En Banc Pennsylvania Superior Court Clarifies That Probation May Run Concurrently with Incarceration
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has issued a significant en banc decision in the case of Commonwealth v. Jennings, resolving a recent conflict in Pennsylvania sentencing law. Overruling several recent panel decisions, the Court held that trial judges are in fact permitted to sentence defendants to terms of probation that run concurrently with terms of incarceration, including state prison sentences.
This decision restores the sentencing flexibility that defense attorneys and judges have long utilized and clarifies the plain language of the Sentencing Code.
The Facts of the Case
In Commonwealth v. Jennings, the defendant was convicted of attempted statutory sexual assault, unlawful contact with a minor, and related offenses after engaging in sexually explicit conversations with an undercover detective posing as a 14-year-old girl.
Due to prior convictions for rape and involuntary deviate sexual intercourse (IDSI) from 1989, the defendant faced mandatory minimum sentencing provisions which required the judge to impose a sentence of at least 25 to 50 years in prison. The trial court went well above that and ultimately sentenced him to an aggregate term of 50 to 100 years of incarceration. Relevant to this appeal, for the charge of criminal use of a communication facility (CUCF), the judge imposed a seven-year term of probation to run concurrently with the state prison sentence.
The defendant appealed, arguing that the sentence was illegal. He relied on recent Superior Court decisions which had suggested that probation cannot be served while a defendant is incarcerated because probation is, by definition, a "less restrictive" alternative to jail meant for rehabilitation in the community and that it is not even possible to comply with the conditions of probation while in custody. For example, an inmate in a state prison cannot remain in the county of conviction or report to the county probation officer.
The Legal Issue: Can Probation and Prison Run Together?
The primary issue before the en banc panel was whether a sentencing court has the authority to order a term of probation to be served at the same time as a term of total confinement.
This question arose because of a string of recent unpublished panel opinions (such as Commonwealth v. Qawiee, Commonwealth v. Patel, and Commonwealth v. Bowers) which had vacated such sentences as illegal. Those panels reasoned that under cases like Commonwealth v. Allshouse and Commonwealth v. Basinger, probation was incompatible with incarceration.
The Superior Court’s Decision
The Superior Court rejected the reasoning of those recent panels and affirmed the legality of concurrent probation. The Court based its decision on the plain text of 42 Pa.C.S.A. § 9721(a), which outlines the sentencing alternatives available to a judge (such as probation, guilt without penalty, partial confinement, total confinement, and fines). The statute explicitly states that the court “may impose them consecutively or concurrently.”
The Court held:
Therefore, by its plain language, Section 9721(a) permits trial courts to impose concurrent terms of probation and total confinement. . . . To the extent that [prior cases] suggest that the Sentencing Code provides no authority for imposing probation concurrently with a term of total confinement, we disapprove of their rationales.
The Court explained that concurrent probation still serves a purpose. Even while incarcerated, a concurrent probationary tail can serve as a deterrent. If the defendant commits a new crime or misconduct in prison, that probation could theoretically be revoked. More importantly, the Court emphasized that statutory text supersedes policy arguments about whether concurrent supervision is “practical.” In other words, the policy justifications only come into play for an ambiguous statute, and here, the Court concluded that the statute was not ambiguous. A trial court may impose consecutive or concurrent probationary and prison sentence.
Secondary Issue: Notice for Mandatory Minimums
The defendant also challenged his mandatory minimum sentence on the grounds that the Commonwealth failed to include the triggering facts (his prior convictions) in the criminal information, which is the formal charging document in Pennsylvania.
The Superior Court rejected this argument, as well. Relying on Pennsylvania Supreme Court precedent in Commonwealth v. Aponte, the Court held that prior convictions are a “sentencing factor,” not an element of the crime. Therefore, the Commonwealth is not required to list them in the criminal information. Providing reasonable notice of the intention to seek the mandatory minimum after conviction but before sentencing is sufficient to satisfy due process, although once a defendant has been convicted, it is too late for them to do anything about a mandatory minimum. A rule that requires notice prior to trial would be far better, but the appellate courts have not required that kind of notice.
Key Takeaways for Criminal Defendants
This decision is legally significant for several reasons:
Sentencing Flexibility: Judges often use concurrent probation as a way to close out a less serious count without adding a “tail” that keeps a defendant under state supervision for decades after their release. Jennings confirms this practice is legal.
Structuring Pleas: Defense attorneys can once again confidently negotiate plea deals that involve concurrent probation without fear that an appellate court will sua sponte vacate the sentence as illegal. Agreeing to a lengthy probationary sentence may in some cases result in less jail time for the defendant.
Mandatory Minimums: Unfortunately, the case serves as a reminder that the Commonwealth does not need to show its hand regarding mandatory minimums in the initial charging documents, provided they give notice before sentencing.
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Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
