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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

SPENCER HALE

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2272 EDA 2021
Appeal from the Judgment of Sentence Entered September 30, 2021 ,

i n the Court of Common Pleas of Philadelphia County , Criminal Division at No(s): CP

- 51

- CR

- 0001659

- 2018

.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J. MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 27, 2023 Spencer Hale appeals the judgment of sentence of incarceration imposed following revocation of his probation. Based on this Court’s decision
in Commonwealth v. Sim m ons , 262 A.3d 512 (Pa. Super. 2021) ( en banc ), we vacate the j udgment of sentence and remand for resentencing. On February 19, 2019, Hale entered a negotiated guilty plea to r obbery, inflicting or threatening immediate bodily injury , and s imple a ssault. The trial
court immediately sentenced Hale to a ter m of fourteen ( 14) to twenty

- eight (28) months ’ incar cer ation followed by three (3) years ’ probation for the robbery and o ne ( 1 ) year consecutive probation for the simple assault. He was given credit for time served. Hale did not appeal

. On October 29, 2019, Hale was released on parole. A s of that time, Hale had served fifteen ( 15 ) months of his sentence of incarceration ; hisJ

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sentence of incarceration was to max out on November 18, 2020 , 13 months later. On September 28, 2020, Hales ’ ex - girlfriend filed a PFA order against him. Parole staff directed that Hale ha ve no - contact with her as a special condition of parole. On October 7, 2020, the Philadelphia Police Department issued a warrant for Hale ’ s arrest for aggravate d assault and notified parole staff

. Parole staff directed Hale to turn himself in , but he did not. The Pennsylvania Parole Board placed Hale on absconder status on October 14,
2020. On November 5, 2020, Hale’s home provider notified parole sta ff th a t she had not seen Hale in two weeks. A search of his residence revealed that his belongings were not there. Hale was declared delinquent for changing his residen ce without permission , effective November 5, 2020

. On February 18, 202 1 , Philadelphia Police arrested Hale on multipl e,

new charges. Additionally, he was arrested by the P arole B oard for absconding

. On July 7, 2021, the trial court held a revocation h earing and found Hale in violation of his parole and probation. The court revoked Hale’s p robation and supervision. The court ordered a pre - sentence report and mental health evaluation. On Septembe r 30, 2021, the trial court sentenced Hale to a term of forty

- five (45) to ninety (90) months ’ incarceration on the charge of robbery and a c oncur rent term of twelve (12) to twenty

- four (24) months ’J

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incarceration for simple assault. C redit for time served was given

. Hale filed a motion for reconsideration , which the trial court denied. Hale filed this timely appeal. Hale and the trial court comp lied with Pennsylvania Rule of Appellate Procedure 1925. On appeal, Hale raises a single issue for our review: Whether the trial court erred anticipatorily revok ing his sentence of probation when his violations occurred while he was serving his sentence of parole and had not yet started his sentence of probation based upon Commonwealth v. Simons , 262 A.3d 512 (Pa. Super

. 2021).

See Hale’s Brief at 4. Hale claims that the trial court erred in finding that he violate d his probation when his new crimes and technical violat i on occurred during the period of parole and not probation. Hale therefore maintains that t his Court’s decision in Simmons applies , his sentence should be vacated , and this matter remanded for furthe r proceedings. Hale’s Brief at 9

- 10. In its 1925(a) opinion, the trial court acknowledges that it improperly revoked Hale’s probation in contravention of Simmons , conceding that his new crime and technical violations occ urred during Hale’s parole. As su ch, the court agrees that we should remand this matter for resentenc ing in accordance with Simmons . Trial Court Opinion, 4/27 / 22 , at 5. The Commonwealth argues , however , that Hale’s abscond er stat u s bega n while he was on parole but continued into the term of his probationJ

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sentence. As such Simmons does not apply. 1 Commonwealth’s Brief at 13, 16. In support of its position , the Commonwealth cites Commonwealth v. Grantham , 1859 EDA 2021, 2022 WL 1554860 (Pa. Super. 2022) (Unpublished decision) and claims that it applies to the instant case

. We disagree ; Hale’s sentence of probation for simple assault never started because Hale never successfully complete d his parole for robbery.
In Simmons , this Court held , inter alia , that where a trial court sentences a defendant to probation consecutive to a sentence of incarceration, the defendant cannot prospectively violate the conditions of a probationary order before the defendant starts serving his senten ce of probation

. Simmons , 262 A.3d at 524

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. A defendant’s sentence of probation, if imposed consecutive to a sentence of incarceration, does not begin to run until the prior sentence ends. In order to consider whether a defendant violated probation an d potentially revoke it, the violation must occur while the defendant is serving his sentence of probation. No statutory authority exists permitting a trial court to anticipatorily revoke, i.e. , before the sentence of probation has started, an order of pr obation. Id.
In Grantham , a panel of this Court distinguished Simmons based on different facts . Like Simmons, Grantham had been sentenced to a term of incarceration followed by a sentence of probation. Grantham was paroled.

_________________ __________ ______ ____ _______ 1 We observe that the trial court initially applied this rationale when it sentenced Hale, although it did not cite any legal authority to support the decision. Rather, it distinguished the circumstances of the instant case from those in Simmons , noting the continuing nature of Hale’s absconding

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While on parole, Granth a m committed new crimes and was arrested

. Subsequently, he was ordered to turn himself in b ut failed to do so. As a result , the court issued an absconder ’s warrant

. Following a revocation hearing, the court found him in violation of his probation, revoked his probation and resentenced Grantham to a term of incarceration. On appeal , Grantham argued that the court imposed an illegal s entence based on Simmons , claiming that his alleged violation occurred prior to the start of his sentence of probation . This Court rejected his claim . The Court observed that “the record demonstrates that, while [Gran t ham] did incur new criminal charges before the commencement of his probation sentence, he also
engage d in violative conduct after his probation commenced, when, after his release from custody [ he failed to turn himself in]. ” Id. at 3 (emphasis added)

. Thus, contrary to the Commonwealth’s contention, Grantham involved two separate violations, one occurring during his parole and a nother, separate one during his probation. As such, Grantham does not stand for the proposition that a defendant’s probation m ay be revoked where the violati on starts while the defendant is on parole and continues into the term of his probation , because the defendant has not been picked up yet or turned himself in

. Given the distin ction in Grantham , and the trial court’s acknowledgement that Simmons applies because Hale ’ s violations occurred while he was on parole , we vacate Hale’s judgment of sentence . Hale’s sentence for violating parole is limited to serving the balance of his originalJ

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sentence of inc arceration, i.e., approximately 13 month s. Further, Hale’s
consecuti ve sentence for robbery must be reinstated. 2 Judgment of sentence vacated. Case remanded for resentencing

. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/27/2023

_________________ __________ ______ ____ _______ 2 It appe a rs that the c ourt use d the terms p a role and probation interchangeably at the hearings. I t is obvious that Hale violated his parole. Under Simmons , the court is limited in its remedy.