J-S41034-19

2020 PA Super 238

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

DENNIS L. SHIRES, II,

Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 233 MDA 2019

Appeal from the Judgment of Sentence Entered July 6, 2017

in the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0002155-1998

BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.: FILED SEPTEMBER 28, 2020

Dennis L. Shires, II (Appellant), appeals nunc pro tunc from his July 6, 

2017 judgment of sentence, which the trial court imposed after revoking 

Appellant’s probation. Appellant’s counsel originally filed in this Court a 

petition to withdraw and a brief pursuant to Anders v. California, 386 U.S. 

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). 

We denied counsel’s petition and remanded for the filing of new briefs on the 

issue of whether Appellant’s violations of the conditions of supervision 

imposed by the State Board of Probation and Parole (the Board) were 

sufficient to revoke his probation. Counsel has filed a merits brief and the 

Commonwealth declined to file a responsive brief. After review, we conclude 

that the trial court erred by revoking Appellant’s probation based upon his 

violations of the conditions of supervision when those conditions were 

neither court-ordered nor germane to the condition of probation set by the 
J-S41034-19

2

trial court in 2002. Accordingly, we vacate Appellant’s judgment of sentence, 

reverse the order revoking his probation, and reinstate his 2002 judgment of 

sentence. 

This Court previously provided a full recitation of the procedural 

history. See Commonwealth v. Shires, 221 A.3d 1284 (Pa. Super. 2019) 

(remanding for a compliant Anders brief or merits brief) (unpublished 

memorandum) (Shires I) and Commonwealth v. Shires, ___ A.3d ___, 

2020 WL 3041625 (Pa. Super. 2020) (remanding due to issue of arguable 

merit) (unpublished memorandum) (Shires II). Briefly, Appellant was 

convicted of rape, involuntary deviate sexual intercourse (IDSI), and 

aggravated indecent assault related to a 1998 incident in which Appellant 

brandished a knife and sexually assaulted a 17-year-old clerk in the adult 

video room of a video store. In accordance with a guilty plea agreement, on 

October 23, 2002, Appellant was sentenced to 51⁄2 to 11 years of 

incarceration for rape, followed by 31⁄2 to 7 years of incarceration for 

aggravated indecent assault, followed by “supervision by the [Board]” for a 

period of 20 years for IDSI. Order, 10/29/2002, at 1-2. The only condition 

of probation imposed at that time was payment of costs, fines, and 

restitution. Id. 

The Board thereafter required Appellant to sign and follow 28 

conditions of supervision. These conditions were set forth over the course of 

three documents, all of which were signed by Appellant: (1) Conditions 
J-S41034-19

3

Governing Special Probation/Parole in February 2010; (2) Optional Special 

Conditions for Sex Offenders in May 2016; and (3) Standard Special 

Conditions for Sex Offenders in May 2016. 

Between 2002 and 2016, there was no docket activity. Without any 

precipitating filings or corresponding transcripts, on December 28, 2016, the 

trial court entered an order providing that “as additional conditions of 

[Appellant’s] special probation, [Appellant] must comply with the conditions 

governing probation and parole, the standard special conditions for sex 

offenders, and any supplemental standard special conditions of supervision.” 

Trial Court Order, 12/28/2016, at 1. According to a notation on the order, it 

was served upon the Public Defenders’ Office, who had previously 

represented Appellant, but not directly to Appellant. 

In 2017, after Appellant completed parole and was serving his 

probationary tail, the Board charged Appellant with three violations of 

probation.1 Appellant admitted to the conduct at issue at the Gagnon II2

____________________________________________

1 The three allegations were as follows.

The Board first alleged that Appellant admitted to his 

probation officer that he had picked up 16-year-old and 18-yearold females at 3:30 a.m. on February 6, 2017, with the intention 

to ask them to expose their breasts to him. ...

The Board next alleged that Appellant was discharged from 

Triad Treatment Specialists because Appellant had accessed or 

possessed pornography, had self-reported persistent reliance on 

(Footnote Continued Next Page)
J-S41034-19

4

hearing, but denied that the conduct violated the terms of his probation. 

The trial court was not persuaded, and it revoked Appellant’s probation and 

sentenced Appellant on July 6, 2017, to three to ten years of incarceration, 

to be followed by a period of special probation of ten years. 

After a series of procedural missteps discussed in our prior 

memoranda, this appeal filed nunc pro tunc presently is before us. As noted 

above, in our last memorandum we determined that the issue of whether 

the violations of the conditions of supervision imposed by the Board were 

sufficient to revoke Appellant’s probation was “not so clearly devoid of merit 

to warrant classifying this appeal as frivolous.” Shires II, supra

(unpublished memorandum at 8). Rather, we concluded “that counsel 

[should have been] able to put forward good-faith arguments that the trial 

court erred by revoking Appellant’s probation based upon Appellant’s 

violations of the conditions of his probation.” Id. Appellant has filed a 

(Footnote Continued) _______________________

or demonstration of deviant sexual behavior, and had failed to 

use therapy to prevent sexually abusive behavior or risk factors 

related to the cycle of abuse. ...

Finally, the Board alleged that Appellant admitted staying 

over at his girlfriend’s house multiple times in the month of 

January 2017 despite knowing it was an unapproved residence. 

...

Shires II, supra (unpublished memorandum at 2). 

2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
J-S41034-19

5

merits brief, and the Commonwealth declined to file a brief.3 The issue is 

now ripe for our determination.

We begin by reiterating the applicable law. “[I]n an appeal from a 

sentence imposed after the court has revoked probation, we can review the 

validity of the revocation proceedings, the legality of the sentence imposed 

following revocation, and any challenge to the discretionary aspects of the 

sentence imposed.” Commonwealth v. Wright, 116 A.3d 133, 136 (Pa. 

Super. 2015) (citation omitted). Further, “[r]evocation of a probation 

sentence is a matter committed to the sound discretion of the trial court and 

that court’s decision will not be disturbed on appeal in the absence of an 

error of law or an abuse of discretion.” Commonwealth v. Colon, 102 

A.3d 1033, 1041 (Pa. Super. 2014).

Our Supreme Court has distinguished between “conditions of 

probation,” which are imposed by a trial court, and “conditions of 

supervision,” which are imposed by the Board and its agents. Id. at 1291-

92. The Sentencing Code permits trial courts to set forth “reasonable 

conditions authorized by subsection (c) of this section as it deems necessary 

to insure or assist the defendant in leading a law-abiding life.” 42 Pa.C.S. 

§ 9754(b). 

____________________________________________

3 We note the Commonwealth’s failure to file a brief with disapproval. It 

sought revocation of Appellant’s probation, and yet it does not even make an 

attempt to defend the trial court’s decision. 
J-S41034-19

6

Subsection (c) delineates fourteen conditions a sentencing court 

may impose upon a defendant in the imposition of probation. 

Among these, courts may direct defendants on probation to 

attend treatment and addiction programs, pay fines and 

restitution, and refrain from frequenting “unlawful or 

disreputable places.” Id. § 9754(c)(12), (8), (11), and (6), 

respectively. Further, subsection (c)(13) provides a “catch-all” 

for trial courts, allowing them to order defendants “[t]o satisfy 

any other conditions reasonably related to the rehabilitation of 

the defendant and not unduly restrictive of his liberty or 

incompatible with his freedom of conscience.” Id. § 9754(c)(13).

Commonwealth v. Elliott, 50 A.3d 1284, 1288 (Pa. 2012). 

The Board’s authority to set forth conditions of supervision, on the 

other hand, is derived from sections 6131 and 6151 of the Prisons and 

Parole Code, which mandate that the Board and its agents establish uniform 

standards for the supervision of probationers under its authority and 

implement those standards and conditions. Id. (citing 61 Pa.C.S.

§§ 6131(a)(5)(ii) & 6151).

After examining the interplay between the Crimes Codes and Prisons 

and Parole Code, our Supreme Court concluded that while only the trial court 

could set conditions of probation, “the Board and its agents may impose 

conditions of supervision that are germane to, elaborate on, or interpret any 

conditions of probation that are imposed by the trial court.” Id. at 1292. 

Stated another way, the “trial court may impose conditions of probation in a 

generalized manner, and the Board or its agents may impose more specific 

conditions of supervision, so long as these supervision conditions are in 

furtherance of the trial court’s conditions of probation.” Id. Therefore, “a 
J-S41034-19

7

probationer may be detained, arrested, and ‘violated’ for failing to comply 

with either a condition of probation or a condition of supervision,” as long as 

the condition of supervision does not exceed the Board’s authority to impose 

it. Id.

In the instant case, Appellant argues that while he knew the special 

conditions were applicable to his expired parole sentence, he was unaware 

that they also applied to his probation sentence. Appellant’s Brief at 14-18. 

He further argues that because the trial court did not order the imposition of 

the conditions, and the conditions were not germane to, and did not 

elaborate on or interpret, any conditions of probation imposed by the trial 

court, his sentence should be vacated. Id.

There are only two court orders relating to conditions of Appellant’s 

probation. The first is the original October 29, 2002 sentencing order, which 

sets forth one condition requiring Appellant to pay costs, fines, and 

restitution. Order, 10/29/2002, at 1-2. The second is the December 2016 

order imposing “the conditions governing probation and parole, the standard 

special conditions for sex offenders, and any supplemental standard special 

conditions of supervision.” Order, 12/28/2016, at 1.

Appellant argues, however, that the December 2016 order cannot be 

considered because there is no evidence of record demonstrating that he 

received that order. Appellant’s Brief at 16-18. We agree; at the time the 

order was issued and served generically upon the public defender’s office, 
J-S41034-19

8

Appellant’s case had been dormant for over a decade and the public 

defender’s office had not represented Appellant since his original sentencing 

in 2002. The public defender’s office did not have any record of how or why 

the order was generated or that it had received it. See Shires II, supra

(unreported memorandum at 3 n.8) (citing N.T., 4/19/2017, at 2-11). Nor 

does the certified record indicate how the order came about. See id. 

Moreover, the trial court explicitly disregarded the December 2016 order 

when it revoked Appellant’s probation because there was no indication that 

Appellant had been served with the order. Trial Court Opinion, 9/25/2017, 

at 2 n.1 and N.T., 4/19/2017, at 11. Accordingly, the only pertinent 

condition of probation is the one imposed in 2002 as part of his original 

sentence related to paying costs, fines, and restitution. Thus, we must 

examine the conditions of supervision imposed by the Board to see if they 

are germane to, elaborate on, or interpret his only court-imposed condition.

According to the Notice of Charges and Hearing Special 

Probation/Parole issued by the Board, Appellant’s probation violations were 

premised upon three conditions of supervision of the Board. See Notice of 

Charges and Hearing Special Probation/Parole, 2/13/2017 (filed 

10/23/2019). The first is condition number one in the Optional Special 

Conditions for Sex Offenders, which states: 

You must not have any contact with anyone under the age of 18 

years old without the prior written approval of probation/parole 

supervision staff and if applicable, in agreement with your 
J-S41034-19

9

treatment provider. You must immediately report any of these 

contacts to your parole agent. Contact is defined as follows: (1) 

actual physical touching; (2) writing letter, sending messages, 

buying presents, sending email, sending instant messages, 

sending text messages, calling on a telephone/cell 

phone/blackberry; (3) [] verbal communication, such as talking, 

as well as nonverbal communication, such as body language 

(waving, gesturing, winking), sign language and facial 

expressions; (4) direct or indirect contact through a third party.

...

Optional Special Conditions for Sex Offenders, 5/20/2016 (filed 

10/23/2019), at 1.

The second is condition number one of the Standard Special Conditions 

for Sex Offenders: 

You must obtain a sex offender evaluation from a sex offender 

treatment provider who is approved by probation/parole 

supervision staff. You must comply with and successfully 

complete all treatment recommendations including polygraph 

examinations, resulting from this evaluation. You must pay the 

cost of the evaluation, polygraph(s) and treatment. You must 

also provide written authorization for release of confidential 

information between your sex offender treatment provider and 

the [Board]. ...

Standard Special Conditions for Sex Offenders, 5/31/2016 (filed 

10/23/2019), at 1.

The third is condition number 11 of the Standard Special Conditions for 

Sex Offenders: “You must reside at your approved residence. You must not 

sleep or stay overnight at any other address or location without the prior 
J-S41034-19

10

written approval of probation/parole supervision staff. ...” Standard Special 

Conditions for Sex Offenders, 5/31/2016 (filed 10/23/2019), at 2.4

On their face, these three supervision conditions, which require 

Appellant to obtain treatment and restrict his residence and his contact with 

minors, plainly are not germane to the sole court-imposed condition of 

probation, which merely required Appellant to pay costs, fines, and 

restitution. Nor could one say they elaborate on or interpret this condition of 

probation. Accordingly, the Board exceeded its authority in imposing these 

conditions, and the trial court erred in revoking Appellant’s probation based 

upon his violations of these conditions. See Elliott, 50 A.3d at 1292 n.4 

(explaining that condition of supervision to avoid minors under 18 at issue in 

____________________________________________

4 Before each of the three conditions, the notice also references “Condition 

#8: You shall comply with the following special conditions imposed by the 

court,” but did not specify where “Condition #8” appears. Notice of Charges 

and Hearing Special Probation/Parole, 2/13/2017 (filed 10/23/2019) 

(unnecessary capitalization removed). Appellant did sign a form entitled 

“Conditions Governing Special Probation/Parole” in 2010 that references a 

Condition #8, but that condition simply states that he “shall comply with the 

following special conditions imposed by the [c]ourt: Register in compliance 

with Megan’s Law.” Conditions Governing Special Probation/Parole, 

2/9/2010 (filed 10/23/2019), at 1. Appellant was ordered to register 

pursuant to Megan’s Law in 2002. Order, 10/29/2002, at 1. However, our 

Supreme Court has rejected the notion that the Board has independent 

authority “to impose any condition of supervision it wishes upon a 

probationer subject to the sex offender provisions merely because of his 

status as a sex offender,” at least when it comes to 42 Pa.C.S. § 9798.3

(section of now-repealed Megan’s Law permitting the Board to use global 

positioning technology to track a sex offender’s location). Elliott, 50 A.3d 

at 1291-92.
J-S41034-19

11

Commonwealth v. MacGregor, 912 A.2d 315, 316 (Pa. Super. 2006) was 

not in furtherance of the sole condition of probation, which was paying a $25 

probation administration fee); c.f. Elliott, 50 A.3d at 1292 (holding that the 

Board permissibly expounded upon court-ordered no-contact-with-minors 

probation condition by imposing a condition of supervision prohibiting Elliott 

from entering or loitering within 1,000 feet of areas with a primary activity 

involving people under the age of 18). We acknowledge that Appellant has 

admitted to engaging in the conduct at issue, but since no legal authority 

exists for revocation of his probation, we are constrained to vacate his 

judgment of sentence and reverse the order revoking his probation.

Judgment of sentence entered on July 6, 2017, vacated and July 6, 

2017 order reversed. October 29, 2002 judgment of sentence reinstated. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/28/2020