Commonwealth v. Campbell

1

COMMONWEALTH OF PENNSYLVANIA v. JUSTIN FRANKLIN CAMPBELL Appellant

No. 1394 WDA 2022

Superior Court of Pennsylvania

December 26, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered November 17, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s) CP-25-CR-0002641-2020.

Benjamin D. Kohler, Esq.

BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS P.J.E.^[*]

MEMORANDUM

McCAFFERY, J.:

Justin Franklin Campbell (Appellant) appeals from the order entered in the Erie County Court of Common Pleas, denying his motion to strike certain conditions of his probation, which were imposed by Erie County Adult Probation and Parole Department four months after he entered a negotiated guilty plea to corruption of minors^[1] and was sentenced. The conditions

Appellant challenges prohibit him from: (1) living with or having direct or indirect contact with any person under the age of 18, despite the fact Appellant was living with his one-year-old child; (2) accessing the internet, without prior permission from the probation department; and (3) loitering within 1,000 feet of an area where the primary activity involves persons under age 18. The trial court found the probation department adequately explained how these conditions related to Appellant, his offense, and the safety of the community. Trial Ct. Op., 2/2/23, at 4. On appeal, Appellant contends, inter alia, the proper analysis is instead whether the probation department's conditions have the necessary nexus to the trial court's sentencing order, and here, they do not.^[2] We agree, and thus vacate the order and remand for the trial court to apply the proper review.

I. Procedural History

On April 28, 2022, Appellant entered a negotiated plea to one count of corruption of minors. The Commonwealth recited the following factual summary: in June of 2020, Appellant, then approximately 26 years old, engaged in vaginal, anal, or oral sex with the victim, a 15-year-old girl. See N.T., 4/28/22, at 4, 6. It was a "consensual act," although, as the Commonwealth pointed out, the victim was not old enough to consent. Id. at 5. When asked how he met the victim, Appellant stated his neighbor asked him to pick her up and bring her to his town, "because their parents were drug addicts[ ] and [the victim was] getting abused." Id. at 8-9. The parties agreed to a sentence of five years' restrictive probation, with the first ten months on electronic monitoring. Id. at 3. The Commonwealth stated that in agreeing to this recommended sentence, it considered that Appellant was working and was a caretaker to his own one-year old child and the seven- and ten-year old children of his partner, with whom he lived. See id. at 7; N.T., 11/14/22, at 8.

The trial court accepted Appellant's plea and immediately imposed the agreed-upon sentence. N.T., 4/28/22, at 4, 9. The court also ordered: (1) an evaluation for sexual offender counseling; (2) drug and alcohol and mental health evaluations; and (3) no contact with the victim. Id. at 9-10.

Four months later, on September 20, 2022, Appellant filed the counseled, underlying motion to strike "extrajudicial" conditions of probation. Appellant's Motion [to] Strike the Extrajudicial Conditions of Probation, 9/20/22, at 1 (unpaginated). Appellant averred the following: on September 1st, he was assigned two new probation offers and was told, under threat of imprisonment, to sign a form entitled, "Conditions of Supervision: Sex Offenders or Those Convicted of a Crime that is Sexual in Nature" (the IASOP^[3]Contract). Id. at 1. This contract prohibited Appellant from living with any child, and as a result, his own child was removed from his house, despite the facts the child was not an alleged victim and the court had not ordered any such removal. Id. at 1-2. Furthermore, the contract prohibited Appellant from accessing the internet or coming within 1,000 feet of, inter alia, schools and playgrounds, and it required him to complete a sexual offender program. Id. Appellant argued these conditions were not only extreme, but also exceeded the scope of authority of the trial court's sentencing order and had no nexus to the underlying crime. See id. at 2.

The trial court conducted a hearing on November 14, 2022. In his testimony, Appellant reiterated the probation department informed him he could be in violation of probation if he did not sign the IASOP Contract. N.T., 11/14/22, at 16. Furthermore, he was told his child, along with his partner's children, would have to move out that same day, and the children in fact have moved out. Id. at 21-22.

The Commonwealth presented Erie County Parole and Probation Officer (PO) Timothy Hardner, who testified to the following. He worked in the probation department's IASOP program. Generally, when a probationer has "plead[ed] to a sexual assault^[4] and is sentenced for an evaluation for the sex offender treatment program," his department will supervise them in the IASOP program. N.T., 11/14/22, at 7. The IASOP Contract was drafted by "multiple counties" and "approved by the courts."^[5] Id. at 27. The department requests the probationer sign the IASOP Contract before they are evaluated "in an effort to keep the community safe until" the evaluation is completed. Id. at 7-8. If the evaluation establishes the probationer does not need treatment, other conditions in the contract would nevertheless remain in effect, for example a prohibition against possessing pornography. Id. at 10. In addition to the IASOP Contract, a probationer is subject to "[t]he standard probation contract[, which also] has some sex offender conditions[.]" Id. at 7.

With respect to Appellant specifically, PO Hardner denied telling him he would go to prison if he did not sign the contract.^[6] N.T., 11/14/22, at 8. The PO further testified: although he told Appellant he could not have contact with his partner's two children, he could live with and have contact with his own biological child. Id. at 9. PO Hardner stated that generally, the probation department does not restrict contact with a biological child, unless they were the victim. Id. Additionally, PO Hardner stated that in general, IASOP conditions may become "less restrictive" on "a case-by-case" basis, as a probationer "move[s] through the program;" for example, the probationer may "be able to have contact with minors so long as all the bases are covered." Id. at 11, 13. Finally, PO Hardner explained: Appellant was not in violation of his probation; the evaluation for sexual offender counseling had yet to be scheduled; but "it was agreed [Appellant] would not have to go further with any proceeding until" the underlying motion to strike the supervisory conditions was resolved. Id. at 9-10.

On cross-examination, PO Hardner conceded: (1) the plain language of the IASOP Contract did not include an exception allowing contact with biological children; and (2) no new contract is executed if a restriction is lifted or loosened, and instead, the probationer remains bound by the original IASOP Contract. N.T., 11/14/22, at 12-13, 15. Furthermore, the contract provided the probationer "would follow all of [the] restrictions," and PO Hardner acknowledged that a violation of any of these terms could result in revocation proceedings. Id. at 12-13.

The trial court asked whether there was "a responsibility to have a lot more of [these IASOP conditions] explained at the actual sentencing." N.T., 11/14/22, at 23. The Commonwealth acknowledged: "Possibly[. I]t might be a matter [sic] of giving the contract [to the defendant] at the time of the sentencing." Id. The trial court also commented that "maybe some language in [the contract] should be firmed up a little bit." Id. at 27. Nevertheless, the Commonwealth argued the probation department must be able to "make some . . . guidelines and parameters for individuals [who have] been convicted of" sexual offenses. Id. at 23. Appellant responded the imposition of the instant supervisory conditions on a probationer was outside the probation department's "wheelhouse." Id. at 24.

On November 17, 2022, the trial court entered the underlying order, denying Appellant's motion to strike the conditions of supervision. In response to the trial court's direction, Appellant filed a Pa.R.A.P. 1925(b) statement of matters complained of on appeal.

II. Pa.R.A.P. 1925(b) Statement

Preliminarily, we consider the suggestion, made by both the trial court and the Commonwealth, that Appellant's Rule 1925(b) statement failed to identify the particular supervisory conditions he was challenging, and thus his issues should be found waived for vagueness pursuant to Pa.R.A.P. 1925(b)(4). See Trial Ct. Op. 2/2/23, at 3; Commonwealth's Brief at 5. Appellant responds his statement was sufficiently detailed, and in any event, "[g]iven the narrow issue presented in the motion/hearing, . . . the challenged conditions would not, and did not, come as any surprise to the trial court." Appellant's Brief at 16.

"Rule 1925(b)(4)(ii) provides that the Rule 1925(b) statement 'shall concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the judge.'" Commonwealth v. Price, 284 A.3d 165, 170 (Pa. 2022) (emphasis omitted), citing Pa.R.A.P. 1925(b)(4)(ii).

However in Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007), our Supreme Court allowed a broad Rule 1925(b) claim of insufficient evidence in what it deemed was a "relatively straightforward drug case." Id. at 1060. In that case, while the Commonwealth alleged the defendant acted as a lookout and money handler in multiple drug sales, "the evidentiary presentation span[ned] a mere [30] pages of transcript[,]" and the...