J-S61008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

KYLE DAVIS SMITH

                            Appellee                     No. 76 MDA 2015


              Appeal from the Order Entered December 22, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000939-2011


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                           FILED NOVEMBER 13, 2015

        Appellant, the Commonwealth of Pennsylvania, appeals from the order

modifying the conditions of Appellee, Kyle Davis Smith’s probation from

supervised to unsupervised.           The Commonwealth argues that the order

improperly deprives it of the benefit of the negotiated plea bargain it reach

with Smith. We agree with the trial court that modifications of the terms of

probation are inherently discretionary within the power of the probation

office, which falls under the supervision of the trial court.     We therefore

affirm.

        On April 27, 2011, Smith entered a guilty plea to charges arising from

Smith’s driving while intoxicated.         Smith was a minor at the time of the
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*
    Retired Senior Judge assigned to the Superior Court.
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offense.   The trial court accepted Smith’s plea agreement with the

Commonwealth, and sentenced         Smith   to   five   years   of intermediate

punishment.    The first 45 days were to be served in work release, the

following 45 days on house arrest with electronic monitoring. Following the

first 90 days, the trial court sentenced Smith to two months of intensive

supervision. The trial court placed no explicit conditions upon the remainder

of the sentence imposed.

      On December 11, 2014, Smith filed a petition to terminate his

sentence with the trial court.   After a conference on the petition, the trial

court indicated that it would not terminate the sentence of probation, but

that it would modify the terms of probation to unsupervised for the

remainder of the sentence. The next day, the trial court entered an order

denying the petition to terminate, but modifying the terms of probation to

unsupervised. The Commonwealth filed a motion for reconsideration, which

the trial court denied. This timely appeal followed.

      On appeal, the Commonwealth argues that it has been deprived of the

benefit of the plea agreement it reached with Smith. The Commonwealth is

entitled to the enforcement of the terms of a plea agreement that has been

accepted by the sentencing court. See Commonwealth v. Coles, 530 A.2d

453, 458 (Pa. Super. 1987). The sentencing court may not impose a lesser

sentence than that which the parties agreed to if the Commonwealth has

already modified its charges pursuant to the plea agreement.               See


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Commonwealth v. Parsons, 969 A.2d 1259, 1269-1270 (Pa. Super.

2009).

     However, the Commonwealth’s reliance on Coles and Parsons is

misplaced. In both cases, the sentencing court failed to abide by an explicit

term of the plea agreement, and therefore the sentences were vacated. In

Coles, the plea agreement recommended, and the sentencing court initially

imposed, a minimum term of imprisonment of 2½ years. Upon motion for

reduction filed by the defendant, the trial court subsequently reduced the

minimum term of imprisonment to 2 years. Similarly, in Parsons, the plea

agreement called for a term of imprisonment of 6 to 23 months.            The

sentencing court, however, imposed only a 3 month sentence of probation.

Here, the plea agreement explicitly called for a sentence of intermediate

punishment for 5 years, with additional conditions of work release for 45

days, house arrest for 45 days, and intensive supervision for 2 months.

     The Commonwealth does not argue that any of these explicit

conditions have been violated.    Rather, the Commonwealth argues that

supervised probation is an implicit condition of the plea agreement.      The

Commonwealth’s position is premised upon the fact that the condition of

unsupervised probation is listed on the form order but is unchecked. Thus,

the Commonwealth contends the trial court is without the power to modify

the terms of supervision.




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      It is undisputed that, absent the plea agreement, the sentencing court

“may at any time terminate continued supervision or lessen or increase the

conditions” of a sentence of probation. 42 Pa.C.S.A. § 9771(a). A hearing is

required if the court desires to revoke a sentence of probation or increase

the conditions of the sentence, but no hearing is required to eliminate the

sentence or decrease the conditions.     See 42 Pa.C.S.A. § 9771(d). Thus,

the only question left before us is whether the lack of a check mark on the

form order constitutes an explicit imposition of its negative.

      We conclude that it does not.       If the check box for unsupervised

probation had been marked, it would have required the initial conditions of

the probation, after the approximately 5 months explicitly dealt with in other

provisions, to be unsupervised, as part of the benefit Smith received from

the bargain.   The fact that the check box is unmarked is not conclusive

evidence of any other proposition than Smith did not have a right to

unsupervised probation.     The form agreement provides a space for any

additional explicit conditions that either party wishes to include. Therefore,

the absence of a mark in the unsupervised probation box is appropriately

interpreted to mean that the amount of supervision required is subject to the




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discretion of the court, as normally, but necessarily, exercised by the

probation department of the Court of Common Pleas.1

       The Commonwealth concedes that the behavior of the probationer can

justify a subsequent modification of the conditions of probation, despite the

presence of a plea agreement, as an inherent part of the process of

probation.     See Appellant’s Brief, at 15.          However, the Commonwealth

makes much of the fact that, in this case, it is the sentencing court ordering

a modification of the conditions, and not a probation officer acting within his

normal discretion.

       We find the Commonwealth’s argument inapposite. As noted above,

the Lancaster County Adult Probation and Parole Services agency exercises

this   discretion   only   as   a   designee     of   the   sentencing    court.   The

Commonwealth does not provide any authority to the contrary.

       Thus, we conclude that the trial court had the power, pursuant to 42

Pa.C.S.A. § 9771, to modify any conditions of the sentence of probation not

addressed by an explicit provision of the plea agreement.                Since the form

order did not contain any explicit prohibition of unsupervised probation, the


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1
   We take judicial notice of the fact that The Lancaster County Adult
Probation and Parole Services is under the supervision of the President
Judge of the Court of Common Pleas of Lancaster County, and the agency’s
director reports to the District Court Administrator.    See https://pa-
lancastercountycourts.civicplus.com/122/Adult-Probation,        retrieved
10/29/15.



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sentencing court did not deprive the Commonwealth of the benefit of the

plea agreement. The Commonwealth’s arguments on appeal merit no relief.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2015




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