J-S38026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PATRICIA HAWES                             :
                                               :
                       Appellant               :   No. 1834 WDA 2017

            Appeal from the Judgment of Sentence February 28, 2017
      In the Court of Common Pleas of Cambria County Criminal Division at
                        No(s): CP-11-CR-0001590-2007


BEFORE:      BOWES, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 23, 2018

        Appellant Patricia Hawes appeals from the judgment of sentence

imposed after the trial court found her in violation of her parole and purporting

to recommit her to serve the remainder of an underlying maximum sentence

of two-and-one-half years. Appellant claims that the trial court lacked the

authority to revoke her parole and abused its discretion at sentencing. We

conclude that the trial court lacked authority to revoke Appellant’s parole and

vacate the judgment of sentence and remand for further proceedings

consistent with this memorandum.

        The relevant procedural history of this appeal is undisputed. On October

17, 2007, in docket 1590-2007, Appellant pled guilty to one count of forgery


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*   Retired Senior Judge assigned to the Superior Court.
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graded as a felony of the third degree.1 On February 29, 2008, the trial court

sentenced Appellant to five years’ probation.

        Appellant violated the conditions of her probation several times between

September 2008 and November 2013, and on December 12, 2013, the trial

court revoked Appellant’s probation. That same day, the trial court sentenced

Appellant to ten days’ to five years’ imprisonment to be served in the Cambria

County Prison (county prison) with parole effective immediately. The effective

date of that sentence was December 2, 2013.

        Appellant was subsequently charged with committing new offenses, i.e.,

retail theft and delivery of cocaine.          On June 23, 2016, Appellant’s parole

officer filed a petition for a parole violation hearing. On June 28, 2016, the

trial court entered an order finding Appellant in violation of parole and directed

that Appellant remain in county prison pending resolution of the new charges.

        On December 5, 2016, Appellant’s counsel filed a petition for a status

hearing. Appellant indicated that the Commonwealth intended to dismiss the

delivery of cocaine charge by writ of nolle prosequi because that charge was

adopted in a separate federal prosecution. On December 19, 2016, the trial

court convened a hearing at which it purported to revoke Appellant’s parole,

but “resentenced” Appellant to six-and-one-half months’ to two-and-one-half

years’ imprisonment in county prison with parole effective immediately. The

trial court indicated that the effective date of its sentence was June 7, 2016.

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1   18 Pa.C.S. § 4101(a)(1).

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On that same day, Appellant was paroled, but remained in county prison on a

federal detainer.

      On February 1, 2017, while in county prison on the federal detainer,

Appellant tested positive for the use of the drug Suboxone. On February 16,

2017, Appellant’s county parole officer filed a petition for a violation hearing.

On February 28, 2017, the trial court found that Appellant violated her parole

and directed that Appellant serve the remainder of her sentence.

      Appellant initially appealed the trial court’s February 28, 2017 order, but

this Court dismissed the appeal after Appellant failed to file a docketing

statement. On November 21, 2017, Appellant’s right to a direct appeal was

reinstated by a PCRA court. This appeal follows.

      Appellant presents two issues, which we have reordered for review:

      [1]. Whether the [t]rial [c]ourt abused its discretion by taking the
      opportunity for parole away from the Parole Board, when
      sentencing the Appellant on her parole violation hearing?

      [2]. Whether the [t]rial [c]ourt erred in imposing a sentence
      maxing the Appellant on her [p]arole [v]iolation when at the time
      of the violation hearing, the Appellant was not serving her parole
      sentence on the state sentence docketed at 1590-2007, but rather
      she was detained on new [f]ederal charges?

Appellant’s Brief at 4.

      Appellant, in her first issue, claims that the trial court lacked the

authority to revoke her parole. In support, Appellant cites Commonwealth

v. Hall, 652 A.2d 858, 859-860 (Pa. Super. 1995), which held that the Court

of Common Pleas does not retain jurisdiction in matters of parole when the



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maximum sentence is greater than two years.            Id. at 12-13.     Appellant

concludes that parole authority in this case did not “fall with the [t]rial

[c]ourt.” Id. at 13.

      Appellant’s challenge to the authority of the trial court to decide matters

of parole presents a pure question of law over which our standard of review is

de novo and our scope of review is plenary.            See Commonwealth v.

Milhomme, 35 A.3d 1219, 1221 (Pa. Super. 2011). At the outset, it is helpful

to recall the Pennsylvania Supreme Court’s discussion of the distinctions

between probation and parole.

      As commonly defined, probation is “[a] sentence imposed for
      commission of crime whereby a convicted criminal offender is
      released into the community under the supervision of a probation
      officer in lieu of incarceration.” Conversely, parole is the “[r]elease
      from jail, prison or other confinement after actually serving part
      of the sentence. Conditional release from imprisonment which
      entitles parolee to serve remainder of his term outside the
      confines of an institution, if he satisfactorily complies with all
      terms and conditions provided in parole order.” As is relevant, a
      court faced with a violation of probation may impose a new
      sentence so long as it is within the sentencing alternatives
      available at the time of the original sentence. In contrast, a court
      faced with a parole violation must recommit the parolee to serve
      the remainder of the original sentence of imprisonment, from
      which the prisoner could be reparoled.

Commonwealth v. Holmes, 933 A.2d 57, 59 n.5 (Pa. 2007) (citations

omitted).

      Appellant, in challenging the trial court’s parole authority, cites to

previous decisions holding that

      the authority to parole convicted offenders lies with the Common
      Pleas Court when the offender is sentenced to a maximum term

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        of imprisonment of less than two years, and with the Parole Board
        when the sentence is in excess of two years.

Commonwealth v. McMaster, 730 A.2d 524, 527 (Pa. Super. 1999) (citation

omitted).

        The above-stated principle that a sentencing court was divested of

parole authority if a maximum sentence was greater than two years derived

from former Section 17 of the Parole Act, 61 P.S. § 331.17 (repealed 2009).2


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2   Former Section 17 of the Parole Act as follows:

        The board shall have exclusive power to parole and reparole,
        commit and recommit for violations of parole, and to discharge
        from parole all persons heretofore or hereafter sentenced by any
        court in this Commonwealth to imprisonment in any prison or
        penal institution thereof, whether the same be a state or county
        penitentiary, prison or penal institution, as hereinafter provided.
        It is further provided that the board shall have exclusive power to
        supervise any person hereafter placed on probation or parole
        (when sentenced to a maximum period of less than two years) by
        any judge of a court having criminal jurisdiction, when the court
        may by special order direct supervision by the board, in which
        case the probation or such parole case shall be known as a special
        case and the authority of the board with regard thereto shall be
        the same as herein provided with regard to parole cases within
        one of the classifications above set forth: Provided, however, That
        the powers and duties herein conferred shall not extend to persons
        sentenced for a maximum period of less than two years, and
        nothing herein contained shall prevent any court of this
        Commonwealth from paroling any person sentenced by it for a
        maximum period of less than two years: And provided further,
        That the period of two years herein referred to shall mean the
        entire continuous term of sentence to which a person is subject,
        whether the same be by one or more sentences, either to simple
        imprisonment or to an indeterminate imprisonment at hard labor,
        as now or hereafter authorized by law to be imposed for criminal



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See Commonwealth v. Tilghman, 673 A.2d 898, 901-02 (Pa. 1996).

Former Section 17 vested the Pennsylvania Board of Probation and Parole (the

board or the Board) with exclusive authority over individuals sentenced to a

maximum sentence of two years or more and regardless of the place of

confinement.      See id.      (indicating that Section 17 vested in the board

exclusive parole authority over “all persons . . . sentenced . . . to imprisonment

in any prison or penal institution thereof, whether the same be a state or

county penitentiary, prison or penal institution” but did “not extend to persons

sentenced for a maximum period of less than two years, and nothing herein

contained shall prevent any court of this Commonwealth from paroling any

person sentenced by it for a maximum period of less than two years”).

       Effective October 13, 2009, however, former Section 17 was repealed.

Effective that same date, Section 6312 of the Prisons and Parole Code took

effect and set forth the Board’s parole power as follows:

       (a) General rule.--The board shall have exclusive power:

          (1)(i) To parole and reparole, commit and recommit for
          violations of parole and to discharge from parole all persons
          sentenced by any court at any time to imprisonment in a
          correctional institution

          (ii) This paragraph applies to inmates sentenced to definite or
          flat sentences

          (2)(i) To supervise any person placed on parole, when
          sentenced to a maximum period of less than two years, by any
____________________________________________


       offenses. The power of the board to parole shall extend to
       prisoners sentenced to definite or flat sentences.

61 P.S. § 331.17.

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          judge of a court having criminal jurisdiction, when the court
          may by special order direct supervision by the board, in which
          case the parole case shall be known as a special case and the
          authority of the board with regard thereto shall be the same as
          provided in this chapter with regard to parole cases within one
          of the classifications set forth in this chapter.

          (ii) Except for such special cases, the powers and duties
          conferred by this section shall not extend to persons sentenced
          for a maximum period of less than two years and shall not
          extend to those persons committed to county
          confinement within the jurisdiction of the court pursuant
          to 42 Pa.C.S. § 9762 (relating to sentencing proceeding;
          place of confinement).

       (b) Construction.--Nothing contained in this section shall be
       construed to prevent a court from paroling any person sentenced
       by it for a maximum period of less than two years or from
       paroling a person committed to county confinement within
       the jurisdiction of the court pursuant to 42 Pa.C.S. § 9762.

61 Pa.C.S. § 6132(a)-(b) (emphases added). Section 9762, in turn, provides

the general framework that, inter alia, a person sentenced to a maximum of

(1) “five or more years shall be committed to the Bureau of Corrections for

confinement” and (2) “two years or more but less than five years” may be

committed to the Department of Corrections or to a county prison. 42 Pa.C.S.

§ 9762(a)(1)-(2), (b)(1)-(2).3

       Current Section 6132, unlike former Section 17, creates an exception

under which the board’s exclusive power does not extend to persons
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3 Section 9762(a) applies to sentences imposed within three years of the
effective date of Section 9762 in 2009. Section 9762(b) applies to sentence
imposed after three years from the section’s effective date. Section 9762(b)
contains additional “exceptions” that must be met in order to commit a
defendant to county prison when the maximum sentence is two years or more
and less than five years. See 42 Pa.C.S. § 9762(b)(2)(i)-(iii).


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committed to county confinement.               See 61 Pa.C.S. § 6132(a)(2)(ii), (b).

Therefore, when read together with Section 9762, the trial court may retain

parole authority when it sentences a defendant to a maximum term of

imprisonment less than five years and commits the defendant to county

confinement pursuant to Section 9762.4 See 61 Pa.C.S. § 6132(a)(2)(ii), (b);

42 Pa.C.S. § 9762 (a)(2), (b)(2).

       Instantly, Appellant was initially sentenced to five years’ probation in

2008. In December 2013, the trial court revoked Appellant’s probation and

resentenced Appellant to ten days’ to five years’ imprisonment to be served

in county prison. Because the maximum term of the sentence was five years,

the trial court contravened Section 9762 regarding the place of confinement

and Appellant should have been committed to the Department of Corrections.

See 42 Pa.C.S. § 9762(b)(1).           Moreover, the trial court divested itself of

proper parole authority. See 61 Pa.C.S. § 6132(a)(2)(ii), (b).

       In December 2016, the trial court purported to revoke Appellant’s 2013

parole and resentence Appellant to a maximum sentence of two-and-one-half

years’ imprisonment. As stated above, however, the trial court did not have

proper parole authority because the 2013 sentence imposed a maximum of

five years’ imprisonment. Moreover, while the trial court purported to revoke
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4We note that 42 Pa.C.S. § 9775 provides that a sentencing court “shall grant
parole” when the maximum sentence is less than two years and that “parole
shall be without supervision by the board.” 42 Pa.C.S. § 9775; accord 61
Pa.C.S. § 6132(a)(2)(i). Thus, the trial court retains exclusive jurisdiction
over parole when the sentence is less than two years unless it places a special
order for supervision by the board.

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Appellant’s parole, it resentenced Appellant to a new sentence, rather than

recommitting Appellant to serve the remainder of the 2013 sentence.

Therefore, the purported “resentencing” of Appellant was also improper. See

Holmes, 933 A.2d at 59 n.5; accord Tillman v. Pennsylvania Bd. Of

Probation and Parole, 409 A.2d 949 (Pa. Cmwlth. 1980).

      Thus, turning to the February 28, 2017 revocation and disposition

hearing presently on appeal, we are constrained to conclude that the trial

court lacked proper parole authority. To summarize, the five-year maximum

in the trial court’s 2013 sentence divested the court of parole authority, and

the 2016 sentence imposing a new, lesser maximum sentence of two-and-

one-half years was improper.      As of 2013, Appellant should have been

committed to the Department of Corrections for confinement, see 42 Pa.C.S.

§ 9762(b)(2), and the power over Appellant’s parole fell within the exclusive

jurisdiction of the board. See 61 Pa.C.S. § 6132(a)(1)(i). As of 2016, the

trial court lacked parole authority and, in any event, could not have imposed

a new sentence. Consequently, the February 28, 2017 sentence recommitting

Appellant to the serve the remainder of the 2016 maximum sentence is illegal

as it relies on a previous illegal sentence. Cf. Milhomme, 35 A.3d at 1222

(vacating a violation of probation sentence as illegal due to a prior illegal

sentence). Accordingly, the February 28, 2017 order must be vacated, and

this matter must be remanded to the trial court for the vacating of the




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December 2016 order, and the entry of an order committing Appellant to the

Department of Corrections as was required by the 2013 sentence.5

       Judgment of sentence vacated.               Case remanded with instructions.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/2018




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5 Because we conclude that the trial court lacked the authority to revoke
Appellant’s parole, we decline to consider her further argument that the
revocation and subsequent “sentence” constituted an abuse of discretion.

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