Com. v. Diaz, T.
1928 EDA 2020
| Pa. Super. Ct. | Nov 19, 2021Background
- On April 4, 2019, Diaz pled guilty to burglary and conspiracy; each count carried concurrent terms of 11.5 to 23 months with immediate parole to house arrest, followed by three years of probation.
- While on parole, Diaz tested positive for PCP on January 9, 2020; at a subsequent Gagnon II hearing she was found to have violated supervision.
- The trial court revoked Diaz’s probation (the probationary tail had not yet begun) and on September 14, 2020 sentenced her to concurrent terms of 3 to 6 years’ incarceration plus three years’ probation.
- Diaz appealed; the Superior Court reviewed the legality of the revocation/sentence in light of the en banc decision in Commonwealth v. Simmons.
- The Superior Court held anticipatory revocation (revoking a probationary tail before it began) was unlawful, vacated Diaz’s judgment of sentence, ordered reinstatement of the April 4, 2019 order of probation, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a court may anticipatorily revoke a probationary tail that has not yet commenced | Revocation was permissible under precedents construing probation to include time from granting (Wendowski) | Revocation was invalid because the violation occurred during parole before the probationary term began | Anticipatory revocation is unlawful; Wendowski and its progeny overruled and revocation vacated |
| Whether a parole revocation permits imposition of a new sentence | Trial court’s revocation and new sentence were proper | Parole revocation does not authorize imposition of a new penalty; only recommitment to the original sentence is allowed | Parole revocation cannot result in a new sentence; the sentence imposed was illegal and requires remand |
| Appropriate remedy when an illegal anticipatory revocation and illegal resentencing occur | Uphold revocation and sentence | Vacate the illegal judgment, reinstate original probation order, and remand for proper resentencing | Judgment vacated; original order of probation reinstated; case remanded for resentencing |
Key Cases Cited
- Commonwealth v. Wendowski, 420 A.2d 628 (Pa. Super. 1980) (earlier precedent permitting anticipatory revocation of probation)
- Commonwealth v. Kalichak, 943 A.2d 285 (Pa. Super. 2008) (parole revocation does not authorize a new sentence; only recommitment to the original sentence)
- Commonwealth v. Finnecy, 249 A.3d 903 (Pa. 2021) (an illegal sentence is subject to collateral relief)
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (distinguishes Gagnon I and II pre-revocation hearing procedures)
- Commonwealth v. Stafford, 29 A.3d 800 (Pa. Super. 2011) (describing the Gagnon I/II framework)