The Pennsylvania Superior Court has decided the case of Commonwealth v. Diaz, holding that the fact that the defendant was on probation pursuant to an illegal anticipatory probation violation does not protect him from being found in violation again even though the existing probation is actually illegal.

The Facts of Diaz

In Diaz, the defendant was sentenced repeatedly for drug offenses committed between 2004 and 2022. At one point, his probation was revoked before it began. This is called an anticipatory probation revocation. It occurs when a defendant receives a prison sentence followed by a probation tail and is still serving the prison or parole portion of the sentence at the time of a violation hearing, meaning the actual probation sentence has not yet begun. Until recently, the probation could be violated before it began. In the cases of Commonwealth. v. Simmons and Commonwealth v. Rosario, the appellate courts did away with this procedure and found that a defendant could not be found in violation of probation of a probation sentence which had not yet started. The trial court would instead be limited to finding the defendant in violation of parole and sentencing the defendant to backtime. The probation would then start as scheduled when the parole expired.

Diaz had been found in anticipatory violation and sentenced to new terms of prison and probation. This procedure was illegal, but at the time, the courts had not yet found it to violate the probation statute. Accordingly, Diaz did not challenge the new sentence as illegal. He then proceeded to violate the new illegal probation, and the trial court sentenced him to jail. The deadline for challenging the illegal sentence had expired, but Diaz argued that he could not be found in violation of a probation sentence which was illegal. The trial court disagreed and found him in violation. Diaz appealed.

The Superior Court

The Superior Court rejected Diaz’s arguments on appeal. It found that if Diaz disagreed with the legality of his probation sentence, he should have appealed or filed a PCRA petition within the relevant deadlines. He did not do so, so the sentence became final even if it was initially illegal. Once the sentence became final, he was then on probation, and the trial court could find him in violation of that probation. He could not retroactively attack the legality of the sentence to defend against the probation violation even though the sentence was clearly illegal under the recent case law.

The Takeaway

There is a lot of tension in the law as to when and how a defendant may challenge an obviously illegal sentence once the deadlines for appealing or filing a PCRA petition have expired. Clearly, a defendant can file a post-sentence motion within ten days, an appeal within thirty days, or a PCRA petition within a year, but once those deadlines have expired, the case law is inconsistent as to whether the defendant may still attack the legality of the sentence. There are cases which hold that a trial court may fix an illegal sentence at any time, and other cases which hold that any claim which could be raised in a PCRA petition cannot be raised later simply by calling it something else like a motion to correct illegal sentence. The courts go back and forth on this issue, and unfortunately for Diaz, they found that his claim should have been addressed at the time the illegal sentence was imposed rather than when he subsequently violated the probation. Given the conflicting case law, this decision is likely headed for further review.

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