J-S41034-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                   Appellee                    :
                                               :
                       v.                      :
                                               :
    DENNIS L. SHIRES, II,                      :
                                               :
                   Appellant                   : No. 233 MDA 2019

           Appeal from the Judgment of Sentence Entered July 6, 2017
               in the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0002155-1998

BEFORE:       LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                          FILED JUNE 05, 2020

         Dennis L. Shires, II (Appellant), appeals nunc pro tunc from his July 6,

2017 judgment of sentence, which the trial court imposed after revoking

Appellant’s probation.      Appellant’s counsel has filed a petition to withdraw

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                     We deny

counsel’s petition to withdraw, deny Appellant’s applications for appointment

of new counsel and publication,1 and direct counsel to file an advocate’s

brief.

         We refer the parties to our September 24, 2019 memorandum for a

full recounting of the facts and prior procedural history. Commonwealth v.
____________________________________________


1 These applications are embedded within Appellant’s pro se response to
counsel’s Anders brief.



*Retired Senior Judge assigned to the Superior Court.
J-S41034-19


Shires, ___ A.3d ___, 2019 WL 4668094 (Pa. Super. 2019) (unpublished

memorandum).         We set forth the pertinent history here, which includes

those portions that now have been included in the certified record following

remand.

       In 2002, Appellant pleaded guilty to rape, involuntary deviate sexual

intercourse (IDSI), and aggravated indecent assault in connection with a

1998 incident in which Appellant brandished a knife and sexually assaulted a

17-year-old clerk in the adult video room of a video store. On October 23,

2002, in accordance with the plea agreement, he was sentenced to 5½ to 11

years of incarceration for rape, followed by 3½ to 7 years of incarceration for

aggravated indecent assault, followed by “supervision by the State Board of

Probation and Parole [(Board)]” for a period of 20 years for IDSI.2 Order,

10/29/2002, at 1-2.        The trial court made Appellant’s payment of costs,

fines, and restitution “a condition of intermediate punishment, probation[,]

or parole supervision.”         Id.    The order does not reference any other

conditions of Appellant’s probation.           No appeal from this judgment of

sentence was filed.

       On February 8, 2010, the Board notified Appellant that the Board had

accepted him for supervision as a “special probation or parole case,”
____________________________________________


2 The transcript from Appellant’s sentencing hearing does not appear in the
certified record. This was one of the items this Court directed counsel to
obtain on remand.       Counsel has represented to this Court that she
attempted to obtain this transcript, but it was unavailable due to its age.



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effective November 22, 2016.             Board Acceptance for State Supervision,

2/8/2010 (filed 10/23/2019).3             The Board provided Appellant with a

document entitled “Conditions Governing Special Probation/Parole” that set

forth eight conditions of supervision.         Board Conditions Governing Special

Probation/Parole, 2/9/2010 (filed 10/23/2019). Appellant acknowledged his

understanding of the conditions and agreed to follow them on February 9,

2010, as evidenced by his signature. See id.

       On May 20, 2016, Appellant signed a document from the Board

entitled “Optional Special Conditions for Sex Offenders.”         Board Optional

Special Conditions for Sex Offenders, 5/20/2016 (filed 10/23/2019).          This

document set forth six conditions of supervision; Appellant initialed next to

each condition and indicated that he understood and agreed to abide by the

conditions. See id.

       On May 31, 2016, Appellant signed a document from the Board

entitled “Standard Special Conditions for Sex Offenders.”         Board Standard

Special Conditions for Sex Offenders, 5/31/2016 (filed 10/23/2019).          This

document set forth 14 conditions of supervision, and again Appellant

initialed next to each condition and indicated he understood and agreed to

abide by the conditions. See id.


____________________________________________


3We have indicated the documents added to the certified record on remand
by noting the 2019 filing date.



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       At some point that is not clear from the certified record, Appellant was

granted parole.       He later completed his parole and began the special

probationary tail portion of his sentence. According to the February 8, 2010

Board Acceptance for State Supervision form, probation was scheduled to

begin on November 22, 2016, but the record, the trial court, and the parties

do not provide clarity as to whether the start of his probation occurred as

scheduled.

       On December 28, 2016, an order was entered on the docket dated

December 15, 2016.4          The order stated that “as additional conditions of

[Appellant’s] special probation, [Appellant] must comply with the conditions

governing probation and parole, the standard special conditions for sex

offenders, and any supplemental standard special conditions of supervision.”

Trial Court Order, 12/28/2016, at 1. A notation on the order indicates that it

was served on the Public Defenders’ Office, and not Appellant directly. No

transcript or pleading corresponding to this order appears in the record,

making it unclear why it was entered.

       On February 13, 2017, the Board provided “Notice of Charges and

Hearing Special Probation/Parole” to Appellant, notifying him that it was

charging him with three violations of his special probation. The Board first

alleged that Appellant admitted to his probation officer that he had picked up
____________________________________________


4 Prior to this order, the last docket activity occurred back in 2002 around
the time of Appellant’s sentencing.



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16-year-old and 18-year-old females at 3:30 a.m. on February 6, 2017, with

the intention to ask them to expose their breasts to him. According to the

Board, this act violated condition number one in the Optional Special

Conditions for Sex Offenders.5

       The Board next alleged that Appellant was discharged from Triad

Treatment     Specialists    because     Appellant   had   accessed   or   possessed

pornography, had self-reported persistent reliance on or demonstration of

deviant sexual behavior, and had failed to use therapy to prevent sexually

abusive behavior or risk factors related to the cycle of abuse.            The Board

averred that Appellant’s discharge violated condition number one of the

Standard Conditions for Sex Offenders, which was to complete successfully

all treatment recommended following a sex offender evaluation from a sex

offender treatment provider.

       Finally, the Board alleged that Appellant admitted staying over at his

girlfriend’s house multiple times in the month of January 2017 despite

knowing it was an unapproved residence.               The Board stated that this

violated condition number 11 of the Standard Conditions for Sex Offenders.


____________________________________________


5 Before each cite to the Optional Special Conditions for Sex Offenders or the
Standard Conditions for Sex Offenders, the notice also listed “Condition #8:
You shall comply with the following special conditions imposed by the court,”
but did not specify where “Condition #8” appears. Notice of Charges and
Hearing    Special     Probation/Parole,   2/13/2017      (filed  10/23/2019)
(unnecessary capitalization removed).



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       Following a preliminary Gagnon I hearing6 on March 22, 2017, the

trial court found probable cause to believe that Appellant violated the

conditions of his special probation. Order, 3/9/2017, at 1. The trial court

conducted the Gagnon II probation violation hearing on April 19, 2017.

Based upon a counseled admission by Appellant, the trial court found that

the allegations in the Commonwealth’s petition occurred as alleged. Order,

4/25/2017, at 1. Notwithstanding his admission, Appellant denied that the

acts violated any terms of his probation.        N.T., 4/19/2017, at 5-6, 9.

According to Appellant, the acts may have violated terms of his parole, but

after his parole expired and his consecutive probationary sentence began, he

was no longer subject to the special conditions.     Id.   Appellant took this

position because he claims he did not sign any documents with the

conditions once he began his probation.7 Id.

       The trial court rejected Appellant’s argument, determining that the

special “conditions survived the change from parole status to probation
____________________________________________


6  See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also
Commonwealth v. Ferguson, 761 A.2d 613 (Pa. Super. 2000) (explaining
when probationer is detained based on an alleged probation violation, due
process requires a Gagnon I hearing to determine whether there is
probable cause that probationer committed violation, followed by a second
more comprehensive Gagnon II hearing wherein trial court determines
whether to revoke probationer’s probation).

7 Deciphering Appellant’s argument with precision is difficult because the
record is not clear as to whether he began his probation before or after
signing the Optional Special Conditions for Sex Offenders and the Standard
Special Conditions for Sex Offenders in May 2016.



                                           -6-
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status.” Order, 4/25/2017, at 1. It also determined that Appellant knew or

should have known what the conditions were because his probation officer

reviewed the conditions with him in January 2017, prior to Appellant’s

commissions of the violations. Id.; see also N.T., 4/19/2017, at 14. The

trial court revoked Appellant’s probation on the IDSI conviction and

continued the matter for sentencing. The trial court noted that in making its

determination it did not consider the December 28, 2016 order imposing

various probation conditions because there was no indication that Appellant

was ever served with or otherwise received notice of that order.8

       On July 6, 2017, Appellant was sentenced to three to ten years of

incarceration, to be followed by a period of special probation of ten years.

Appellant, through his counsel, timely filed a notice of appeal from his
____________________________________________


8 According to Appellant’s counsel from the Public Defenders’ Office who
represented him at the Gagnon II hearing, the origin of the December 16,
2016 order was that Appellant had

       maxed off of state parole in November of [2016] … then went on
       to special probation … through the [s]tate[,] and at the onset of
       that special probation period there were no special conditions
       that mirrored the conditions he had signed for state parole
       prohibiting him from the viewing of obscene materials.
       [Appellant’s] probation officer then petitioned in December of
       [2016] for the special conditions to be instated on [Appellant’s]
       special probation.

N.T., 4/19/2017, at 2-3. Appellant denied receiving the order, and the
Public Defenders’ Office, which had represented Appellant in connection with
his guilty plea and sentencing in 2002, had no record of sending the order to
Appellant. Id. at 3-11. The docket does not indicate the filing of a written
petition by Appellant’s probation officer.



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judgment of sentence.        However, on February 12, 2018, this Court

dismissed his appeal after his counsel failed to file a brief. Appellant timely

filed pro se a petition for relief pursuant to the Post Conviction Relief Act, 42

Pa.C.S. §§ 9541-9546, which sought, inter alia, to reinstate his direct appeal

rights based upon counsel’s failure to file a brief.     Tricia Hoover Jasper,

Esquire was appointed as new counsel, the petition was amended, and on

January 8, 2019, the PCRA court reinstated Appellant’s direct appeal rights

nunc pro tunc. This appeal timely followed.

      In lieu of a concise statement pursuant to Pa.R.A.P. 1925(b), counsel

filed a statement of intent to file an Anders brief pursuant to Pa.R.A.P.

1925(c)(4). Instead of filing an opinion pursuant to Pa.R.A.P. 1925(a), the

trial court indicated that it would be relying upon the trial court’s Rule

1925(a) opinion that was filed on September 25, 2017, before this Court

dismissed Appellant’s appeal of his judgment of sentence stemming from his

probation violation.

      On March 27, 2019, Appellant’s counsel filed with this Court an

Anders brief and a petition to withdraw as counsel. On September 24,

2019, due to deficiencies in counsel’s Anders brief and missing items from

the certified trial court record, we denied the petition and remanded to allow

counsel to arrange for supplementation of the certified record and to file

either an advocate’s brief or a proper Anders brief and petition to withdraw.

Counsel arranged for supplementation of the record, and counsel’s second


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Anders brief and petition to withdraw, filed on November 26, 2019, are now

before us. Before we may consider the substance of this appeal, we must

address counsel’s compliance with Anders.

            Direct appeal counsel seeking to withdraw under Anders
     must file a petition averring that, after a conscientious
     examination of the record, counsel finds the appeal to be wholly
     frivolous. Counsel must also file an Anders brief setting forth
     issues that might arguably support the appeal along with any
     other issues necessary for the effective appellate presentation
     thereof….

            Anders counsel must also provide a copy of the Anders
     petition and brief to the appellant, advising the appellant of the
     right to retain new counsel, proceed pro se or raise any
     additional points worthy of this Court’s attention.

            If counsel does not fulfill the aforesaid technical
     requirements of Anders, this Court will deny the petition to
     withdraw and remand the case with appropriate instructions
     (e.g., directing counsel either to comply with Anders or file an
     advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
     petition and brief satisfy Anders, we will then undertake our
     own review of the appeal to determine if it is wholly frivolous. If
     the appeal is frivolous, we will grant the withdrawal petition and
     affirm the judgment of sentence. However, if there are non-
     frivolous issues, we will deny the petition and remand for the
     filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

     [I]n the Anders brief that accompanies court-appointed
     counsel’s petition to withdraw, counsel must: (1) provide a
     summary of the procedural history and facts, with citations to
     the record; (2) refer to anything in the record that counsel
     believes arguably supports the appeal; (3) set forth counsel’s
     conclusion that the appeal is frivolous; and (4) state counsel’s
     reasons for concluding that the appeal is frivolous. Counsel

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     should articulate the relevant facts of record, controlling case
     law, and/or statutes on point that have led to the conclusion that
     the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009) (emphasis

added).

     Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

above requirements.    Appellant has filed pro se a response to counsel’s

Anders brief.   Generally, when counsel files an Anders brief, this Court

must conduct “a simple review of the record to ascertain if there appear on

its face to be arguably meritorious issues that counsel, intentionally or not,

missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272

(Pa. Super. 2018) (en banc).     However, because Appellant filed a pro se

response to the Anders brief, our independent review is limited to those

issues raised in the Anders brief. Commonwealth v. Bennett, 124 A.3d

327, 333 (Pa. Super. 2015).       We then review the subsequent pro se

response in the same manner as an advocate’s brief, and consider the

merits of the issues presented pro se and rule upon them accordingly. Id.

at 333-34.

     Counsel identifies the issue of arguable merit as “whether the court

erred in finding Appellant violated his consecutive probation when the

violations involved violations of the special conditions of his now expired

parole sentence.”   Anders Brief at 6 (capitalization altered).   Specifically,


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counsel notes that Appellant signed conditions, but claims the conditions

related to his parole, not his probation.       Id. at 10-16.   Counsel further

explains that Appellant argues that the trial court erred in finding a violation,

because the conditions upon which his violation was based were set by the

Board, and never imposed by the trial court. Id.

      By counsel’s assessment, there is no merit to Appellant’s claim

because Appellant signed Standard Special Conditions for Sex Offenders and

Optional Special Conditions for Sex Offenders in May 2016.              Counsel

emphasizes that Appellant’s probation officer explained to Appellant in

January 2017, and other occasions, that Appellant had to follow these

special conditions. According to counsel, while the trial court imposed these

special conditions upon Appellant in its December 15, 2016 order, the trial

court was correct in not considering this order because there is no proof that

Appellant was ever aware of the order. Nevertheless, in counsel’s view, the

order is not relevant to this appeal because the Board may impose

conditions upon probationers “that are germane to, elaborate on, or

interpret any conditions of probation that are imposed by the trial court.”

Id. at 16 (citing Commonwealth v. Elliott, 50 A.3d 1284, 1292 (Pa.

2012)).   Because the Board imposed conditions upon Appellant, Appellant

was aware of those conditions as evidenced by his signature, and Appellant

admitted to committing the acts at issue, counsel concludes that there is no

merit to Appellant’s claim of error.


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     Appellant, on the other hand, insists that counsel’s evaluation of this

issue misses the mark.     Appellant contends that the only court order

imposing conditions of probation in his case is the October 29, 2002

sentencing order.   Pro se Response at 6.     He emphasizes that while a

December 15, 2016 order imposing conditions of probation exists, the trial

court expressly did not consider the order while revoking his probation

because there is no evidence that Appellant had received the order “and

nobody ‘fully explained why or how the order came about.’” Id. (citing Trial

Court Opinion, 9/25/2017, at 2 n.1 and N.T., 4/19/2017, at 11). Appellant

claims that the conditions he signed in May 2016 were conditions applicable

to his parole, not his probation, because the conditions listed his parole

number. Id. at 7. Furthermore, he argues that because the conditions at

issue were imposed by the Board, and were not ordered by the trial court in

the 2002 court order, the trial court erred by finding he violated his

probation. Id. at 10-11 (citing Commonwealth v. Vilsaint, 893 A.2d 753

(Pa. Super. 2006) and Commonwealth v. MacGregor, 912 A.2d 315 (Pa.

Super. 2006)).

      In assessing Appellant’s claim, we observe that “in an appeal from a

sentence imposed after the court has revoked probation, we can review the

validity of the revocation proceedings, the legality of the sentence imposed

following revocation, and any challenge to the discretionary aspects of the

sentence imposed.” Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.


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Super. 2015) (citation omitted). Further, “[r]evocation of a probation

sentence is a matter committed to the sound discretion of the trial court and

that court’s decision will not be disturbed on appeal in the absence of an

error of law or an abuse of discretion.”    Commonwealth v. Colon, 102

A.3d 1033, 1041 (Pa. Super. 2014).

     As described supra, Appellant signed documents with conditions

imposed by the Board three times: (1) Conditions Governing Special

Probation/Parole in February 2010; (2) Optional Special Conditions for Sex

Offenders in May 2016; and (3) Standard Special Conditions for Sex

Offenders in May 2016. The Board oversees both probation and parole. The

documents are preprinted forms that refer generically to “probation/parole”

without being specifically customized to Appellant’s case.   The documents

list Appellant’s parole number. The 2010 conditions were not signed by a

representative of the Board at all, but the 2016 conditions were signed by

Misquitta John, who is designated on the forms as a parole agent.        The

record is not clear as to when Appellant began his parole and probation

sentences or the context in which Appellant signed the conditions.

Therefore, based on the record before us, we cannot agree with counsel that

Appellant’s claim that the conditions were applicable only to Appellant’s

parole and not his probation is so clearly devoid of merit to warrant

classifying this claim as frivolous.   See MacGregor, 912 A.2d at 318

(holding the trial court erred by revoking MacGregor’s probation based


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upon conditions that “were recited on a preprinted form applicable to parole,

and were drafted by, and signed by a parole agent as the issuing authority,”

and which stated the conditions were being imposed as part of MacGregor’s

parole).

      Appellant’s next argument is that the conditions were imposed only by

the Board and not the trial court. As both counsel and Appellant recognize,

the trial court explicitly disregarded the December 2016 order imposing “the

conditions governing probation and parole, the standard special conditions

for sex offenders, and any supplemental standard special conditions of

supervision.”   Order, 12/28/2016, at 1.     Based upon our review of the

certified record, Appellant is correct that the only other court order in the

record imposing any conditions of probation is the October 29, 2002

sentencing order. The order specifies that the Board shall supervise him for

20 years, and the sole condition mentioned is payment of costs, fines, and

restitution. Order, 10/29/2002, at 1-2.

      In MacGregor, the case upon which Appellant principally relies,

MacGregor signed conditions purportedly related to his probation, despite

being listed on a pre-printed form entitled “Special Conditions of Parole.”

912 A.2d at 316.    One of the conditions listed on the form was avoiding

contact with anyone under age 18.     Id.   After MacGregor thrice attended

gatherings with young children present, the trial court revoked his probation

and imposed a prison sentence. Id. at 317.


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     On appeal, this Court vacated the judgment of sentence on the basis

that the condition MacGregor violated was never imposed by the trial court.

In doing so, we relied on Vilsaint, 893 A.2d at 757, which held that, “the

legislature [in the Sentencing Code] has specifically empowered the court,

not the probation offices and not any individual probation officers, to

impose the terms of probation.” MacGregor, 912 A.2d at 317 (emphasis

supplied in MacGregor).

     Subsequently, in Elliott, our Supreme Court examined this issue

further. The Court sought to reconcile a section of the Sentencing Code, 42

Pa.C.S. § 9754, with two sections of the Prisons and Parole Code, 61 Pa.C.S.

§§ 6131(a)(5)(ii) & 6151. As recounted by the Court,

           Section 9754 of the Sentencing Code … provides in
     relevant part:

           (a) General rule.—In imposing an order of probation
           the court shall specify at the time of sentencing the
           length of any term during which the defendant is to
           be supervised, which term may not exceed the
           maximum term for which the defendant could be
           confined, and the authority that shall conduct the
           supervision.

           (b) Conditions generally.—The court shall attach
           such of the reasonable conditions authorized by
           subsection (c) of this section as it deems necessary
           to insure or assist the defendant in leading a law-
           abiding life.

     42 Pa.C.S. § 9754(a) & (b).

          Subsection (c) delineates fourteen conditions a sentencing
     court may impose upon a defendant in the imposition of
     probation. Among these, courts may direct defendants on

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     probation to attend treatment and addiction programs, pay fines
     and restitution, and refrain from frequenting “unlawful or
     disreputable places.” Id. § 9754(c)(12), (8), (11), and (6),
     respectively. Further, subsection (c)(13) provides a “catch-all”
     for trial courts, allowing them to order defendants “[t]o satisfy
     any other conditions reasonably related to the rehabilitation of
     the defendant and not unduly restrictive of his liberty or
     incompatible with his freedom of conscience.” Id. § 9754(c)(13).

Elliott, 50 A.3d at 1288. After examining section 9754, the Supreme Court

concluded that section 9754 permits trial courts to impose “conditions of

probation.” Id. at 1291.

     Nonetheless, the Court noted that it could not ignore sections 6131

and 6151 of the Prisons and Parole Code, which mandate that the Board and

its agents establish uniform standards for the supervision of probationers

under its authority, and further to implement those standards and

conditions. Id. The Court in Elliott reconciled the statutes by distinguishing

between “conditions of probation,” which are imposed by the trial court, and

“conditions of supervision,” which are imposed by the Board and its agents.

Id. at 1291-92.    It concluded that that “the Board and its agents may

impose conditions of supervision that are germane to, elaborate on, or

interpret any conditions of probation that are imposed by the trial court.”

Id. at 1292.

     In Elliott, at the conclusion of Elliott’s sentencing hearing, the trial

court imposed as a condition of his probation that he not have unsupervised

contact with any minor child. Id. at 1285. After serving his maximum

sentence, Elliott was released and began serving his five-year probationary

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term. Id. at 1285-86. Elliott was given a form created by the Pennsylvania

Board entitled “Standard Special Conditions for Sex Offenders–Minor

Victims,” which included a condition that he not enter or loiter within 1,000

feet of areas where minors commonly congregate, including playgrounds,

youth recreation centers, and elementary schools. Id. at 1286.

      Elliott’s probation officer observed him sitting near a large water

fountain in a park where young children were playing, closely observing a

young girl in a red bathing suit. Id. Elliott subsequently admitted to going

to the park regularly to watch children and being sexually aroused by the girl

in the red bathing suit. Id. at 1287. Elliott’s probation was revoked and he

was sentenced to two consecutive terms of two and a half to five years of

incarceration. Id. The trial court found, inter alia, that he had violated

supervision condition 19, that he avoid areas where persons under age 18

commonly congregate, such as the park fountain. Id.

      On appeal, this Court reversed, finding that supervision condition 19

(no loitering within 1,000 feet) was not incorporated into the trial court’s

general no-contact requirement of Elliott’s probation.   Id. at 1288.   Citing

Vilsaint and MacGregor, this Court held that only the court, and not

probation officers, can impose terms and conditions of probation.

      The Commonwealth appealed, and our Supreme Court vacated this

Court’s order, holding that the Board merely expounded upon the trial

court’s no-contact order:


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      [W]e find that [s]upervision [c]ondition 19, that [Elliott] should
      not ‘enter or loiter within 1,000 feet of areas where the primary
      activity at such locations involve persons under the age of 18,’ is
      a permissible condition of supervision imposed by the Board and
      is derivative of the trial court’s condition of probation that Elliott
      not have unsupervised contact with minors.

Id. at 1292. The Court in Elliott distinguished MacGregor because, in that

case, the trial court had ordered a $25 probation administration fee as the

sole condition of probation, without actually setting forth any terms and

conditions of probation. Id. at 1292 n.4. Thus, the condition of supervision

imposed in MacGregor was not derivative of the condition of probation

imposed by the trial court, and therefore, the Board did not have authority

to impose the condition. Id. The matter was remanded to this Court for a

determination as to whether the evidence was in fact sufficient to sustain the

defendant’s probation revocation based upon supervision condition 19. Id.

at 1293.

      In the instant case, counsel insists that Elliott is dispositive of

Appellant’s issue.   We are not convinced.      Elliott does not stand for the

general proposition that the Board may set conditions of supervision that a

probationer must follow or face revocation of probation.         Instead, based

upon its reconciliation of the Sentencing Code and the Prisons and Parole

Code, Elliott demands that there be underlying conditions of probation set

by a trial court, which then may be expanded upon to some extent by the

Board.




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       As   Appellant     correctly    recognizes,   outside   of   the   disregarded

December 2016 order, the only condition of probation set by the trial court

appears to be the condition to pay costs, fines, and restitution in the 2002

sentencing order.       Arguably, the conditions of supervision imposed by the

Board are not germane to this condition of probation set by the trial court.

Therefore, Appellant’s claim that his violations of the conditions of

supervision imposed by the Board were insufficient to revoke his probation is

not so clearly devoid of merit to warrant classifying this appeal as frivolous.9

From our review, it appears that counsel is able to put forward good-faith

arguments that the trial court erred by revoking his probation based upon

his violations of the conditions of supervision.

       Accordingly, we deny counsel’s petition for leave to withdraw and

direct counsel to file an advocate’s brief within 60 days. The Commonwealth

may file a brief in response 30 days thereafter.




____________________________________________


9 Appellant also raises a second related issue in his pro se Anders response.
He contends that the revocation of his probation for violating conditions of
his probation that were never court ordered violated his due process rights
under the United States and Pennsylvania constitutions, because it deprived
him of his “liberty to be free from probation [] violations.” Pro se Response
at 12. As framed by Appellant, this issue has no merit. “[D]ue process does
not afford relief absent a protected liberty interest.” Commonwealth v.
Turner, 80 A.3d 754, 767 (Pa. 2013). There is no protected liberty interest
to be free from probation violations when one is serving a sentence of
probation.



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     Petition to withdraw denied.    Counsel directed to file an advocate’s

brief within 60 days. Appellant’s applications within his pro se response for

appointment of new counsel and publication denied. Jurisdiction retained.




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