Commonwealth v. Harper

287 A.3d 834 (Table)

COMMONWEALTH of Pennsylvania

v.Nigel Ramon HARPER, Appellant

No. 1662 MDA 2021

Superior Court of Pennsylvania.

Filed: October 4, 2022

MEMORANDUM BY STEVENS, P.J.E.:

Appellant Nigel Ramon Harper appeals from the Judgment of Sentence entered in the Court of Common Pleas of York County on November 18, 2021, following the revocation of his probation. Upon review, we affirm.

The trial court set forth the relevant facts and procedural history herein as follows:

[Appellant] was charged with one count of Driving Under the Influence of Alcohol or Controlled Substance under 75 PA. CONS. STAT. § 3802 (a)(2) ; one count of Driving on Roadways Laned for Traffic under 75 PA. CONS. STAT. § 3309 ( 1) ; and one count of Driving Under the Influence of Alcohol or Controlled Substance under 75 PA. CONS. STAT. § 3802 (a)(1). Information, 12/07/2020.

On April 20, 2021, [Appellant] entered a plea to Driving Under the Influence of Alcohol or Controlled Substance under 75 PA. CONS. STAT. § 3802 (a)(2), a Tier I first offense, as an ungraded misdemeanor for a recommended disposition of six (6) months[’] probation, a $ 300 fine, to pay the costs of prosecution, and standard DUI conditions. N.T. Plea Court/Guilty Plea/Sentence, 04/20/2021, p. 2. [Appellant's] attorney stated on the record "Even though [Appellant] doesn't need a drug and alcohol evaluation for this disposition, he does have one completed. [Appellant] got it at a treatment center in Maryland. [Appellant] is recommended outpatient and begins [treatment] tomorrow." Id.

This [c]ourt then sentenced [Appellant] to six (6) months[’] probation, a mandatory fine of $300, directed him to pay the costs of prosecution, and comply with the standard conditions related to a DUI offense.[ ] N.T. Plea Court/Guilty Plea/Sentence, 04/20/2021, p. 6.

On September 22, 2021, a petition to schedule a probation violation hearing was filed. The probation violation hearing was scheduled for November 18, 2021. [Appellant's] violation was his failure to complete his recommended outpatient treatment. N.T. Probation Violation Hearing, 11/18/2021, p. 2. This [c]ourt found [Appellant] to be in violation for failure to complete the treatment that was recommended. Id. at 5. [Appellant] was sentenced to a new term of six months[’] probation and was directed to complete the outpatient treatment that was recommended. Id. [Appellant] was also directed to make regular payments on his fines and costs. Id.^[1]

On December 16, 2021, [Appellant] filed a notice of appeal to the Superior Court, and an application for In Forma Pauperis (herein "IFP ") status. On December 16, 2021, this [c]ourt issued a concise statement order and granted [Appellant's] IFP motion. [Appellant] filed a Statement of Errors Complained of on Appeal on January 6, 2022.

[Appellant] asserts that this [c]ourt erred in revoking [Appellant's] probation for violating a probation condition that the Court did not order, under Koger.¹ Statement of Errors Complained, 01/06/2022, p. 1.

¹Commonwealth v. Koger, 255 A.3d 1285 (Pa. Super. 2021).^[2]

Trial Court Opinion, filed 1/11/22 at 1-4.

In his brief, Appellant presents the following issue for our review:

Did the trial court abuse its discretion in revoking [Appellant's] probation for failing to complete treatment where the court never ordered completion of treatment as a condition of probation.

Brief for Appellant at 4.

Appellant argues that while outpatient treatment was "mentioned" at the time of sentencing, the trial court "never made treatment a condition of his probation in its verbal statements or in its written order"; therefore, the trial court abused its discretion in revoking his probation for failing to complete treatment. Appellant's Brief at 10-19. In response, the Commonwealth posits the issue is moot because Appellant had competed his period of extended supervision and his case was closed while this appeal is pending. Commonwealth's Brief at 6, 10. The Commonwealth represents that it verified that Appellant's case was closed on May 17, 2022.³

In his reply brief, Appellant again argues his revocation was "an abuse of discretion," but avers the case is not moot "where the erroneous revocation of [Appellant's] probation could easily come back to haunt him if left in place[.]" Reply Brief for Appellant at 1-2. Appellant further states that even if this Court deems this appeal to be moot, the three exceptions to the mootness doctrine apply and, thus, substantive review of his claim is justified. Id . at 6.

Initially, we note that although Appellant repeatedly frames his issue as a challenge to the trial court's abuse of its discretion in his appellate briefs, he essentially challenges the legality of his sentence for the trial court's failure to comport with this Court's recent decision in Koger . See Brief for Appellant at 11 (stating "[t]here was thus no legal basis for revoking his probation, and the court abused its discretion in so doing.")

In considering such a challenge, we are guided by the following:

Generally, parole and probation violations are determined by the sound discretion of the trial courts and absent an error of law or abuse of discretion, should not be disturbed on appeal. Commonwealth v. Perreault , 930 A.2d 553, 558 (Pa. Super. 2007). "The Commonwealth must prove the violation by a preponderance of the evidence and, once it does so, the decision to revoke parole is a matter for the court's discretion." Commonwealth v. Kalichak , 943 A.2d 285, 290-91 (Pa. Super. 2008).

Koger , 255 A.3d at 1289.

When deciding an appeal from a sentence imposed following the revocation of probation, this Court may review the validity of the revocation proceedings, the legality of the sentence, and the discretionary aspects of any new sentence the trial court imposed. Commonwealth v. Cartrette , 83 A.3d 1030 (Pa. Super. 2013) (en banc ). "Revocation of a probation sentence is a matter committed to the sound discretion of the trial court and that court's decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretion." Commonwealth v. Giliam , 233 A.3d 863, 866-67 (Pa. Super. 2020) (citation omitted).

[A] claim that implicates the fundamental legal authority of the court to impose a particular sentence constitutes a challenge to the legality of the sentence. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. Issues relating to the legality of sentence are questions of law, and thus, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Clarke , 70 A.3d 1281, 1284 (Pa. Super. 2013) (quotation marks and citations omitted). Further, a claim pertaining to the legality of sentence may be raised for the first time on appeal and is not subject to waiver. Commonwealth v. Foster , 960 A.2d 160, 163 (Pa. Super. 2008). See also Commonwealth v. Dickson , 918 A.2d 95, 99 (Pa. 2007) ("[I]f the sentence clearly implicates the legality of sentence, whether it was properly preserved below is of no moment, as a challenge to the legality of sentence cannot be waived.").

Appellant does not dispute that the additional six-month period of supervision to which the trial court sentenced him following its finding he had violated his probation expired while this appeal was pending. Yet, he claims that "where the erroneous revocation of [his] probation could easily come back to haunt him if left in place, the issue before the Court is not moot." Reply Brief for Appellant at 2.

In Commonwealth v. Dennis , 164 A.3d 503 (Pa. Super. 2017), this Court reiterated that, "[a]s a general rule, an actual case or controversy must exist at all stages of the judicial process, or a case will be dismissed as moot." Id. at 505 (citation omitted). Moreover, "[a]n issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect." Commonwealth v. Nava , 966 A.2d 630, 633 (Pa. Super. 2009). "Under Pennsylvania law, if Appellant completed the aggregate maximum term of imprisonment while his appeal was pending, he would not be subjected to any direct criminal consequences and his challenge to the legality of his sentence ... would be moot and incapable of review." Commonwealth v. Schmohl , 975 A.2d 1144, 1149 (Pa. Super. 2009).

Herein, Appellant seeks review of a sentence he has fully served; thus, it would appear at first blush that there is no relief we can grant as to the issue he presents on appeal that would have any legal force or effect. See Commonwealth v. Nava , 966 A.2d 630, 633 (Pa. Super. 2009) ("An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect.").

However, where an appellant challenged the legality of a twenty-four-month probationary sentence imposed and already served for his crime, and where there were no criminal or civil consequences to be endured by the appellant as the result of the probationary sentence that has expired, this Court found:

appellant's challenge to the legality of the sentence, which has expired and which bears no collateral civil or criminal consequences, is moot and will not be addressed by this Court.

Commonwealth v. King , 786 A.2d 993, 996 (Pa. Super. 2001). Our Supreme Court expounded upon how a resentencing after a revocation of probation may be deemed to bear collateral or civil consequences in Foster , supra , as follows:

We agree with Foster that this case is not moot. A case is moot when facts that arise after the initiation of the case leave a litigant without a stake in the outcome of the matter. William Penn Sch. Dist. v. Pennsylvania Dept. of Ed ., 642 Pa. 236, 170 A.3d 414, 435 n.33 (2017). As Foster correctly observes, the impact of a revocation of probation goes beyond the resentencing decision. Johnson v. Commonwealth Bd. of Probation and Parole , 505 Pa. 569, 482 A.2d 235, 236 (1984) (per curiam) (finding parolee's

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