The Pennsylvania Superior Court has decided the case of Commonwealth v. Koger, holding that a defendant must be advised of the rules and conditions of probation at the time of sentencing or else the defendant cannot be charged with a technical violation of probation for violating those rules.

The Superior Court specifically held that the sentencing court must actually specify the probation rules and include them in the sentencing order. It is not sufficient for a probation officer to simply explain the rules and conditions to the probationer at some point after the sentencing.

This opinion protects defendants from being found in technical violation for violations of conditions for about which they have not been informed. It further prevents probation officers from creating their own arbitrary conditions. It also gives defense counsel a better opportunity to challenge any rules or conditions of probation which may not be appropriate for the specific client.

In many counties, probation offices often attempt to impose restrictions which may be more punitive than necessary, and so now defense counsel may challenge those restrictions at the time of sentencing. Defense counsel may also challenge a potential violation of probation if the Commonwealth has no evidence that the defendant was advised of the rules at time time of the sentencing.

The Facts of Koger

The defendant was on probation in Washington County, PA for possession of child pornography. In 2019, he was charged with a second violation of his probation. The Commonwealth alleged that he violated Condition 7 (related to refraining from any assaultive, threatening, or harassing behavior), Condition 1 (failing to permit a probation officer to visit him at his residence and submit to a warrantless search of his belongings), and Condition 2 (relating to violations of criminal laws and ordinances).

The trial court held a revocation hearing and heard from the defendant’s probation officer. The probation officer testified that he searched the defendant’s phone and found that he had been communicating with a minor and receiving potentially pornographic images from that person via text messages. The officer testified that the defendant had received a copy of the rules of probation, and those rules prohibited that conduct. The officer testified that after he searched the phone, the defendant became agitated and was placed in custody. The defendant threatened another officer once at the jail. There was also a prior incident where the defendant was removed from a community service office for poor behavior. Based on this testimony, the trial court revoked the defendant’s probation and sentenced him to a lengthy period of incarceration.

The defendant appealed. On appeal, he argued that he had never actually been sentenced to follow any specific rules and conditions of probation. The evidence seemed to support this argument as the trial court informed the Superior Court that “it did not advise the defendant of the general conditions of his probation or parole at the time of sentencing.” Instead, pursuant to the court’s local procedures, the probation and parole conditions were explained to the defendant after sentencing by a probation officer.

The Superior Court’s Ruling

The Superior Court reversed the conviction. It found that there was no evidence that the defendant committed a technical violation of his probation because the court had never informed him of the requirements of probation at the time of sentencing. It is not sufficient for a defendant to be informed of the rules of probation by a probation officer after sentencing. Instead, a court must actually inform the defendant of the rules that he or she is required to follow while on probation at the time of sentencing, and those rules must be part of the sentencing order. This protects defendants by ensuring that they know exactly what they will have to do while on probation and cannot be found in violation arbitrarily, and it also gives the defense attorney an opportunity to challenge any unnecessary rules or conditions. As the court did not actually sentence the defendant to follow any specific rules, the defendant could not be found in violation for violating them. Accordingly, the Court reversed the judgment of sentence.

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