OPINION BY STRASSBURGER, J.:
Shahnawaz M. Mathias, Jr., (Appellant) appeals from a judgment of sentence entered after the trial court purported to revoke his probation. We conclude that the imposition of the judgment was illegal. Consequently, we vacate Appellant's judgment of sentence.
The procedural background underlying this matter is rather complicated. This Court previously summarized it as follows.
Commonwealth v. Mathias, 93 A.3d 510 (Pa.Super.2013) (unpublished memorandum at 2-5) (citations and footnotes omitted). The PCRA court dismissed the PCRA petition, and this Court affirmed that order on December 13, 2013. Id.
While the order dismissing the PCRA petition still was on appeal, the defendant commits offenses or Appellant filed a "Petition to Change Treatment Providers."
In a petition filed on October 17, 2013, which was entitled "Petition for Hearing on Stay and Related Items," Appellant highlighted, inter alia, that he has been under probationary supervision since 2005, despite the fact that he was sentenced to only five years of probation in 2006.
The trial court held a hearing on December 3, 2013. Several witnesses testified at that hearing, including Albert Sabol. Mr. Sabol was the Chief Adult Probation Officer at the Department for eleven years when he retired in December of 2012. According to Mr. Sabol, in 2002, then President Judge Chronister of the York County Court of Common Pleas issued an unwritten directive "that when a case is on appeal in an upper court, [] the local court lacks jurisdiction and cannot change or alter a sentence, and he directed that [the Department] no longer supervise cases that have taken an appeal." N.T., 12/3/2013, at 46-47. Mr. Sabol testified
In an order entered on December 5, 2013, the trial court determined that, because of the multiple appeals Appellant has taken related to his probation, as of December 3, 2013, Appellant had served only 666 days of his five-year probation sentence, leaving him with 1,159 days of supervision to complete. Furthermore, the trial court denied Appellant's request to change counseling centers.
On December 13, 2013, Appellant filed a motion to reconsider the December 5, 2013 order. Therein, Appellant contended, inter alia, that Judge Chronister's "unwritten directive" is unconstitutional. The trial court denied that motion on December 27, 2013. On January 27, 2014, Appellant filed a notice of appeal wherein he stated his intent to appeal the order denying his motion for reconsideration. In a per curiam order filed on May 5, 2014, this Court quashed the appeal as untimely filed. Commonwealth v. Mathias, Jr., 208 MDA 2014.
In the meantime, on March 14, 2014, the Department filed a petition in the trial court wherein it sought a hearing to determine whether Appellant had violated his probation by failing to enter and successfully complete an approved sexual offender treatment program. The trial court held a hearing regarding the petition on April 21, 2014.
At the beginning of the hearing, Appellant's counsel reminded the court that Appellant's appeal regarding the constitutionality of the "unwritten directive" still was pending in this Court. Counsel also moved to quash the Department's petition. As to this motion, counsel argued that the Department was alleging that Appellant violated his probation by failing to attend counseling while his appeal was pending, despite the fact that, pursuant to the "unwritten directive," Appellant was not being supervised at that time.
At the conclusion of the hearing, the trial court determined that Appellant violated his probation. The court, therefore, revoked his probation. The court sentenced Appellant to serve 6 to 23 months in prison. Appellant timely filed a motion for reconsideration. Therein, Appellant contended, inter alia, that his sentence was excessive. The trial court denied the motion.
Appellant timely filed a notice of appeal. The trial court directed Appellant to comply with Pa.R.A.P.1925(b), and Appellant subsequently filed a 1925(b) statement. The trial court responded by filing an opinion pursuant to Pa.R.A.P.1925(a). In his brief to this Court, Appellant asks us to consider the questions that follow.
Appellant's Brief at 11-12 (Appellant's answer's omitted).
Under his first four issues, Appellant raises a number of constitutional challenges to the "unwritten directive" and the Department's policy of not supervising Appellant's probation while his various appeals were pending. He, however, ultimately contends that his sentence is illegal because his five-year term of probation had expired when the trial court revoked his probation and sentenced him. We need not reach the merits of Appellant's constitutional challenges in order to agree with him that he is serving an illegal sentence.
"Issues relating to the legality of a sentence are questions of law[.] ... Our standard of review over such questions is de novo[,] and our scope of review is plenary." Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.Super.2014).
While it is easy to get distracted by, inter alia, the procedural complexity of this case, our determination that Appellant's sentence is illegal flows from a fairly straightforward analysis. On November 15, 2006, the trial court sentenced Appellant to serve an aggregate of five years of probation. Over seven years after the imposition of this sentence, the trial court purported to revoke that five-year probation sentence and to resentence Appellant to a period of imprisonment. Yet, the certified record is devoid of any order staying Appellant's original sentence. Moreover, prior to the 2014 order revoking the probation, the trial court never revoked Appellant's probation or resentenced him.
The Department may very well have a policy of
When the trial court revoked Appellant's probation and resentenced him, Appellant's term of probation had expired. Consequently, the trial court lacked the authority to revoke the probation, and the sentence of imprisonment is illegal. See, e.g., Commonwealth v. Mitchell, 955 A.2d 433, 435 (Pa.Super.2008) ("Under Pennsylvania law, an order of probation can be changed or revoked `if, at any time
Judgment of sentence vacated.
Judge WECHT joins this opinion.
Judge SHOGAN files a concurring opinion in which Judge STRASSBURGER joins.
CONCURRING OPINION BY SHOGAN, J.:
I share the concern expressed by the Majority regarding unwritten York County probation procedures and fully join the Majority Opinion.
The Commonwealth asserts that Appellant was aware that his probation was stayed, if not by the unwritten York County Rule, by an order granting bail. Commonwealth's Brief at 9 n. 2. It appears as though Appellant, in his effort to challenge his sentence of probation, posted bail while on probation.
Therefore, if Appellant was in fact released from the conditions of probation, those 663 days may not count toward his maximum probation sentence of five years. This calculation would result in Appellant completing his five-year sentence of probation on September 8, 2013. These extra 663 days do not, however, alter the Majority's conclusion that the Commonwealth's March 14, 2014 petition, concerning an alleged probation violation, was filed after Appellant completed his sentence. Therefore, I agree with the Majority that Appellant's April 21, 2014 judgment of sentence must be vacated as there was no probation for the trial court to revoke.
Judge STRASSBURGER joins this concurring opinion.
As an initial matter, there simply is no language in Rule 1701 that justifies the Department's policy of not supervising a probationer while an appeal is pending. As to whether a court can revoke probation while an appeal is pending, Rule 1701 does generally state that, "after an appeal is taken ..., the trial court ... may no longer proceed further in the matter." Pa.R.A.P. 1701(a). However, the rule explicitly allows a court, after an appeal has been taken, to enforce an order entered in the matter. Pa.R.A.P. 1701(b)(2). Thus, when Appellant's appeals were pending, the trial court clearly could enforce the terms of Appellant's sentence of probation.
Pa.R.Crim.P. Rule 534 and comment.