Com. v. Infante
| Decision Date | 29 December 2005 |
| Citation | 888 A.2d 783 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant v. Jose INFANTE, Appellee. |
| Court | Pennsylvania Supreme Court |
Hugh J. Burns, Philadelphia, Peter Carr, Jason E. Fetterman, for the Com. of PA., appellant.
Karl Baker, Peter Rosalsky, Philadelphia, for Jose Infante, appellee.
BEFORE: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
The instant matter is an appeal by the Commonwealth from an order of the Superior Court vacating appellee's judgment of sentence. The sole issue before this Court is whether the sentencing court had the authority to revoke appellee's probation and impose a prison sentence on the basis of a conviction that occurred subsequent to the imposition of probation, where, at the time probation was imposed, the criminal conduct underlying that conviction was known to the court but the court deferred consideration of the crime pending the outcome of the trial. For the following reasons, we hold that the trial court had the authority to sentence appellee as it did, and we therefore reverse the order of the Superior Court and reinstate the trial court's judgment of sentence.
The relevant facts and procedural history of this case are as follows. On December 10, 1999, before the Honorable M. Teresa Sarmina, appellee entered a negotiated plea of guilty to two charges of possession with intent to deliver a controlled substance ("PWID"), 35 P.S. § 780-113(a)(30). On that same date, the trial court imposed, for each crime, a sentence of one year of Intermediate Punishment to be followed by two years of probation, with the sentences to run concurrently.1 The trial court also ordered appellee to complete long-term inpatient care, conduct forty hours of community service, and pay court costs.
Appellee appeared before the trial court again on June 5, 2001, for a violation of probation ("VOP") hearing. The hearing was the result of appellee having been arrested on February 24, 2001, and charged with simple possession of a controlled substance and PWID, both of which charges were held for court.2 The trial court modified appellee's initial sentence of Intermediate Punishment to include ninety days of house arrest.
At a second VOP hearing on October 29, 2002, appellee's probation officer and the prosecutor informed the court that, although appellee had complied with the court's June 5, 2001 modification order, he had again been arrested on July 24, 2002 and charged with several new offenses for which he was awaiting trial on November 26, 2002. During the hearing, neither the parties nor appellee's probation officer explained the nature or extent of the new charges.3 However, both the probation officer and appellee's counsel suggested without contradiction that some or all of the charges arose from a dispute, or disputes, between appellee and an estranged ex-girlfriend. Moreover, appellee's counsel urged the court to consider that "although [the charges] have been held for court ... as with many domestic cases, [the outcome] will rise and fall on the credibility of the complainant." N.T., 10/29/02, at 7. Neither appellee's counsel nor the Commonwealth requested that the VOP hearing be continued pending the outcome of the scheduled trial on the new charges.
In addition to the new criminal charges, it was undisputed at the hearing that appellee also had committed technical violations of the probation by failing to report to his probation officer and failing to maintain employment. N.T., 10/29/02, at 10.4 Ultimately, the trial court revoked appellee's probation and sentenced him to eleven and one half to twenty-three months of imprisonment, to be followed by two years of probation — i.e., a county jail sentence.5 In imposing the sentence, Judge Sarmina, in apparent response to defense counsel's reminder that appellee had yet to be tried on the new charges, made clear that her determination was limited to appellee's technical violations, and that she would await the outcome of appellee's trial on the new charges before determining if a further response was necessary. In so doing, Judge Sarmina expressly admonished appellee, on the record, as to what would ensue if he were found guilty of the new charges:
N.T., 10/29/02, at 12-14 (emphasis added). When appellee indicated that he did not understand the court's admonition, the court reiterated:
[I]f there is a guilty verdict on any of those charges, I will terminate your parole. I will revoke your probation and send you to state prison. I just want you to be aware of it.
N.T., 10/29/02, at 15 (emphasis added). Neither appellee nor the Commonwealth objected to the court's proposed manner of disposition.
On November 26, 2002, following a trial on the pending charges held before the Honorable Rosemarie Defino-Nastasi, appellee was found guilty of robbery, intimidating a witness/victim, and possessing an instrument of crime. He was sentenced on that case to a term of one and a half to three years of imprisonment.
On January 27, 2003, Judge Sarmina held a third VOP hearing, wherein she terminated appellee's parole,6 revoked his probation, and re-sentenced him to a term of three to six years of imprisonment, to run concurrently with the sentence imposed by Judge Defino-Nastasi for his November 26, 2002 convictions.
On February 14, 2003, appellee timely filed a notice of appeal to the Superior Court. Appellee argued that the trial court erred in finding him to be in violation of probation as a result of criminal behavior that occurred prior to the imposition of such probation.
In an opinion dated May 22, 2003, the trial court rejected appellee's argument, noting that a sentencing court's basis for revoking probation and imposing imprisonment is not restricted to a finding that criminal conduct was committed during the term of probation. Trial Ct. slip op. at 2-3 (citing Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983)). Rather, the trial court found that the appropriate focus of a violation hearing is whether the conduct of the probationer indicates that probation will be an effective means to accomplish rehabilitation and deterrence. The court concluded:
In the present case, the January 27, 200[3] violation hearing was prompted by a "subsequent arrest" from when [appellee] had commenced being under this Court's supervision in December 1999. His criminal conduct (of June 19, 2002, and July 22, 2002) which led to the probation revocation in this case occurred during that supervision. [Appellee] had never suffered any consequences for these direct violations and therefore this Court's revocation of his probation and imposition of a new sentence was proper. In this Court's view, so long as [appellee] has not already had a transgression punished by this Court, the Court is not precluded from punishing him for said transgression (timeliness issues aside).
Trial Ct. slip op. at 3. Reiterating its point that appellee had never "suffered any consequences" from the criminal conduct underlying the new charges, the court stated that Id.
On appeal, the Superior Court agreed with appellee and vacated his sentence. Commonwealth v. Infante, 850 A.2d 696 (Pa.Super.2004). The panel began by noting well-settled Pennsylvania law that "a probation violation hearing may be conducted prior to a trial for the criminal charges based on the same activities." Id. at 698 (quoting Brown, 469 A.2d at 1371). The court then correctly concluded that "[appellee] need not have been convicted of the crimes that took place in June and July 2002 in order for his probation to be revoked on that basis in October 2002." Infante, 850 A.2d at 698. The court recognized, however, that appellee's October 2002 revocation and sentence modification was based strictly upon technical violations — i.e., a failure to report to the probation officer and maintain employment — and not the new, pending criminal charges. Thus, the Superior Court formulated the controlling question as follows: "whether the trial court was permitted to revoke [appellee's] probation that was imposed in October 2002, based on the conviction of criminal activity that took place prior to the imposition of that probation...." Id.
Finding that no prior Pennsylvania appellate case directly controlled that question, the court relied on what it deemed to be persuasive case law from other jurisdictions and ultimately concluded as follows:
Because probation is intended to serve as a deterrent to future antisocial conduct, an individual's conduct is viewed prospectively. At the time probation is entered, an individual can do nothing to change the course of events that occurred prior to imposition of probation. Thus, the purpose of probation is not served by looking at conduct...
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