PA Supreme Court: Parole Agents May Add Conditions of Supervision, Probation Officers May Not

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Koger, holding that the statutes governing state parole differ from those governing probation and allow parole agents to add conditions of supervision that were not included as part of the original sentencing order. This means that in some ways, probation provides more protections than parole. A probationer may not be convicted of violating probation conditions which were not ordered by the sentencing judge on the record at the time of sentencing, but a parolee may be found in violation of parole for violating conditions which were later imposed by the supervising parole agent.

The Facts of Koger

The defendant pleaded guilty to possession of child pornography and criminal use of a communications facility. The charges stemmed from an incident in which his daughter found contraband images on his cell phone. He pleaded guilty in state court and received a sentence of 8 - 23 months’ incarceration followed by three years’ probation. The court also ordered him to have no contact with any of the victims or persons displayed in the images, to submit to a drug and alcohol evaluation, to complete any recommended treatment, perform 100 hours of community service, and complete sexual offender counseling.

The court did not advise the defendant of the general conditions of probation or parole at the time of sentencing. Instead, a probation officer explained the general conditions of Washington County, PA’s probation and parole immediately following the sentencing hearing. None of those conditions were put on the record or placed in the sentencing order.

As the defendant had already served the minimum sentence, the court immediately paroled him. A few weeks later, the defendant violated his parole by possessing pornographic images. The trial court revoked his parole and sentenced him to his back time with work release for the parole violation. It resentenced him to another three years’ probation to run consecutively on the CUCF charge.

Following his release, the Commonwealth again charged him with violating his probation and/or parole. This time, the Commonwealth alleged that he violated some of the conditions of probation and parole which were not put on the record at the time of sentencing but were instead explained by the probation officer following sentencing. For example, the Commonwealth charged him with failing to report and consent to searches, violating criminal laws, committing assaultive, threatening, or harassing behavior, and failing to avoid unlawful and disreputable places.

Ultimately, the alleged violations stemmed from an incident in which the probation officers conducted a home visit and asked to search the defendant’s home. He refused to let them search the phone, they had to use force to detain him, and when they searched the phone, they found explicit chats between the defendant and a user who identified themselves as a 15-year-old female. They also found more illegal pornography. Finally, the defendant also threatened the probation officer as the officer dropped him off at the jail.

The trial court found that the defendant violated his parole and probation by committing technical violations. It revoked both the probation and parole and sentenced him to his back time for the parole violation and 1 - 3 years’ incarceration for the probation violation.

The defendant appealed, challenging both the legality of the sentence and the sufficiency of the evidence supporting the revocation of probation and parole. The Superior Court remanded, finding that the record did not contain sufficient evidence as to whether the conditions of probation and parole were made part of the sentencing order and proceeding. The trial court issued a supplemental opinion conceding that the conditions were not part of the sentencing proceedings. The Superior Court therefore reversed and remanded, holding that the trial court could not find the defendant in violation of probation and/or parole conditions which were not imposed at the time of sentencing. The Commonwealth appealed to the Supreme Court, and the Supreme Court accepted the appeal.

The Supreme Court’s Ruling

The Supreme Court previously ruled in Commonwealth v. Foster that conditions of probation must be made part of the record at sentencing or a defendant cannot be charged with violating them. The issue in this case, however, was whether the same rules apply to a potential parole violation or whether parole agents/officers may impose conditions after sentencing. The Supreme Court agreed with the Commonwealth, finding that parole is different from probation and parole agents may add their own conditions even where the trial court has not specifically included those conditions in the sentencing order or put them on the record.

When it comes to probation, the statute directs that the court shall attach reasonable conditions . . . as it deems necessary to assist the defendant in leading a law-abiding life. A sentencing court may impose somewhat general conditions and then leave it to the probation officers to provide more specifics, but the basic conditions must be imposed by the sentencing court.

The statute, however, does not mention parole. Instead, the only relevant statute directs that when imposing a county sentence, the sentencing court shall place the inmate in the charge of and under the supervision of a designated probation officer. Therefore, the probation officer may decide the conditions of supervision during county parole.

State parole is also different as the Prisons and Parole Code authorizes the Parole Board to make general rules for the conduct of parolees and establish special conditions for supervision. The parole statute specifically authorizes the board to establish the conditions of supervision. Thus, the statutes require the sentencing judge to decide the conditions for probation, but it allows much more discretion to a state parole agent or county parole officer.

Therefore, the trial court properly found the defendant in violation of his county parole even though the conditions were imposed by a probation officer rather than the court. The probation violation was illegal, however, because the conditions for probation were not decided by the judge. This results in significant differences between probation and parole. For parole, the parole agent or officer may decide the conditions of supervision. But for probation, any conditions must be placed on the record at the time of sentencing.

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