PA Superior Court: Trial Court Cannot Make Probation Worse Without Violation or Threat to Public Safety

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Dell, vacating the new conditions of probation imposed on the defendant by the trial court and remanding for further proceedings. In Dell, the trial court made the defendant’s probation worse by adding more restrictive conditions despite the fact that the defendant had neither violated the probation nor done anything to show that he presented a threat to public safety.

The Facts of Dell

Dell was convicted of the sexual abuse of children (usually a child pornography related offense). He received a sentence of 5 - 10 years’ incarceration followed by state supervised probation. The trial court did not attach specific conditions to his probation. Once the probation began, the Parole Board therefore petitioned the trial court to add its standard conditions of probation, allow them to modify conditions going forward, and allow for the use of GPS monitoring when appropriate. The parole board did not allege any violation of the probation or that Dell posed a risk to public safety. The trial court granted the request anyway. The defendant appealed.

The Superior Court Appeal

On appeal, the defendant argued that court erred by entering an order modifying his probation to make it worse by including the three requested conditions without finding he violated a specific condition of his probation or presented a threat to public safety pursuant to 42 Pa.C.S. § 9771. The Superior Court agreed and vacated the order adding the new conditions.

After the thirty-day modification period provided by 42 Pa. C.S.A. § 5505 has passed, as there is no dispute it did here, a trial court may only modify a probationer’s terms of probation pursuant to Section 9771, which provides in relevant part:

(a) General Rule.-- The court has inherent power to at any time terminate continued supervision, lessen the conditions upon which an order of probation has been imposed or increase the conditions under which an order of probation has been imposed upon a finding that a person presents an identifiable threat to public safety.

(b) Revocation.-- The court may increase the conditions … of probation upon proof of the violation of specified conditions of the probation.

Thus, the judge may only make the probation worse within thirty days following sentencing as a Court may always reconsider during that period or if the defendant violates probation or poses a risk to public safety. The parole board did not allege that the defendant had done anything to violate his probation or that he posed some sort of new risk to public safety, so the Superior Court ruled that the trial court erred in making the probation more onerous. Accordingly, the court vacated the order adding new conditions.

The Takeaway

This is an important case - the statute clearly provides that trial judge’s cannot arbitrarily make the conditions of probation more difficult to meet, and here, the Superior Court enforced that rule. These types of issues come up a lot with probation because judges generally have so much discretion in how to handle probationers. But at the same time, probation is governed by a number of statutes, and errors made by probation or the trial court in adding conditions, selecting conditions, or proceeding on potential violations can provide a complete defense to an alleged violation of probation or the imposition of a probationary sentence at all. It is important to look carefully at the sentencing order when charged with a violation of probation and to object to any attempt by law enforcement to modify probation illegally to make it worse.

Facing criminal charges or appealing a criminal case? We can help.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.