Com. v. Rose, G.

J. A18008/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

GARY LEE ROSE, : No. 1785 MDA 2014

:

Appellant :

Appeal from the Judgment of Sentence, July 21, 2014,

in the Court of Common Pleas of Clinton County

Criminal Division at No. CP-18-CR-0000062-2011

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 25, 2015

Gary Lee Rose appeals from the judgment of sentence of July 21,

2014, following revocation of his County Intermediate Punishment sentence.

We affirm.

On December 30, 2010, appellant was arrested for driving under the

influence (“DUI”), a misdemeanor of the first degree (“2011 case”).

Appellant had a prior record score of four which included two prior DUI

offenses during the preceding ten years. On September 9, 2011, appellant

pleaded guilty1 to DUI and on the same day was placed in the County

Intermediate Punishment (“County IP”) program under the supervision of

1

Appellant filed a motion to withdraw his plea which was denied. Appellant

appealed to this court. In an unpublished memorandum opinion filed

June 25, 2012, at No. 2259 MDA 2011, we affirmed.

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the Clinton County Adult Probation Office2 for a period of five years, with

nine months’ incarceration to be served at the Clinton County Correctional

Facility.

On January 12, 2012, prior to the start of the 2011 County IP sentence

and while he was out on bail, appellant was again arrested for DUI (“2012

case”). He had a prior record score of five, and the gravity score for that

offense was five.

Appellant began the nine-month incarceration portion of his 2011

County IP sentence at the Clinton County Correctional Facility on

January 30, 2012.

On May 7, 2012, appellant entered a guilty plea in the 2012 case, and

on that same date he was sentenced to serve a sentence of twelve months

to sixty months in a State Correctional Institution (“2012 State sentence”).

Appellant was deemed eligible for the Recidivism Risk Reduction Incentive

(“RRRI”) Program. The trial court imposed a minimum sentence under the

RRRI Program of three quarters of the original minimum sentence (nine

months). The 2012 State sentence (nine months RRRI) was to run

consecutively to the nine-month incarceration portion of the 2011 County IP

sentence. At the May 7, 2012, sentencing hearing in the 2012 case, the trial

court explained:

2

Appellant was sentenced to participation in the Clinton County IP program

in accordance with 42 Pa.C.S.A. § 9763.

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You have to do the 62-2011 [2011 case]

incarceration first. Then you start this nine months

under the RRRI sentence second. And then you’ll be

eligible for parole when you do the minimum

sentence. And the State Board of Probation and

Parole will handle your parole. I’ll have nothing to

do with it.

Hearing transcript, 5/7/12 at 18.

On June 5, 2012, appellant was transferred from the Clinton County

Correctional Facility to SCI-Huntington to serve, consecutively, the balance

of the incarceration portion of his 2011 County IP sentence and nine-month

2012 State RRRI minimum sentence. The nine-month incarceration portion

of his 2011 County IP sentence expired in October 2012.3 Nine months

later, on July 30, 2013, when appellant completed his minimum nine-month

RRRI sentence, the State Board of Probation and Parole (“Parole Board”)

paroled appellant. At that point, appellant was under the supervision of both

the County Probation Office (on his 2011 County IP case) and Parole Board

(on his 2012 case).4

3

The probationary portion of the 2011 County IP sentence in the 2011 case

was still to be served.

4

In the 2011 case, the trial court had requested “Special Probation/Parole

Supervision” (Form BPP-325) pursuant to 61 Pa.C.S.A. § 6132. However,

the Parole Board specifically declined acceptance of appellant for supervision

in the 2011 case. Pursuant to the Board’s regulations, 37 Pa.Code § 65.1,

the Parole Board has discretion to accept a case for supervision.

Acceptance of a case for supervision or presentence

investigation from a county which, on December 31,

1985, maintained adult probation offices and parole

systems, will be at the Board’s discretion. The Board

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On March 4, 2014, during his parole supervision and while he was

awaiting the start of the probationary portion of his 2011 County IP

sentence, a Clinton County Probation agent and a State Parole Board agent

visited appellant for the purpose of drug testing. Appellant tested positive

for controlled substances, specifically, opiates, oxycodone, amphetamine,

and cocaine. (R-24.) Both the State and the County immediately issued

detainers for their sentences. The Parole Board recommitted appellant as a

technical parole violator to serve six months’ backtime. Appellant was to be

automatically re-paroled without further action of the Board on September 4,

2012, with a parole maximum date of October 30, 2014. (Notice of Parole

Board decision, 4/3/14, at 1; R-25.)

will ordinarily accept a case that meets the following

criteria:

(1) For supervision:

(i) A felony conviction and a sentence

to serve a probationary term of at

least 2 years.

(ii) A felony conviction and parole from

a sentence with a balance of at

least 6 months.

(iii) A case otherwise under the Board’s

jurisdiction.

By letter dated November 8, 2013, the Parole Board notified the trial

court that “[t]he Board is not empowered to supervise [County] intermediate

punishment.” (Letter from Parole Board to the trial court, 11/8/13 at 1;

R-23.)

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Meanwhile, on March 7, 2014, the Clinton County Adult Probation Unit

filed a Motion to Revoke appellant’s County IP sentence. On July 21, 2014,

after a hearing, the trial court granted the motion and revoked the 2011

County IP sentence. The trial court re-sentenced appellant in the 2011 case

as follows:

2. [Appellant] shall undergo imprisonment in a

State Correctional Institution for a definite

time, the minimum of which shall be

twenty-one (21) months and the maximum of

which shall be sixty (60) months and stand

committed to the State Correctional

Institutional (sic) at Camp Hill, Pennsylvania,

for compliance of this sentence. The sentence

of imprisonment shall be deemed to run

consecutively to the sentence issued to

number 86-2012. [Appellant] is entitled to two

hundred seventy-three (273) day (sic) credit

that [appellant] had previously served in this

matter.

3. The Court finds that [appellant] is an eligible

offender for the Recidivism Risk Reduction

Incentive Program (RRRI); and pursuant to

42 Pa.C.S.A. 5305, the Court imposes a

recidivism risk reduction incentive minimum

sentence of fifteen (15) months and

twenty-two (22) days, which is three quarters

of [appellant’s] minimum sentence.

Trial court order, 7/21/14 at 4-5.

On July 31, 2014, appellant filed a motion to modify sentence in the

2011 case. The trial court vacated its July 21, 2014, sentencing order

pending a hearing on the motion to modify sentence. A hearing was held on

September 22, 2014. On September 23, 2014, the trial court denied

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appellant’s motion to modify sentence and reinstated its July 21, 2014,

sentencing order in its entirety.

On appeal, appellant raises one issue:

[1.] Did the [trial] court have jurisdiction to

re-sentence [appellant] while he was on State

Parole supervision, and prior to when the

probationary portion of the intermediate

punishment sentence was to start?

Appellant’s brief at 7.

In an appeal from a sentence imposed after the court has revoked IP

sentence, 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.

Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en banc). In this case,

appellant challenges the trial court’s authority or jurisdiction to re-sentence

him which goes to the legality of the sentence. See Commonwealth v.

Cappellini, 690 A.2d 1220 (Pa.Super. 1997).

Appellant argues that the Parole Board had exclusive authority to

parole him because he was sentenced to a maximum term of two years or

longer, Commonwealth v. Tilghman, 652 A.2d 390 (Pa.Super. 1995);

Commonwealth v. Call, 378 A.2d 412 (Pa.Super. 1977), and that the

Parole Board acquired exclusive parole authority when the Department of

Corrections aggregated his sentences. Gillespie v. Commonwealth

Department of Corrections, 527 A.2d 1061 (Pa.Cmwlth. 1987). He

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asserts that the Parole Board granted him automatic re-parole on

September 4, 2014, in both cases, and that the trial court usurped the

exclusive jurisdiction of the Parole Board when it revoked his County IP

sentence and re-sentenced him. Appellant further contends that the trial

court divested itself of the authority to revoke his County IP sentence and

re-sentence him because it was “the Court’s intent that the [Parole Board]

would handle [appellant’s] supervision for both cases.” (Appellant’s brief at

12.)

At the outset, we do not agree that appellant was under the exclusive

jurisdiction of the Parole Board in the 2011 case at the time he committed

the technical violation. The essence of “parole” is the release from prison

before the completion of sentence. Lee v. Pennsylvania Board of

Probation and Parole, 885 A.2d 634 (Pa.Cmwlth. 2005). While a person is

on “parole” he is in fact still serving his sentence. Commonwealth v.

Frankenhauser, 375 A.2d 120 (Pa.Super. 1977).

When appellant was released on parole on July 30, 2013, he had

served the nine-month incarceration portion of his 2011 County IP sentence,

and was waiting to serve the probationary portion. Appellant could not be

“paroled” from the incarceration portion of his County IP sentence because it

had expired by operation of law in October of 2012. There was nothing for

the Parole Board to assess in terms of whether and if appellant should be

released early. Once on parole in the 2012 State case, nothing in

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Section 6132 of the Prisons and Parole Code (“Parole Code”), 61 Pa.C.S.A.

§ 6132, gave the Parole Board power or jurisdiction to assess whether

appellant violated the terms of the remainder of his County IP sentence or to

revoke it.

Instead, that power lies exclusively with the trial court which derives

its authority to revoke appellant’s County IP sentence upon proof of violation

from 42 Pa.C.S.A. § 9773. Section 9773 provides:

§ 9773. Modification or revocation of county

intermediate punishment sentence

(a) General rule.--The court may at any

time terminate a sentence of county

intermediate punishment or increase or

decrease the conditions of a sentence

pursuant to section 9763 (relating to

sentence of county intermediate

punishment).

(b) Revocation.--The court may revoke a

sentence of county intermediate

punishment upon proof of a violation of

specific conditions of the sentence. Upon

revocation and subject to section

9763(d), the sentencing alternatives

available to the court shall be the same

as the alternatives available at the time

of initial sentencing. Upon a revocation

of county intermediate punishment for

any reason specified by law, the attorney

for the Commonwealth may file notice, at

any time prior to resentencing, of the

Commonwealth’s intention to proceed

under an applicable provision of law

requiring a mandatory minimum

sentence. Consideration shall be given

to the time served in the county

intermediate punishment program.

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(c) Hearing required.--A court shall not

revoke or increase the conditions of a

sentence of county intermediate

punishment without a hearing at which

the court shall consider the record of the

initial sentencing proceeding as well as

the conduct of the defendant while

serving a sentence of county

intermediate punishment. A hearing is

not required to decrease the conditions

of the sentence.

42 Pa.C.S.A. § 9773.

It is essential that the trial court maintain the ability to incarcerate

persons for whom intermediate punishment is no longer a viable means of

rehabilitation. Commonwealth v. Serrano, 727 A.2d 1168 (Pa.Super.

1999). A trial court has both jurisdiction and authority to terminate county

intermediate punishment throughout the period of the conditional sentence.

Commonwealth v. Concordia, 97 A.3d 366 (Pa.Super. 2014). Upon

revocation of intermediate punishment, the sentencing alternatives available

to the court shall be the same as the alternatives available at the time of

initial sentencing. Commonwealth v. Melius, 100 A.3d 682 (Pa.Super.

2014); 42 Pa.C.S.A. § 9773.

Pursuant to 42 Pa.C.S.A. § 9773, appellant remained in the legal

custody of the trial court until the expiration of the five-year probationary

portion of his County IP sentence. Appellant failed to complete his County IP

program successfully because he violated its terms prior to when the

probationary portion of that sentence was to start. At that point, the trial

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court had exclusive authority to revoke appellant’s County IP sentence and

to re-sentence him following revocation. We have held that:

“If, at any time before the defendant has completed

the maximum period of probation, or before he has

begun service of his probation, he should commit

offenses of such nature as to demonstrate to the

court that he is unworthy of probation and that the

granting of the same would not be in subservience to

the ends of justice and the best interests of the

public, or the defendant, the court could revoke or

change the order of probation. A defendant on

probation has no contract with the court. He is still a

person convicted of crime, and the expressed intent

of the Court to have him under probation beginning

at a future time does not ‘change his position from

the possession of a privilege to the enjoyment of a

right.’”

Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980),

quoting James v. U.S., 140 F.2d 392, 394 (5th Cir. 1944). See also

Commonwealth v. Allshouse, 33 A.3d 31, 39 (Pa.Super. 2011).5

Further, the record reveals that the trial court did not, as appellant

suggests, “turn over all of [appellant’s] supervision to the PA Board of

Probation and Parole.” (Appellant’s brief at 13.) The Parole Board

specifically refused to accept appellant for supervision in the 2011 County IP

case because that sentence involved the probationary portion of a County IP

program and the Parole Board was not empowered to accept supervision

5

Although Wendowski and Allshouse involved the revocation of probation

imposed pursuant to 42 Pa.C.S.A. § 9754 (governing orders of probation),

we see no reason not to apply this same rationale where a defendant

violates the conditions of County IP before the probationary portion of his

sentence commences.

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over those types of cases. Nevertheless, even if he had been “supervised”

by the Parole Board, as argued by appellant, this would not have impeded

the trial court’s exclusive jurisdiction to revoke County IP sentence and

re-sentence appellant under 42 Pa.C.S.A. § 9773. See Commonwealth v.

Mitchell, 955 A.2d 433 (Pa.Super. 2008) (the trial court retains the power,

authority, and jurisdiction to revoke special probation and sentence the

defendant, regardless of the Parole Board’s supervisory powers).

The judgment of sentence of the trial court is affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/25/2015

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