Ricky L. Allshouse, Appellant, appeals from the order revoking his probation and resentencing him. He asserts that the Clearfield County trial court erred in determining that his probation commenced upon his release from state incarceration. We affirm.
On June 11, 2004, Appellant was involved in a physical altercation with officers from the Sandy Township, Clearfield County, Pennsylvania Police Department. Appellant subsequently pled guilty to one count of aggravated assault and one count of resisting arrest
On November 2, 2005, Appellant was sentenced on an unrelated matter in Jefferson County, Pennsylvania (Jefferson County case). Appellant's sentence on the Jefferson County case was not more than one nor less than three years' incarceration in a state correctional facility. The Jefferson County court specified that its sentence was to run consecutively to the sentence imposed at the Clearfield County case. Trial Court Opinion, 8/31/2010, at 1.
The Department of Corrections (DOC) aggregated the Clearfield and Jefferson County sentences, resulting in a two-to-five year period of incarceration. Appellant failed to make parole and served his maximum five-year sentence. While he was serving his aggregated state sentence, Appellant pled guilty to three institutional violations, including threatening prison staff. N.T., 9/13/2010, at 2.
On or about June 24, 2010, at the expiration of his maximum sentence, Appellant was immediately detained on a probation violation order from Clearfield County. Probation officials claimed that Appellant had violated his probation when he refused to acknowledge the terms and conditions of that probation, threatened prison staff, and failed to provide a home plan.
On July 12, 2010, Appellant appeared in Clearfield County for his probation violation hearing. At this hearing, the trial court heard evidence of Appellant's institutional violations and his repeated refusal to sign and acknowledge the conditions of his probation. Based on Appellant's conduct, the Commonwealth asked that Appellant's probation be revoked. Appellant, through counsel, argued that Appellant's Clearfield County probation was "`constructively served' at the conclusion of the Clearfield County sentence while [Appellant] remained incarcerated on the Jefferson County sentence." Trial Court Opinion, 12/1/2010, at 2. Thus, Appellant contended, there was no probation to violate as the imposed two year term had been completed while Appellant was in DOC custody. Id. The trial court granted both parties additional time to brief the issue and continued the matter.
On July 22, 2010 probation officials met with Appellant; once more, he refused to sign the conditions of his probation. On August 2, 2010, Appellant appeared before the Clearfield County court again for the continuation of his violation hearing. During the August 2 hearing, Appellant repeatedly made unprovoked, random outbursts on the record alleging that various people were plotting to take his life, violating his constitutional rights, and spreading
On August 31, 2010, the trial court issued an opinion regarding the constructive probation issue raised by Appellant's counsel at the July 12, 2010 hearing. In rejecting Appellant's argument, the trial court determined that Appellant's sentences were properly aggregated by the DOC, resulting in one two-to-five year sentence, and Appellant's consecutive Clearfield County probation commenced immediately following his release from state prison when he reached his maximum aggregate incarceration date. Id.
On September 13, 2010, following a hearing, the trial court revoked Appellant's probation. In so doing, the court acknowledged its belief that Appellant was a danger to the public and inappropriate for release on probation. N.T., 8/2/2010, at 5-10. The trial court then re-sentenced Appellant to a term of not less than ten months' nor more than three years' incarceration.
Appellant filed timely post-sentence motions.
Appellant raises two questions for our review:
Appellant's Brief at 4.
Appellant's first issue appears to raise a constitutional question; "as with all questions of law, the appellate standard of review is de novo...." In re Wilson, 879 A.2d 199, 214 (Pa.Super.2005) (en banc). The scope of our review is plenary. See Commonwealth v. Crawford, 24 A.3d 396 (Pa.Super.2011).
Appellant claims that the Board, an office of the executive branch, violated the separation of powers doctrine because it, and not the Clearfield County trial court, an office of the judicial branch, determined when Appellant's probation began.
We begin by noting
In evaluating this question, we must first determine whether the DOC acted improperly in aggregating Appellant's periods of state incarceration into a single sentence.
Pennsylvania statutory law provides:
42 Pa.C.S. § 9757. This statute mandates automatic aggregation of sentences once a trial court imposes a consecutive sentence. Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 590 A.2d 782, 783 (1991). See Commonwealth v. Harris, 423 Pa.Super. 190, 620 A.2d 1175 (1993).
Here the trial court reasoned that, because Appellant's Jefferson County sentence was specifically imposed consecutively to that imposed at the Clearfield County case, the DOC properly aggregated the sentences. Trial Court Opinion, 8/31/2010, at 1-2. We agree. As the aggregation of Appellant's sentences by the DOC is mandatory, the discretionary aspect of the Clearfield County trial court's sentence has not been affected. Accordingly, we hold the separation of powers doctrine has not been violated in this regard.
We turn now to Appellant's claim that the Board somehow disregarded the trial court's "directive [that probation begin in 2007 and end in 2009] and detained [Appellant] based upon its view that probation began in 2010." Appellant's Brief at 13. Appellant's position is belied by the record.
The plain language of Appellant's sentencing order provides, in relevant part,
Clearfield County Case Sentencing Order (Sentencing Order), 7/21/2005, at 1-2. The Sentencing Order provides no basis for Appellant's assertion that "the trial court wanted the probation to start in the year 2007 and conclude in the year 2009." Appellant's Brief at 13. The trial court's stated "intent" was for Appellant to be
We note that this is an issue of first impression in this jurisdiction. As such, following oral argument before this panel, Appellant was given an opportunity to supplement his argument that his probation was served "constructively" while Appellant was incarcerated on the Jefferson County sentence with case law from our federal courts.
The relevant federal statute provides
18 U.S.C. § 3564(b) (emphasis added).
This Court can find no case law discussing the applicability of Section 3564(b). However, a common-sense reading of this statute prohibits "constructive probation." Moreover, we find no support in the Pennsylvania statutes that the General Assembly intended to permit defendants to serve a term of probation and a term of state incarceration simultaneously.
We turn now to Appellant's second issue: whether "the evidence was insufficient to support the [Clearfield County court's] decision to revoke probation[?]" Appellant's Brief at 20.
Our review of Appellant's claim is guided by the following principles:
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super.2000) (quotation marks and citations omitted).
The Sentencing Code prescribes, with respect to the imposition of conditions of probation, that "[t]he court shall attach such of the 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). In Commonwealth v. Vilsaint, 893 A.2d 753 (Pa.Super.2006), a panel of this Court, citing 42 Pa.C.S. § 9754(b), held that "the legislature has specifically empowered the court, not the probation offices and not any individual probation officers, to impose the terms of probation." Id. at 757. Furthermore, in Commonwealth v. MacGregor, 912 A.2d 315 (Pa.Super.2006), this Court noted that a sentencing court cannot revoke probation based upon a probationer's violation of a condition imposed solely by a probation office.
When assessing whether to revoke probation, the trial court must balance "the interests of society in preventing future criminal conduct by the defendant against the possibility of rehabilitating the defendant outside of prison." Commonwealth v. Ballard, 814 A.2d 1242, 1245 (Pa.Super.2003). In order to uphold a revocation of probation, the Commonwealth must show by a preponderance of the evidence
Relying on our holdings in Vilsaint and MacGregor, supra, Appellant argues that the trial court revoked his probation solely on the basis that he failed to sign and acknowledge the conditions of his probation, a condition not imposed by the trial court at sentencing. Appellant's Brief at 20.
The requirement that Appellant sign and acknowledge the terms and conditions of his probation is not expressly ordered by the Clearfield County trial court. However, "[t]he courts have recognized `implied conditions' of probation, such as `do not commit another crime.' Such implied conditions are obvious in nature." Vilsaint, 893 A.2d at 757 n. 5. In Vilsaint, the trial court expressly permitted the probation
Instantly, the Commonwealth requested that Appellant's probation be revoked on the basis that he refused to cooperate with probation officials by formally acknowledging the terms and conditions of his probation. It seems obvious that, in order to comply with a trial court's order of probation, an appellant must acknowledge the terms with which he is ordered to comply. The purpose of probation is rehabilitation and reintroduction into society. Without acknowledgment of the limitations and requirements involved in this rehabilitation, a defendant cannot achieve success in this regard. To hold that Appellant should be released to probation after five years' incarceration and not require that he acknowledge in writing the terms of that probation is contrary to our system of justice. We hold, therefore, that Appellant's written acknowledgment of the terms and conditions of his probation, a sentence he was serving five years after it was first ordered, is an obvious, implied condition of his probation.
We note that in MacGregor, supra, our holding was based, in part, on the fact that the probation agent, and not the trial court, issued the specific term of probation which was allegedly violated. Instantly, the certified record in this case does not include a copy of the terms and conditions presented to Appellant by the Clearfield County probation department, nor does it include a copy of the sentencing transcript. Appellant does not allege that the terms and conditions contained in the written document exceeded or modified those set forth by the trial court during sentencing. Accordingly, our holding in MacGregor is inapplicable to the instant facts as Appellant has not alleged that the terms presented to him by the probation department differed in any way from those issued by the trial court.
Moreover, the record before us shows that Appellant has committed numerous offenses while incarcerated, any one of which would be sufficient for revocation. On September 13, 2010, when revoking Appellant's probation, the court asserted its belief that Appellant was a danger to the public and inappropriate for release on probation. N.T., 9/13/2010, at 12.
In its opinion, the trial court reiterated its position relative to the revocation, stating that
Trial Court Opinion, 12/1/2010, at 3-5 (citations and footnotes omitted).
We have held that
Commonwealth v. Wendowski, 278 Pa.Super. 453, 420 A.2d 628 at 630 (1980) (quoting James v. U.S., 140 F.2d 392, 394 (5th Cir.1944)).
As in Wendowski, Appellant's probation was revoked prior to its commencement on the basis that Appellant was a danger to society and, therefore, unworthy of probation. Additionally, as previously discussed, Appellant's refusal to sign and acknowledge the terms and conditions of his probation as set forth by the trial court is a violation of the implied conditions of his probation. Accordingly, we hold that the trial court did not abuse its discretion in revoking Appellant's probation.
Judgment of sentence affirmed. Jurisdiction relinquished.