Com. v. Anderson, M.

J-A10030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MATTHEW ANDERSON

Appellant No. 1668 MDA 2014

Appeal from the Judgment of Sentence September 12, 2014

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0001443-2008

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.: FILED MAY 28, 2015

Appellant, Matthew Anderson, appeals from the September 12, 2014

judgment of sentence of six months’ to three years’ imprisonment, imposed

following the revocation of his prior probation sentence. After careful

review, we affirm.

We summarize the relevant facts and procedural history of this case,

as contained in the certified record, as follows. On December 8, 2008, the

trial court imposed on Appellant an aggregate sentence of four and one-half

to nine years’ imprisonment after Appellant pled guilty to three counts of

possession with intent to deliver (PWID) and one count of criminal use of a

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communication facility.1 On September 13, 2010, upon agreement, the

PCRA court granted Appellant’s amended petition for post-conviction

collateral relief and vacated the December 8, 2008 judgment of sentence.

On that same date, Appellant pled guilty to two counts of PWID and one

count of criminal use of a communication facility,2 and the trial court

imposed an aggregate sentence of three to six years’ imprisonment,

commencing July 17, 2008, followed by three years’ probation under the

special supervision of the Pennsylvania Board of Probation and Parole.3

Appellant served the maximum term of imprisonment, which expired on July

17, 2014, and his three years’ probation began that day.

On September 12, 2014, the trial court held a probation violation

hearing at which a representative of the Board of Probation and Parole

testified that Appellant had committed two technical violations of his

probation. Specifically, Appellant’s two technical violations were his failure

to report to his probation officer and his use of a controlled substance,

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1

35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively.

2

The third count of PWID, to which Appellant originally pled guilty and was

sentenced, was nolle prossed.

3

Specifically, on the first count of PWID (cocaine), the trial court sentenced

Appellant to three to six years’ imprisonment. On the second count of PWID

(heroin), the trial court imposed a sentence of one to two years’

imprisonment to run concurrently with Appellant’s first PWID sentence. On

the conviction for criminal use of a communication facility, the trial court

imposed a sentence of three years’ probation, consecutive to Appellant’s

aforementioned sentences.

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evidenced by both a urine sample, which tested positive for THC, and

Appellant’s admission to his probation officer that he had smoked marijuana.

N.T., 9/12/14, at 5-8. Based on these two technical violations, the trial

court found Appellant had violated the terms of his probation.

Consequently, the trial court revoked Appellant’s probation, and re-

sentenced him to six months’ to three years’ imprisonment.

Appellant did not file a post-sentence motion. On October 2, 2014,

Appellant timely filed a notice of appeal.4

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

I. Did the [trial] court err in revoking probation as it

lacked proof of the “violation of specified conditions

of probation” as required by 42 [Pa.C.S.A.]

§ 9771(b) where a state parole agent rather than the

sentencing court imposed the conditions alleged to

have been violated[?]

Appellant’s Brief at 5.

The following standards guide our review of Appellant’s issue. “The

court may revoke an order of probation upon proof of the violation of

specified conditions of the probation.” 42 Pa.C.S.A. § 9771(b). Revocation

of probation is in the sound discretion of the trial court and we will not

disturb it in the absence of an error of law or an abuse of discretion.

Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007),

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4

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

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appeal denied, 945 A.2d 169 (Pa. 2008). “The Commonwealth establishes a

probation violation meriting revocation when it shows, by a preponderance

of the evidence, that the probationer’s conduct violated the terms and

conditions of his probation, and that probation has proven an ineffective

rehabilitation tool incapable of deterring probationer from future antisocial

conduct.” Id. (citation omitted).

The imposition of 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. An abuse

of discretion is more than an error in judgment—a

sentencing court has not abused its discretion unless

the record discloses that the judgment exercised was

manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will.

Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011) (citation

omitted), appeal denied, 49 A.3d 441 (Pa. 2012).

Appellant does not challenge the sufficiency of the evidence of his

failure to report and his use of marijuana, upon which the trial court based

his revocation. Instead, he contends that he did not violate the conditions of

his probation because the sentencing court did not impose, as express

conditions, the requirements to report or to abstain from using controlled

substances. Appellant maintains his probation officer imposed those

conditions in contravention of Section 9754(b) of the Sentencing Code,

which requires the trial court to prescribe probation conditions. Appellant’s

Brief at 12. Thus, according to Appellant, the trial court was without

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authority to revoke his probation by enforcing conditions that the trial court

did not impose. Id. We disagree.

Section 9754 of the Sentencing Code describes a trial court’s authority

to impose conditions of probation as follows.

§ 9754. Order of probation

(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.A. § 9754(a)-(b). Subsection (c) contains 15 conditions, including

“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). Further, Section 6133 of the

Prisons and Parole Code provides the Board of Probation and Parole has the

“exclusive power” to supervise a probationer when the sentencing court’s

order directs supervision by the Board (special probation), and Section

6131(a)(5)(ii) authorizes the Board to establish uniform standards for the

supervision of probationers. 61 Pa.C.S.A. §§ 6133(a), 6131(a)(5)(ii).

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Our Supreme Court has reconciled the trial court’s exclusive authority

to attach conditions of probation with the Board’s power to impose

conditions of supervision as follows.

[T]he 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. This interpretation gives

meaning to all of the statutory provisions relevant to

this case and thus: (1) maintains the sentencing

authority solely with a trial court; (2) permits the

Board and its agents to evaluate probationers on a

one-on-one basis to effectuate supervision; (3)

sustains the ability of the Board to impose conditions

of supervision; and (4) authorizes that a probationer

may be detained, arrested, and “violated” for failing

to comply with either a condition of probation or a

condition of supervision. In summary, a trial court

may impose conditions of probation in a generalized

manner, and the Board or its agents may impose

more specific conditions of supervision pertaining to

that probation, so long as those supervision

conditions are in furtherance of the trial court’s

conditions of probation.

Commonwealth v. Elliott, 50 A.3d 1284, 1292 (Pa. 2012) (footnote

omitted) (holding that revocation was proper based on a violation of the

Board’s condition of supervision that probationer not be within 1,000 feet of

areas where primary activity involves minors as said condition derived from

the trial court’s condition of probation that probationer not have

unsupervised contact with minors).

Further, this Court has recognized that there are certain implied

conditions inherent in probation orders, such as not engaging in unlawful

acts during the probationary period. Allshouse, supra. In Allshouse, this

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Court addressed a similar issue to the one involved in the instant case.

Therein, the defendant argued that the trial court improperly revoked his

probation for the defendant’s refusal to sign and acknowledge a form with

the conditions of his probation because the sentencing court did not impose

such a condition. Id. In affirming the revocation of probation, this Court

held that while the sentencing court did not expressly impose the condition,

it was “an obvious, implied condition of his probation.” Id. at 38; cf.

Vilsaint, supra at 756, 757 n.5 (rejecting Commonwealth’s contention that

banning alcohol consumption was derived from condition that authorized

probation department to enroll the defendant in any counseling programs

and noting that prohibiting drinking alcohol cannot be an implied condition

because drinking and being intoxicated are not illegal).

In this case, the trial court found that Appellant violated two conditions

of supervision imposed by the Board. First, Appellant did not report

regularly to his probation officer. Second, Appellant used controlled

substances, specifically marijuana. These conditions of supervision were

derivative of the sentencing court’s order specifically imposing the following

conditions of probation, among others, “[t]hat you violate no law of this

Commonwealth or any other jurisdiction during your probationary period[,]”

and “[t]hat you comply with all the conditions, rules, and regulations as

required by the Centre County Probation and Parole Department.” Order,

9/13/10, at ¶¶ 2-3; see also Elliott, supra at 1292 (stating that “a trial

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court may impose conditions of probation in a generalized manner[]”).

Thus, the trial court had the authority to revoke Appellant’s probation for

using marijuana, which is evidence that Appellant engaged in unlawful

activity in violation of the second condition of his probation. 5 See Order,

9/13/10, at ¶ 2; 35 P.S. § 780-113(a)(31) (prohibiting possessing a small

amount of marijuana).

Based on the foregoing, we conclude that the trial court did not abuse

its discretion or commit an error of law in finding Appellant violated his

probation. See 42 Pa.C.S.A. § 9771(b); Perreault, supra. Accordingly, we

affirm the September 12, 2014 judgment of sentence imposed following the

revocation of Appellant’s probation. See Allshouse, supra at 37.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/28/2015

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5

Given our conclusion that the trial court properly revoked Appellant’s

probation for possessing and using marijuana, we need not evaluate whether

Appellant’s failure to report to the probation officer provides an additional

basis for revocation. See Allshouse, supra at 38.

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