Commonwealth v. Simmons

• Citation: 262 A.3d 512
• Decision Date: 18 August 2021
• Docket Number: No. 2461 EDA 2018,2461 EDA 2018
• Parties: COMMONWEALTH of Pennsylvania v. David SIMMONS, Appellant
• Court: Superior Court of Pennsylvania

262 A.3d 512

COMMONWEALTH of Pennsylvania

v.David SIMMONS, Appellant

No. 2461 EDA 2018

Superior Court of Pennsylvania.

Submitted September 15, 2020

Filed August 18, 2021

Aaron J. Marcus, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for appellee.

BEFORE: BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.

OPINION BY OLSON, J.:

Appellant, David Simmons, appeals from the judgment of sentence entered on July 18, 2018. We vacate Appellant's judgment of sentence and remand.

Appellant pleaded guilty to firearms not to be carried without a license and carrying firearms on the public streets of Philadelphia.¹ On December 18, 2017, the trial court sentenced Appellant to serve a term of six to 23 months in jail, followed by three years of probation, for his convictions. Sentencing Order, 12/18/17, at 1.

On February 19, 2018, Appellant was arrested and charged, at a separate docket number, with firearms not to be carried without a license and possession of a controlled substance.² See Docket Number: CP-51-CR-0003561-2018 ("3561-2018"). The arrest occurred while Appellant was on parole in this case and before the term of probation in this case had begun. See N.T. Resentencing Hearing, 7/18/18, at 27.

On July 18, 2018, Appellant pleaded guilty to firearms not to be carried without a license and possession of a controlled substance at docket number 3561-2018 and the trial court sentenced Appellant to serve six to 23 months in jail, followed by three years of probation, for those convictions. N.T. Sentencing Hearing, 7/18/18, at 24.

As a result of Appellant's convictions at docket number 3561-2018, the trial court in the case at bar revoked Appellant's parole, anticipatorily revoked Appellant's probation, and resentenced Appellant to serve a term of two and one-half to five years in prison. N.T. Resentencing Hearing, 7/18/18, at 27 and 35; Sentencing Order, 7/18/18, at 1. Appellant filed a timely notice of appeal and, after we initially affirmed Appellant's judgment of sentence, Appellant filed an application for reargument en banc . We granted Appellant's application, withdrew the prior panel decision, and listed the case for en banc consideration. Appellant now raises the following claim to this Court:

When the [trial] court revoked parole for a violation [resulting from new convictions,] did not the court lack authority under Pennsylvania law to also revoke a consecutive sentence of probation that [Appellant] had not yet begun to serve?

Appellant's Brief at 4.

"[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). On appeal, Appellant claims that the trial court erred when it found he violated a condition of an order of probation that, by its terms, had not yet commenced. Intertwined with this claim, Appellant also argues that, to the extent the trial court amended his original order of probation to run concurrently, rather than consecutively, the trial court illegally modified his sentence, as the trial court did not have jurisdiction to modify his sentence more than 30 days after imposition. Appellant's Brief at 10-25; see also Commonwealth v. Bischof , 420 Pa.Super. 115, 616 A.2d 6, 10 (1992) ("a modification of a sentence imposed on a criminal defendant which increases the punishment constitutes further or double jeopardy") (quotations and citations omitted); Commonwealth v. Everett , 277 Pa.Super. 323, 419 A.2d 793, 794 (1980) ("[s]ince the original [order of] probation was illegal, the sentence of imprisonment imposed for violation of that probation was illegal"). Appellant's claims fall within our scope of review, as they contend that the trial court lacked statutory authority to revoke his probation, that the trial court illegally modified his underlying sentence, and that his resulting sentence is illegal. We may thus consider the merits of Appellant's claims.³

Resolution of Appellant's claims require that we interpret various statutes. "Statutory interpretation is a question of law and therefore our standard of review is de novo and our scope of review is plenary." Commonwealth v. Peck , ––– Pa. ––––, 242 A.3d 1274, 1278 (2020). Regarding our principles of statutory interpretation, our Supreme Court has explained:

Our task is guided by the sound and settled principles set forth in the Statutory Construction Act, including the primary maxim that the object of statutory construction is to ascertain and effectuate legislative intent. 1 Pa.C.S. § 1921(a). In pursuing that end, we are mindful that "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b). Indeed, as a general rule, the best indication of legislative intent is the plain language of a statute. In reading the plain language, "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage," while any words or phrases that have acquired a "peculiar and appropriate meaning" must be construed according to that meaning. 1 Pa.C.S. § 1903(a). However, when interpreting non-explicit statutory text, legislative intent may be gleaned from a variety of factors, including, inter alia : the occasion and necessity for the statute; the mischief to be remedied; the object to be attained; the consequences of a particular interpretation; and the contemporaneous legislative history. 1 Pa.C.S. § 1921(c). Moreover, while statutes generally should be construed liberally, penal statutes are always to be construed strictly, 1 Pa.C.S. § 1928(b)(1), and any ambiguity in a penal statute should be interpreted in favor of the defendant.

Notwithstanding the primacy of the plain meaning doctrine as best [representation] of legislative intent, the rules of construction offer several important qualifying precepts. For instance, the Statutory Construction Act also states that, in ascertaining legislative intent, courts may apply, inter alia , the following presumptions: that the legislature does not intend a result that is absurd, impossible of execution, or unreasonable; and that the legislature intends the entire statute to be effective and certain. 1 Pa.C.S. § 1922(1), (2). Most importantly, the General Assembly has made clear that the rules of construction are not to be applied where they would result in a construction inconsistent with the manifest intent of the General Assembly. 1 Pa.C.S. § 1901.

Commonwealth v. Shiffler , 583 Pa. 478, 879 A.2d 185, 189-190 (2005) (some quotations, citations, and corrections omitted).

The statutes that govern the imposition and revocation of an order of probation are penal in nature and, as such, "must be strictly construed." 1 Pa.C.S.A. § 1928(b)(1) ; see also Commonwealth v. Hudson , 231 A.3d 974, 978 (Pa. Super. 2020) ("[s]ince [the statute governing imposition of an order of probation] is a penal statute, we must strictly construe this provision"); Commonwealth v. Harner , 533 Pa. 14, 617 A.2d 702, 704 (1992) ("an order placing a defendant on probation must be regarded as punishment for double jeopardy purposes"); Commonwealth v. Nicely , 536 Pa. 144, 638 A.2d 213, 217 (1994) ("[i]f there is a judicial determination that a probation violation has occurred, a sentence may be imposed and judgment at that point becomes final"); see also Nesbit v. Clark , 272 Pa. 161, 116 A. 404, 407 (1922) ("[a] penal statute is one which imposes a penalty or forfeiture for transgressing its provisions, or for doing a thing prohibited, and it is none the less a penal statute [even though] it is also remedial") (quotations and citations omitted).

As our Supreme Court has explained, the principle of strict construction "does not require that [we] give the words of a statute their ‘narrowest possible meaning,’ nor does it override the general principle that the words of a statute must be construed according to their common and approved usage." Commonwealth v. Hart , 611 Pa. 531, 28 A.3d 898, 908 (2011) (some quotations and citations omitted). "Rather, where doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt." Id. (quotations and citations omitted).

We initially set forth the statutes governing the imposition and revocation of an order of probation, as those statutes existed at the time Appellant's probation was imposed and revoked. To this end, we recite the relevant portions of Sections 9721, 9754, and 9771 of the Sentencing Code, prior to their amendments in December 2019.

Section 9721 of the Sentencing Code is entitled "[s]entencing generally." Section 9721(a) declares:

(a) General rule.--In determining the sentence to be imposed the court shall ... consider and select one or more of the following alternatives, and may impose them consecutively or concurrently:

(1) An order of probation.

(2) A determination of guilt without further penalty.

(3) Partial confinement.

(4) Total confinement.

(5) A fine. ...

42 Pa.C.S.A. § 9721(a) (effective September 4, 2012 to December 17, 2019).

Section 9754, entitled "[o]rder of probation," goes on to declare that, "[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) (effective to December 17, 2019). Regarding the conditions of probation, Section 9754(b) and (c) declare:

(b) Conditions generally.-- The court shall attach such of the reasonable

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