J-A08043-15


                              2015 PA Super 163

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                   Appellee                :
                                           :
                   v.                      :
                                           :
SHAHNAWAZ M. MATHIAS, JR.,                 :
                                           :
                    Appellant              :   No. 876 MDA 2014

       Appeal from the Judgment of Sentence Entered April 21, 2014
               in the Court of Common Pleas of York County,
           Criminal Division, at No(s): CP-67-CR-0006753-2005

BEFORE:    SHOGAN, WECHT, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                        FILED JULY 29, 2015

     Shahnawaz M. Mathias, Jr., (Appellant) appeals from a judgment of

sentence entered after the trial court purported to revoke his probation. We

conclude that the imposition of the judgment was illegal. Consequently, we

vacate Appellant’s judgment of sentence.

     The   procedural   background    underlying   this   matter   is   rather

complicated. This Court previously summarized it as follows.

     … On May 15, 2006, Appellant pleaded guilty to indecent assault
     and unlawful contact with a minor, and on November 15, 2006,
     the trial court imposed an aggregate sentence of five years’
     probation. Twelve days thereafter, Appellant filed a post-
     sentence motion seeking withdrawal of his “plea because he
     discovered that, as a condition of his probation,” his travel and
     contact with his minor children were limited and he was not
     permitted to consume alcohol. The trial court denied this motion
     on January 18, 2007.        Appellant then filed a counseled
     application on June 6, 2007 to modify his probation, challenging
     the probationary condition that he first obtain permission before
     travelling outside the York County area, and seeking instead

*Retired Senior Judge assigned to the Superior Court.
J-A08043-15


     merely to provide notice before traveling. The court denied this
     application on June 8, 2007.

           Appellant took appeals from both orders which were
     consolidated by this Court. The Commonwealth argued that
     Appellant’s motion to modify the conditions of his “probation was
     akin to an untimely post-sentence motion, and therefore, [his]
     appeal from the … order, which denied the application, was also
     untimely.” On September 19, 2007, this Court issued an order
     quashing that appeal.

            However, in an unpublished memorandum dated August 4,
     2008, this Court declined to find Appellant’s appeal from the
     latter order untimely.      We reasoned that the court had
     jurisdiction under 42 Pa.C.S. § 9771(a) to consider Appellant’s
     second application for relief, “which essentially sought to lessen
     a condition of [his] probation related to his traveling.”
     Nevertheless, this Court found Appellant’s issue waived for
     counsel’s untimely filing of a court-ordered Pa.R.A.P. 1925(b)
     statement. Our Supreme Court denied allowance of appeal from
     this decision on July 1, 2009.

            One day after this Court issued our memorandum, on
     August 5, 2008, Appellant filed a counseled PCRA petition,
     alleging that he “recently … discovered that the [victim] has
     [recanted] to one or more persons her accusations by admitting
     that the alleged crime was a falsehood perpetuated [sic] to
     obtain a financial advantage.” The petition further averred,
     “That information was reduced to an affidavit signed by one
     Jason Hollar,” which he attached, and that Appellant was
     “attempting to ascertain the identity of at least two … other
     individuals to whom [the victim] has recanted[.]” On August
     13th, the trial court dismissed the petition without prejudice,
     reasoning that the appeal before this Court was still pending.

            We summarize that subsequently, Appellant filed
     numerous petitions with the trial court seeking relief from the
     terms of his probation. Some of the denials of these petitions
     resulted in appeals to this Court. This Court quashed two of the
     appeals, in each holding that the relief Appellant sought related
     to his judgment of sentence, and thus his notices of appeal were
     untimely. A third appeal related to the trial court’s denial of a
     motion to modify Appellant’s probation so that he could “exercise


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      custodial rights to his children.” This Court held that Appellant’s
      motion for reconsideration of the denial of this motion was
      untimely and thus his notice of appeal was untimely. We
      therefore quashed. The last appeal stemmed from the court’s
      denial of a petition to terminate probation, which was filed while
      the third appeal was pending. This Court quashed, holding that
      because the pending appeal “also concerned the terms of his
      probation,” “the trial court was without jurisdiction to rule on”
      the latest petition.

           On May 7, 2013, approximately one month after the last
      Superior Court decision, Appellant filed [another], counseled
      PCRA petition….

Commonwealth v. Mathias, 93 A.3d 510 (Pa. Super. 2013) (unpublished

memorandum at 2-5) (citations and footnotes omitted).         The PCRA court

dismissed the PCRA petition, and this Court affirmed that order on December

13, 2013. Id.

      While the order dismissing the PCRA petition still was on appeal,

Appellant filed a “Petition to Change Treatment Providers.”1 In addition, the

York County Adult Probation Department (the Department) apparently filed a

petition in which it sought a hearing to resolve how much credit time

Appellant should receive toward his probation sentence.

      In a petition filed on October 17, 2013, which was entitled “Petition for

Hearing on Stay and Related Items,” Appellant highlighted, inter alia, that he

has been under probationary supervision since 2005, despite the fact that he




1
  As a condition of Appellant’s probation, he was required to attend
counseling.


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was sentenced to only five years of probation in 2006.2         According to

Appellant, he has not been credited for time that accrued during his various

appeals to this Court.

      The trial court held a hearing on December 3, 2013.             Several

witnesses testified at that hearing, including Albert Sabol. Mr. Sabol was the

Chief Adult Probation Officer at the Department for eleven years when he

retired in December of 2012.       According to Mr. Sabol, in 2002, then

President Judge Chronister of the York County Court of Common Pleas

issued an unwritten directive “that when a case is on appeal in an upper

court, [] the local court lacks jurisdiction and cannot change or alter a

sentence, and he directed that [the Department] no longer supervise cases

that have taken an appeal.” N.T., 12/3/2013, at 46-47. Mr. Sabol testified

that this directive was issued, in part, to avoid having to reimburse

probationers whose appeals are successful for costs they incurred as a result

of their probationary sentences.       In any event, pursuant to Judge

Chronister’s unwritten directive, the Department adopted a policy of not

supervising persons sentenced to serve probation when those persons

appeal a trial court’s decision.

      In an order entered on December 5, 2013, the trial court determined

that, because of the multiple appeals Appellant has taken related to his

2
  Appellant’s claim that he was on probation since 2005 appears to be the
product of a typographical error, given that he was not sentenced to serve
probation until 2006.


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J-A08043-15


probation, as of December 3, 2013, Appellant had served only 666 days of

his five-year probation sentence, leaving him with 1,159 days of supervision

to complete.    Furthermore, the trial court denied Appellant’s request to

change counseling centers.

      On December 13, 2013, Appellant filed a motion to reconsider the

December 5, 2013 order.       Therein, Appellant contended, inter alia, that

Judge Chronister’s “unwritten directive” is unconstitutional. The trial court

denied that motion on December 27, 2013. On January 27, 2014, Appellant

filed a notice of appeal wherein he stated his intent to appeal the order

denying his motion for reconsideration. In a per curiam order filed on May

5, 2014, this Court quashed the appeal as untimely filed. Commonwealth

v. Mathias, Jr., 208 MDA 2014.

      In the meantime, on March 14, 2014, the Department filed a petition

in the trial court wherein it sought a hearing to determine whether Appellant

had violated his probation by failing to enter and successfully complete an

approved sexual offender treatment program. The trial court held a hearing

regarding the petition on April 21, 2014.

      At the beginning of the hearing, Appellant’s counsel reminded the

court that Appellant’s appeal regarding the constitutionality of the “unwritten

directive” still was pending in this Court. Counsel also moved to quash the

Department’s petition.       As to this motion, counsel argued that the

Department was alleging that Appellant violated his probation by failing to



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J-A08043-15


attend counseling while his appeal was pending, despite the fact that,

pursuant to the “unwritten directive,” Appellant was not being supervised at

that time.

      At the conclusion of the hearing, the trial court determined that

Appellant violated his probation.       The court, therefore, revoked his

probation. The court sentenced Appellant to serve 6 to 23 months in prison.

Appellant timely filed a motion for reconsideration.       Therein, Appellant

contended, inter alia, that his sentence was excessive.        The trial court

denied the motion.

      Appellant timely filed a notice of appeal.     The trial court directed

Appellant to comply with Pa.R.A.P. 1925(b), and Appellant subsequently filed

a 1925(b) statement. The trial court responded by filing an opinion pursuant

to Pa.R.A.P. 1925(a). In his brief to this Court, Appellant asks us to consider

the questions that follow.

      1. Whether the probation directive challenged herein is facially
      unconstitutional because it forces defendants to unknowingly
      choose between their right to an appeal and their right to have
      their sentence speedily carried out?

      2. Whether the probation directive challenged in this appeal is
      procedurally unconstitutional under the due process clause as
      applied to [Appellant] because he never received actual or
      constructive notice of the times he was on or off probation, and
      because of the further impacts generated by his specific
      conviction, which are now set to continue for years more than he
      originally agreed to through his guilty plea?

      3.   Whether this unwritten directive impermissibly removes
      substantive due process from convicted persons, and [Appellant]



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J-A08043-15


      specifically, while they    remain   under    the   department   of
      probation’s supervision?

      4. Whether probation may implement a directive without written
      procedure or policy regarding that directive, and, relatedly,
      whether that unwritten policy is impermissibly vague or is
      subject to interpretation such that it would not be arbitrarily
      applied?

      5. Is the sentence of 6-23 months for a technical violation of
      probation an abuse of discretion on the part of the trial court?

Appellant’s Brief at 11-12 (Appellant’s answer’s omitted).

      Under his first four issues, Appellant raises a number of constitutional

challenges to the “unwritten directive” and the Department’s policy of not

supervising Appellant’s probation while his various appeals were pending.

He, however, ultimately contends that his sentence is illegal because his

five-year term of probation had expired when the trial court revoked his

probation and sentenced him. We need not reach the merits of Appellant’s

constitutional challenges in order to agree with him that he is serving an

illegal sentence.3

      “Issues relating to the legality of a sentence are questions of law[.] …

Our standard of review over such questions is de novo[,] and our scope of



3
 It is well settled that courts should “avoid constitutional issues if the claim
may be resolved on alternative grounds[.]” Commonwealth v. Karetny,
880 A.2d 505, 519 (Pa. 2005). We further note that the trial court and the
Commonwealth suggest that Appellant waived his constitutional challenges.
However, it is well settled that “[c]hallenges to an illegal sentence can never
be waived and may be reviewed sua sponte by the Superior Court.”
Commonwealth v. Johnson, 873 A.2d 704, 708 n.1 (Pa. Super. 2005).


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J-A08043-15


review is plenary.”    Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.

Super. 2014).

      While it is easy to get distracted by, inter alia, the procedural

complexity of this case, our determination that Appellant’s sentence is illegal

flows from a fairly straightforward analysis.    On November 15, 2006, the

trial court sentenced Appellant to serve an aggregate of five years of

probation. Over seven years after the imposition of this sentence, the trial

court purported to revoke that five-year probation sentence and to

resentence Appellant to a period of imprisonment. Yet, the certified record

is devoid of any order staying Appellant’s original sentence. Moreover, prior

to the 2014 order revoking the probation, the trial court never revoked

Appellant’s probation or resentenced him.

      The Department may very well have a policy of not supervising

probation when an appeal is pending;4 however, that policy did not act to


4
  The record indicates that the Department’s policy is fueled in large part by
a misguided belief that, pursuant to Pa.R.A.P. 1701, the court lacked
jurisdiction to supervise Appellant or to revoke his probation when an appeal
was pending. For instance, at a proceeding that took place on January 30,
2012, the trial court cited Rule 1701 in support of its belief that a court loses
jurisdiction to find a probation violation when an appeal is pending.

       As an initial matter, there simply is no language in Rule 1701 that
justifies the Department’s policy of not supervising a probationer while an
appeal is pending. As to whether a court can revoke probation while an
appeal is pending, Rule 1701 does generally state that, “after an appeal is
taken …, the trial court … may no longer proceed further in the matter.”
Pa.R.A.P. 1701(a). However, the rule explicitly allows a court, after an
appeal has been taken, to enforce an order entered in the matter. Pa.R.A.P.


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J-A08043-15


stay Appellant’s sentence and does not alter the fact that, during the

pendency of his appeals, Appellant was serving his sentence.

         When the trial court revoked Appellant’s probation and resentenced

him, Appellant’s term of probation had expired.      Consequently, the trial

court lacked the authority to revoke the probation, and the sentence of

imprisonment is illegal. See, e.g., Commonwealth v. Mitchell, 955 A.2d

433, 435 (Pa. Super. 2008) (“Under Pennsylvania law, an order of probation

can be changed or revoked if, at any time before the defendant has

completed the maximum period of probation, or before he has begun

service of his probation” the defendant commits offenses or otherwise

demonstrates he is unworthy of probation.”) (emphasis added) (citations

and quotation marks omitted).         We, therefore, vacate the judgment of

sentence.

         Judgment of sentence vacated.

         Judge Wecht joins this opinion.

         Judge Shogan files a concurring opinion in which Judge Strassburger

joins.




1701(b)(2). Thus, when Appellant’s appeals were pending, the trial court
clearly could enforce the terms of Appellant’s sentence of probation.


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J-A08043-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 7/29/2015




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