J. S06045/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
KHALIL JACKSON,                             :         No. 2160 EDA 2018
                                            :
                          Appellant         :


       Appeal from the Judgment of Sentence Entered June 21, 2018,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0004527-2014


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                           Filed: April 9, 2020

      Khalil Jackson appeals the June 21, 2018 judgment of sentence entered

in the Court of Common Pleas of Philadelphia County following revocation of

his probation. We vacate appellant’s judgment of sentence and remand for

proceedings consistent with this memorandum.

      At the outset, we note that the facts giving rise to appellant’s arrest are

not germane to this appeal, so we need not recite them.           With respect to

procedure, the record reflects that appellant was arrested on January 27,

2014, and charged with aggravated assault, conspiracy, possessing an

instrument of crime, terroristic threats, simple assault, recklessly endangering

another   person,        and   unlawful   restraint/serious   bodily   injury1   at


1 18 Pa.C.S.A. §§ 2702(a), 903, 907(a), 2706(a)(1), 2705, and 2902(a)(1),
respectively.
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Docket No. CP-51-CR-0004527-2014 (“No. 4527”) in connection with an

assault that occurred on May 2, 2013. (Criminal complaint, 1/28/14 at 1.)

The record further reflects that upon his arrest, appellant was incarcerated

and bail was set at $15,000. (Id.) On December 4, 2014, the trial court

granted appellant’s motion for bail modification at Docket No. 4527 and

modified the “[m]onetary conditions in the amount of $50,000 at 10[ percent]

originally set on 04/16/2014” “to release on [n]ominal bail in the amount of

$1.00.” (Order of court, 12/4/14.) We are unable to discern from the record

when appellant’s bail was decreased from $15,000 to 10 percent of $50,000.

The record contains a bail bond for Docket No. 4527 that lists an associated

case at Docket No. MC-51-CR-0002903-2014 for unidentified offenses

charged on May 2, 2013. The bail bond is not dated or signed.

      The record further reflects that on November 24, 2015, appellant

entered a guilty plea at No. 4527 to one count each of aggravated assault and

conspiracy.    The written guilty plea colloquy at No. 4527 states that the

Commonwealth promised to recommend a sentence of not more than 9 to

18 months. There is a handwritten notation on the written guilty plea colloquy

that states “credit time served 5/17/14 – 11/24/14 immediate parole

+ 18 months prob. on each.” (Written guilty plea colloquy, 11/24/15 at 2.)

The negotiated guilty plea sentencing order reflects that appellant received 9

to 18 months of incarceration for aggravated assault with a concurrent 9 to

18 months of incarceration for conspiracy. The order states that appellant



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would receive “[c]redit for time served to be calculated by the Phila. Prison

System[.]” (Negotiated guilty plea sentencing order, 11/24/15.) Appellant

also received two concurrent probationary terms of 18 months.           (Id.)

Appellant was released on parole on November 24, 2015. The record does

not contain the Philadelphia prison system’s calculation of appellant’s time

credit.

      On April 9, 2018, the Philadelphia Adult Probation and Parole

Department (the “Department”) filed a Gagnon II2 summary stating that

appellant had last reported to the Department on May 3, 2017, and that the

Department requested wanted cards for appellant on September 14, 2017.

The April 9, 2018 Gagnon II summary further stated that the Department

had learned that appellant had been shot on June 6, 2017 and that appellant

was wanted in connection with drug- and firearms-related crimes that

occurred on June 6, 2017. The summary further stated that appellant had

been arrested in connection with the June 6, 2017 crimes on January 10,

2018, and was in custody in Bucks County awaiting a violation hearing on

another matter.




2 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Ferguson, 761 A.2d 613 (Pa.Super. 2000) (explaining when parolee or
probationer is detained pending revocation hearing, due process requires
determination at pre-revocation hearing (Gagnon I hearing) of probable
cause to believe violation was committed, and upon finding of probable cause,
second, more comprehensive hearing (Gagnon II hearing) follows before trial
court makes final revocation decision).


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      The trial court held a Gagnon II hearing in this matter on April 20,

2018. At that time, the drug and firearms charges arising from the June 6,

2017 incident had been dismissed and then refiled.       (Notes of testimony,

4/20/18 at 7.) At the April 20, 2018 hearing, counsel agreed that appellant

was in technical violation of his probation for not reporting or performing any

of the conditions of his probation.3 (Id. at 10) Then the following took place:

            THE COURT: All right. I find you in violation of my
            terms of both, parole and anticipatory, with respect to
            the probation. So I’m revoking both, your parole and
            your probation, sir.

            [DEFENSE COUNSEL]: Your Honor, may I be clear. I
            was under the impression that this was a violation --
            he had completed the terms of his parole and then the
            wanted cards were issued on September 14th of
            2017, which would have been during the probation
            period.

            THE COURT: Well, let me look at the dates. Hold on.

            He entered a sentence on November 24th, 2015, so
            on that date, he was given immediate parole. I don’t
            know how much time he had in, but 9 plus 18 on the
            outside. Hold on –

            [DEFENSE COUNSEL]: Well, I’m looking at the arrest
            date of 1/27/14.

            THE COURT: He may not have had -- I don’t know
            what time he had in.

            [DEFENSE COUNSEL]: I was advised he was in
            custody up until he was released, Your Honor, but I
            don’t have any independent information.

3 The record reflects that as conditions of appellant’s probation, appellant was
to stay away from the victim and her home and complete 20 hours of
community service. (Negotiated guilty plea sentencing order, 11/24/15.)


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          It would just appear that at the time the wanted cards
          were issued --

          THE COURT: When was the arrest date for this case,
          again -- May 2nd, 2013. So May 2nd, 2013, plus 27
          months -- 15.

          [DEFENSE COUNSEL]: Your Honor, I would go with
          the arrest date.

          THE COURT: Hold on. Wait a minute. I sentenced
          him on --

          [DEFENSE COUNSEL]: But he had already been in
          custody, Your Honor, since January 27th for the prior
          year.

          THE COURT: Let me count back a second. And when
          did he take off? He took off May 2017, so he was
          breached May of 2017. So you’re still within the
          parole period.

          He took off May. His last visit, as they say, was
          May 3rd, 2017. That is within the two-year -- or
          actually, hold on, 18 months.

          [DEFENSE COUNSEL]: Your Honor, if I may be heard.
          He was arrested January 27th of 2014. He was in
          custody until he was paroled November 24th of 2015,
          so that’s 12 plus --

          THE COURT: Yes, but I don’t that [sic] --

          [DEFENSE COUNSEL]: That’s 20 months.

          THE COURT: I don’t know that he had credit on this
          case at that time.

          [DEFENSE COUNSEL]: Well, the order was -- it says
          credit for time served.

          THE COURT: On this case.



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             [DEFENSE COUNSEL]: That’s correct.

             THE COURT: I don’t know if he was sitting here, also,
             as a result of Bucks County, because Bucks County
             had the 2011 case. This case would have violated
             that, right, so they may well have had a detainer on
             him at some point. I don’t know the answer to that
             question.

             ....

             Well, subject to any change of time credit, I’m
             revoking both. Remind me of the machinations of the
             time when we get to sentencing, okay, because I may
             discount that 18-month period from whatever
             sentence I impose.

             In fact, I often do -- I often discount that portion from
             what I’m doing so that I don’t run a foul [sic] of illegal
             sentences.

             It may well be, it’s the violation of the probation part
             and, you know, the 18 months will be taken off the
             top. But, in an abundance of caution, I’m revoking
             both, subject to change and I’ll defer sentence.
             Presentence investigative reports to be ordered.

Notes of testimony, 4/20/18 at 12-15.

      On June 11, 2018, the Department filed another Gagnon II summary

that reiterated the April 4, 2018 summary and also stated that appellant was

in custody in Bucks County on the drug and firearms charges which were

potential direct violations of his parole. We note that both the April 4, 2018

and   June   11,    2018   Gagnon     II   summaries     state   that     appellant’s

parole/probation start date was November 24, 2015, and his end date was

January 20, 2018.




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      The trial court held a sentencing hearing on technical violations on

June 21, 2018. When the trial court asked whether appellant had completed

his parole period, defense counsel stated that the April 4 and June 11, 2018

Gagnon II summaries state that probation would end on January 20, 2018.

(Notes of testimony, 6/21/18 at 11.) The Commonwealth’s attorney stated

that he “think[s] [appellant] finished parole in 2016” and appellant was on

probation when he committed the technical violations (Id.) The trial court

sentenced appellant to three to six years of incarceration on the aggravated

assault conviction followed by a consecutive three to six years of incarceration

on the conspiracy conviction.

      Appellant filed a timely post-sentence motion for reconsideration, which

the trial court denied. Appellant then filed a timely notice of appeal. The trial

court then ordered appellant to file a statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. Thereafter,

the trial court filed its Rule 1925(a) opinion.

      Appellant raises the following issues:

            [1.]   Did the [trial court] impose illegal sentences on
                   appellant     following   the     revocation   of
                   probation/parole because those sentences were
                   imposed on crimes on which the sentences
                   initially imposed on appellant had expired by the
                   time he was cited for probation/parole
                   violations?

            [2.]   Did the [trial court] commit an abuse of
                   discretion by imposing the sentence it did
                   following the revocation of probation for the
                   reasons set forth in the post-sentence motion


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                     seeking reconsideration of sentence filed in this
                     matter, which is incorporated in toto herein?

Appellant’s brief at 34 (full capitalization omitted).

        Challenges    to    the    legality   of   sentence   are   never   waived.

Commonwealth v. Hoffman, 198 A.3d 1112, 1123 (Pa.Super. 2018)

(citation omitted). Our standard of review of a challenge to the legality of a

sentence is de novo and our scope of review is plenary.               Id. (citation

omitted).

        It is well settled that:

              The Commonwealth establishes a probation violation
              meriting revocation when it shows, by a
              preponderance of the evidence, that the probationer's
              conduct violated the terms and conditions of his
              probation, and that probation has proven an
              ineffective rehabilitation tool incapable of deterring
              [the] probationer from future antisocial conduct.

Commonwealth v. A.R., 990 A.2d 1, 4 (Pa.Super. 2010), affirmed, 80 A.3d

1180 (Pa. 2013) (citation and footnote omitted).

        In its brief to this court, the Commonwealth concedes that appellant

received an illegal sentence because no evidence demonstrated that

appellant’s technical violations occurred while appellant was still on probation.

(Commonwealth’s brief at 7-12.) In its brief, the Commonwealth includes its

“timeline of events” to establish that appellant’s time credit began on

January 27, 2014, and his probation ended on May 24, 2017, to support its




4   We have re-ordered appellant’s issues for ease of disposition.


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conclusion that there was no evidence to prove that appellant violated his

probation.   (Id. at Exhibit 1.)   The Commonwealth’s “timeline of events,”

however, is not part of the certified record before us. The law is well settled

that an appellate court may not consider documents that are not part of the

certified record.   See Commonwealth v. Spotz, 18 A.3d 244, 323 (Pa.

2011).

      That being said, the certified record before us is deficient to aid in our

determination of whether appellant’s sentence is illegal. The certified record

fails to demonstrate (1) when appellant’s time credit for No. 2547 began and

ended; (2) when appellant’s parole for No. 2547 began and ended; and

(3) when appellant’s probation for No. 2547 began and ended. As a result of

those deficiencies, we are unable to evaluate the merits of appellant’s

challenge to the legality of his sentence, as well as the Commonwealth’s

concession that the sentence is illegal.   Accordingly, we vacate appellant’s

judgment of sentence and remand this matter so that the trial court can

conduct an evidentiary hearing to determine (1) when appellant’s time credit

for No. 2547 began and ended; (2) when appellant’s parole for No. 2547

began and ended; and (3) when appellant’s probation for No. 2547 began and

ended. Once those determinations are made, the trial court will be able to




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determine whether it can legally sentence appellant for technical violations of

his probation.5

      Judgment of sentence vacated.          Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/9/20




5 In light of our disposition, we need not address appellant’s challenge to the
discretionary aspects of his sentence.


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