Antonio Alexander appeals from his judgment of sentence after entering an open guilty plea to violations of the Uniform Firearms Act (VUFA).
On the evening of December 14, 2007, Philadelphia Police Detectives saw Alexander, a convicted felon at the time, walking on the street carrying a handgun over his shoulder. When the officers attempted to stop him, he ran and tossed the gun aside. The police recovered the gun, an inoperable 9mm automatic loaded with 33 rounds, and noticed that its serial number had been removed. The case was assigned to Philadelphia Gun Court, where Alexander pled guilty before the Honorable Susan I. Schulman.
At sentencing, the trial judge ordered Alexander to serve 1-2 years in prison for his section 6105 violation, to be followed by three years of probation for his section 6110.2 infraction. The court also informed Alexander that he would not be eligible for early parole and that he would be on "Gun Court" probation, explaining:
N.T. Sentencing, 8/15/2008, at 15-21 (emphasis added).
Alexander filed a post-sentence motion to reconsider his sentence and strike the probation/parole condition allowing for the random residential searches. The court denied the motion, finding that the random searches were both reasonable and necessary for a convicted felon on probation who is prohibited from having a firearm or residing with anyone who has a firearm. Alexander filed this timely appeal, again contesting the constitutionality and reasonableness of the search condition.
Before we address the merits of Alexander's claim on appeal, we must first determine whether he has preserved this issue for our review. The Commonwealth contends that the issue regarding the validity of the random, warrantless search condition on Alexander's parole and/or probation is one that challenges the discretionary aspect of his sentence. The Commonwealth further argues that because Alexander has failed to demonstrate that a substantial question exists as to whether the imposed sentence was appropriate under the Sentencing Code as a whole, the claim is waived on appeal. We disagree.
Our full Court recently addressed this exact issue in Commonwealth v. Wilson, 11 A.3d 519 (Pa.Super.2010) (en banc), where a similar search condition was imposed on Wilson's sentence. In that decision, a majority of the Court held that the issue involved one of legality of sentence because it essentially questions the court's authority to impose conditions on a defendant's probation and parole. Id. at 524-25, 535-36.
Alexander claims, as did the defendant in Wilson, that in order to be valid, the searches of his residence while he is on probation must be based, at least, upon a minimal level of reasonable suspicion. Without this particularized suspicion or any statutory authority giving the trial court the power to order such suspicionless searches, Alexander asserts that the court exceeded its authority and violated his constitutional right to be free of unreasonable searches. We agree.
In Wilson, supra, our Court was equally divided on the validity of the same search condition that was imposed on the defendant's probation sentence. Although a plurality affirmed the trial court, finding that such probation conditions were "lawful under § 9754(b)[
Wilson, supra at 537.
Our Commonwealth has recognized that individuals on probationary supervision
In Williams, unlike this case, the defendant signed a form expressly consenting to the warrantless search of his residence by agents while on parole. Acknowledging the factual distinctions between this case and Williams, the most significant being that here the search condition is tied to a probation sentence, Alexander correctly points out that the constitutional rights of a parolee and a probationer are indistinguishable. Id. at 585 n. 7, 692 A.2d 1031, citing Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 3, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Thus, Alexander argues that just as Williams' residence could not be searched while he was on parole without at least a minimum level of reasonable suspicion, so too should the same level of suspicion be required to apply to the search of his home while he is on probation. We agree.
As the opinion in support of reversal concluded in Wilson, the instant probation condition imposed by the trial court on Alexander's sentence has no basis in statutory authority or other legal authority. In fact, the condition violates the plain language of section 331.27b, which requires probation officers to support their searches with reasonable suspicion. Wilson, 11 A.3d at 536-37. There must be some level of reasonable suspicion present in order to protect a probationer's state and federal constitutional right to be free from unreasonable searches; a trial court may not, through legislation, circumvent the constitutional protections afforded citizens. Because the present condition permits suspicionless searches, the trial court exceeded its scope of authority and the condition is illegal. See Commonwealth v. Mears, 972 A.2d 1210 (Pa.Super.2009) (holding that where court was without authority to impose special terms and conditions of parole, that portion of sentence was vacated as illegal). Thus, we vacate that portion of Alexander's sentence permitting such searches of his residence while on probation.
With regard to the trial court's imposition of the random search-for-guns condition on Alexander's parole, the Wilson Court has also spoken on this issue. In Wilson, a majority of our Court held that where the maximum term of a defendant's sentence is two or more years, a trial court is without authority to set the terms of any parole. Id. 11 A.3d at 530-31. See 61 P.S. § 331.26 (sentencing judges have parole authority only when maximum sentence is less than two years). Here, Alexander's maximum sentence was two years' imprisonment; therefore, any such condition in this case would be a legal nullity. Wilson, supra at 530-31. We, therefore, also vacate that portion of his sentence as it relates to parole.
FORD ELLIOTT, P.J., files a Concurring and Dissenting Opinion.
PANELLA, J., files a Concurring and Dissenting Opinion, in which STEVENS, SHOGAN and ALLEN, JJ., join.
CONCURRING AND DISSENTING OPINION BY FORD ELLIOTT, P.J.:
I agree with my esteemed colleagues in the majority that the probation condition permitting suspicionless searches of Alexander's residence is unconstitutional and must be vacated. However, for the reasons described in my concurrence in Commonwealth v. Wilson, 11 A.3d 519 (Pa.Super.2010) (en banc), I must respectfully disagree that the issue implicates the legality, rather than the discretionary aspects, of Alexander's sentence. See id. at 532 n. 5 ("even issues of constitutional dimensions can be waived.") (citation omitted). While the trial court committed legal error by authorizing random searches for firearms, this did not render Alexander's sentence "illegal" as that term is narrowly defined by the relevant case law. Rather, I would find that imposition of a random searches condition represents an abuse of discretion and is unenforceable.
Unlike the defendant in Wilson, Alexander has preserved the issue by filing post-sentence motions challenging the condition. Therefore, the matter is not waived and we may address it. I also note that with respect to Alexander's parole, I agree that application of the random searches condition goes to the legality of the sentence. This is because, as explained by the majority, the trial court is statutorily unauthorized to set any conditions of parole where the defendant is sentenced to a maximum term of incarceration of two or more years, and the Pennsylvania Board of Probation and Parole is solely authorized to set the conditions of parole.
For these reasons, I must respectfully dissent with regard to that part of the majority Opinion holding that Alexander's challenge to the condition of probation at issue goes to the legality of his sentence, but I join in all other respects.
I agree with my distinguished colleagues in the Majority that Alexander's sentencing claims challenge the legality of the sentence imposed and that the portion of the sentence imposing a parole condition must be vacated. I do not, however, join the Opinion in so far as it rules that the Philadelphia Gun Court lacks the authority to impose a probationary condition ordering random, warrantless searches of Alexander's residence for guns. In Commonwealth v. Wilson, 11 A.3d 519 (Pa.Super.2010) (Opinion in Support of Affirmance), I explained why I believe the Philadelphia Gun Court has the authority to impose, as a condition of probation, random, warrantless searches of a probationer's residence. For the reasons set forth in Wilson, I respectfully dissent.
STEVENS, SHOGAN and ALLEN, JJ., join.
Appellant's Brief at 3.
61 P.S. § 331.27b(d)(2) (emphasis added). In October 2009, the legislature codified 42 Pa. C.S.A. § 9912(d), which similarly gives county probation agents authority to supervise their offenders and contains the same language as its predecessor, section 331.27b.