Com. v. McIntire, C.

J-A22012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

CARL D. MCINTIRE :

:

Appellant : No. 1368 WDA 2021

Appeal from the Judgment of Sentence Entered October 19, 2021

In the Court of Common Pleas of Indiana County Criminal Division at

No(s): CP-32-CR-0000120-2020

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 28, 2022

Appellant, Carl D. McIntire, appeals from the judgment of sentence

entered on October 19, 2021, following the revocation of his parole for failing

to comply with sex offender treatment conditions. We affirm.

The trial court summarized the facts and procedural history of this case

as follows:

On December 1, 2019, [Appellant] was arrested by the

Pennsylvania State Police and charged with the offense of failure

to register with the State Police as required by Megan’s Law[,] 18

Pa.C.S.A. § 4915.1(a)(1). On June 23, 2020, [Appellant] entered

a [guilty] plea [] to that offense[.] A pre-sentence [investigation]

report was ordered and sentencing was scheduled for August 21,

2020.

On August 21, 2020, [Appellant] was sentenced to pay cost[s], a

fine, and undergo incarceration in the Indiana County Jail for a

period of not less than nine months nor more than two years less

one day. In Indiana County, sentencing orders are read to the

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* Retired Senior Judge assigned to the Superior Court.

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defendant verbatim by the court. The relevant part of the []

sentencing order provides as follows:

“It shall be a condition of [Appellant’s] parole … he shall be

subject to sex offender treatment conditions.”

[Appellant] was released on parole and supervision was

transferred to Westmoreland County. On August 6, 2021, the

Indiana County District Attorney filed an application to revoke

parole. The allegations in the application were [Appellant’s]

failure to pay costs, [a] fine, and to complete a sex offender

treatment program.

A hearing on the application [to revoke parole] was scheduled for

September 21, 2021. At the hearing, defense counsel made an

oral motion to dismiss pursuant to Commonwealth v. Koger,

255 A.3d 1285 (Pa. Super. 2021). The [trial] court took the

motion under advisement and continued the hearing[.]

On September 22, 2021, the [trial] court, based in part on the

[Pennsylvania] Supreme Court[’s] decision in Commonwealth v.

Foster, 214 A.3d 1240, 1244, n.5 (Pa. 2019), denied

[Appellant’s] motion to dismiss. On October 14, 2021, [the]

hearing on [the Commonwealth’s] application [to revoke parole

resumed] and an order granting the application was issued.

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Trial Court Opinion, 12/21/2021, at 1-2 (superfluous capitalization and

internal parenthetical omitted). The trial court ordered Appellant to serve the

remainder of his August 21, 2020 sentence.1 This timely appeal resulted.2

On appeal, Appellant presents the following issue for our review:

Whether the [t]rial [c]ourt erred as a matter of law by finding

Appellant violated specific conditions of [parole3] included in [the

August 21, 2020 sentencing] order when the [t]rial [c]ourt did not

properly advise Appellant of the conditions of his [parole] at the

time of sentencing and thus, violated Commonwealth v. Koger,

255 A.3d 1285 (Pa. Super. 2021)?

Appellant’s Brief at 4.

Appellant argues that the sentencing order at issue “merely provided”

that he “shall be subject to sex offender treatment conditions” and “relied

upon the probation[/parole] department to explain [the] special conditions in

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1 When a parolee is found to be in violation of the terms of his parole, the only

permissible sentence is that he serve backtime. See Martin v. Pennsylvania

Bd. of Prob. & Parole, 840 A.2d 299, 303 (Pa. 2003) (Backtime is “that part

of an existing judicially-imposed sentence which the [Parole] Board directs a

parolee to complete following a finding, after a civil administrative hearing,

that the parolee violated the terms and conditions of parole.”) (citation,

original brackets, and quotations omitted; emphasis in original). In this case,

Appellant does not dispute that the remainder of his August 21, 2020 sentence

constitutes an appropriate backtime sentence.

2 Appellant filed a timely notice of appeal on November 12, 2021. On the

same day, the trial court directed Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

complied timely on December 3, 2021. On December 21, 2021, the trial court

issued an opinion pursuant to Pa.R.A.P. 1925(a).

3 Appellant “incorrectly states that [he] was on probation” rather than parole.

See Trial Court Opinion, 12/21/2021, at 4 n.1. Accordingly, we will substitute

the term parole for probation when necessary.

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detail.” Id. at 7. Appellant contends that, pursuant to this Court’s decision

in Koger, the trial court may not rely upon parole administrators to explain

special terms of parole after sentencing, but instead the trial court must

“explain such conditions during the sentencing proceeding.” Id. Appellant

asserts that the trial court may not delegate its statutorily proscribed duties

to the parole office. Id. at 11-12. Accordingly, Appellant requests that we

vacate the judgment of sentence entered following the revocation of his

parole. Id. at 12.

Here, relying upon our Supreme Court’s decisions in Commonwealth

v. Elliott, 50 A.3d 1284 (Pa. 2012) and Commonwealth v. Foster, 214 A.3d

1240 (Pa. 2019), the trial court determined that Appellant’s parole officers

"may, consistent with their statutory authority, impose specific conditions of

supervision … in furtherance of the trial court’s condition of probation.” Trial

Court Opinion, 12/21/2021, at 3, citing 61 Pa.C.S.A. §§ 6131(a)(5)(ii) and

Foster, 214 A.3d at 1244 n.5. More specifically, the trial court stated:

In the case sub judice, the [trial] court informed [Appellant] at

sentencing of the conditions of parole. The sentencing order,

which was read to [Appellant], clearly states that [he] was to pay

a cost, fine, and be subject to sex offender treatment.

The [trial] court did not discuss the specifics of sex offender

treatment. The exact treatment conditions would certainly be

determined after an evaluation of [Appellant] by a qualified

professional. Therefore, the [trial] court would not know the

specifics of the treatment at the time of sentencing. The [trial]

court would, therefore, rely on [the parole department] to

establish the specifics of the treatment.

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Trial Court Opinion, 12/21/2021, at 3 (unnecessary capitalization omitted).

After reviewing the cases relied upon by the trial court and Appellant, we agree

with the trial court’s analysis.

We adhere to the following standards:

Generally, parole and probation violations are determined by the

sound discretion of the trial courts and absent an error of law or

abuse of discretion, should not be disturbed on appeal. The

Commonwealth must prove the violation by a preponderance of

the evidence and, once it does so, the decision to revoke parole is

a matter for the court's discretion.

[…T]his Court must determine whether the evidence admitted at

trial [or a revocation hearing] when viewed in the light most

favorable to the Commonwealth as the [prevailing party], is

sufficient to support all elements of the offenses. We cannot

reweigh the evidence or substitute our judgment for the trial

court.

Koger, 255 A.3d at 1289 (Pa. Super. 2021) (internal citations, quotations,

and ellipsis omitted).

“[W]e review violations of probation and parole under the same

standard.” Koger, 255 A.3d at 1291 n.6. As such, we examine statutory and

case law discussing violations of both probation and parole. Pursuant to 42

Pa.C.S.A. § 9754(a), “[i]n 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.” 42 Pa.C.S.A. § 9754(a). “The court shall attach reasonable

conditions authorized by [S]ection 9763 (relating to conditions of probation)

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as it deems necessary to ensure or assist the defendant in leading a

law-abiding life.” 42 Pa.C.S.A. § 9754(b).

A detailed, chronological examination of Elliott, Foster, and Koger is

informative in construing the scope of the trial court’s duty to articulate

conditions applicable to parole. Our Supreme Court decided Elliott in 2012

and examined the Sentencing Code and Prisons and Parole Code, in para

materia, to conclude:

[…T]he [Probation/Parole] Board and its agents may impose

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

interpret any conditions of probation[/parole] that are imposed by

the trial court. This interpretation gives meaning to all of the

[relevant] statutory provisions [] and thus: (1) maintains the

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

Board and its agents to evaluate probationers[/parolees] 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[/parolee] may be detained,

arrested, and “violated” for failing to comply with either a

condition of probation[/parole] or a condition of supervision. In

summary, a trial court may impose conditions of

probation[/parole] in a generalized manner, and the Board

or its agents may impose more specific conditions of

supervision pertaining to that probation[/parole], so long

as those supervision conditions are in furtherance of the

trial court's conditions of probation[/parole].

Elliott, 50 A.3d at 1292 (emphasis added).

Subsequently, in 2019, our Supreme Court decided Foster. In that

case, Foster was on probation for narcotics-related crimes. During the

probationary period, Foster’s probation officer saw several photographs Foster

posted on social media depicting “guns, drugs, large amounts of money and

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his sentencing sheet from his plea agreement, along with captions that he

posted with some of the pictures.” Foster, 214 A.3d at 1243. “Other than

the photographs in question, the Commonwealth presented no evidence [] in

support of its contentions [that Foster violated the terms of supervision].” Id.

at 1244. “At no time did the Commonwealth mention the conditions of Foster's

[] probation, present a document detailing the conditions, or suggest that his

conduct violated a specific condition of his probation.” Id. Our Supreme Court

further noted:

There [was] no court order specifying the conditions of probation

in the record and nothing in the record otherwise suggest[ing]

that the sentencing court issued an order specifying the conditions

of Foster's probation. The statute requires that “[t]he 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(b)

(emphasis added). The failure to do so is a violation of this

statutory mandate. While [our Supreme] Court has recognized

that probation officers may, consistent with their statutory

authority, impose specific conditions of supervision pertaining to

[] probation, see 61 Pa.C.S.A. §§ 6131(a)(5)(ii), 6151, any

supervision conditions imposed must be “in furtherance of the trial

court's conditions of probation.” [Elliott, 50 A.3d at 1292].

Id. at 1245. Applying these principles to the facts of the case, the Foster

Court found that the trial court erred when it “found, based on the evidence

presented, that Foster violated probation because in the [trial] court's view,

he was not taking his probation seriously and his behavior of posting the

pictures on his social media accounts (which he admitted) was antisocial and

defiant, concluding on that basis that probation was not an effective vehicle

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for his rehabilitation.” Id. at 1253. Ultimately, our Supreme Court

determined that a trial court

must find, based on the preponderance of the evidence, that the

probationer violated a specific condition of probation or committed

a new crime to be found in violation. Absent such evidence, a

violation of probation does not occur solely because a judge

believes the probationer's conduct indicates that probation has

been ineffective to rehabilitate or to deter against antisocial

conduct.

Id. at 1243.

We turn now to this Court’s decision in Koger. While the appeal in

Koger was pending, the panel remanded the matter “for clarification as to

whether the trial court advised [Koger], at his initial sentencing, of the specific

conditions he would be subject to under his probation and parole.” Koger,

255 A.3d at 1290. The trial court responded with a letter “acknowledg[ing]

that it did not advise [Koger] of the general conditions of his probation or

parole at the time of sentencing” but, rather, “the general rules, regulations,

and conditions governing probation and parole in Washington County were

explained to [Koger] by an adult probation officer immediately following the

sentencing proceeding.” Id. As such, this Court ultimately decided:

Under these circumstances, we conclude the trial court erred in

failing to specifically advise [Koger] of the conditions of his

probation and parole at the time of his initial sentencing. See 42

Pa.C.S.A. § 9754(b); Foster, 214 A.3d at 1244 n.5. We reject

the Commonwealth's argument that the probation officer's

[violation of parole] petition sufficiently indicated the conditions

and alleged violations. See Commonwealth Brief at 8. Instead,

“[t]he court shall attach such of the reasonable conditions ... as

it deems necessary to insure or assist the defendant in leading a

law-abiding life. See Foster, 214 A.3d at 1244 n.5, citing 42

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Pa.C.S.A. § 9754(b). Because the trial court did not impose, at

the time of the August 21, 2018, sentencing any specific probation

or parole conditions, the court could not have found he “violated

one of the ‘specific conditions’ of probation [or parole] included in

the probation order[.]” See Foster, 214 A.3d at 1250. In short,

a sentencing court may not delegate its statutorily proscribed

duties to probation and parole offices and is required to

communicate any conditions of probation or parole as a

prerequisite to violating any such condition. Accordingly, we

reverse the revocation of probation and parole and we vacate the

[] judgment of sentence.

Id. at 1290–1291.

Here, at the original time of sentencing, the trial court ordered Appellant

to “be subject to sex offender treatment conditions” as “a condition of [his]

parole.” Sentencing Order, 8/21/2020, at 1. In the application to revoke

parole, Appellant’s parole officer averred that “[o]n June 29, 2021, [Appellant]

was unsuccessfully discharged from the Alternative Community Engagement

Solutions Sex Offender Treatment Program.” Application to Revoke Parole,

8/6/2021, at 1, ¶ II; see also N.T., 10/14/2021, at 7. Appellant’s parole

officer testified that Appellant failed to participate in treatment and denied all

accountability for his prior actions. N.T., 10/14/2021, at 7-8.

Based upon the foregoing, we conclude that the trial court did not err in

revoking Appellant’s parole. At the time of sentencing, the trial court generally

ordered sex offender treatment for Appellant as a condition of his parole.

Although the trial court did not specifically order Appellant to attend the

Alternative Community Engagement Solutions Sex Offender Treatment

Program, the court communicated a general condition requiring participation

in sex offender treatment and the parole board properly tailored the

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programing services to meet Appellant’s rehabilitative needs, all in

furtherance of the trial court’s general condition. Furthermore, there is no

dispute that the program involved sex offender treatment and that Appellant

enrolled but failed to complete it. Thus, we reject Appellant’s reliance on

Koger. In that case, the trial court conceded that Koger was not advised of

the general conditions of his probation or parole at the time of sentencing and

that the trial court relied entirely upon the parole board to dictate the general

rules, regulations, and conditions governing probation and parole after

sentencing.4 Unlike Koger, the trial court here generally ordered sex offender

treatment as a term of Appellant’s parole at sentencing and, thereafter, the

parole board directed Appellant to enroll in a specific treatment program in

furtherance of that goal. Ultimately, the trial court found that Appellant

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4 In Koger, the trial court imposed special probation conditions at sentencing

for possession of child pornography and criminal use of a communication

facility. Koger was not permitted to have contact with any victims, ordered

to submit to drug and alcohol evaluations and complete any recommended

treatment, perform 100 hours of community service, and complete sexual

offender counseling. Koger, 255 A.3d at 1287. At the violation of probation

hearing, the Commonwealth presented evidence that Koger violated the terms

of his parole by engaging in “assaultive, threatening, or harassing behavior,”

failing to allow a probation officer to visit his residence, and failing to submit

to warrantless searches of his residence, vehicle, property, and/or his person.

Id. More specifically, “[t]he Commonwealth offered evidence of [] incidents

with [searching Koger’s] phone contents, being removed from [a] community

center, and threatening [a police] officer.” Id. at 1288. “However, the

Commonwealth offered no evidence to establish that [those] specific

conditions of parole or probation were imposed on [Koger] at the time of

sentencing.” Id. Ultimately, the panel in Koger determined that the

Commonwealth could not prove a violation since the trial court did not impose

the conditions Koger was alleged to have violated.

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violated the terms of his parole because he failed to complete sex offender

treatment, an obligation the trial court specifically included as a condition of

Appellant’s supervision. The trial court’s reliance on Elliott in rejecting

Appellant’s claim was proper.

Moreover, we note that the sentencing order also specifically directed

Appellant to “pay the costs of prosecution in the amount of $388.75” and that

as “a condition of [his] parole that he shall pay a $30.00 monthly supervision

fee.” Sentencing Order, 8/21/2020, at 1. In the application to revoke parole,

Appellant’s parole officer averred that Appellant had not made any payments

toward those obligations and, therefore, violated those conditions of parole,

as well. Application to Revoke Parole, 8/6/2021, at 1, ¶ I. Appellant’s parole

officer further testified that Appellant violated the conditions of his parole “in

regards to paying costs, fines, supervision fees, and/or restitution in

accordance with the payment plan.” N.T., 10/14/2021, at 6. Appellant does

not challenge those determinations on appeal. Accordingly, revocation of

Appellant’s parole was proper on this additional basis. In re T.P., 78 A.3d

1166, 1170 (Pa. Super. 2013) (“[I]t is a well-settled doctrine in this

Commonwealth that a trial court can be affirmed on any valid basis appearing

of record.”).

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/28/2022

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