Com. v. Clickett, A.

J-A11030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ASHLEIGH MORGAN CLICKETT :

:

Appellant : No. 1223 WDA 2022

Appeal from the Judgment of Sentence Entered September 28, 2022

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

No(s): CP-20-CR-0000017-2021

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 17, 2023

Appellant, Ashleigh Morgan Clickett, appeals from the judgment of

sentence of 12 to 60 months’ incarceration, imposed after she was found to

have violated her previous term of probation and it was revoked. Appellant

contends that the trial court erred by finding her in violation of a condition of

her probation that was imposed by a probation officer, rather than the court.

After careful review, we affirm.

The trial court summarized the factual and procedural history of this

case, as follows:

[Appellant] negotiated a plea of guilty on August 30, 2021, to

driving under the influence (DUI) - highest rate of alcohol, graded

as a misdemeanor of the first degree (second offense). She

received a 60[-]month sentence of county intermediate

punishment (CIP) on November 23, 2021, consisting of[,] inter

alia[,] 5 days of county incarceration, … and then intensive

supervision after her release from any incarceration imposed in

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* Retired Senior Judge assigned to the Superior Court.

J-A11030-23

her pending Venango County case [in which she had negotiated a

guilty plea to DUI – highest rate of alcohol (third offense)].

Sentenced in that case on December 16, 2021, to serve a

minimum term of one year less one day, she was released from

the Venango County Prison after three months, and then resumed

serving her CIP sentence in the instant case. On June 10, 2022,

she was detained at the Crawford County Correctional Facility for

alleged probation/parole/intermediate punishment violations.

[Appellant] had been ordered while on probation or parole, or

under supervision, to comply with Rule 708 of the local Rules of

Criminal Procedure, whose terms and conditions were

incorporated by reference into the sentenc[ing] order. That rule

provides in relevant part that “[t]he Defendant shall obey the law

and be of good behavior generally.” Cra.R.Crim.P. 708(A)(14);

cf. 42 Pa.C.S.[] § 9754(b) (“The court shall attach reasonable

conditions authorized by section 9763 (relating to conditions of

probation) as it deems necessary to ensure or assist the defendant

in leading a law-abiding life.”). The notice of alleged violations

(NOAV) filed when [Appellant] was detained alleged that she had

violated subsection 14 of Rule 708(A) by harassing her probation

supervisor, Kaylee Daly, after being specifically instructed by

Matthew D. Pierce, Assistant Chief of the County’s Adult Parole

and Probation Department, not to contact Officer Daly. An

addition to the NOAV filed on June 15, 2022, alleged violations of

subsections 14 (for mental health incidents), 7 (smoking

marijuana, etc.), 10 (failing to pay her outstanding balance of fees

and costs), and 12 (not completing DDI school or drug & alcohol

treatment) of Rule 708(A), as well as violating house arrest rules

set forth in Rule 708(B).

At the Gagnon II8 hearing held on September 28, 2022,

[Appellant] was found to have violated her probation on the basis

of her admissions, the testimony of Assistant Chief Pierce, and

argument of counsel. Her prior sentence was revoked … and she

was given a state sentence of 12 to 60 months, with credit for 115

days of presentence incarceration.

8 Gagnon v. Carpelli, 411 U.S. 778 … (1973).

Trial Court Opinion (TCO), 11/18/22, at 1-3 (some footnotes and capitalization

omitted).

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Appellant did not file a post-sentence motion or direct appeal. Instead,

on October 11, 2022, she filed a pro se PCRA petition, asserting various

claims, including ineffective assistance of counsel. The PCRA court thereafter

issued an order dismissing Appellant’s PCRA petition on the basis that it was

premature and a legal nullity, as “[t]he time period in which [she] may filed a

PCRA petition … ha[d] not yet begun.” Order, 10/10/22,1 at 1 (citing

Commonwealth v. Brown, 943 A.2d 264 (Pa. 2008) (holding that the time-

period for filing a PCRA petition commences at the conclusion of direct review,

or the expiration of the time for seeking review, when a sentence becomes

final for PCRA purposes); Commonwealth v. Neisser, 2020 WL 603614 (Pa.

Super. Feb. 7, 2020) (unpublished memorandum) (concluding that Neisser’s

PCRA petition was premature and a legal nullity where it was filed prior to his

judgment of sentence becoming final, prior to the expiration of the time period

to file a direct appeal, and prior to the commencement of the one-year period

allowed for filing a PCRA petition)).2

On October 19, 2022, Appellant filed a timely notice of appeal from the

revocation sentence, and she complied with the court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The court filed

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1 Appellant’s pro se PCRA petition was time-stamped as having been filed on

October 11, 2022, while the court’s order dismissing it was time-stamped as

filed on October 10, 2022. The cause of this discrepancy is not clear in the

record before us.

2Pursuant to Pa.R.A.P. 126(b), non-precedential decisions filed after May 1,

2019, may be cited for their persuasive value.

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its Rule 1925(a) opinion on November 18, 2022. Herein, Appellant states one

issue for our review: “Did the court abuse its discretion in finding that …

Appellant violated conditions of her sentencing order and resentenc[ing] her

based on a condition imposed upon her by the Probation Department and not

the sentence [the court] imposed?” Appellant’s Brief at 4.

In assessing Appellant’s issue, we are guided by the following:

“[I]n 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. 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).

Commonwealth v. Shires, 240 A.3d 974, 977–78 (Pa. Super. 2020).

Instantly, Appellant contends that the court found her in violation of her

probation based on her violating a condition imposed by Assistant Chief Pierce,

and not by the trial court. Appellant explains that, “[w]hile being supervised,

purportedly and [as] a result of her mental health issues, … [A]ppellant

became obsessed with her supervising [probation] officer[, Kaylee Daly]. …

[A]ppellant wrote a letter to the officer indicating her attraction to her and

broke her curfew.” Appellant’s Brief at 8. Consequently, Appellant’s case was

reassigned to a different probation officer, and “Assistant Chief [Pierce]

imposed a special condition on [Appellant] that she not have any contact with

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[Officer Daly].” Id. Appellant stresses that “[a] court may find a defendant

in violation of probation only if the defendant has violated one of the ‘specific

conditions’ of probation included in the probation order or has committed

a new crime.” Id. at 9 (emphasis added) (quoting Commonwealth v.

Foster, 214 A.3d 1240, 1250 (Pa. 2019)). According to Appellant, here, the

no-contact condition was not imposed by the trial court in the probation order

but, instead, was imposed by Assistant Chief Pierce. Therefore, Appellant

contends that the court erred by revoking her probation based on her violating

this condition.

In rejecting Appellant’s argument, the trial court observed that a

condition of Appellant’s probation was that she “obey the law and be of good

behavior generally.” TCO at 2-3 (citing local Crawford County Rule of Criminal

Procedure 708(A)(14)). The court concluded that Appellant’s “probation

violation was not that [she] disobeyed Assistant Chief Pierce’s directive, but

rather that she engaged in a course of conduct amounting to harassment.”

Id. at 5. Specifically, “[t]he evidence showed that [Appellant] had been

contacting Officer Daly with unsolicited letters, texts[,] and other social

messaging in pursuit of a sexual relationship.” Id. (citations omitted). The

court noted that “the Assistant Chief’s directive” that Appellant have no

contact with Officer Daly “tends merely to establish that [Appellant] knew she

was not engaging in lawful or good behavior.” Id. at 6 n.12.

We need not determine whether Appellant’s conduct amounted to the

crime of harassment, as it is clear that, at the very least, she was not acting

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with “good behavior generally[,]” which was required by the court’s probation

conditions.3 Moreover, we agree with the trial court that Assistant Chief

Pierce’s instruction that Appellant not contact Officer Daly was not a separate

and distinct probation condition but, rather, it simply served to alert Appellant

that her doing so was not acceptable behavior. Notably,

[o]ur Supreme Court has distinguished between “conditions of

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

supervision,” which are imposed by the [Pennsylvania] Board [of

Probation and Parole] and its agents. [Commonwealth v.

Elliott, … 50 A.3d 1284, 1291-92 ([Pa.] 2012).4] The Sentencing

Code permits trial courts to set forth “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(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

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

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3We note that Appellant does not challenge the validity of the court’s condition

that she exhibit ‘good behavior generally.’ Instead, she simply maintains that

Assistant Chief Pierce imposed a wholly new and separate condition by

directing her to not have contact with Officer Daly.

4 We recognize that the issue before the Elliott Court was whether the

Pennsylvania Board of Probation and Parole has authority to impose

supervision conditions under Megan’s Law. Elliott, 50 A.3d at 1289. Here,

in contrast, Appellant is challenging the authority of a county probation officer

to impose a probation condition, generally. However, we deem Elliott

applicable to the issue at hand, as the Elliott Court acknowledged that the

question before it “[f]airly encompassed … a general inquiry concerning

whether the Board, county probation offices, or the agents and officers

thereof, can impose conditions upon probationers that are not explicitly

delineated in a trial court’s sentencing and probation order.” Id. at 1289

(emphasis added).

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(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….

The Board’s authority to set forth conditions of supervision, on the

other hand, is derived from 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 implement those standards and conditions.

Id. (citing 61 Pa.C.S. §§ 6131(a)(5)(ii) & 6151).

After examining the interplay between the Crimes Codes and

Prisons and Parole Code, our Supreme Court concluded that while

only the trial court could set conditions of probation, “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. Stated another way, the “trial court may impose

conditions of probation in a generalized manner, and the

Board or its agents may impose more specific conditions of

supervision, so long as these supervision conditions are in

furtherance of the trial court’s conditions of probation.” Id.

Therefore, “a probationer may be detained, arrested, and

‘violated’ for failing to comply with either a condition of probation

or a condition of supervision,” as long as the condition of

supervision does not exceed the Board’s authority to impose it.

Id.

Shires, 240 A.3d at 977–78 (emphasis added).

Here, the trial court imposed a general condition of probation that

Appellant obey the law and be of good behavior generally. Assistant Chief

Pierce’s directive that Appellant not contact Officer Daly simply elaborated on,

and acted in furtherance of, that general condition. In other words, Assistant

Chief Pierce’s no-contact instruction notified Appellant that her continuing to

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communicate with Officer Daly was not behavior that was acceptable under

the court-imposed, good-behavior condition of her probation. Nevertheless,

Appellant chose to continue to pursue and repeatedly contact Officer Daly.

We discern no error or abuse of discretion in the court’s conclusion that she

violated the good-behavior condition of her probation based on this conduct.

Alternatively, we would also agree with the trial court’s harmless error

analysis. The court explained:

[Appellant] was found to have violated other conditions of

probation, such as using a controlled substance, failing to

complete DUI school, and leaving her residence without

authorization while on house arrest/electronic monitoring.

Indeed, her counsel stated that “she was in violation

of the house arrest rules, … [that] there are other violations that

she did commit … [and] I do believe she was in violation based on

those other allegations.” N.T. [Hearing, 9/28/22,] at 12; see also

id. at … 37 ([Appellant’s stating, “I realize that they are

violations.”). Consequently, if the finding was erroneous that

[Appellant] violated her probation by the manner in which she

pursued Officer Daly, this would … constitute harmless error.

TCO at 6-7 (footnotes and some citations to the record omitted).

While Appellant argues on appeal the court’s ostensible error was not

harmless because the court premised her sentence “almost entirely” on her

violating the condition that she not contact Officer Daly, the record does not

support this position. Appellant’s Brief at 9 (citing N.T. Hearing at 39-42). In

the portion of the sentencing transcript cited by Appellant, the court explained

that Appellant “has been given every single opportunity at the local level to

be successful and has just simply failed in that regard.” N.T. Hearing at 39.

The court also stated that it reviewed the presentence report and the

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information it had when imposing Appellant’s original sentence in 2021. Id.

It also “read very carefully the report that was prepared by Dr. [Ingrid K.]

Rednberg[,]” a board certified psychiatrist who opined that Appellant was

competent. Id. The court acknowledged that Appellant “suffers substantially

from severe mental illness.” Id. However, the court noted that various

programs and opportunities had been provided to Appellant to help her to no

avail. Id. at 39-40. The court found that Appellant is a danger to the

community based on “what was sent to Officer Daly[,]” as well as Appellant’s

prior record, which includes convictions for harassment, disorderly conduct,

simple assault, DUI, fleeing and eluding police, loitering and prowling at night,

and false imprisonment. Id. at 40-41. Ultimately, the court found that

Appellant presents a danger to the community, and that it had “done

everything [it could] to help her with her mental health needs” at the county

level, without success. Id. at 41. Accordingly, the court concluded that the

state system would provide better programs for Appellant and “a re-entry plan

that meets her needs” more successfully than the county was able to do. Id.

Clearly, this record shows that the court’s sentence was not premised

‘almost entirely’ on Appellant’s contacting Officer Daly. Instead, the court

focused on her prior record, rehabilitative needs, failure to take advantage of

the opportunities and programs available at the county level, and, most

importantly, the danger Appellant poses to the community. Thus, we would

agree with the court that, even if it erred in finding Appellant in violation of

her probation based on her contacting Officer Daly, any such error was

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harmless. Appellant committed other violations that warranted the court’s

revoking her probation, and her sentence was not premised solely on her

contacting Officer Daly.

Judgment of sentence affirmed.

Judge Stabile joins this memorandum.

Judge Pellegrini concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2023

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