J-A17021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ACEY REAVIS                               :
                                           :
                     Appellant             :    No. 1360 EDA 2018

           Appeal from the Judgment of Sentence April 13, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-XX-XXXXXXX-2016


BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                         FILED SEPTEMBER 06, 2019

      Appellant, Acey Reavis, appeals from the April 13, 2018 judgment of

sentence entered in the Criminal Division of the Court of Common Pleas of

Philadelphia County following the revocation of his parole and probation. We

affirm.

      The trial court summarized the facts and procedural history in this

matter as follows.

      On January 11, 2016, [Appellant] was arrested for theft by
      unlawful taking, terroristic threats with intent to terrorize another,
      and simple assault based on events that occurred on December
      16, 2015. A negotiated guilty plea was entered on June 9, 2016,
      when [Appellant] appeared before the [trial court]. Pursuant to
      negotiations, [Appellant] was sentenced to [six] to 23 months of
      incarceration for simple assault, plus [three] years of consecutive
      reporting probation for terroristic threats. He [received] no
      further penalty for theft by unlawful taking.

      On May 24, 2017, [Appellant] appeared before th[e trial c]ourt for
      a violation [of parole] hearing. [Appellant] was found in technical
      violation for missing multiple scheduled office visits with his parole
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       officer, non-compliance with mental health treatment, and
       possible drug use.      [Appellant’s] parole was revoked and
       sentencing was deferred. On July 31, 2017, [Appellant] was
       sentenced to his back time with immediate parole for simple
       assault, plus the three years of probation for terroristic threats
       originally imposed. He was also required to attend outpatient
       mental health treatment.

       On October 5, 2017, [Appellant] appeared before th[e trial c]ourt
       for a violation [] hearing and was found again [to be] in technical
       violation of his [parole] for missed appointments, positive drug
       screens and failure to provide a stable address. The hearing was
       continued at that time. On October 11, 2017, his probation and
       parole were continued. The hearing was further continued until
       October 20, 2017. [Appellant] failed to appear on that date and
       a bench warrant was issued.

       On January 4, 2018, [Appellant] appeared before th[e trial court
       once] again for a violation [] hearing, [based upon] technical
       violations of drug use, inconsistent attendance for mental health
       treatment, and inconsistent reporting. On this date parole was
       continued.

       On March 29 2018, [Appellant] appeared before th[e trial c]ourt
       for a violation [] hearing and he [again] was found in technical
       violation [] for failure to report to court, positive drug tests, and
       non-attendance for mental health treatment. Sentencing was
       deferred for further information regarding allegations contained in
       the Gagnon[1] summary.

       On April 13, 2018, [Appellant’s] parole officer reported numerous
       technical violations, including failure to report to mental health
       treatment and failure to report to [the parole office]. [N.T.,
       4/13/18, at 8]. [Appellant’s] parole and probation were revoked
       and he was sentenced to back time for the simple assault charge
       and two to four years of incarceration for the terroristic threats
       charge, to run concurrently. [N.T., 4/13/18, at 12].

       On April 20, 2018, [Appellant] filed a post-sentence motion, which
       [the trial court denied] on April 23, 2018. On May 4, 2018,
       [Appellant] filed a timely appeal from [his judgment of] sentence.
       On May 8, 2018, th[e trial c]ourt entered an [o]rder directing
       [Appellant] to file a [s]tatement of [m]atters [c]omplained of [on
____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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       a]ppeal within twenty-one (21) days from the date of entry of the
       [o]rder. On May 24, 2018, [Appellant] filed both a [s]tatement of
       [e]rrors [c]omplained of on [a]ppeal and [p]etition for [e]xtension
       of [t]ime to [f]ile a [s]upplemental [s]tatement of [e]rrors
       [c]omplained of on [a]ppeal upon [r]eceipt of the [n]otes of
       [t]estimony. Th[e trial c]ourt granted [Appellant’s petition for
       extension] on May 29, 2018.

       On June 4, 2018, [Appellant] filed a [s]upplemental [s]tatement
       of [e]rrors [c]omplained of on [a]ppeal. Th[e trial c]ourt [issued
       its opinion on July 23, 2018].

Trial Court Opinion, 7/23/18, at 1-3.

       On appeal, Appellant raises the following questions for our review.

       1. When the court revoked parole for a violation of his parole did
          not the court lack authority under Pennsylvania law to also
          revoke a consecutive sentence of probation that the [Appellant]
          had not yet begun to serve?

       2. Did not the increase in punishment caused by the revocation of
          probation in violation of statutory law violate double jeopardy
          rights under the Pennsylvania and United States Constitutions?

Appellant’s Brief at 2.

       Appellant’s first claim asserts that the trial court lacked statutory

authority to revoke his probationary sentence before he began to serve it. 2

As this claim implicates the legality of Appellant’s sentence, our standard of

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

v. Hall, 994 A.2d 1141, 1144 (Pa. Super. 2010) (a sentence is illegal and

subject to mandatory correction where there is no statutory support for its

imposition); see also Commonwealth v. Williams, 980 A.2d 667, 672 (Pa.

____________________________________________


2Appellant concedes that he is not challenging the trial court’s substantive
decision to revoke his probation or parole. See Appellant’s Brief at 3.

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Super. 2009) (assertion that trial court erroneously imposed illegal sentence

is a question of law and, as such, Superior Court’s scope of review is plenary

and its standard of review is de novo), appeal denied, 990 A.2d 730 (Pa.

2010).

      In developing his contention that the trial court lacked statutory

authority to revoke a probationary sentence before it commenced (sometimes

referred to as an “anticipatory revocation”), Appellant addresses two statutory

provisions, 42 Pa.C.S.A. § 5505 and 42 Pa.C.S.A. § 9771.           We discuss

Appellant’s contentions pursuant to these provisions in turn.

      Section 5505 of the Judicial Code permits the trial court to modify an

order within 30 days of its entry if no appeal from the order has been taken

or allowed. See 42 Pa.C.S.A. § 5505. Appellant points out that the trial court

originally directed that he serve a consecutive probationary term following his

six to 23-month prison sentence. Thereafter, the court revoked his parole and

simultaneously revoked his probationary sentence before it commenced.

Based upon this sequence of events, Appellant likens the court’s action to an

implicit, but impermissible, modification of his sentence from consecutive to

concurrent in nature, which occurred outside the 30-day window provided by

§ 5505 and, thus, in violation of that provision. See Appellant’s Brief at 12.

      Appellant also relies upon § 9771 of the Sentencing Code in developing

his claim that anticipatory probation revocation is contrary to Pennsylvania

statutory law. In relevant part, 42 Pa.C.S.A. § 9771 provides as follows:

      § 9771. Modification or revocation of order of probation

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       (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.



                                           ***

       (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 (emphasis added).            Citing the highlighted portion of

§ 9771, Appellant argues that the trial court violated the statute because it

did not consider his conduct which occurred “while on probation,” but instead

considered conduct that took place before his probationary sentence

commenced.3 See Appellant’s Brief at 17.

       Notwithstanding the compelling arguments Appellant advances on

appeal, this Court has previously held that a trial court may revoke a

consecutive term of probation even if the defendant has not yet begun to

serve the probationary sentence. See Commonwealth v. Wendowski, 420

A.2d 628 (Pa. Super. 1980). In fact, this Court has re-affirmed the holding in


____________________________________________


3 Appellant also seeks to bolster his claim by citing to 42 Pa.C.S.A. § 9771(a).
Here, he points out that revocation may only occur following consideration of
conduct that takes place “while on probation,” in contrast to termination of
supervision or increasing or reducing the conditions of supervision, which may
occur “at any time.” See Appellant’s Brief at 18, citing 42 Pa.C.S.A.
§ 9771(a). Appellant asks this Court to give effect to the more restrictive
language used by the General Assembly in describing the limited
circumstances in which revocation may permissibly be ordered.

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Wendowski on several occasions. See Commonwealth v. Allshouse, 33

A.3d 31, 39 (Pa. Super. 2011); Commonwealth v. Hoover, 909 A.2d 321,

323-324 (Pa. Super. 2006); Commonwealth v. Ware, 737 A.2d 251,

253-254 (Pa. Super. 1999); Commonwealth v. Miller, 516 A.2d 1263,

1265-1266 (Pa. Super. 1986); Commonwealth v. Dicken, 475 A.2d 141,

152-153 (Pa. Super. 1984). Because this panel lacks authority to overrule

prior published opinions of this Court, we are constrained to conclude that the

revocation court correctly decided that it enjoyed the power to revoke

Appellant’s probation although he had not yet begun to serve that sentence.

See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (“[I]t is

beyond the power of a Superior Court panel to overrule a prior decision of the

Superior Court, ... except in circumstances where intervening authority by our

Supreme Court calls into question a previous decision of this Court”), appeal

denied, 946 A.2d 686 (Pa. 2008), cert. denied, 555 U.S. 881 (2008).

Accordingly, no relief is due on Appellant’s first claim.4

       Building on his claim that there was no statutory basis for revoking his

probationary sentence before it commenced, Appellant contends in his second


____________________________________________


4 At oral argument and in his submissions before this panel, counsel for
Appellant has made clear that it is his aim to have an en banc panel of this
Court reconsider the decision in Wendowski, supra. In anticipation of an
adverse result, counsel for Appellant filed a request for en banc reargument
(unopposed by the District Attorney’s office) before oral argument took place
in this matter. We deny Appellant’s application for en banc review without
prejudice to file an application for reargument in accordance with the
Pennsylvania Rules of Appellate Procedure.

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issue that “[h]e had a legitimate expectation that the decision to sentence him

to a [purely] consecutive, rather than a concurrent, sentence of probation was

final, and that it could not be [altered if he was not serving his probationary

term].” Appellant’s Brief at 22-23. Appellant concedes that a probationer

who engages in misconduct possesses no legitimate expectation of remaining

on probation; however, he maintains that a probationer may rely on the

expectation that a court will not revoke a probationary sentence that has yet

to commence. See id. Appellant concludes that the trial court’s revocation

sentence frustrated his legitimate expectation of finality and avoiding

anticipatory revocation in violation of the double jeopardy clause.

      Our prior decision in Wendowski forecloses this contention. There, we

said that a term of probation “should be construed for revocation purposes as

including the term beginning at the time probation is granted.” Wendowski,

420 A.2d at 630 (quotations omitted). We also said that an order imposing a

probationary sentence “beginning at a future time does not change [the

defendant’s] position from the possession of a privilege to the enjoyment of a

right.” Id. Under prevailing case law, Appellant was deemed to be serving

his probationary sentence since the time that the sentence was imposed.

Moreover, our case law does not confer upon him a legitimate expectation that

only misconduct that occurred during the probationary period would be




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considered in support of revocation. For each of these reasons, no relief is

due.5

        Judgment of sentence affirmed.         Application for reargument en banc

denied without prejudice to file an application for reargument.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/19




____________________________________________


5 Counsel for Appellant sent a post-argument letter to this Court dated August
21, 2019 in which he enclosed copies of the Pennsylvania Supreme Court’s
opinion in Commonwealth v. Foster, 21 EAP 2018 (Pa. 8/20/19). Counsel
for Appellant asserted that the Foster decision was relevant to the issue of
statutory construction in probation revocation cases, with particular focus on
the approach followed in Wendowski, supra. The specific holding in Foster,
i.e., a court may find a violation of probation only when the defendant commits
a new crime or violates a specific condition included in his probation order,
does not impact this case since it is not disputed that Appellant violated
conditions of his probationary sentence.

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