Summary
holding that "the anticipatory revocation of a probation sentence that has yet to start is illegal under Pennsylvania law"
Summary of this case from Commonwealth v. JohnsonOpinion
No. 3 WAP 2022 No. 4 WAP 2022 No. 5 WAP 2022
05-16-2023
COMMONWEALTH of Pennsylvania, Appellant v. Keith ROSARIO, Appellee Commonwealth of Pennsylvania, Appellant v. Keith Rosario, Appellee Commonwealth of Pennsylvania, Appellant v. Keith Rosario, Appellee
Alisa Rebecca Hobart, Esq., Berks County District Attorney's Office, for Amicus Curiae Pennsylvania District Attorneys Association. John Paul Friedmann, Esq., Jason Matthew Walsh, Esq., Washington County District Attorney's Office, for Appellant. Herbert A. Terrell, Esq., for Appellee.
Alisa Rebecca Hobart, Esq., Berks County District Attorney's Office, for Amicus Curiae Pennsylvania District Attorneys Association.
John Paul Friedmann, Esq., Jason Matthew Walsh, Esq., Washington County District Attorney's Office, for Appellant.
Herbert A. Terrell, Esq., for Appellee.
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE DOUGHERTY We granted discretionary review to consider the legality of the practice of anticipatory revocation of probation, which involves the cancellation of a probation sentence before it begins. As detailed below, we hold the plain language of the statute governing probation revocation prohibits this practice. Accordingly, we affirm the order of the Superior Court.
I.
On May 4, 2015, Rosario pleaded guilty to carrying a firearm without a license, delivering crack cocaine, and delivering marijuana. The trial court sentenced him to two and a half to five years’ imprisonment for the gun conviction, a consecutive term of five years’ probation for the crack cocaine offense, and one year of probation for the marijuana conviction to run concurrently with the five-year probation. In May of 2017, Rosario was paroled. Four months later, on September 5, 2017, while Rosario was still on parole for his gun conviction but before his probation sentences for his drug crimes began, he kidnapped a man and shot him in the back of the head. In connection with these new crimes, the Commonwealth charged him with attempted homicide and related offenses, and he was held for court. Based on the new charges against him, on May 7, 2018, the trial court revoked Rosario's parole and probations in the present cases. Thereafter, on February 21, 2019, the trial court resentenced him to consecutive terms of the balance of his two and a half to five-year sentence for carrying a firearm without a license, five to ten years’ imprisonment for delivering crack cocaine, and five years’ probation for delivering marijuana. On April 16, 2020, however, the Superior Court vacated the judgment of sentence and remanded for resentencing. On remand, on August 14, 2020, the trial court imposed the same consecutive sentences for the gun and crack cocaine convictions but increased the sentence for delivering marijuana to a consecutive term of two to five years’ imprisonment.
A jury subsequently convicted Rosario of attempted homicide, two counts of aggravated assault, two counts of kidnapping, and criminal conspiracy, on June 3, 2019. Following a remand from the Superior Court for resentencing, on March 25, 2022, he was sentenced to an aggregate term of 25 to 50 years’ imprisonment in that separate case.
Rosario appealed to the Superior Court, raising two discretionary sentencing claims. First, he claimed the trial court "did not make any of the required factual findings pursuant to 42 Pa.C.S. §[§]9721(b)[, ] 9725,[ ] and the records of the violation and sentencing hearings do not support such findings." Appellant's Superior Court Brief at 15. Second, he claimed the "sentence was excessive and based upon improper factors." Id. at 21. Although Rosario did not also challenge the authority of the trial court to revoke his parole and probations, the panel addressed this issue sua sponte . Initially, the panel noted that when a maximum sentence is two years or more, authority to grant or revoke parole is "vested in the Parole Board." Commonwealth v. Rosario , 1271-1273 WDA 2020, 2021 WL 4129781 at *4 (Pa. Super. Sept. 10, 2021) (unpublished memorandum), quoting Commonwealth v. Miller , 770 A.2d 362, 363 (Pa. Super. 2001). The panel held that "[b]ecause [Rosario's] original maximum sentence [for carrying a firearm without a license] was five years’ imprisonment, the Parole Board has exclusive jurisdiction over [his] parole." Id. at *5. Accordingly, the panel concluded, the trial court's order revoking his parole and recommitting him to serve the balance of his sentence was a "nullity" and "sua sponte vacate[d] th[e] sentence as illegal." Id.
Subsections (a) and (b) of section 9721 provide:
(a) General rule. In determining the sentence to be imposed the court shall, except as provided in subsection (a.1), 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.
(6), (7) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.
* * *
(b) General standards. In selecting from the alternatives set forth in subsection (a), the court shall follow the general principle that the sentence imposed should call for total confinement that is consistent with section 9725 (relating to total confinement) and the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing and taking effect under section 2155 (relating to publication of guidelines for sentencing, resentencing and parole, risk assessment instrument and recommitment ranges following revocation). In every case in which the court imposes a sentence for a felony or misdemeanor, modifies a sentence, resentences a person following revocation of probation or resentences following remand, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence or resentence outside the guidelines adopted by the Pennsylvania Commission on Sentencing under sections 2154 (relating to adoption of guidelines for sentencing), 2154.1 (relating to adoption of guidelines for restrictive conditions), 2154.3 (relating to adoption of guidelines for fines), 2154.4 (relating to adoption of guidelines for resentencing) and 2154.5 (relating to adoption of guidelines for parole) and made effective under section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines to the commission, as established under section 2153(a)(14) (relating to powers and duties). Failure to comply shall be grounds for vacating the sentence or resentence and resentencing the defendant.
42 Pa.C.S. § 9721(a),(b) (footnote omitted).
Section 9725 provides:
The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.
42 Pa.C.S. § 9725.
An appellate court can raise and address the legality of a sentence sua sponte . See Commonwealth v. Hill , 662 Pa. 127, 238 A.3d 399, 407 (2020) ("[A]n appellate court can address an appellant's challenge to the legality of his sentence even if that issue was not preserved in the trial court; indeed, an appellate court may raise and address such an issue sua sponte .").
Turning to the propriety of the probation revocations, the panel observed the Superior Court "has affirmed anticipatory revocations of probation[.]" Id. , citing Commonwealth v. Ware , 737 A.2d 251, 253 (Pa. Super. 1999), and Commonwealth v. Wendowski , 278 Pa.Super. 453, 420 A.2d 628, 630 (1980). However, the panel noted, the Superior Court sitting en banc , "recently overruled Wendowski , Ware , and other cases affirming anticipatory revocations of probation" in Commonwealth v. Simmons , 262 A.3d 512 (Pa. Super. 2021) (en banc ). The panel recounted that the Simmons court explained:
No statutory authority exists to support [anticipatory probation revocation]. Rather, the plain language of the relevant statutes provides that: a trial court may only revoke an order of probation "upon proof of the violation of specified conditions of the probation;" the "specified conditions" of an order of probation are attached to, or are a part of, the order of probation; and, when the trial court imposes an "order of probation" consecutively to another term, the entirety of the "order of probation" – including the "specified conditions" – do not begin to commence until the prior term ends.
Id. , quoting Simmons , 262 A.3d at 524-25.
Here, the panel observed, when the trial court revoked Rosario's probationary sentences on May 7, 2018, he was still on parole for the firearm conviction, and had not yet started serving his terms of probation, which ran consecutively to his gun sentence. "Under Simmons ," the panel held, "the [trial] court lacked the authority to revoke [Rosario's] probationary sentences[.]" Id. at *6. Accordingly, the panel sua sponte vacated the sentences for the crack cocaine and marijuana convictions, and remanded to the trial court "to reinstate the original May 4, 2015 orders of probation." Id. In sum then, the panel vacated all three sentences, and ordered reimposition of the original orders of probation for the drug offenses.
II.
This Court granted the Commonwealth's petition for allowance of appeal, which raised two questions: "(1) Did the Superior Court err and abuse its discretion and misapprehend and ignore or misapply the doctrine of stare decisis in its Simmons decision by overturning over 40 years of case law permitting the revocation of consecutive probation sentences not yet commenced where there has been a substantive violation and conviction in a new case?" and "(2) Did the Superior Court abuse its discretion and misapprehend and misapply the statutory authority it cited in Simmons , which statutes do not clearly and unambiguously speak to or demand the result of prohibiting violation of probation sentences that have not yet commenced when a substantive violation has occurred?" Commonwealth v. Rosario , ––– Pa. ––––, 271 A.3d 1285 (2022) (per curiam ). The issue of whether the anticipatory revocation of probation is permitted under Pennsylvania law is a question of law. Accordingly, our standard of review is de novo and our scope of review is plenary. See, e.g. , Pennsylvania Environmental Defense Foundation v. Commonwealth , ––– Pa. ––––, 279 A.3d 1194, 1202 (2022).
The Commonwealth argues the panel should be reversed, and trial courts should be allowed to revoke probation sentences before they begin. It contends the en banc Superior Court panel in Simmons erred in overruling the panel decisions in Wendowski and its progeny upholding anticipatory probation revocation. It asserts "overruling a prior precedent requires the consultation of a number of factors: the quality of the precedent's reasoning, the workability of the rule it established, its consistency with other related decisions, the reliance on the decision, and the age of the decision." Commonwealth's Brief at 15. Yet, the Commonwealth claims, Simmons "undertook no independent analysis" of these factors and instead overruled the extant line of precedent in "conclusory fashion." Id. at 16. In the Commonwealth's view, these considerations call for adherence to Wendowski and the decisions following it. With respect to the quality of the reasoning of these cases, the Commonwealth maintains "mischief would ensue if criminals could commit crimes with impunity knowing that their probationary sentence was not subject to being revoked and they were not subject to being resentenced for committing new crimes." Id. at 16. The Commonwealth additionally contends the rule established by these precedents is workable given that the General Assembly has repeatedly amended the probation-related statutes of 42 Pa.C.S. § 9754, and 42 Pa.C.S. § 9771, yet "never made a change in the language that would negate or express any disagreement with, let alone call into question, Wendowski or its progeny." Id. at 17. The Commonwealth posits Wendowski is consistent with this Court's decisions in Commonwealth v. Foster , 654 Pa. 266, 214 A.3d 1240 (2019), and Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967). It also argues appellate courts, trial courts, and parties have long relied on this decision. It emphasizes "the Superior Court's line of precedent runs from Wendowski in 1980 up until Simmons in August 2021[,]" a period of over forty years. Id. at 18. In addition to faulting Simmons for "conduct[ing] no stare decisis analysis[,]" the Commonwealth warns that under this decision, "a parolee like Rosario could commit innumerable new crimes (and be convicted for them) while on the parole portion of a sentence and face no more punishment than revocation of his parole." Id. at 19-20. The Commonwealth also argues Simmons "misapplied" 42 Pa.C.S. § 9721, as well as sections 9754 and 9771. Id. at 21. It notes there is no language in sections 9721 or 9754 restricting resentencing, and section 9771 does not "plainly and explicitly prohibit the revocation of consecutive probation sentences." Id. at 24. A sentence of probation, the Commonwealth advocates, is conditional by its very nature, and the general condition that the defendant refrain from committing new crimes attaches at the time the sentence is imposed. It insists section 9771 "reads no differently[,]" and concluding otherwise "incorrectly place[s] language into that clear and unambiguous statute." Id. at 27. Furthermore, it contends the occasion and necessity for these statutes was "the punishment and rehabilitation of offenders, which is undermined by the Simmons court's opinion ... essentially giving a free pass to those who reoffend and are convicted of new offenses[.]" Id. at 29.
Section 9754 provides:
(a) General rule. In 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. The court shall consider probation guidelines adopted by the Pennsylvania Commission on Sentencing under sections 2154 (relating to adoption of guidelines for sentencing) and 2154.1 (relating to adoption of guidelines for restrictive conditions).
(b) Conditions generally. The court shall attach reasonable conditions authorized by section 9763 (relating to conditions of probation) as it deems necessary to ensure or assist the defendant in leading a law-abiding life.
(c) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.
(d) Sentence following violation of probation. The sentence to be imposed in the event of the violation of a condition shall not be fixed prior to a finding on the record that a violation has occurred.
42 Pa.C.S. § 9754.
Section 9771 provides:
(a) General rule. The court has inherent power to at any time terminate continued supervision, lessen the conditions upon which an order of probation has been imposed or increase the conditions under which an order of probation has been imposed upon a finding that a person presents an identifiable threat to public safety.
(b) Revocation. The court may increase the conditions, impose a brief sanction under section 9771.1 (relating to court-imposed sanctions for violating probation) or revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation. The attorney for the Commonwealth may file notice at any time prior to resentencing of the Commonwealth's intention to proceed under an applicable provision of law requiring a mandatory minimum sentence.
(c) Limitation on sentence of total confinement. The court shall not impose a sentence of total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.
(d) Hearing required. There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation. Probation may be eliminated or the term decreased without a hearing.
42 Pa.C.S. § 9771.
Amicus curiae the Pennsylvania District Attorneys Association (PDAA) joins the Commonwealth in arguing for reversal. The PDAA submits the panel erred in relying on Simmons because Simmons misapplied the rules of statutory construction. Amicus asserts the requirement that a defendant must be currently serving probation in order to have his probation revoked "effectively add[s]" language to section 9771, and "is directly contradictory to the accepted interpretation and practice created in 1980 in ... Wendowski , to which our legislature acquiesced." Amicus Brief at 13. Moreover, the PDAA criticizes Simmons for "fail[ing] to properly acknowledge and apply the doctrine of stare decisis ." Id. at 14. It claims the en banc panel in Simmons simply disagreed with Wendowski and its progeny, which was "insufficient to overcome the doctrine of stare decisis and 40 years of precedent." Id. at 18. The PDAA insists Simmons will permit defendants to "violate the law with impunity" until their probationary terms begin. Id. In addition, amicus argues " Simmons significantly limits the sentencing options available to lower courts" because "[w]ithout the ability to violate a consecutive probation sentence, ... if a court believes that a state sentence[ ] might be warranted, the[ ] only option available is to impose a state sentence and afford no opportunity for defendants to demonstrate that they can be compliant with a lesser level of supervision." Id. at 19. Lastly, the PDAA asserts a "multitude" of sentences "were constructed with the Wendowski decision as the guiding principle." Id.
Generally, terms of incarceration of two years or more are served in state prison. See 42 Pa.C.S. § 9762(b).
In response, Rosario argues for affirmance of the panel's decision applying Simmons . He asserts the Simmons court was not bound by stare decisis because it was sitting en banc , whereas Wendowski and its follow-on precedents were decisions by three-judge panels. He notes it is well settled that the Superior Court, sitting en banc , may overrule a decision of a three-judge panel of that court. Moreover, Rosario contends, since this Court's standard of review in assessing the legality of the anticipatory revocation of probation is de novo , "any assessment concerning the propriety of the intermediate court's failure to follow its own precedent on that issue is immaterial." Appellee's Brief at 11, quoting McGrath v. Bureau of Professional and Occupational Affairs , 643 Pa. 281, 173 A.3d 656, 661 n.7 (2017). He rejects the policy assertion of the Commonwealth and PDAA that disallowing anticipatory revocation will "open the gates to anti-social conduct that can be committed with impunity, with criminals knowing nothing will happen to them." Id. at 13. On the contrary, Rosario contends, a defendant who commits a new crime while on parole is subject not only to revocation of his parole and recommitment to serve his backtime, but also a separate sentence for his new offense if he is convicted.
Furthermore, Rosario maintains the "plain and unambiguous language" of section 9721 and "related statutes" make "clear that a defendant can be revoked for violating conduct only while he is on probation, and not before he is serving the consecutively imposed term." Id. at 16. He notes section 9721(a) provides that an order of probation may be imposed consecutively or concurrently, not both. However, he argues, "[i]f a judge considers conduct in violation of parole to also be a violation of probation of a consecutively imposed term of probation that has not yet begun, and revokes that probation, in effect the consecutively imposed term of probation has been impermissibly modified to be a concurrent term of probation under Section 9721(a)." Id. at 18. Rosario claims as well that anticipatory revocation "effectively lengthens the term of probation beyond the stated consecutive term," and thus violates the mandate of section 9754(a) that probation shall be ordered for a fixed period of time. Id. at 19. He emphasizes revocation is "conspicuously absent" from the actions a court may take at any time with respect to probation identified in section 9771(a). Id. at 22. He asserts section 9771(d) specifies there shall be no probation revocation except after a hearing considering the defendant's conduct while on probation, and the word " ‘while’ ... normally means ‘during the time[.]’ " Id. at 23, quoting In re Naugle's Estate , 268 Pa. 481, 112 A. 24, 25 (1920). Because the plain language of the statutes does not permit anticipatory revocation, Rosario advances, the doctrine of legislative acquiescence cannot support this procedure, especially considering that penal statutes must be strictly construed.
III.
In this and most cases, section 9771 of the Sentencing Code, 42 Pa.C.S. § 9771, governs the revocation of probation. See Foster , 214 A.3d at 1246-47 ("[S]ection 9771 ... governs revocation of probation[.]"). Our construction of section 9771, as with any statute, is guided by the Statutory Construction Act. See 1 Pa.C.S. §§ 1501 - 1991. Under the Act, "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a). "The plain language of a statute generally provides the best indication of legislative intent." Commonwealth v. Lehman , 663 Pa. 525, 243 A.3d 7, 16 (2020). "When 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). In ascertaining the plain meaning, "we consider the statutory language at issue not in isolation, but in the context in which it appears." Commonwealth by Shapiro v. Golden Gate National Senior Care LLC , 648 Pa. 604, 194 A.3d 1010, 1027 (2018). In addition, words and phrases are construed according to rules of grammar and according to their common and approved usage, except for technical words and phrases and those that have acquired a peculiar and appropriate meaning or are specifically defined. See 1 Pa.C.S. § 1903(a). "Only when the words of a statute are not explicit will we resort to other considerations to discern legislative intent." Commonwealth v. Janssen Pharmaceutica, Inc. , 607 Pa. 406, 8 A.3d 267, 275 (2010) ; see also Commonwealth v. Cousins , 654 Pa. 55, 212 A.3d 34, 39 (2019) ("We will only look beyond the plain meaning of the statute where the words of the statute are unclear or ambiguous."), quoting Commonwealth v. Ramos , 623 Pa. 420, 83 A.3d 86, 91 (2013).
Under 42 Pa.C.S. § 9771.1, "the court of common pleas of a judicial district may establish a program to impose swift, predictable and brief sanctions on persons who violate their probation." 42 Pa.C.S § 9771.1(a). Following a third violation of probation under such a program, a court may revoke the order of probation. See 42 Pa.C.S. § 9771.1(i)(1). Section 9771.1 is not implicated here.
The plain language of section 9771, which is set forth supra in footnote 6, reflects the legislative intent to permit the revocation of probation only after the relevant probationary term has begun. Subsection (a) lists but three actions concerning probation a court may take "at any time": terminate continued supervision, lessen the conditions of probation, and increase the conditions of probation upon a finding of an identifiable threat to public safety. 42 Pa.C.S. § 9771(a). Tellingly, subsection (a) does not include the revocation of probation as something the court may do "at any time." The implication of this omission is that revocation cannot be ordered at any time but rather is subject to temporal limitations, i.e. , revocation is permissible solely during the term of the probation itself. See Thompson v. Thompson , 656 Pa. 732, 223 A.3d 1272, 1277 (2020) ("Under the doctrine of expressio unius est exclusio alterius , the inclusion of a specific matter in a statute implies the exclusion of other matters.") (internal quotation and citation omitted).
The General Assembly amended section 9771 in 2019, following the revocation of Rosario's probations in 2018. The language of section 9771 foreclosing anticipatory probation revocation appears in both the pre- and post-amendment versions of the statute.
The dissent argues "the reason revocation cannot occur ‘at any time’ is not a temporal limitation, but the hearing requirement." Dissenting Opinion at 360. On the contrary, as with revocation, a hearing is required before the court can increase the conditions of probation. See 42 Pa.C.S. § 9771(d) ("There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation.") (emphasis added). Section 9771(d), by its broad terms, applies to all increases in the conditions of probation without limitation, including increases premised on an identifiable threat to public safety. Yet section 9771(a) explicitly permits such increases based on a safety threat to occur at any time. See 42 Pa.C.S. § 9771(a) ("The court has inherent power to at any time terminate continued supervision, lessen the conditions upon which an order of probation has been imposed or increase the conditions under which an order of probation has been imposed upon a finding that a person presents an identifiable threat to public safety. ") (emphasis added). Thus, inclusion in section 9771(d) ’s hearing requirement does not dictate exclusion from section 9771(a). The reason revocation was omitted from section 9771(a) ’s list of procedures that can occur at any time was not because of the hearing requirement in section 9771(d), but because it was the legislature's intent to permit revocation only during the probationary term and not before it begins.
Moreover, subsection (b) states the court may "revoke an order of probation upon proof of the violation of specified conditions of the probation ." 42 Pa.C.S. § 9771(b) (emphasis added). That is, only a violation of the probation itself may trigger revocation, not a violation of the probation order before the probation term has started. Had the legislature intended a violation of the conditions of the order of probation to be sufficient for revocation, it would have said so, and the pertinent language of subsection (b) would instead permit revocation upon proof of the violation of specified conditions of the order of probation. See Commonwealth v. Wright , 609 Pa. 22, 14 A.3d 798, 814 (2011) ("[A]s a matter of statutory interpretation, although one is admonished to listen attentively to what a statute says[;][o]ne must also listen attentively to what it does not say."), quoting Kmonk–Sullivan v. State Farm Mut. Auto. Ins. Co., 567 Pa. 514, 788 A.2d 955, 962 (2001).
The dissent asserts "the legislature could have just as easily had the revocation statute require proof of the violation of specified conditions while on probation." Dissenting Opinion at 359 n.5 (emphasis in original). However, adding this language would have been redundant. The legislature's pointed use of the phrase "the probation" instead of the phrase "order of probation" employed earlier in the same sentence indicates it did not mean for these phrases to have identical meanings. Had the legislature intended a violation of the order of probation to suffice for revocation, it would have simply repeated this phrase. Instead, the legislature used a different phrase – "the probation" – indicating its intent to require a violation of the actual probation sentence rather than the mere order of probation. See Commonwealth v. Elliott , 616 Pa. 524, 50 A.3d 1284, 1290 (2012) ("[W]hen the legislature uses ... different words, we must ... presume that ‘it must have meant for the words to have separate meanings.’ "), quoting Drabic v. Commonwealth, Dep't of Transp., Bureau of Driver Licensing , 588 Pa. 670, 906 A.2d 1153, 1157 (2006) ; see also Probation, Black's Law Dictionary (11th ed. 2019) (defining "probation" as "[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison, usu. on condition of routinely checking in with a probation officer over a specified period of time" and "[t]he period of time during which a sentence of probation is in effect").
Also, subsection (b) requires the court resentencing a defendant following revocation of probation to give "due consideration ... to the time spent serving the order of probation." 42 Pa.C.S. § 9771(b) (emphasis added). Yet, if the probationary term has not even commenced, then no time at all has been spent serving the probation sentence. A probation sentence does not commence from the date of imposition if the sentencing court has expressly ordered otherwise. See Pa.R.Crim.P. 705. The requirement to consider in resentencing the time spent serving the probation sentence is incompatible with anticipatory probation revocation.
The dissent proposes that "when a defendant violates the terms of probation prior to the start of the probationary period, the court simply must consider the fact that the defendant spent no time serving the order of probation when deciding the appropriate revocation sentence." Dissenting Opinion at 360 n.7. But the plain language of section 9771(b) does not contemplate a circumstance where the defendant has spent no time at all serving his probation sentence. This provision does not call for consideration of any time spent serving probation. Nor does it require the court to consider the time spent serving the probationary sentence, if any . Rather, subsection (b) obliges the court to consider the time spent on probation. It presumes a situation where the defendant has actually spent time serving the probationary term, and does not envisage anticipatory revocation where there is no such time.
Furthermore, subsection (d) provides: "[t]here shall be no revocation" of probation "except after a hearing at which the court shall consider ... evidence of the conduct of the defendant while on probation." 42 Pa.C.S. § 9771(d) (emphasis added). The word "shall" commonly connotes a mandatory requirement. See Chanceford Aviation Properties, L.L.P. v. Chanceford Tp. Bd. of Supervisors , 592 Pa. 100, 923 A.2d 1099, 1104 (2007) ("The word ‘shall’ by definition is mandatory, and it is generally applied as such."). In addition, when used as a conjunction as it is here, "while" generally means "during the time." See Naugle's Estate , 112 A. at 25 ("The word ‘while,’ as shown by the dictionaries, normally means ‘during the time[.]’ "). Thus, under the express terms of subsection (d), the court cannot revoke probation unless the court has considered the defendant's conduct during the time he was serving probation. An assessment of the defendant's conduct while on probation, however, is possible only if the probationary term has in fact actually begun. If the probation has not commenced, then perforce there is no conduct of the defendant while on probation for the court to consider. In other words, in the anticipatory revocation context, the statutory mandate to consider the defendant's conduct on probation is impossible to satisfy. In this way, subsection (d) limits the revocation of probation to the cancellation of probationary terms currently being served, and forecloses the anticipatory revocation of probation sentences yet to begin. The plain text of section 9771 clearly (and repeatedly) prohibits the anticipatory revocation of probation.
The dissent maintains section 9771(d) "does not prevent the court from considering the conduct of the defendant prior to the term of probation." Dissenting Opinion at 360. That may be, but whatever discretion the court has to consider pre-term-of-probation conduct would not eliminate the requirement to consider the defendant's conduct during the term of probation itself. This statutory obligation cannot be fulfilled in the anticipatory revocation context. The dissent also alleges "subsection (d) does not foreclose revocation prior to the start of the probationary term, there is simply no ‘conduct of the defendant while on probation’ for the court to consider at that time." Id. at 360, quoting 42 Pa.C.S. § 9771(d). This ignores the mandatory nature of section 9771(d). This provision does not say the revocation court may consider the defendant's conduct while on probation, or that it is permissible for the court to do so. Again, the statute states in no uncertain terms that "the court shall consider the ... evidence of the conduct of the defendant while on probation." 42 Pa.C.S. § 9771(d) (emphasis added). Section 9771(d) sets forth a compulsory obligation to consider the defendant's conduct on probation. The revocation court has no discretion to opt out of this obligatory consideration, either because probation has not yet started or for any other reason.
Although we conclude the clear language of section 9771 explicitly forbids anticipatory probation revocation, any hypothetical ambiguity in this regard is clarified by consideration of statutes in pari materia and the rule of lenity. "Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things." 1 Pa.C.S. § 1932(a). "Statutes in pari materia shall be construed together, if possible, as one statute." 1 Pa.C.S. § 1932(b). "It must not be overlooked that the rule requiring statutes in pari materia to be construed together is only a rule of construction to be applied as an aid in determining the meaning of a doubtful statute, and that it cannot be invoked where the language of a statute is clear and unambiguous." In re McFarland's Estate , 377 Pa. 290, 105 A.2d 92, 95-96 (1954) ; see also Goodwin v. Goodwin , ––– Pa. ––––, 280 A.3d 937, 948 n.7 (2022) ("[T]he rule requiring in pari materia construction of statutes applies in instances of ambiguous statutory language."). Like section 9771, other statutes relating to probation also include language inconsistent with the anticipatory revocation of probation.
To wit, section 9721(a) authorizes the court to impose a sentence of probation "consecutively or concurrently[.]" 42 Pa.C.S. § 9721(a) (emphasis added). The word "or" is disjunctive and "means one or the other of two or more alternatives." In re Paulmier , 594 Pa. 433, 937 A.2d 364, 373 (2007). Accordingly, section 9721(a) permits a probation sentence that is either consecutive or concurrent to one or more other sentences, not consecutive and concurrent. Yet when, as here, the court anticipatorily revokes a consecutive probationary term for a violation of a separate sentence the defendant is currently serving, the probation sentence is effectively both concurrent and consecutive, in contravention of the plain language of section 9721(a).
Moreover, section 9754(a) mandates: "[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[.]" 42 Pa.C.S. § 9754(a). This language requires the imposition of probation for a fixed period of time. Revoking probation before it starts effectively lengthens the term of probation beyond the fixed term specified at sentencing. Similarly, the court is statutorily required to "specify at the time of sentencing ... the length of the term of restrictive conditions" of probation. 42 Pa.C.S. § 9763(a). Thus, like section 9754, section 9763 envisions a definite probation sentencing scheme. In tension with these statutes, anticipatory revocation provides for an indefinite regime whereby the probationary term is not necessarily confined to a fixed period of time beginning on a date certain.
The full text of subsection 9763(a) provides:
(a) General rule. In imposing probation, the court shall consider guidelines adopted by the Pennsylvania Commission on Sentencing under section 2154 (relating to adoption of guidelines for sentencing) or 2154.1 (relating to adoption of guidelines for restrictive conditions) and specify at the time of sentencing the conditions of probation, including the length of the term of restrictive conditions under subsection (c) or (d). The term of restrictive conditions under subsection (c) shall be equal to or greater than the mandatory minimum term of imprisonment required by statute.
42 Pa.C.S. § 9763(a).
Finally, "[u]nder the rule of lenity, when a penal statute is ambiguous, it must be strictly construed in favor of the defendant." Cousins , 212 A.3d at 39 ; see also 1 Pa.C.S. § 1928(b)(1). "[T]he rule of lenity has its limits, as it ‘does not require that the words of a penal statute be given their narrowest possible meaning or that legislative intent be disregarded.’ " Commonwealth v. Nevels , 661 Pa. 168, 235 A.3d 1101, 1105 (2020), quoting Commonwealth v. Packer , 568 Pa. 481, 798 A.2d 192, 196 (2002). Moreover, "the rule applies if at the end of the process of construing what [the legislature] has expressed, there is a grievous ambiguity or uncertainty in the statute[.]" Shaw v. United States , 580 U.S. 63, 71, 137 S.Ct. 462, 196 L.Ed.2d 373 (2016) (internal quotations and citations omitted). Undoubtedly, section 9771 is a penal statute. See Nesbit v. Clark , 272 Pa. 161, 116 A. 404, 406 (1922) ("A penal statute is one which imposes a penalty or forfeiture for transgressing its provisions, or for doing a thing prohibited[.]"). Hence, to the extent section 9771 remains, after exhausting all other tools of statutory interpretation, hopelessly ambiguous as to whether it authorizes the anticipatory revocation of a probation, the rule of lenity calls for the conclusion it does not. Pursuant to the plain meaning of section 9771, as confirmed by the in pari materia doctrine and rule of lenity, defendants may not be preemptively penalized for violating probation sentences they have not yet even begun to serve.
The arguments of the dissent, Commonwealth, and amicus do not persuade us otherwise. The dissent's reliance on Commonwealth v. Nicely , 536 Pa. 144, 638 A.2d 213 (1994) is misplaced. In Nicely , the appellees were ordered to pay additional supervision fees while they were serving their probation sentences. See id. at 215. Thus, Nicely involved the modification of conditions of probationary sentences currently being served, which, as the Court there specifically noted, see id. at 217, is permitted under 42 Pa.C.S. § 9771(a). Nicely did not involve, much less endorse, the revocation of probation before it starts.
The dissent's citation to Commonwealth v. Kates , 452 Pa. 102, 305 A.2d 701 (1973) also misses the mark. Kates predated the promulgation of section 9771, which was enacted in 1974 as 18 Pa.C.S. § 1371 and renumbered section 9771 in 1980. Moreover, each of the defendants in Kates were serving their probation sentences when they were arrested for new offenses. See Kates , 305 A.2d at 703-04. Hence, as in Nicely , there was no cause for the Kates Court to even consider the propriety of anticipatory probation revocation, let alone endorse this procedure.
Indeed, the dissent acknowledges "it is obvious" Nicely and Kates do not "decide today's issue." Dissenting Opinion at 358 n.3.
Contrary to the Commonwealth's assertion, Vivian does not support construing section 9771 to permit the anticipatory revocation of probation. Like Kates , Vivian also predates the enactment of section 9771. In addition, while the facts of Vivian involved the anticipatory revocation of probationary sentences, the defendant in that case did not challenge the propriety of revoking probation before it begins. Instead, Vivian claimed the trial court violated double jeopardy by changing his probation sentences to terms of imprisonment. See Vivian , 231 A.2d at 305 ("It is now asserted that the prison sentences imposed on February 23, 1966, modifying the court order of probation on February 14, 1966, violated due process and constituted double jeopardy in violation of the provisions of Article 1, s 10 of the Pennsylvania Constitution, P.S., and the Fifth Amendment to the United States Constitution."). The Vivian Court held "the trial court in its discretion had the right to change its order of probation and impose a prison sentence without violating the proscription against double jeopardy included in the Fifth Amendment to the United States Constitution[.]" Id. at 306 (internal citation omitted). Because it was not at issue in the case, Vivian said nothing at all regarding the legality of anticipatory probation revocation. When an issue is "not ... raised in briefs or argument nor discussed in the opinion of the Court ..., the case is not a binding precedent on this point." United States v. L.A. Tucker Truck Lines, Inc. , 344 U.S. 33, 38, 73 S.Ct. 67, 97 L.Ed. 54 (1952).
The Commonwealth's dependence on Foster is also unavailing. Foster involved the question of "what constitutes a permissible basis for a court to find an individual in violation of probation" under section 9771. Foster , 214 A.3d at 1243. That is, Foster concerned what may justify the revocation of probation, not when revocation may be ordered. Ultimately, this Court held "a court may find a defendant in violation of probation only if the defendant has violated one of the ‘specific conditions’ of probation included in the probation order or has committed a new crime." Id. at 1250. Thus, "the question of anticipatory revocation was not before the Foster Court[,]" Simmons , 262 A.3d at 538 (Bowes, J., concurring and dissenting), and the Court offered no view on this distinct issue.
While acknowledging "the statute at issue" is section 9771, Dissenting Opinion at 357, the dissent nevertheless insists sections 9754(b) and 9763(b) "make clear that the conditions of probation are not limited to the probationary term," id. at 359. To the contrary, as noted, see supra n. 5, section 9754(b) simply provides: "The court shall attach reasonable conditions authorized by section 9763 (relating to conditions of probation) as it deems necessary to ensure or assist the defendant in leading a law-abiding life." 42 Pa.C.S. § 9754(b). Section 9763(b), in turn, states: "The court may attach any of the following conditions upon the defendant as it deems necessary[,]" and then specifies the conditions. 42 Pa.C.S. 9763(b). These statutes concern what conditions may be imposed on probation, i.e. , "reasonable conditions" that the trial court "deems necessary," not when these conditions apply. They do not mandate, "clear[ly]" or otherwise, that the conditions immediately spring into existence when the court enters an order of probation. Indeed, for many defendants, like Rosario, who are sentenced to a term of imprisonment followed by a consecutive period of probation, it would be impossible to comply straight away upon sentencing with all of the conditions noted in section 9763(b). For instance, it is not possible for an incarcerated defendant to attend or reside in a rehabilitative facility or other intermediate punishment program, or to report to the court or a designated person.
The conditions are:
(1) To meet family responsibilities.
(2) To be devoted to a specific occupation, employment or education initiative.
(3) To participate in a public or nonprofit community service program.
(4) To undergo individual or family counseling.
(5) To undergo available medical or psychiatric treatment or to enter and remain in a specified institution, when required for that purpose.
(6) To attend educational or vocational training programs.
(7) To attend or reside in a rehabilitative facility or other intermediate punishment program.
(8) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.
(9) To not possess a firearm or other dangerous weapon unless granted written permission.
(10) To make restitution of the fruits of the crime or to make reparations, in an affordable amount and on a schedule that the defendant can afford to pay, for the loss or damage caused by the crime.
(11) To be subject to intensive supervision while remaining within the jurisdiction of the court and to notify the court or designated person of any change in address or employment.
(12) To report as directed to the court or the designated person and to permit the designated person to visit the defendant's home.
(13) To pay a fine.
(14) To participate in drug or alcohol screening and treatment programs, including outpatient programs.
(15) To do other things reasonably related to rehabilitation.
(16), (17) Deleted by 2019, Dec. 18, P.L. 776, No. 115, § 4, imd. effective.
42 Pa.C.S. § 9763(b).
The dissent contends the existence of "an impossible condition" of probation "does not make all other possible conditions ... a nullity until every condition is possible." Dissenting Opinion at 359 n.5. We agree a condition of probation may be operative even though compliance with one or more other conditions is not possible. But this hardly means the conditions of probation apply immediately upon the issuance of the sentencing order even before the probation itself has actually started. And, to be sure, this conclusion finds no support in the text of either section 9754(b) or section 9763(b), which concern the substance, not the timing, of probation conditions.
The Commonwealth and amicus are wrong to suggest the en banc panel majority in Simmons was bound by stare decisis . "[A]n en banc panel of an intermediate court is authorized to overrule a three-judge panel decision of the same court." McGrath , 173 A.3d at 661 n.7. In any event, "any purported failure on the part of the Superior Court ... to follow its own precedent is immaterial to our de novo resolution of the legal issue presented." Commonwealth v. Smith , 646 Pa. 588, 186 A.3d 397, 401 n.6 (2018) ; see also McGrath , 173 A.3d at 661 n.7 ("[W]here, as here, this Court undertakes de novo resolution of a legal issue, any assessment concerning the propriety of the intermediate court's failure to follow its own precedent on that issue is immaterial.").
The Commonwealth's championing of Wendowski , and the line of three-judge Superior Court panel decisions following it, is unconvincing. These decisions do not, of course, bind this Court any more than they bound the en banc panel in Simmons . See In re Estate of duPont , 606 Pa. 567, 2 A.3d 516, 524 (2010) ("[T]his Court is not bound by the Superior Court's holdings[.]"). Nor are they persuasive. Wendowski did not even acknowledge what was then section 1371, much less explicate how this statute authorized anticipatory probation revocation. It is axiomatic, and should hardly need reiteration, that proper disposition of a legal question governed by a statute requires analysis of said statute. In lieu of the appropriate statutory analysis, the panel instead principally relied on nonbinding decisions from other jurisdictions not involving section 1371. See Wendowski , 420 A.2d at 630. Moreover, as discussed, the single Pennsylvania case cited by the Wendowski panel, Vivian , does not support its holding.
See Commonwealth v. Mitchell , 955 A.2d 433 (Pa. Super. 2008) ; Commonwealth v. Hoover , 909 A.2d 321 (Pa. Super. 2006) ; Commonwealth v. Castro , 856 A.2d 178 (Pa. Super. 2004) ; Ware , 737 A.2d 251 ; Commonwealth v. Miller , 358 Pa.Super. 219, 516 A.2d 1263 (1986) ; Commonwealth v. Dickens , 327 Pa.Super. 147, 475 A.2d 141 (1984).
In Dickens , the panel reasoned "the decision in Wendowski is not contrary to statutory law in Pennsylvania" because the provision of " 42 Pa.C.S. § 9771(b), which authorize[s] a court to ‘revoke an order of probation upon proof of the violation of specified conditions of the probation,’ do[es] not prevent revocation for violation of a condition which occurs prior to the specific probation being revoked." Dickens , 475 A.2d at 144, quoting 42 Pa.C.S. § 9771(b). On the contrary, as discussed, in specifying there must be a violation of the "probation" itself, as opposed to the "order of probation," before probation may be revoked, this language does indeed foreclose anticipatory revocation. In any case, other language in section 9771 – the pointed omission of revocation from subsection (a)’s enumeration of court actions which may be taken at "any time," the requirement in subsection (b) of court consideration of the defendant's time spent serving probation, the mandate in subsection (d) for court consideration of the defendant's conduct while on probation – clearly precludes the anticipatory revocation of probation.
The Miller panel rejected the argument Wendowski and Dickens "should be re-examined in light of 42 Pa.C.S. § 9771(d)" because "[t]he purpose of this section of the statute is to require a hearing before a court revokes probation." Miller , 516 A.2d at 1265. But our rules of statutory construction forbid disregarding the clear language of a statute under the pretext of pursuing its "spirit," or purpose. See 1 Pa.C.S. § 1921(b). Again, the plain text of subsection (d) obliges the revocation court to consider "evidence of the conduct of the defendant while on probation ." 42 Pa.C.S. § 9771(d) (emphasis added). There cannot be such evidence unless and until the probationary term has actually commenced.
The remaining decisions in the Wendowski line offer no fresh analysis, but rather simply rely on prior flawed precedent. Specifically, Ware relies on Wendowski and Dickens , see Ware , 737 A.2d at 253-54 ; Castro relies on Ware , see Castro , 856 A.2d at 180 n.1 ; Hoover relies on Miller and Wendowski , see Hoover , 909 A.2d at 323 ; and Mitchell relies on Miller and Hoover , see Mitchell , 955 A.2d at 435 n.2.
It is true, as the dissent, Commonwealth, and amicus each emphasize, that since Wendowski , the legislature has renumbered and amended section 9771 without materially changing the statute, but we do not presume legislative acquiescence in anticipatory revocation. The rules of statutory construction call for the presumption "[t]hat when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language." 1 Pa.C.S. § 1922(4). Importantly, however, this presumption, like any consideration beyond the statutory text, is operative only when the statute is unclear or ambiguous. See Commonwealth v. Dickson , 591 Pa. 364, 918 A.2d 95, 108 n.15 (2007) (plurality) (" § 1922(4) ... speak[s] to one of several means by which we discern legislative intent when the language in question is less than conclusive."). Where, as here, "the legislative intent [is] manifest in its most trustworthy source, the statutory language, we cannot simply fall back on an attenuated assertion of sub silentio legislative acquiescence[.]" Id. at 101.
The dissent "agree[s] that the plain language of the statute controls[,but] assuming arguendo that the language of the statute is ambiguous, ... cannot imagine a more definitive example of legislative acquiescence than here." Dissenting Opinion at 361. This overstates things considerably. Again, by its express terms, section 1922(4) is limited to decisions by the "court of last resort." 1 Pa.C.S. § 1922(4). The court of last resort in Pennsylvania is, of course, the Pennsylvania Supreme Court. Thus, the "definitive" example of legislative acquiescence would be legislative silence in response to a series of decisions by this Court. Here, on the other hand, the Wendowski line of cases consists exclusively of three-Judge panel decisions of the Superior Court; this Court has never once endorsed anticipatory revocation. We acknowledge this Court's decision years ago endorsing an extension of the presumption of legislative acquiescence to Superior Court decisions. See In re Estate of Lock , 431 Pa. 251, 244 A.2d 677, 682-83 (1968). Yet extending section 1922(4) beyond its terms to Superior Court cases pivots on the questionable notion that this Court's determination not to review a case reflects its endorsement of the panel's decision. This Court, however, may deny allowance of appeal for reasons wholly unrelated to its agreement with the outcome below. See Dickson , 918 A.2d at 107 n.14 ("A denial [of allocatur] may merely reflect that the particular controversy was not the proper vehicle for deciding a question of law or that it was not presented in the proper posture.") (internal citation and quotation omitted; brackets in original). While permissible under Lock , a presumption based solely on Superior Court case law is far from "definitive," and falls well short of resolving any purported ambiguity in section 9771 in favor of the Commonwealth, especially given the applicability of the in pari materia doctrine and rule of lenity. We disagree our plain language construction of section 9771 will give a "free pass to [defendants] who reoffend" while on parole but before their consecutive probation sentences begin, or permit reoffenders to "violate the law with impunity[.]" Commonwealth's Brief at 29; Amicus Brief at 18; see also Dissenting Opinion at 362 ("I also agree with the Commonwealth that it is an absurd result to suggest that a defendant could commit a new crime with impunity[.]"). For one thing, a defendant who violates his county or state parole by committing a new crime is subject to revocation of his parole and recommitment to prison. See 42 Pa.C.S. § 9776(e) ; 61 Pa.C.S. § 6138(a). In addition, he is subject to separate punishment for his new offense. In this case, for example, Rosario has been sentenced to 25 to 50 years’ imprisonment for his new crimes.
Although Lock has not been overruled, and we decline to do so here since we did not grant allowance of appeal on the question and the abrogation of Lock is not addressed in the briefing, we nonetheless note, as we have previously, that there are "valid concerns regarding the soundness of" this decision, Dickson , 918 A.2d at 108 n.15, including its tension with the plain language of section 1922(4) and reliance on the dubious assumption that this Court's denial of allocatur indicates agreement with the court below.
The dissent maintains revocation of parole and recommitment to prison and a separate punishment for the new offense do not "rectify the true problem that, by committing a new crime, the defendant has shown a probationary term is not a sufficient method of rehabilitation." Dissenting Opinion at 362. But of course a parolee recommitted to prison, or a defendant sentenced to a new term of imprisonment, is not placed on probation; he is incarcerated. Under either scenario "the true problem" of a criminal being placed on probation despite being demonstrably unsuited for supervised release is nonexistent. We are similarly unmoved by the dissent's hypotheticals of a defendant who "assault[s] a corrections officer or fellow inmate while incarcerated" and "a defendant convicted of stalking [who] go[es] directly to his victim's home the day he is released on parole[.]" Id. at 362 n.9. In these circumstances, as in the present case, we see "little practical effect to revocation of probation." Id. The prisoner's assault would presumably adversely impact his parole eligibility and subject him to fresh convictions and sentences. Similarly, the convicted stalker would presumably be subject to parole revocation and reincarceration as well as punishment for any new offenses stemming from his contact with the victim. Under these hypothetical examples, as in the case sub judice , the defendants will not enjoy immunity for their crimes, and public safety will not be compromised.
We disagree as well with the Commonwealth's argument that construing section 9771 to bar anticipatory revocation reads words into the statute. Section 9771 ’s existing plain language requires court consideration of the defendant's conduct while on probation and time spent serving probation. See 42 Pa.C.S. § 9771(b), (d). These requirements clearly limit the timing of revocation to the post-commencement-of-probation context. Indeed, interpreting section 9771 to permit anticipatory revocation would ignore these provisions and read them right out of the statute, in contravention of the rule of construction that "[e]very statute shall be construed, if possible, to give effect to all its provisions." 1 Pa.C.S. § 1921(a).
It is not correct, as amicus contends, that in the absence of the authority to anticipatorily revoke probation, a sentencing court which "believes that a state sentence might be warranted" is hamstrung to impose such a sentence without giving the defendant the opportunity to demonstrate he "can be compliant with a lesser level of supervision." Amicus Brief at 19. On the contrary, the court can impose a pure probation sentence or a split sentence involving a term of incarceration of less than two years and a period of probation. See 42 Pa.C.S. § 9721(a). In either case, if the defendant subsequently violates the probation, the court can then revoke the probation and impose a state sentence. See 42 Pa.C.S. § 9771(b). Hence, a sentencing court can defer a state sentence and retain the discretion to order state confinement upon a future violation of probation without the extra-statutory power to anticipatorily revoke probation.
Finally, while we recognize there was widespread reliance on Wendowski and its progeny for many years up until the recent Simmons decision, and the abrogation of anticipatory revocation represents a significant change in sentencing practice, these considerations do not dissuade us from concluding the procedure is illegal. Reliance interests are pertinent to the question of whether to adhere to stare decisis . See Commonwealth v. Alexander , ––– Pa. ––––, 243 A.3d 177, 196 (2020). Stare decisis is not implicated here; we are addressing the legality of anticipatory probation revocation as a matter of first impression for this Court. What's more, no amount of past prevalence may justify the persistence of a practice that is clearly illegal. See Alexander , 243 A.3d at 200 ("[T]he Commonwealth is clearly not entitled to the persistence of an illegal practice."). Such is the case here. Pursuant to the plain language of section 9771, it is clear that the anticipatory revocation of probation is unlawful and must accordingly be prohibited, irrespective of whether "[t]he rule established in Wendowski developed into a routinely enforced principle that was employed by our trial and appellate courts for over four decades." Amicus Brief at 16.
IV.
For the foregoing reasons, we hold the anticipatory revocation of a probation sentence that has yet to start is illegal under Pennsylvania law. Accordingly, the Superior Court's order is affirmed.
Chief Justice Todd and Justices Donohue and Wecht join the opinion.
Justice Mundy files a dissenting opinion in which Justice Brobson joins.
DISSENTING OPINION
JUSTICE MUNDY
Probation is inherently conditional. So long as the conditions are met, probation allows a defendant the opportunity to rehabilitate outside of incarceration. It is with that fundamental principle in mind that sentencing judges carefully balance the gravity of the offense, the protection of the public, and the rehabilitative needs of the defendant before imposing probation and deciding the conditions that define the probationary sentence. When a defendant violates a condition of probation, that balance is changed. And so, to account for that change, a court may increase conditions of probation, impose sanctions, or revoke an order of probation "upon proof of the violation of specified conditions of probation." 42 Pa.C.S. § 9771(b).
In determining a sentence, "the court shall follow the general principle that the sentence imposed should call for total confinement that is consistent with section 9725 (relating to total confinement) and the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b).
This case asks us to interpret Section 9771(b) to determine when a sentencing court may revoke probation. Because the very existence of a probationary sentence is conditional, I believe it is clear that a defendant must comply with those conditions to be entitled to serve a probationary sentence. Therefore, if a defendant violates a condition of probation before his probationary period has begun, the plain statutory requirements of Section 9771(b) have been met and the court may revoke probation.
I start, as the majority does, with the plain language of the statute at issue. The statute governing revocation of probation states:
(b) Revocation.— The court may increase the conditions, impose a brief sanction under section 9771.1 (relating to court-imposed sanctions for violating probation) or revoke an order of probation upon proof of the violation of specified conditions of probation.
42 Pa.C.S. § 9771(b). Subsection (b) goes on to explain the options for resentencing, but the above cited portion is the operative language for when a court may revoke. As it plainly reads, the court may revoke after a showing that the defendant violated the conditions of probation. It is undisputed that a general condition of probation is to lead a law-abiding life and it is a violation of probation to commit a new crime. Commonwealth v. Foster , 654 Pa. 266, 214 A.3d 1240, 1250 (2019) ("[A] court may find a defendant in violation of probation only if the defendant has violated one of the ‘specific conditions’ of probation included in the probation order or has committed a new crime."). And so, when Appellee in today's case committed a new crime by kidnapping and shooting a man in the back of the head, he violated the conditions of probation, and the court was permitted to revoke that probation.
The Black's Law Dictionary Definition of "probation" bolsters my position. The primary definition of probation is "[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison, usu. on condition of routinely checking in with a probation officer over a specified period of time." Probation , Black's Law Dictionary (11th ed. 2019). The majority references a secondary definition, which defines "[t]he period of time during which a sentence of probation is in effect." Maj. Op. at 348 n.11. However, that secondary definition makes little sense in the context of conditions in Section 9771. Replacing the word "probation" with its dictionary definition is only understandable using the primary definition. Put another way, the conditions of the probation are the conditions of "a court imposed criminal sentence," not the conditions of "the period of time during which a sentence of probation is in effect."
My fundamental disagreement with the majority stems from its conclusion that the conditions of probation do not attach until the term specified in the probation order begins. Maj. Op. at 347 ("only a violation of the probation itself may trigger revocation, not a violation of the probation order before the probation term has started."). As described above, the very existence of a probation order is conditional. A defendant is given the opportunity to serve his sentence outside of prison so long as he complies with the conditions of probation. The sentencing judge attaches conditions to the order of probation "as it deems necessary to ensure or assist the defendant in leading a law-abiding life." 42 Pa.C.S. § 9754(b). When a defendant commits a new crime, he alters the balance struck by the sentencing court when it weighed the defendant's rehabilitative needs against the need to protect the public and concluded that probation was appropriate. This is true even if the crime is committed while incarcerated or while on parole before the probationary term has begun. To suggest, as the majority does, that the conditions of probation only apply during the term of probation would mean that a defendant's rehabilitation and pursuit toward a law-abiding life – the entire purpose of the order of probation – is meaningless prior to the day the probationary term begins. Instead, the conditions of probation must attach at the time the order is issued and are not exclusive to the term of probation. My view on this matter is not novel. The understanding that a defendant must live a law-abiding life to be entitled to serve his sentence in public rather than in confinement has shaped the law and impacted sentencing decisions for decades. "A probation order is conditional by its very nature." Commonwealth v. Nicely , 536 Pa. 144, 638 A.2d 213, 217 (1994) (emphasis added). In describing the underlying purpose of probation and related policy considerations, this Court has stated:
[T]he basic objective of probation is to provide a means to achieve rehabilitation without resorting to incarceration. When it becomes apparent that the probationary order is not serving this desired end the court's discretion to impose a more appropriate sanction should not be fettered. Initially, when the court decides to impose a probation order it is only after first balancing the interest of society in protecting against possible future criminal behavior of the individual with the benefit he would receive by remaining free from prison. Certainly, society has the right to expect a prompt hearing when a probationer has allegedly engaged in a course of criminal activity.
Commonwealth v. Kates , 452 Pa. 102, 305 A.2d 701, 708 (1973) (emphasis added). The Superior Court relied on similar foundational principles in Commonwealth v. Wendowski , 278 Pa.Super. 453, 420 A.2d 628 (1980), when it held over forty years ago that it is possible to violate the conditions of probation before the probationary term itself begins:
The majority criticizes my reference to Nicely and Kates , as those cases did not concern revocation of probation before the start of the probationary term and Kates predated section 9771. Maj. Op. at 350-51. While it is obvious that these cases do not directly decide today's issue, they are nevertheless important in understanding the foundational legal principles underlying probation. My core position is that the majority's decision today cannot be reconciled with the fundamental objective and purpose of probation.
If, at any time before the defendant has completed the maximum period of probation, or before he has begun service of his probation, he should commit offenses of such a nature as to demonstrate to the court that he is unworthy of probation and that the granting of the same would not be in subservience to the end of justice and the best interests of the public, or the defendant, the court could revoke or change the order of probation. A defendant on probation has no contract with the court. He is still a person convicted of crime, and the expressed intent of the [c]ourt to have him under probation beginning at a future time does not change his position from the possession of a privilege to the enjoyment of a right.
Id . at 630 (quoting James v. United States , 140 F.2d 392, 394 (5th Cir. 1944) ) (internal quotations omitted).
As discussed below, and recognized by the majority, "there was widespread reliance on Wendowski and its progeny for many years up until the recent [Commonwealth v. Simmons , 262 A.3d 512 (Pa. Super. 2021) (en banc )] decision, and the abrogation of anticipatory revocation represents a significant change in sentencing practice[.]" Maj. Op. at 356.
It is with this overarching understanding of the purpose of probation in mind that I find it apparent the conditions of probation apply broadly to the imposition of a probation order in general, rather than specifically during the probationary term. Furthermore, consideration of the related statutes governing orders and conditions of probation in pari materia supports my position. Section 9754 is titled "Order of Probation" and states:
(b) Conditions generally. — The court shall attach reasonable conditions authorized by section 9763 (relating to conditions of probation) as it deems necessary to ensure or assist the defendant in leading a law-abiding life.
42 Pa.C.S. § 9754(b). Relatedly, section 9763 is titled "Conditions of probation" and states: "The court may attach any of the following conditions upon the defendant as it deems necessary." 42 Pa.C.S. § 9763(b). The majority suggests that "[t]hese statutes concern what conditions may be imposed on probation ... not when these conditions apply." Maj. Op. at 352. I respectfully disagree. These statutes make clear that the conditions of probation are not limited to the probationary term. Conditions are attached "upon defendant" ( section 9763(b) ) and are applied at the time the court imposes the order of probation ( section 9754(b) ). The core purpose of the conditions is to "ensure or assist the defendant in leading a law-abiding life." 42 Pa.C.S. § 9754(b). The requirement to lead a law-abiding life is a prerequisite to the very existence of an order of probation. Nothing about these statutes or probation generally suggest that this requirement is irrelevant until the day probation begins, yet that is the conclusion reached by the majority.
The only support the majority provides for its position is the suggestion that "[h]ad the legislature intended a violation of the conditions of the order or probation to be sufficient for revocation, it would have said so, and the pertinent language of subsection (b) would instead permit revocation upon proof of the violation of specified conditions of the order of probation." Maj. Op. at 347-48 (emphasis in original). However, the legislature could have just as easily had the revocation statute require proof of the violation of specified conditions while on probation. As the statute exists, there is no qualifying language to the word "probation," suggesting that the conditions relate to probation broadly, and not limited to the term of probation. Nevertheless, as explained supra , the related statutes governing orders and conditions of probation make clear that the conditions are not exclusive to the probationary term.
The majority also suggests that "for many defendants, like Rosario, who are sentenced to a term of imprisonment followed by a consecutive period of probation, it would be impossible to comply straight away upon sentencing with all of the conditions noted in section 9783(b)," such as attending a rehabilitative facility or other intermediate punishment program. Maj. Op. at 352. Certainly, it is not a violation of probation to fail to comply with an impossible condition. This is true even during the term of probation, for example if upon release from incarceration there is no space available to attend a rehabilitative facility. That does not make all other possible conditions, especially the general condition to lead a law abiding life, a nullity until every condition is possible. Under the majority's logic, if it is a condition to participate in a particular treatment or education program, a defendant does not need to begin such a program until the probationary period begins even if it is available while incarcerated.
Thus, because the statute allows revocation "upon proof of the violation of specified conditions of probation" and a violation can occur even before the probationary term has begun, I believe that the plain language of the statute permits the practice of revocation of probation prior to the start of the probationary term. I reach this conclusion fully recognizing that revocation is not listed as an action the court can take "at any time" according to the statute. 42 Pa.C.S. § 9771(a) ("The court has inherent power to at any time terminate continued supervision, lessen the conditions upon which an order of probation has been imposed or increase the conditions under which an order of probation has been imposed upon a finding that a person presents an identifiable threat to public safety."). The majority concludes that "[t]he implication of this omission is that revocation cannot be ordered at any time but rather is subject to temporal limitations, i.e. , revocation is permissible solely during the term of the probation itself." Maj. Op. at 347. I find the majority's reliance on implication unnecessary, as the plain language of the statute itself clearly reveals that revocation can occur at any time following a hearing. Section 9771(d) states:
(d) Hearing required. — There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation. Probation may be eliminated or the term decreased without a hearing.
42 Pa.C.S. § 9771(d). And so, the reason revocation cannot occur "at any time" is not a temporal limitation, but the hearing requirement. I also recognize that the statute states that during such hearing the court "shall consider ... evidence of the conduct of the defendant while on probation." Id . Yet, unlike the majority, I do not believe this language is restrictive. The statute does not prevent the court from considering the conduct of the defendant prior to the term of probation. And so, subsection (d) does not foreclose revocation prior to the start of the probationary term, there is simply no "conduct of the defendant while on probation" for the court to consider at that time. Id .
The majority attempts to rebut my conclusion by suggesting that "inclusion in section 9771(d) ’s hearing requirement does not dictate exclusion from [actions that can occur at any time under] section 9771(a)," as exemplified by the fact that an increase in conditions is included within both subsections. Maj. Op. at 347 n.10. However, an important statutory qualification is that an increase may only occur "at any time ... upon a finding that a person presents an identifiable threat to public safety ." 42 Pa.C.S. § 9771(a) (emphasis added). Thus, only when a person presents an identifiable threat may a court increase the conditions of probation "at any time" under subsection (a), whereas any other increase in conditions must occur after a hearing under subsection (d). See, 1 Pa.C.S. § 1933 (Particular controls general). Following the majority's logic, an increase in conditions is included in subsection (a) because it is not temporally limited, and yet an increase in conditions also requires a hearing, which the majority deems is temporally limited and must occur during the probationary term. This is inherently inconsistent.
Similarly, the majority relies on the sentencing portion of section 9771(b), which states, "[u]pon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation." As with the requirements of subsection (d), when a defendant violates the terms of probation prior to the start of the probationary period, the court simply must consider the fact that the defendant spent no time serving the order of probation when deciding the appropriate revocation sentence.
Although I find the plain language of the statute permits a court to revoke probation prior to the start of the probationary term, any ambiguity as to the legislative intent is wholly resolved by legislative acquiescence. The Superior Court decided Wendowski in 1980. Since that time, anticipatory revocation has become a prevalent practice that has provided flexibility to sentencing decisions for decades. As the majority recognizes, the legislature has renumbered and amended section 9771 several times in the last forty years but has never made any material changes to the statute. Maj. Op. at 353-54. Our rules of statutory construction call for the presumption that "when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language." 1 Pa.C.S. § 1922(4). Importantly, "notwithstanding the clear import of § 1922(4) that it applies only where this Court has furnished a construction, this Court has recognized the extension in principle of § 1922(4) ’s presumption to cases decided by the Superior Court." Commonwealth v. Dickson , 591 Pa. 364, 918 A.2d 95, 107 (2007), quoting In re Lock's Estate , 431 Pa. 251, 244 A.2d 677, 682-83 (1968) ("It has been held, and rightly so, that where a decision of the Superior Court construing a statute was never modified by the Supreme Court, the presumption was that when the legislature subsequently enacted a similar statute dealing with the same subject matter, the legislature intended the same construction to be placed on the language of the subsequent statute.")).
It is necessary to emphasize the Commonwealth's recognition that "the term ‘anticipatory revocation of probation’ appears to be almost unique to Pennsylvania law, and of fairly recent origin." Appellant's Brief, at 11. Indeed, the term seems to have first appeared in an unpublished Superior Court case from 2014. See , Commonwealth v. Wilson , 891 EDA 2013, 2014 WL 10979657 (Super. Ct. 2014) (trial court ruled "that Wilson violated his parole and anticipatorily violated his probation;" holding that "Wilson's disorderly conduct conviction constituted both a violation of his parole and the basis for an anticipatory revocation of probation."). The term then became more widely used following the Superior Court's published decision in Simmons .
The Commonwealth astutely notes that the term is a misnomer, as revocation in this context is not in "anticipation" of some future wrongdoing. Rather, the probation order sets forth expectations and conditions of probation, including the general condition to lead a law-abiding life. Thus, a conviction and subsequent revocation are reactionary actions to the defendant's commission of a new crime, not anticipatory ones. While I find the term problematic for this reason, it has nevertheless become used and relied upon in many cases, including this one. Thus, for sake of brevity and consistency, I use the term "anticipatory revocation" insofar as it means the revocation of a probationary order based on a defendant's misconduct that occurred prior to the start of the probationary term.
The majority dismisses this presumption, emphasizing that the statutory language is the most trustworthy source for interpreting legislative intent. Maj. Op. at 353-54. I agree that the plain language of the statute controls. However, assuming arguendo that the language of the statute is ambiguous, I cannot imagine a more definitive example of legislative acquiescence than here. For decades, trial courts have revoked probation when a defendant made clear that probation would not serve its rehabilitative purpose by committing a new crime before the probationary term had begun. The Superior Court followed Wendowski and consistently affirmed countless instances of anticipatory revocation in the years that followed. See Commonwealth v. Dickens , 327 Pa.Super. 147, 475 A.2d 141, 144 (1984) ("The fact that appellant had not commenced serving probation when the new offense occurred did not prevent the court from revoking its prior order placing appellant on probation. ... If the new offense is committed at any time before the maximum period of probation has been completed, probation may be revoked."); Commonwealth v. Miller , 358 Pa.Super. 219, 516 A.2d 1263, 1265 (1986) ("If a probationer's criminal conduct, even if committed prior to commencement of the probationary period, discloses that probation will not be in the best interests of the public or the defendant, a court may revoke ... The commission of a new crime violates an implied condition of probation and suggests that the defendant is a poor probation risk."), appeal denied , 528 A.2d 956 (Pa. 1987) ; Commonwealth v. Ware , 737 A.2d 251, 253 (Pa. Super. 1999) ("[T]he court had the authority to revoke appellant's probation despite the fact that, at the time of revocation of probation, appellant had not yet begun to serve the probationary portion of her split sentence and even though the offense upon which revocation of probation was based occurred during the parole period and not the probationary period."), appeal denied , 561 Pa. 657, 747 A.2d 900 (Pa. 1999) ; Commonwealth v. Castro , 856 A.2d 178, 180 n.1 (Pa. Super. 2004) ("Appellant was found in violation of his parole, which he was serving at the time of his arrest, and in anticipatory violation of his probation, which had not yet begun to run. Such a finding is proper[.]"); Commonwealth v. Allshouse , 33 A.3d 31, 39 (Pa. Super. 2011) ("Appellant's probation was revoked prior to its commencement on the basis that Appellant was a danger to society and, therefore, unworthy of probation.").
Given the prevalence and wide acceptance in the courts for over forty years permitting revocation prior to the start of the probationary term it seems exceedingly unlikely that the legislature was either unaware of the practice or uninterested in correcting decades of improper revocation. Instead, I would presume, as our rules of statutory interpretation advise, that the General Assembly has not materially changed section 9771 because Wendowski and its progeny comport with the legislative intent of the statute – that revocation prior to the start of the probationary term is permissible.
I also agree with the Commonwealth that it is an absurd result to suggest that a defendant could commit a new crime with impunity – as far as the status of his probation is concerned – until the day he is actually serving the probationary period. Brief for Appellant at 29 (quoting Wright v. United States , 315 A.2d 839, 842 (D.C. App. 1974) ; see also 1 Pa.C.S. § 1922(1) ("[T]he General Assembly does not intend a result that is absurd, impossible of execution or unreasonable."). The majority posits that this is not an issue, because a defendant who commits a new crime while on parole is subject to revocation of his parole in addition to separate punishment for his new offense. Maj. Op. at 354-55. However, this entirely ignores the need to rectify the true problem that, by committing a new crime, the defendant has shown a probationary term is not a sufficient method of rehabilitation. Put another way, the majority's interpretation means that a sentencing court has no method of correcting its sentence after a defendant acts in a way that wholly alters the underlying balance between his rehabilitation and the protection of the public upon which the probationary sentence was premised. Given the purpose of probation and its inherently conditional nature explained above, I believe such a result is absurd and unreasonable.
I recognize that in certain circumstances, such as here, there is little practical effect to revocation of probation, as the nature of the offense that established the violation of probation is so serious and the sentence so lengthy that it is unlikely the defendant will ever serve the underlying probation anyway. However, it is easy to envision when the practical implications of anticipatory revocation will be exceedingly important, if not necessary, in order to uphold the purpose of probation and protect the public. For example, under the majority's interpretation, a defendant can assault a corrections officer or fellow inmate while incarcerated without tarnishing his ability to serve a consecutive probationary sentence, despite clearly exhibiting he is not leading a law-abiding life and continues to be a danger to society. Similarly, a defendant convicted of stalking could go directly to his victim's home the day he is released on parole with no repercussions to a future probationary term. According to the majority, those hypothetical defendants did not violate the conditions of their probation. That is an unreasonable conclusion that I cannot join.
Further, I disagree with the majority's analysis of statutes in pari materia . See 1 Pa.C.S. § 1932. The statute concerning sentencing generally states that a court may impose a sentence of probation "consecutively or concurrently[.]" 42 Pa.C.S. § 9721(a). Additionally, the statute governing orders of probation requires the court to "specify at the time of sentencing the length of any term during which the defendant is to be supervised[.]" 42 Pa.C.S. § 9754(a). The majority suggests that revocation of a consecutive probation sentence before its term begins runs contrary to these related statutes because "the probation sentence is effectively both concurrent and consecutive, in contravention of the plain language of section 9721(a)." Maj. Op. at 350 (emphasis in original). The majority also suggests that anticipatory revocation "effectively lengthens the term of probation beyond the fixed term specified at sentencing." Id . However, these arguments are premised upon the majority's conclusion that the conditions of probation do not attach until the probationary term has begun. As I explained fully above, the statutes governing orders and conditions of probation make clear that the majority's conclusion on that matter is incorrect, as the conditions are attached to the order of probation and defendant generally, not the term of probation. 42 Pa.C.S. § 9754(b) ; 42 Pa.C.S. § 9763(b). Viewing probation as fundamentally conditional, nothing about anticipatory revocation improperly lengthens a consecutive term of probation. The probationary term is fixed and gives a defendant the opportunity to serve his sentence outside of incarceration during that specified length of time, but the existence of that privilege is conditioned upon leading a law-abiding life.
I also disagree with the invocation of the rule of lenity. As the majority aptly recognizes, "the rule applies if at the end of the process of construing what [the legislature] has expressed, there is a grievous ambiguity or uncertainty in the statute." Shaw v. United States , 580 U.S. 63, 71, 137 S.Ct. 462, 196 L.Ed.2d 373 (2016) (internal quotations and citations omitted, emphasis added). The rule of lenity "provides a means of assuring fairness to persons subject to the law by requiring penal statutes to give clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be." Sawink, Inc. v. Philadelphia Parking Authority , 34 A.3d 926, 932 (Cmwlth. Ct. 2012) (quoting Commonwealth v. Reaser , 851 A.2d 144, 149 (Pa. Super. 2004) ). The rule is unnecessary until "the end" of the statutory interpretation process. Shaw , supra . The revocation statute gives clear warning to probationers that the court may revoke "upon proof of the violation of specified conditions of the probation." 42 Pa.C.S. § 9771(b). As explained above, I do not believe the legislative intent regarding the revocation statute is so hopelessly ambiguous that it is necessary to resort to the rule of lenity.
Based on the foregoing, I believe it is clear that probation is fundamentally conditional, such that a defendant violates the conditions of his probation when he commits a new crime at any point after probation is imposed and before the conclusion of the probationary term. With that in mind, I find revocation prior to the start of the probationary term wholly permissible because the plain language of the statute allows a court to revoke "upon proof of the violation of specified conditions of probation." 42 Pa.C.S. § 9771(b). Any ambiguity is resolved by decades of legislative acquiescence to the practice and the fact that the opposite conclusion reached by the majority runs contrary to the fundamental purposes of probation. Accordingly, I dissent.
Justice Brobson joins this dissenting opinion.