J-A09025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

SAMUEL ADDISON GROVE

                            Appellant                   No. 1822 MDA 2015


          Appeal from the Judgment of Sentence September 17, 2015
                In the Court of Common Pleas of Union County
             Criminal Division at No(s): CP-60-CR-0000212-2002

BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                             FILED AUGUST 12, 2016

        In 2002, Samuel Grove was sentenced to 4-8 years’ imprisonment plus

12 years’ probation for involuntary deviate sexual intercourse (“IDSI”). 1 In

2010, he completed his entire term of imprisonment. Subsequently, the trial

court revoked his probation and resentenced him four times. The first three

revocations were for failure to have an approved residence upon completion

of his term of imprisonment.            The fourth revocation of probation - the

revocation at issue in this appeal - was for violating an order dated October

9, 2013 requiring Grove to obtain sex offender treatment while on

“supervision”. The trial court held that Grove violated this term by failing to

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3123.


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obtain sex offender treatment in prison. We agree with Grove that this term

only required Grove to obtain sex offender treatment after his release from

prison. Accordingly, we reverse.

      A detailed factual history is necessary. On December 18, 2002, Grove,

who has an I.Q. of 66, pled guilty to IDSI and was sentenced to 4-8 years’

imprisonment and 12 years’ consecutive probation. The original sentencing

order said nothing about the terms of probation other than directing him to

serve 144 months under the supervision of the Pennsylvania Board of

Probation and Parole. Grove served his full prison term and was released on

July 18, 2010.

      First revocation. Grove’s release was short-lived. Just two days after

his release, he was detained on a probation violation for not obtaining

permission to live at his current residence.

      On February 18, 2011, the trial court revoked Grove’s probation and

sentenced him to 52-106 months’ imprisonment with credit of 102 months

and 29 days, followed by 134 months’ probation.      The net effect was for

Grove to serve an additional 3 months and 1 day of incarceration while his

family found suitable housing for him upon his release.

      The February 18, 2011 sentencing order stated with regard to

probation:

      The period of incarceration imposed above shall be followed by a
      period of one hundred thirty-four (134) months of consecutive
      probation to be supervised by the Pennsylvania State Board of


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     Probation and Parole. The Defendant shall be subject to such
     terms and conditions of supervision as set forth in Judicial
     Administrative Order AD-0000001-2007 and such other terms
     and conditions as may reasonably be imposed by the
     Pennsylvania Board of Probation and Parole or such other
     appropriate supervising authority which shall include, but not be
     limited to, the following [11 conditions]: …

     2. The Defendant shall successfully enroll in, participate in, and
     complete a program for sex offenders approved by the
     Pennsylvania Board of Probation and Parole. The Defendant shall
     be responsible for all costs related to said treatment and shall
     satisfy those costs in a reasonable time period.

     3. The Defendant shall permit his sex offender treatment
     provider unrestricted communication with the probation officer
     regarding his attendance level, participation, and any other
     information deemed necessary by the probation officer to protect
     the community from his sexually abusive behavior …

Order, 2/18/11 (emphasis added).

     Second revocation. Grove was unable to provide a home plan during

his three months of imprisonment. As a result, he was detained again after

the three-month term expired, and the Commonwealth again moved to

revoke his probation.

     During a hearing on July 26, 2011, Grove stipulated that he did not

have an acceptable place to live. The trial court revoked Grove’s probation

and sentenced him to 1-2 years’ imprisonment followed by 110 months’

probation. The July 26, 2011 sentencing order provided:

     1. That the 134-month consecutive probation on Count No. 1 is
     revoked.

     2. The Defendant is sentenced to a period of not less than one
     (1) nor more than two (2) years[’] incarceration in a State


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        Correctional Institution, that to be followed by 110 months of
        probation.

        3. The period of probation is to be specially supervised by the
        Pennsylvania State Board of Probation and Parole. While on
        probation, he will be subject to the conditions of probation set
        forth in a Judicial Administration Order filed to CP-60-AD-
        0000001 of 2007. He will also be subject to a condition that he
        not reside in any residence where any minors reside and that he
        not be left in the company of any minors by anyone.

        4. In addition to the conditions of supervision imposed above,
        the Defendant will be subject to the conditions of supervision in
        Numbered Paragraphs 1 through 11 in the Court's Order and
        Sentence of February 18, 2011.

        5. Upon the Defendant’s maxing out on the incarceration portion
        of this Sentence, the Pennsylvania State Board of Probation and
        Parole is ORDERED to work with the Defendant and the
        Defendant’s family to find appropriate housing for the
        Defendant. For purpose of clarity, the Court does not believe it is
        sufficient to leave the matter in the Defendant’s hands. The
        State Board of Probation and Parole is to assist in the
        supervision and rehabilitation of its clients. The Court expects
        the Board to do exactly that with this Defendant of limited
        intellectual ability and apparently equally limited means.

Order, 7/26/11 (emphasis added).

        Grove appealed to this Court at 1550 MDA 2011, but we quashed his

appeal for his failure to include a Rule 2119 statement in his brief explaining

why this Court should consider a discretionary challenge to his sentence.

Grove served his entire two year sentence.

        Third revocation.   At the conclusion of this term of imprisonment,

Grove was detained for a third time for failure to provide a suitable home

plan.    On October 9, 2013, the trial court again revoked his probation

because of his failure to obtain an approved home.

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      The October 9, 2013 sentencing order stated:

      The Defendant is sentenced on Count No. 1 to a period of
      incarceration in a State Correctional Institution of not less than
      one hundred fifty-three (153) days nor more than twenty-four
      (24) months. The Defendant shall receive credit for time served
      from May 19, 2013, to today’s date, that sentence to be followed
      by a period of eighty-six (86) months of consecutive probation.

      While under supervision, the Defendant shall be subject to the
      terms and conditions of supervision as set forth in Judicial
      Administration Order AD-0000001 of 2007 and the Standard
      Special Conditions for Sex Offenders as set forth by the
      Pennsylvania Board of Probation and Parole which were effective
      in March 2012 and attached hereto as Appendix 1. In addition,
      the Defendant shall be subject to the Optional Special Conditions
      for Sex Offenders established by the Pennsylvania Board of
      Probation and Parole with an effective date of March 2012 and
      attached hereto as Appendix 2.

Order, 10/9/13 (emphasis added). Appended to the sentencing order were

the Probation and Parole Board’s Standard Special Conditions For Sex

Offenders, which stated in relevant part:

      1. You must obtain a sex offender evaluation from a sex
      offender treatment provider who is approved by probation/parole
      supervision staff. You must comply with and successfully
      complete all treatment recommendations including polygraph
      examinations, resulting from this evaluation. You must pay the
      cost of the evaluation, polygraph(s) and treatment. You must
      also provide written authorization for release of confidential
      information between your sex offender treatment provider and
      the Pennsylvania Board of Probation and Parole.

Special Conditions For Sex Offenders (emphasis added).          Notably, this

condition does not authorize the trial court or the Department of Corrections

(“DOC”) to select the sex offender evaluator; only the probation/parole

supervision staff may select the evaluator.


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        Fourth revocation (the revocation presently in question). On May 18,

2015, the imprisonment portion of Grove’s sentence concluded, and the

probationary period began.       Instead of releasing Grove, law enforcement

officials transported him from state prison to county prison.     On May 29,

2015, the Commonwealth moved to revoke Grove’s probation, again alleging

that Grove did not have a suitable home plan.

        On August 3, 2015, the trial court held a revocation hearing on the

Commonwealth’s motion.         Grove’s attorney informed the trial court that

Grove had finally found housing with the Just for Jesus Ministry in Jefferson

County, Pennsylvania. At this moment, the Commonwealth claimed - for the

first time - that Grove violated the October 9, 2013 sentencing order by

failing to “seek and complete” sex offender treatment while in jail and

“[taking] himself out of … sex offender treatment programs.” N.T., 8/3/15,

at 4.    The trial court responded: “Well, that changes the dynamics of this

case dramatically. The last time we were here, I was told the sole reason he

wasn’t paroled was he didn’t have a house. That’s not the case, obviously.”

Id. at 4.

        Later in the hearing, the following took place:

        THE COURT: Well, I would note in my sentence of October [9 th] -
        and this may shorten this entire process - ‘while under
        supervision, the Defendant shall be subject to the terms and
        conditions of supervision as set forth in Judicial Administration
        Order AD-01 of 2007, and the standard special conditions for sex
        offenders as set forth by the Pennsylvania Board of Probation
        and Parole which were effective March 2012 and attached hereto
        as Appendix 1. Condition No. 1, you must obtain a sex offender

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J-A09025-16


     evaluation from a sex offender treatment provider who is
     approved by probation and parole supervision staff. You must
     comply with and successfully complete all treatment
     recommendations.’ It would seem to me that the Department of
     Corrections’ assessment would be an evaluation from a sex
     offender treatment provider and the recommendation is to
     complete -- successfully complete the treatment program. If he
     has refused to do that, he has clearly violated the condition of
     the Court. That is a ground[] for revocation and resentencing
     because he has chosen not to do that. It’s not a matter of
     funding, it’s not a matter of no one wanting him here, it’s not a
     matter of putting him back on the street. So if in his entire time
     that he is in the state prison he has refused to complete the
     programming, that is an obvious violation which he had total
     control of to vindicate the authority of the Court which required
     that, incarceration - or revocation and reincarceration would be
     appropriate to complete the sex offender program which he has
     not done.

     Do we have an answer to the question? Mr. Ulmer, do you want
     to ask your client whether I am going to inconvenience the Court
     and everyone else one more time by continuing this matter to
     get an answer to that question or is he going to make this a little
     easier and allow him to get back to state prison to complete the
     recommended and required treatment which would then allow
     him to go to a halfway house and may solve the entire dilemma
     with which he is faced?

     DEFENSE COUNSEL: Your Honor, I don’t even need to ask my
     client. On his behalf I’m going to say, yes, we are going to
     inconvenience the Court. With all due respect, I believe what
     you were just referencing, and this may put us in a Catch-22,
     was prefaced with, ‘while under supervision’. My client wasn’t
     just under supervision at the time, he was still incarcerated, so,
     therefore, he did not violate the term of his supervision; in
     addition to which, that has not been pled as a violation here
     today; and finally, and certainly based off of what’s here today, I
     don’t think the defense would be willing to make that concession
     without further investigation. And, no, we don’t like the idea of
     inconveniencing the Court. And practically speaking, we
     understand the concerns of the Court and the Commonwealth,
     but I’m not going to push my client out an open window.




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       THE COURT: It’s my word ‘supervision’. It does not say
       probation or parole. He’s under supervision while he’s in the
       state system. He could have obtained the evaluation while in the
       state system and complied with the treatment. My word, not
       necessarily meaning - if I wanted to say probation and parole, I
       would have said, ‘While under probation and parole’.2 I said,
       while under supervision. Supervision of the Department of
       Corrections, the Board of Probation or Parole, it doesn’t matter
       whom he’s under the supervision of. So let’s get that on the
       record right now. It’s my word. It’s my definition, not somebody
       else’s, including the legislature.

N.T., 8/3/15, at 34-36 (emphasis added).          The trial court continued

revocation proceedings to a later date while stating: “I will be curious to

know whether the defendant has completed any sex offender programming

while in the state system.” Id. at 41.

       On August 13, 2015, the Commonwealth filed an amended motion to

revoke probation/parole, this time alleging that Grove had mandatory sexual

offender treatment requirements under the February 18, 2011, July 26,

2011 and October 9, 2013 orders but failed to complete them while

incarcerated.      Grove’s failure to obtain treatment, the Commonwealth

continued, made it likely that he would violate his probationary conditions on

the street.




____________________________________________


2
   The trial court was incorrect. As stated above, Condition 1 of the Special
Conditions For Sex Offenders, which the court incorporated into its October
9, 2013 order, states that Grove must obtain a sex offender evaluation by a
provider who is approved by “parole and probation supervision staff”.



                                           -8-
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      On September 15, 2015, the trial court held another revocation

hearing. At the outset, the trial court observed with regard to its October 9,

2013 sentencing order:

      I’m just saying: ‘The Court entered sentencing’ - Paragraph 3:
      ‘The Court entered sentencing orders making sexual offender
      treatment mandatory during his periods of probation
      supervision,’ well, that and - I didn’t say probation. It was
      supervision. Paragraph 2 of this Court’s February 18th, 2011
      sentence says: The Defendant shall successfully enroll in,
      participate in, and complete a program for sex offenders
      approved by the Pennsylvania Board of Probation and Parole.
      That was required back in 2011.

N.T., 9/15/15, at 7.   David Gorman, a psychological services specialist at

SCI Waymart, a state prison facility, testified that Grove refused to attend

sex offender treatment while he was an inmate at SCI Waymart in 2014.

Id. at 10.    Gorman testified: “[A]ll our DOC programming is voluntary.

There are consequences for not participating. It is unlikely an inmate will be

granted parole if he doesn’t participate in programming; but other than that,

there’s no consequences.” Id. at 20.

      The trial court declined to revoke probation for the original alleged

violation, failure to have a home plan.      The trial court considered the

Commonwealth’s motion on this subject as seeking an “anticipatory violation

of probation. I am not persuaded that we can revoke someone’s probation

because of what we think they may or may not do once they are placed on

probation … The defendant will not be revoked on any anticipatory violation

for not having a home plan…” Id. at 45.


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       Instead, the trial court stated that Grove violated the October 9, 2013

sentencing order by refusing to attend sex offender treatment while serving

the imprisonment portion of his sentence:

       This is a situation where the Defendant was facing a split
       sentence, the first period of incarceration where he was given
       the opportunity for the treatment was to be followed by
       probation. This is not an anticipatory violation. This was a
       violation that occurred prior to that aspect of the sentence taking
       effect. The law is clear, a defendant can violate a condition of
       probation prior to that aspect of the sentence taking effect. That
       is exactly what happened here. The Defendant was required to
       complete sex offender treatment and participate in that. He
       refused multiple times. At that point, he violated the conditions
       of his probation even though that aspect of the sentence has not
       been in place – or had not been in place.

Id. at 46-47.

       The trial court sentenced Grove to 4-86 months in state prison. Id. at

48. This appeal followed.3 Grove complied with Pa.R.A.P. 1925. The trial

____________________________________________


3
   On September 25, 2015, Grove filed post-sentence motions seeking
reconsideration of his sentence. On October 15, 2015, Grove appealed to
this Court. This appeal was premature, because the trial court had not yet
ruled on Grove’s post-sentence motions. Commonwealth v. Claffey, 80
A.3d 780, 783 (Pa.Super.2013).

We have remedied this problem in the following manner. Pa.R.Crim.P. 720
provides, with one exception not relevant here, that “if the judge fails to
decide the motion within 120 days … the motion shall be deemed denied by
operation of law.” Pa.R.Crim.P. 720(B)(3)(b).          On June 3, 2016, we
directed the trial court to enter an order denying Grove’s post-sentence
motions by operation of law. On June 7, 2016, the trial court entered this
order on its docket, thus perfecting our jurisdiction over this appeal on that
date.    See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof”).



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court did not file a formal opinion but simply entered an order referring us to

the reasons it gave during the September 15, 2015 hearing for revoking

Grove’s probation.

          Grove raises four issues in this appeal:

          1. Were [Grove]’s procedural due process rights violated when
          the Court sentenced him for an alleged violation which was not
          raised by the Commonwealth in either of its two Motions to
          Revoke?

          2. Did [Grove] violate any existing probation order where there
          was no order requiring him to complete sexual offender’s
          programming while in the State Prison[?]

          3. Should [Grove] have been sentenced to a period of total
          confinement following a probation revocation where the
          conditions permitting a court to order total confinement, as
          contained in [] 42 Pa.C.S. [§] 9771(c), had not been met?

          4. Should Grove have been given credit in his sentencing order
          for the time he spent detained from May 19, 2015 until his
          sentence of September 15, 2015 pursuant to 42 Pa.C.S. [§]
          9760?

Brief For Appellant, at 3. The second issue is dispositive.

          In an appeal from a sentence imposed following the revocation of

probation, “[o]ur review is limited to determining the validity of the

probation revocation proceedings and the authority of the sentencing court

to consider the same sentencing alternatives that it had at the time of the

initial    sentencing.”     Commonwealth         v.   Fish,   752   A.2d   921,   923

(Pa.Super.2000) (citing 42 Pa.C.S. § 9771(b)). Revocation of a probationary

sentence is entrusted to the sound discretion of the trial court, and we will



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not disturb that court’s decision in the absence of an error of law or an

abuse of discretion. Commonwealth v. Smith, 669 A.2d 1008, 1011

(Pa.Super.1996).

      A violation of probation merits revocation when the Commonwealth

proves 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 him from

future antisocial conduct.   Commonwealth v. Sims, 770 A.2d 346, 350

(Pa.Super.2001).

      Since 2002, Grove has been in jail for all but 2 days (the brief period

following his release in 2010). None of his sentencing orders stated that he

was required to undergo sex offender treatment during “imprisonment”;

they only required sex offender treatment while on “supervision”.

      The trial court construed the term “supervision” in its October 9, 2013

order to mean that the court itself was Grove’s supervisor while Grove was

in prison. The trial court determined that Grove was required to obtain sex

offender treatment while on the court’s “supervision”, i.e, while in prison,

and that Grove’s failure to do so constituted a violation of probation. We do

not agree with this interpretation of the order.          Imprisonment and

supervision are separate and distinct levels of restriction. Imprisonment, the

more restrictive of the two, occurs when the defendant is a prison inmate.

Supervision, the lesser restriction, occurs when the individual is released


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into the community and his daily activities are supervised by a parole and

probation officer in a manner that protects society. The natural meaning of

“supervision” is that it would begin after Grove’s release from prison into the

community. “Supervision” did not take place during Grove’s imprisonment,

as the trial court contends. Since Grove was never out of jail after October

9, 2013, it was impossible from October 9, 2013 onward for him to violate

the term of “supervision” requiring sex offender treatment.

      It is instructive to examine the language in the court’s 2011

sentencing orders, the same orders that the trial court referenced in the

course of interpreting the October 9, 2013 order.        N.T., 9/15/15, at 7

(court’s observation that its 2011 orders mandated sex offender treatment).

The February 18, 2011 sentencing order states that following Grove’s term

of imprisonment, there was to be:

      one hundred thirty-four (134) months of consecutive probation
      to be supervised by the Pennsylvania State Board of Probation
      and Parole. The Defendant shall be subject to such terms and
      conditions of supervision as set forth in Judicial Administrative
      Order AD-0000001-2007 and such other terms and conditions as
      may reasonably be imposed by the Pennsylvania Board of
      Probation and Parole or such other appropriate supervising
      authority which shall include, but not be limited to, the following
      [11 conditions]: … 2. The Defendant shall successfully enroll in,
      participate in, and complete a program for sex offenders
      approved by the Pennsylvania Board of Probation and Parole.

Order,   2/18/11   (emphasis    added).      This   language   clearly   moors

“supervision” and sex offender treatment to Grove’s probationary period, not

to his term of imprisonment.


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     Similarly, in Grove’s July 26, 2011 sentencing order, paragraph 2

states that Grove is sentenced to 110 months’ probation after a term of

imprisonment. Paragraph 3 states that

     the period of probation is to be specially supervised by the
     Pennsylvania State Board of Probation and Parole. While on
     probation, he will be subject to the conditions of probation set
     forth in a Judicial Administration Order filed to CP-60-AD-
     0000001 of 2007. He will also be subject to a condition that he
     not reside in any residence where any minors reside and that he
     not be left in the company of any minors by anyone.

Order, 7/26/11 (emphasis added). Paragraph 4 continues that “in addition

to the conditions of supervision imposed above, the Defendant will be

subject to the conditions of supervision in Numbered Paragraphs 1 through

11 in the Court’s Order and Sentence of February 18, 2011.” Id. (emphasis

added). Once again, “supervision” and sex offender treatment are tethered

to Grove’s probation, not his term of imprisonment.

     The October 9, 2013 order again imposes probation consecutive to

imprisonment, stating:

     The Defendant is sentenced on Count No. 1 to a period of
     incarceration in a State Correctional Institution of not less than
     one hundred fifty-three (153) days nor more than twenty-four
     (24) months. The Defendant shall receive credit for time served
     from May 19, 2013, to today’s date, that sentence to be followed
     by a period of eighty-six (86) months of consecutive probation.

     While under supervision, the Defendant shall be subject to the
     terms and conditions of supervision as set forth in Judicial
     Administration Order AD-0000001 of 2007 and the Standard
     Special Conditions for Sex Offenders as set forth by the
     Pennsylvania Board of Probation and Parole which were effective
     in March 2012 and attached hereto as Appendix 1.


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J-A09025-16


Order, 10/19/13 (emphasis added). “While under supervision” immediately

follows “eighty-six (86) months of consecutive probation” imposed in the

preceding paragraph.       Moreover, “terms and conditions of supervision as set

forth in Judicial Administration Order AD-0000001 of 2007” is the same

condition that the trial court imposed in the probationary portions of Grove’s

February 18, 2011 and July 26, 2011 revocation orders.               Finally, the

Standard Special Conditions for Sex Offenders4 requires sex offender

treatment under conditions prescribed by the Pennsylvania Board of

Probation and Parole. Standard Special Condition 1 requires a sex offender

evaluation by a provider approved by “probation/parole supervision staff.”

Nothing in the Standard Special Conditions vests authority in the trial court.

Nothing in the Standard Special Conditions requires sex offender treatment

in prison; they do not take effect until the defendant’s release from prison.

Thus, like Grove’s prior sentencing orders, the October 9, 2013 order

demonstrates that sex offender treatment was a condition of probation that

Grove only had to satisfy after his release, not a condition that he had to

fulfill in prison. The trial court’s ruling to the contrary was erroneous.

       Compounding this error was the trial court’s fictitious assertion that

the court itself was Grove’s “supervisor” during his imprisonment. There is

simply no authority for the proposition that the trial court is an inmate’s
____________________________________________


4
    See page 5, supra.




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J-A09025-16


“supervisor” during his imprisonment.          The DOC is the only supervisor of

prison inmates’ daily life.       Outside of jail, probation officers are the only

supervisors of state parolees’ or probationers’ daily lives. Because Grove’s

only supervisor in prison was the DOC, the trial court erred by deeming itself

Grove’s “supervisor” in prison and using this determination to revoke

Grove’s probation before it began.

       Although some decisions authorize the trial court to revoke probation

before the probationary term has begun, these decisions are distinguishable

from Grove’s case. In multiple cases, this Court has held that the court can

revoke probation when the defendant commits new crimes before the

probationary term begins.5 In another case, this Court upheld revocation of

probation when the defendant violated a condition of work release during the



____________________________________________


5
    See, e.g., Commonwealth v. Wendowski, 420 A.2d 628
(Pa.Super.1980) (when defendant pled guilty to receiving stolen property
before another judge, Judge Carson revoked probation, even though
defendant had not completed sentences before other judges; on appeal,
Judge Carson’s revocation order affirmed on ground that probation was a
privilege instead of a contract, thus commission of new offenses warranted
revocation of privilege of probation because it showed that defendant “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”);
Commonwealth v. Dickens, 475 A.2d 141 (Pa.Super.1984) (same result
where defendant committed new crimes of assault, reckless endangerment
and endangering welfare of children before beginning probationary term for
voluntary manslaughter); Commonwealth v. Ware, 737 A.2d 251
(Pa.Super.1999) (same result where defendant committed new retail theft
before beginning probationary term for prior retail theft).



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imprisonment        portion     of    his      sentence   by   consuming   alcohol.

Commonwealth v. Hoover, 909 A.2d 321 (Pa.Super.2006). We reasoned:

       Although Appellant did not, strictly speaking, violate the law by
       becoming intoxicated, he clearly violated the terms of his work
       release and demonstrated to the court that he is unworthy of
       probation. The record reflects that the trial judge was cognizant
       of Appellant’s extensive history of alcohol abuse, numerous prior
       DUI convictions, and apparent inability to control his addiction to
       alcohol. The court concluded that, in light of Appellant’s
       behavior, Appellant would be difficult to supervise while on
       probation and posed a risk to the community in that he was
       likely to commit new crimes.

Id. at 324.     Revocation of probation in advance of the probationary term

was permissible in these cases because it was foreseeable to the defendant

that new crimes or violations of work release terms would result in

sanctions. Here, in contrast, Grove did not commit any new crime in prison

or violate express terms of work release.             Indeed, Grove did not violate

anything at all. The October 9, 2013 order only required him to obtain sex

offender treatment after his release from jail.           It did not require him to

obtain sex offender treatment in prison as well.6




____________________________________________


6
  Tellingly, the lone DOC witness at Grove’s revocation hearing, Mr. Gorman,
testified that failure to attend sex offender treatment in prison does not
result in sanctions against the prisoner, because the sex offender treatment
program is voluntary. N.T., 9/15/15 at 20 (“[A]ll our DOC programming is
voluntary. There are consequences for not participating. It is unlikely an
inmate will be granted parole if he doesn’t participate in programming; but
other than that, there’s no consequences”).



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J-A09025-16


      For these reasons, we resolve the second issue in Grove’s appeal by

concluding that the trial court erred in revoking his probation.       Given this

decision, we need not address Grove’s first, third or fourth issues.

      Judgment of sentence reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2016




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