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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                    Appellee

               v.

 DOUGLAS AKINS

                    Appellant                     No. 1520 WDA 2018
      Appeal from the Judgment of Sentence Entered October 8, 2018
                In the Court of Common Pleas of Erie County
          Criminal Division at No(s): CP-25-CR-0001459-1994

BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                         FILED JULY 19, 2019

     Appellant, Douglas Akins, appeals pro se from the judgment of sentence

entered in the Erie County Court of Common Pleas, following revocation of his

probation. For the following reasons, we vacate the probation revocation and

revocation sentence and remand with instructions.

     The relevant facts and procedural history of this case are as follows. On

February 9, 1995, a jury convicted Appellant at Docket No. CR-1459-1994 of

three drug offenses and criminal conspiracy. The court sentenced Appellant

on March 8, 1995, to a term of 3 to 10 years' incarceration for the drug
offenses and 10 years of consecutive probation for conspiracy, plus court costs

and fines. This Court affirmed the judgment of sentence on January 26, 1996.

See Commonwealth v. Akins, 676 A.2d 277 (Pa.Super. 1996) (unpublished

memorandum). Appellant sought no further review. Between 1996 and 2004,
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Appellant unsuccessfully pursued at least three petitions for collateral review

under the Post Conviction Relief Act ("PCRA") at 42 Pa.C.S.A. §§ 9541-9546.

      Meanwhile, Appellant was arrested in 2002 under Docket No. CR-1306-

2002, due to various parole violations, including new drug offenses. These

criminal offenses led to new convictions and a sentence of 5 to 10 years of

incarceration to be served concurrent and overlapping with the remainder of

his incarceration at Docket No. CR-1459-1994.        This Court affirmed the
judgment of sentence on April 22, 2004, and our Supreme Court denied
allowance of appeal on December 8, 2004. See Commonwealth v. Aiken,

a/k/a Douglas Akins, 852 A.2d 1242 (2004), appeal denied, 581 Pa. 689,

864 A.2d 528 (2004).

      In 2017, Appellant's wife petitioned for a protection from abuse ("PFA")

order against Appellant, which the court entered in September 2017.         On

August 2018, the Commonwealth charged Appellant at Docket No. MD -499-

2018 with indirect criminal contempt ("ICC") for violating the PFA order. The

court convicted Appellant of ICC on September 5, 2018. That same day, the

court sentenced Appellant to 45 (forty-five) days to six (6) months'
incarceration. Appellant appealed that judgment of sentence on September

20, 2018.

      While his appeal at Docket No. MD -499-2018 was pending, on October

8, 2018, the court conducted a joint hearing under Commonwealth v.
Grazier, 552 Pa. 9, 713 A.2d 81 (1998) and a violation of probation ("VOP")


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hearing at Docket No. CR-1459-1994.         Appellant's ICC conviction was the

Commonwealth's sole basis for revocation of Appellant's probation. (See N.T.

Revocation, 10/8/18, at 10, 15.)

      During the hearing, Appellant objected to the proceeding on the
following bases: (i) he had not received notice of his alleged probation

violation prior to the October 8th hearing; (ii) he was entitled to a Gagnon II -

hearing; and (iii) his probation at Docket No. CR-1459-1994 had expired the

week before the VOP hearing. At the hearing, the court revoked Appellant's

probation at Docket No. CR-1459-1994, and resentenced him to three (3) to

twelve (12) months' incarceration.

      Appellant timely filed pro se post -sentence motions on October 11,

2018, and October 12, 2018.        On October 15, 2018, the revocation court

denied the post -sentence motions. Appellant timely filed a notice of appeal

on October 22, 2018. The court ordered Appellant on October 24, 2018, to

file a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b); Appellant timely complied on November 1, 2018.

      Appellant raises the following issues for our review:

         (1) WHETHER THE COURT COMMITTED AN ABUSE OF
         DISCRETION OR ERROR OF LAW WHEN IT REVOKED
         [APPELLANT'S] PROBATION AND RESENTENCED HIM AFTER
         HIS PROBATIONARY TERM HAD EXPIRED ON THE GROUNDS
         THAT HE ALLEGEDLY COMMITTED A NEW OFFENSE WHERE
         HE DID NOT VIOLATE ANY SPECIFIC CONDITION OF HIS
         PROBATION PURSUANT TO 42 [PA.C.S.A.] § 9754(C) OR 37


1 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
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         [PA. CODE] § 65.4 GOVERNING SPECIAL PROBATION, NOR
         DID HE VIOLATE THE PUBLIC LAW?

         (2) WHETHER APPELLANT'S DUE PROCESS [RIGHTS]
         W[ERE] VIOLATED/SATISFIED WHERE HE NEVER RECEIVED
         WRITTEN NOTICE OR ANY NOTICE OF ANY SORT BY HIS
         PROBATION        OFFICER      OR    ANYONE       FROM      THE
         [PENNSYLVANIA BOARD OF PROBATION AND PAROLE
         ("PBPP")] OF AN ALLEGATION AGAINST HIM NOR WHAT
         CONDITION OF PROBATION HE ALLEGEDLY VIOLATED, NOR
         DISCLOSURE OF EVIDENCE AGAINST HIM PRIOR TO HIS
         PROBATIONARY TERM EXPIRING OR AFTER IT EXPIRED[?]

         (3) WHETHER [APPELLANT]'S DUE PROCESS [RIGHTS]
         [W]ERE VIOLATED/SATISFIED WHERE HE WAS NOT
         AFFORDED A GAGNON I PRELIMINARY HEARING TO
         DETERMINE IF PROBABLE CAUSE EXISTED TO BELIEVE
         THAT [APPELLANT] VIOLATED HIS PROBATION TO DETAIN
         [APPELLANT] NOR DID HE WAIVE HIS RIGHT TO THAT
         HEARING PRIOR TO HIS PROBATIONARY TERM EXPIRING
         OR AFTER IT EXPIRED?

         (4) WHETHER THE COURT THAT REVOKED [APPELLANT]'S
         PROBATION HAD THE LEGAL AUTHORITY TO REVOKE
         [APPELLANT]'S PROBATION WHERE IT WAS NOT THE TRIAL
         COURT THAT PLACED [APPELLANT] ON PROBATION[?][2]

         (5) WHETHER [APPELLANT]'S PROBATION COULD BE
         REVOKED WHERE [APPELLANT]'S PROBATION OFFICER
         NOR ANYONE FROM THE PBPP ALLEGED AN[] ALLEGATION
         AGAINST [APPELLANT] NOR DID THE COMMONWEALTH
         PETITION TO HAVE HIS PROBATION REVOKED?


2 Appellant cites no relevant law to support his argument that the revocation
court lacked jurisdiction to revoke his probation and resentence him, because
the jurist was not the same jurist who had originally sentenced Appellant. See
Pa.R.A.P. 2119(a); Commonwealth v. Johnson, 604 Pa. 176, 191, 985 A.2d
915, 924 (2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165
(2010) (providing claim is waived where appellate brief does not include
citation to relevant authority or fails to develop issue in any meaningful fashion
capable of review). Therefore, Appellant's fourth issue is waived, and we will
give it no further attention.


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(Appellant's Brief at 8, 11, 13, 15, 16).3

      In his remaining issues combined, Appellant argues he had completed

his probationary term at Docket No. CR-1459-1994 before the 2018 VOP

hearing. Appellant contends he received no notice, written or otherwise, that

he had allegedly violated the terms of his probation before the October 2018

revocation hearing. Appellant submits the Commonwealth and PBPP did not

file a petition to revoke his probation. Appellant also maintains the revocation

court failed to conduct a Gagnon I hearing. Appellant asserts his 2018 ICC

conviction did not constitute a violation of probation. Appellant concludes this

Court should vacate the VOP judgment of sentence.        For other reasons, we

agree some relief is due.

      When reviewing the outcome of a revocation proceeding, this Court is

limited to determining the validity of the proceeding, the legality of the
judgment of sentence imposed, and the discretionary aspects of sentencing.

Commonwealth v. Cartrette, 83 A.3d 1031, 1033-34 (Pa.Super. 2013) (en

banc). "In general, the imposition of a 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." Commonwealth



3 Appellant's issues appear only as headings in the argument section of his
brief but not in a discrete statement of questions presented section, in
technical violation of the rules of appellate procedure. See Pa.R.A.P. 2116(a).
Nevertheless, we decline to waive the remaining issues on this basis.

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v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).

      Pennsylvania Rule of Criminal Procedure 708 governs violations of

parole/probation, in pertinent part, as follows:

         Rule 708.       Violation of Probation, Intermediate
         Punishment, or Parole; Hearing and Disposition
            (A)   A written request for revocation shall be filed with
         the clerk of courts.

            (B) Whenever a defendant has been sentenced to
         probation or intermediate punishment, or placed on parole,
         the judge shall not revoke such probation, intermediate
         punishment, or parole as allowed by law unless there has
         been:

            (1)  a hearing held as speedily as possible at which the
         defendant is present and represented by counsel; and

            (2)   a finding of record that the defendant violated a
         condition of probation, intermediate punishment, or parole.

Pa.R.Crim.P. 708(A) -(B).    Additionally, regarding revocation of probation,

Section 9771 of the Sentencing Code provides:

         § 9771.       Modification or revocation of order of
         probation
            (a) General rule.-The court may at any time
         terminate continued supervision or lessen or increase the
         conditions upon which an order of probation has been
         imposed.

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

            (c)     Limitation     on        sentence     of     total

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          confinement.-The court shall not impose a sentence of
          total confinement upon revocation unless it finds that:

             (1)    the defendant has been convicted of another
          crime; or

             (2)    the conduct of the defendant indicates that it            is
          likely that he will commit another crime if              he is not
          imprisoned; or

             (3)   such a sentence        is   essential to vindicate the
          authority of the court.

             (d) Hearing required.-There shall be no revocation
          or increase of conditions of sentence under this section
          except after a hearing at which the court shall consider the
          record of the sentencing proceeding together with evidence
          of the conduct of the defendant while on probation.
          Probation may be eliminated or the term decreased without
          a hearing.

42 Pa.C.S.A. § 9771.

      "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) (internal citations omitted). A Gagnon I hearing is not

required, however, where the probationer has already been convicted of the

offense   forming     the   basis   for    the        revocation   of   his   probation.

Commonwealth v. Davis, 336 A.2d 616 (Pa.Super. 1975).                              "Without

question, [a probationer is] entitled to written notice of [a] revocation hearing,

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and to adequate time to prepare for it." Commonwealth v. King, 430 A.2d

990, 991 (Pa.Super. 1981).

      Additionally, a court cannot revoke probation for conduct that a

defendant committed after his sentence is complete.        Commonwealth v.
Wright, 116 A.3d 133 (Pa.Super. 2015). On the other hand, "a sentence for

a violation of the terms of probation can be imposed after the expiration of

the probationary period if the revocation is based on a violation which occurred

within the probationary period." Id. at 137. "[I]n that circumstance, the

probation must be revoked and the [VOP] sentence must be imposed within a

reasonable time after the expiration of the probationary period." Id. (vacating

VOP judgment of sentence where evidence was insufficient to prove defendant

committed new offenses while still on probation; moreover, VOP hearing as to

defendant's alleged reporting violations was untimely, where it took place over

two and one-half years after defendant's probation had ended). Otherwise,

the VOP sentence will be deemed illegal. Commonwealth v. Mathias, 121

A.3d 558 (Pa.Super. 2015).

      Issues related to the legality of a sentence are questions of law.
Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super 2008), appeal

denied, 598 Pa. 755, 955 A.2d 356 (2008). When the legality of a sentence

is at issue on appeal, our "standard of review is de novo and our scope of

review is plenary."   Id. at 256. "An illegal sentence must be vacated."
Commonwealth v. Watson, 945 A.2d 174, 178-79 (Pa.Super. 2008). See


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Commonwealth v. Kitchen, 814 A.2d 209, 214 (Pa.Super. 2002), aff'd, 576

Pa. 229, 839 A.2d 184 (2003) (stating legality of sentence may be subject of

inquiry by appellate court sua sponte).

      Pennsylvania law at 42 Pa.C.S.A. § 9757 mandates the "automatic

aggregation of sentences once a trial court imposes a consecutive sentence."

Commonwealth v. Allshouse, 33 A.3d 31, 35 (Pa.Super. 2011), appeal
denied, 616 Pa. 649, 49 A.3d 441 (2012).         Thus, periods of consecutive

incarceration are combined before the running of a term of probation. Id. at

36.   Pennsylvania law does not permit "defendants to serve a term of
probation and a term of state incarceration simultaneously." Id. (rejecting

any argument on concept of "constructive probation," that is, simultaneous

service of incarceration and probation).      See also Commonwealth v.
Brown, 145 A.3d 184 (Pa.Super. 2016), appeal denied, 641 Pa. 56, 165 A.3d

892 (2017) (applying Allshouse to hold defendant's state probation began

only after he was released from federal custody, not when his state term of

incarceration ended and his federal custody began; rejecting concept of
service of state "constructive probation" during period of unrelated federal

incarceration).   "[P]robation rehabilitates a defendant in a less restrictive
manner than total confinement. As such, logic would lead to the conclusion

that a term of probation cannot be served while the defendant is imprisoned

on an unrelated sentence, whether it be in a state facility as in Allshouse or

in federal custody as with Brown." Id. at 188.


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       Instantly, on March 8, 1995, the court sentenced Appellant at Docket

No. CR-1459-1994 to a term of 3 to 10 years' incarceration for the drug
offenses and 10 years of consecutive probation for conspiracy, plus court costs

and fines.4 Appellant was arrested in 2002 under Docket No. CR-1306-2002,

due to various parole violations, including new drug offenses. These criminal

offenses led     to new convictions and a sentence of 5 to 10 years of
incarceration to be served concurrent to and overlapping with the remainder

of his incarceration at Docket No. CR-1459-1994. Appellant's aggregate state

incarceration at the 1994 and 2002 docket numbers was 18 years and
conceivably ended in or around 2013. If so, then his state probationary term

of 10 years appears to have commenced in 2013. Absent more in this record,

however, we cannot say with certainty that Appellant was on probation in

August 2018, when he purportedly violated the 2017 PFA order at Docket No.

MD -499-2018. What we can say with certainty is that after the court convicted

Appellant of ICC on September 5, 2018, and sentenced him on that date, the

court promptly held a VOP hearing on October 8, 2018, and imposed the

revocation sentence of 3 to 12 months' incarceration. See Wright, supra.



4   In its Rule 1925(a) opinion, the revocation court incorrectly recites
Appellant's sentence to include a twenty-year probationary tail. (See Trial
Court Opinion, filed 12/14/18, at 2 n.1) (stating: "Appellant was
sentenced...on March 8, 1995, to 10 years of probation at Count 5,...
consecutive to Count 2.... Appellant was sentenced to 3 to 10 years of
incarceration followed by 10 years of probation at Count 2"). This statement
is inaccurate.


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Appellant appears to be still under supervision, either in prison or on parole,

in service of the revocation sentence (3 to 12 months' incarceration imposed

on October 8, 2018) that should expire sometime in October or November

2019.

        This appeal from the revocation sentence involves another legal
dilemma: while the current appeal was pending, this Court vacated Appellant's

ICC conviction and sentence and remanded with instructions for a new trial on

the ICC offense, because Appellant had been deprived of his statutory right to

counsel at the first ICC trial. See Commonwealth v. Akins,                 A.3d     I



No.     1356 WDA 2018 (Pa.Super. filed           May    24,    2019)     (unpublished

memorandum).            This     Court's   decision    to     overturn     the    ICC

offense/conviction/sentence independently and logically calls into question the

integrity of the VOP and revocation sentence, which was based solely on the

overturned ICC conviction.

        Therefore, we conclude the best resolution of this appeal is to vacate

the probation revocation and sentence imposed on the basis of the now -

vacated ICC conviction.        We decline to order a new VOP hearing at this
juncture, because the present case does not turn on some procedural flaw in

the prior VOP proceedings or the failure of the Commonwealth to produce any

evidence    of   a   probation   violation at the     prior   hearing.     Compare

Commonwealth v. Mullins, 591 Pa. 341, 918 A.2d 82 (2007) (holding as
general rule, remand for new VOP hearing should accompany reversal of
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probation revocation and vacation of related judgment of sentence, for lack of

sufficient basis for revocation; even if VOP hearing record is insufficient to

sustain revocation of probation, "court that granted probation should not be

precluded from determining whether probation remains the proper course only

because the Commonwealth failed to include certain formalities             in   the

record"). But see id. (Chief Justice Cappy concurring) (joining majority under

facts of case but writing separately to say majority decision should not be

construed "as enunciating a per se rule requiring a remand to the trial court

for a new VOP hearing in each instance where the VOP hearing record is

insufficient to support revocation of probation. Upon disposition of an appeal,

an appellate tribunal has an array of options available.      ...   Accordingly, I

cannot endorse the articulation of a bright -line rule that restricts those
options. See e.g., Commonwealth v. Griggs, 314 Pa.Super. 407, 461 A.2d

221 (1983) (Superior Court vacated the judgment of sentence of revocation

when the finding of participation in criminal activity was not substantiated at

the VOP hearing)").

      Here, this VOP case turned exclusively on a now -vacated ICC conviction;

and future, related VOP proceedings will naturally depend on the outcome of

Appellant's new trial on the ICC charge. If the new trial results in another ICC

conviction, then the Commonwealth will have the opportunity to seek
probation revocation. The Commonwealth, however, must first confirm on the

record that Appellant was still on probation at Docket No. CR-1459-1994 when


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the ICC offense allegedly occurred. As well, the Commonwealth must meet

all the other prerequisites for probation revocation. If a new ICC conviction

leads to a new VOP hearing and sentence, then Appellant must also receive

credit for the time he has already served on the revocation sentence we are

now vacating. Accordingly, we vacate both the revocation of probation and

the sentence imposed and remand with instructions. Due to our disposition,

we decline to address Appellant's remaining claims.

      Judgment of sentence vacated; case remanded with instructions.
Jurisdiction is relinquished.



Judgment Entered.




J seph D. Seletyn, Es    .


Prothonotary


Date: 7/19/2019




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