has both jurisdiction and authority to terminate county

intermediate punishment throughout the period of the conditional sentence.

Commonwealth v. Concordia, 97 A.3d 366 (Pa.Super. 2014).                Upon

revocation of intermediate punishment, the sentencing alternatives available

to the court shall be the same as the alternatives available at the time of

initial sentencing.   Commonwealth v. Melius, 100 A.3d 682 (Pa.Super.

2014); 42 Pa.C.S.A. § 9773.

      Pursuant to 42 Pa.C.S.A. § 9773, appellant remained in the legal

custody of the trial court until the expiration of the five-year probationary

portion of his County IP sentence. Appellant failed to complete his County IP

program successfully because he violated its terms prior to when the

probationary portion of that sentence was to start. At that point, the trial


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court had exclusive authority to revoke appellant’s County IP sentence and

to re-sentence him following revocation. We have held that:

           “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.’”

Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980),

quoting James v. U.S., 140 F.2d 392, 394 (5th Cir. 1944).            See also

Commonwealth v. Allshouse, 33 A.3d 31, 39 (Pa.Super. 2011).5

     Further, the record reveals that the trial court did not, as appellant

suggests, “turn over all of [appellant’s] supervision to the PA Board of

Probation and Parole.”     (Appellant’s brief at 13.)     The Parole Board

specifically refused to accept appellant for supervision in the 2011 County IP

case because that sentence involved the probationary portion of a County IP

program and the Parole Board was not empowered to accept supervision


5
  Although Wendowski and Allshouse involved the revocation of probation
imposed pursuant to 42 Pa.C.S.A. § 9754 (governing orders of probation),
we see no reason not to apply this same rationale where a defendant
violates the conditions of County IP before the probationary portion of his
sentence commences.


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over those types of cases. Nevertheless, even if he had been “supervised”

by the Parole Board, as argued by appellant, this would not have impeded

the trial court’s exclusive jurisdiction to revoke County IP sentence and

re-sentence appellant under 42 Pa.C.S.A. § 9773. See Commonwealth v.

Mitchell, 955 A.2d 433 (Pa.Super. 2008) (the trial court retains the power,

authority, and jurisdiction to revoke special probation and sentence the

defendant, regardless of the Parole Board’s supervisory powers).

     The judgment of sentence of the trial court is affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/25/2015




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