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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O. P. 65.37

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : TODD ERIC SCHUTZEUS, : No. 1895 WDA 2013 : Appellant :

Appeal from the PCRA Order, November 8, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0011106-1999

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBU RGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 07, 2015

Todd Eric Schutzeus 1 appeals from the order of November 8, 2013, dismissing his PCRA 2 petition without a hearing. After careful review, we

reverse. The lengthy procedural history of this matter has been set forth in a previous Opinion of this court as follows:

The record reflects that the Commonwealth charged Schutzues with one count of rape, two counts of involuntary deviate sexual intercourse (“IDSI”), an d one count each of aggravated indecent assault, indecent assault, endangering the welfare of a chil d, and corruption of minors.[Footnote 1] These charges arose from Schutzues’ sexual assault of a young gir l

* Retired Senior Judge assigned to the Superior Cou rt.

1 Appellant’s surname is alternatively spelled “Schu tzeus” and “Schutzues.”

2 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9 546.J. S40002/15

- 2 - who was six years old when the assaults began. N.T., 10/9/01, at 8. The assaults persisted over a four-year period. Id. at 8-9. The charges also arose from Schutzues’ repeated attempts to lure a 12-year-old girl into his car, and an incident in w hich he exposed himself to an adult female. Id. at 9-10. [Footnote 1] 18 Pa.C.S.A. §§ 3121, 3123, 3125, 3126, 4304, 6301. Schutzues pled guilty to rape, one count of IDSI, endangering the welfare of children, and corruption of minors. On October 9, 2001, the trial court sentenced Schutzues to an aggregate 3 1/2 to 7 years of incarceration followed by seven years of probation for the rape conviction. The trial court imposed no further penalty on the remaining counts. Schutzues served the maximum seven-year term of incarceration and then commenced his probation sentence. Less than six months into his probation term, Schutzues violated his probation by having contact with his young nieces. After a May 1, 2007 hearing, the trial court found Schutzues in violation of his probation and sentenc ed him to 10 to 20 years of incarceration for rape, a consecutive 10 to 20 years of incarceration for IDS I, a consecutive 2 1/2 to 5 years of incarceration for endangering the welfare of a child, and a consecuti ve 2 1/2 to 5 years of incarceration for corrupting a minor. In an unpublished memorandum of July 29, 2009, this Court vacated the judgment of sentence. Commonwealth v. Schutzeus , 1009 WDA 2007, 981 A.2d 933 (Pa.Super. 2009) ( Schutzeus I ). Specifically, we concluded that the trial court fai led to consider 42 Pa.C.S.A. § 9771(c) prior to imposin g a sentence of incarceration. That section provides as follows: (c) Limitation on sentence of total confinement. --The court shall not impose a sentence of total confinement upon revocation unless it finds that:J. S40002/15

- 3 - (1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or (3) such a sentence is essential to vindicate the authority of the court. 42 Pa.C.S.A. § 9771(c). The trial court conducted a new sentencing hearing on February 9, 2010, at which the court sentenced Schutzues to 42 to 84 months of incarceration for rape, a consecutive 10 to 20 years for IDSI, and consecutive 2 1/2 to 5 year sentences for endangering the welfare of a child and corruption o f minors. In an unpublished memorandum of March 31, 2011, this Court once again vacated the judgment of sentence. Commonwealth v. Schutzues , 526 WDA 2010, 26 A.3d 1212 (Pa.Super. 2011) (“ Schutzues II ”). In Schutzues II , we held that the sentences for IDSI, endangering the welfare of a child and corruption o f a minor were illegal because “[a] probationrevocation court does not have the authority to resentence an offender on a final guilt without furth er punishment sentence after the period for altering o r modifying the sentence has expired.” Id. at 3 (quoting Commonwealth v. Williams , 997 A.2d1205, 1210 (Pa.Super. 2010)). We remanded for resentencing on the rape conviction. Id. at 3-4.

Commonwealth v. Schutzues , 54 A.3d 86, 88-89 (Pa.Super. 2012), appeal denied , 67 A.3d 796 (Pa. 2013) (“ Schutzues III ”). The trial court held another sentencing hearing on June 28, 2011, a nd imposed a sentence of 61⁄2 to 13 years’ incarceration. On the ensuing ap peal, appellant arguedJ. S40002/15

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that the trial court erred in imposing a sentence o f incarceration without finding that any of the Section 9771(c) factors app lied to his case. While this court expressed frustration with the trial cou rt’s continuing failure to explicitly reference Section 9771(c) during sentenc ing, we ultimately found the matter waived for failure to comply with Pa.R.A .P. 1925. We rejected appellant’s argument that the trial court’s failure to adhere to Section 9771(c) resulted in an illegal sentence. See id. at 98 (“challenges under § 9771(c) are not among the narrow class of i ssues that implicate the legality of a sentence”). Appellant also claimed that his sentence was exces sive given the technical nature of his probation violation, which he described as

de minimus , and his efforts at rehabilitation. Id. While we found that appellant raised a substantial question as to the l egitimacy of his sentence, ultimately, this court found that appellant failed to establish an abuse of

discretion. Id. at 99-100. On May 9, 2013, our supreme court denied appellant ’s petition for allowance of appeal. A timely pro se PCRA petition was filed on August 6, 2013, and counsel was appointed. On October 7, 201 3, counsel filed a petition to withdraw and Turner / Finley “no merit” letter. 3 On October 17, 2013, the PCRA court granted counsel permission to withdraw and notified

3 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) ( en banc ).J. S40002/15

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appellant of its intention to dismiss his petition without a hearing within 20 days pursuant to Pa.R.Crim.P. 907. On November 7, 2013, appellant

filed a pro se response to Rule 907 notice; and on November 8, 20 13, appellant’s petition was dismissed. A timely pro se notice of appeal was filed on November 27, 2013. 4 On January 6, 2014, the PCRA court ordered appellant to file a concise statement of errors com plained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b). On January 14, 2014, prior to the Rule 1925(b) deadline, the PCRA court filed an opin ion addressing the issues raised in appellant’s pro se PCRA petition. Appellant filed his Rule 1925(b) statement on January 28, 2014. (Docket #98.) 5 Appellant has retained new counsel on appeal. Appellant has raised the following issues for this court’s review:

I. DID THE COURT VIOLATE ITS DISCRETION WHEN IT SENTENCED THE APPELLANT TO THE MAXIMUM ON A PROBATION REVOCATION WITHOUT STATING VALID REASONS, BY ABDICATING ITS ROLE AS SENTENCER, AND BY NOT ALLOWING DEFENSE INPUT INTO THE REASONS FOR THE AGGRAVATED RANGE SENTENCE?

4 Appellant initially filed notice of appeal on Octo ber 28, 2013, from the October 17, 2013 Rule 907 notice. That appeal was dismissed on January 9, 2014, as premature. (Docket #99.)

5 Appellant’s Rule 1925(b) statement was due on Janu ary 27, 2014. However, we note that appellant’s concise statement is dated January 23, 2014. We are mindful of the so-called “prisoner ma ilbox rule,” pursuant to which a document is deemed filed on the date that a prisoner delivers it to prison authorities for mailing. Commonwealth v. Jones , 700 A.2d 423, 426 (Pa. 1997). Furthermore, as noted above, the P CRA court issued its Rule 1925(a) opinion before the 21-day deadline exp ired.J. S40002/15

- 6 - II. WAS PRIOR APPELLATE COUNSEL INEFFECTIVE FOR NOT APPEALING ON THE DISCRETIONARY ASPECT OF THE SENTENCE?

III. DID THE LOWER COURT NEGLECT TO IMPOSE CONDITIONS OF PROBATION ON THE APPELLANT SO THAT HE IS NOT IN VIOLATION? Appellant’s brief at 5. Initially, we recite our standard of review:

This Court’s standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley , 582 Pa. 164, 870 A.2d 795, 799 n. 2 (2005). The PCRA court’s findings wi ll not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa.Super.2001). Commonwealth v. Turetsky , 925 A.2d 876, 879 (Pa.Super. 2007), appeal denied , 940 A.2d 365 (Pa. 2007).

[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Jordan , 772 A.2d 1011, 1014 (Pa.Super.2001). It is within the PCRA court’s discretion to decline to hold a hearing if the petitioner’s claim is patently frivolous and has no support either in the record or other evidence. Id. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing. Commonwealth v. Hardcastle , 549 Pa. 450, 454, 701 A.2d 541, 542-543 (1997).J. S40002/15

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Id. at 882, quoting Commonwealth v. Khalifah , 852 A.2d 1238, 1239-1240 (Pa.Super. 2004). Appellant raises several discretionary sentencing challenges, including failing to comply with 42 Pa.C.S.A. § 9771(c); fail ing to state adequate reasons on the record for the sentence imposed; fai ling to consider mitigating evidence; and improperly deferring to th e prosecuting attorney to

articulate reasons for the sentence. 6 However, we find appellant’s third issue concerning the trial court’s failure to compl y with 42 Pa.C.S.A.

6 See Commonwealth v. Whitmore , 860 A.2d 1032, 1036 (Pa.Super. 2004), reversed in part on other grounds , 912 A.2d 827 (Pa. 2006) (“a claim that counsel was ineffective for failing to p erfect a challenge to the discretionary aspects of sentencing is cognizable u nder the PCRA”) (citations omitted); Commonwealth v. Watson , 835 A.2d 786, 801 (Pa.Super. 2003) (“a claim regarding the discretionary aspects of [the defendant’s] sentence, raised in the context of an ineffectivene ss claim, would be cognizable under the PCRA”), discussing Commonwealth ex rel. Dadario v. Goldberg , 773 A.2d 126 (Pa. 2001) (footnote omitted). Appe llant is correct that, despite this court’s promptings, the trial court has steadfastly refused to comply with Section 9771(c). Nowhere, d uring its three sentencing hearings following revocation of appella nt’s probation, does the trial court make any explicit findings relative to Section 9771(c). See Schutzues III , 54 A.3d at 91 (“Despite our directive to the tria l court in Schutzeus I

to comply with § 9771(c), the trial court has cont inued to ignore that statute.”). Indeed, this court observe d in Schutzues III , “The trial court’s attempts to give [appellant] the maxi mum amount of jail time possible have already resulted in two flagrantly il legal sentences and two remands from this Court, as set forth above.” Id. See also id. at 97 (“the trial court, as noted above, offered no analysis an d simply bookended the sentencing hearing with statements of his desire to incarcerate [appellant] for as long as possible”). The trial court’s condu ct in this matter has been regrettable, at best.J. S40002/15

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§ 9754(b) to be dispositive. Therefore, we need no t reach the remaining

issues. “To prevail on a claim alleging counsel’s

ineffectiveness, Appellant must demonstrate (1) tha t the underlying claim is of arguable merit; (2) that counsel’s course of conduct was without a reasonable basis designed to effectuate his client’ s interest; and (3) that he was prejudiced by counsel ’s ineffectiveness.” Commonwealth v. Wallace , 555 Pa. 397, 407, 724 A.2d 916, 921 (1999), citing Commonwealth v. Howard , 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994) (other citation omitted). I n order to meet the prejudice prong of the ineffectiveness standard, a defendant must show that there is a “‘reasonable probability that but f or counsel’s unprofessional errors, the result of the proceeding would have been different.’” Commonwealth v. Kimball , 555 Pa. 299, 308, 724 A.2d 326, 331 (1999), quoting Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A “‘[r]easonable probabilit y’ is defined as ‘a probability sufficient to undermin e confidence in the outcome.’” Id. at 309, 724 A.2d at 331, quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

Commonwealth v. Jones , 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal denied , 832 A.2d 435 (Pa. 2003).

When we consider an appeal from a sentence imposed following the revocation of probation, “[o] ur review is limited to determining the validity of th e probation revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial sentencing. 42 Pa.C.S. § 9771(b).” Commonwealth v. Fish , 752 A.2d 921, 923 (Pa.Super.2000), appeal denied , 565 Pa. 637, 771 A.2d 1279 (2001) (citation omitted). Revocation of a probation sentence is a matter committed to the sound discretion of the trial court and that court' sJ. S40002/15

- 9 - decision will not be disturbed on appeal in the absence of an error of law or an abuse of discretio n. Commonwealth v. Smith , 447 Pa.Super. 502, 669 A.2d 1008, 1011 (Pa.Super.1996). The Commonwealth establishes a probation violation meriting revocation when it shows, by a preponderance of the evidence, that the probationer's conduct violated the terms and conditions of his probation, and that probation has proven an ineffective rehabilitation tool incapable of deterring probationer from future antisocial conduc t. Commonwealth v. Sims , 770 A.2d 346, 350 (Pa.Super.2001).

Commonwealth v. Perreault , 930 A.2d 553, 557-558 (Pa.Super. 2007), appeal denied , 945 A.2d 169 (Pa. 2008). See also Commonwealth v.

Colon , 102 A.3d 1033, 1041 (Pa.Super. 2014), appeal denied , 109 A.3d 678 (Pa. 2015) (“In order to uphold a revocation of probation, the Commonwealth must show by a preponderance of the ev idence that a defendant violated his probation.”) (citation omitt ed). Appellant argues that prior counsel were ineffecti ve for failing to raise the trial court’s failure to comply with 42 Pa.C.S. A. § 9754(b), 7 which provides:

7 This issue was argued in appellant’s pro se PCRA petition. (Docket #82.) Appointed counsel, Robert S. Carey, Jr., Esq., did address the issue in his Turner / Finley “no-merit” letter but found it to be meritless for the same reason relied upon by the PCRA court and the Common wealth, i.e. , that the trial court signed off on a “special field report” from the probation office which contained a provision that appellant was not to have any contact with minors. (Docket #85.) We find this argument to be unpersuasive for the reasons discussed infra

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- 10 - § 9754. Order of probation (b) Conditions generally.-- The court shall attach such of the 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. Appellant argues that the terms and conditions of his probation, including the no-contact order, were not actually i mposed by the trial court as required by Section 9754(b), but rather by the O ffice of Probation and Parole. Appellant argues that this was an improper delegation of the court’s authority. At the original plea and sentencing hea ring of October 9, 2001,

the trial court stated:

Then pursuant to the negotiated plea agreement, at CC199911106, at Count One, it’s three and-a-half to seven years, plus, seven years probation, terms and conditions to be set by the Probation Office or Par ole Office, whoever is going to do that. No further penalty at the remaining counts. Notes of testimony, 10/9/01 at 16-17. In addition, the trial court’s October 9, 2001 sentencing order did not impose any terms and conditions of probation whatsoever, except DNA registration. (Docket #7.) Regrettably, the trial court did not check the line next to the special probationary condition “No Contact w/Victim,” let a lone order that appellant was not to have any contact with minor children gen erally. ( Id. )

In Commonwealth v. MacGregor , 912 A.2d 315 (Pa.Super. 2006), the appellant was required to sign a “Special Condi tions of Parole” form upon his release on probation, having served out the ful l four-year term of hisJ. S40002/15

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imprisonment. Id. at 316. One of the conditions was that he was not to have any contact with anyone under age 18. Id. Subsequently, on three different occasions, the appellant accompanied his girlfriend to gatherings of her family at which young children were present. Id. at 316-317. The trial court revoked his probation and imposed a prison se ntence of 18 to

60 months. Id. at 317. On appeal, this court vacated the judgment of sent ence on the basis that the condition appellant violated was never imp osed by the trial court.

We relied on Commonwealth v. Vilsaint , 893 A.2d 753, 757 (Pa.Super. 2006), which held that, “the legislature [in the Se ntencing Code] has specifically empowered the court, not the probation offices and not any individual probation officers , to impose the terms of probation.” Id. (emphasis supplied in MacGregor ). Since the condition the appellant was charged with violating, in addition to having been improperly drafted by a parole agent, was not imposed by the court as requi red by Section 9754(b), revocation of the appellant’s probation could not b e sustained. Id. at 318. Subsequently, in Commonwealth v. Elliott , 50 A.3d 1284 (Pa. 2012), our supreme court sought to reconcile Sectio n 9754 with the Prisons and Parole Code, 61 Pa.C.S.A. §§ 6131(a)(5)(ii) & 6 151, which mandates that the Board and its agents establish uniform sta ndards for the supervision of probationers under its authority, and further to implement those

standards and conditions. The court in Elliott distinguished betweenJ. S40002/15

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“conditions of probation” and “conditions of superv ision,” concluding that “the Board and its agents may impose conditions of supervision that are germane to, elaborate on, or interpret any conditio ns of probation that are imposed by the trial court.” Id. at 1292.

In Elliott , at the conclusion of the defendant’s sentencing h earing, the trial court imposed as a condition of his probation that he not have unsupervised contact with any minor child. Id. at 1285. After serving out his maximum sentence, the defendant was released an d began serving his five-year probationary term. Id. at 1285-1286. The defendant was given a form created by the Pennsylvania Board of Probation and Parole entitled “Standard Special Conditions for Sex Offenders -- M inor Victims,” which

included a condition that he not enter or loiter wi thin 1,000 feet of areas where minors commonly congregate including playgrou nds, youth recreation centers, elementary schools, etc. Id. at 1286. The defendant’s probation officer observed him sit ting near a large water fountain in a park in which young children we re playing. Id. According to the probation officer, the defendant w as closely observing a young girl in a red bathing suit. Id. The defendant subsequently admitted regularly going to the park to watch children and b eing sexually aroused by the girl in the red bathing suit. Id. at 1287. The defendant’s probation was

revoked and he was sentenced to two consecutive ter ms of 21⁄2 to 5 years’

incarceration. Id. The trial court opined, inter alia , that he had violatedJ. S40002/15

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Supervision Condition 19, that he avoid areas where persons under age 18 commonly congregate, such as the park fountain. Id. On appeal, this court reversed, finding that Supervision Condition 19 (no loitering within 1,000 feet) was not incorporated into the court’s g eneral no-contact requirement of the defendant’s probation. Id. at 1288. 8 Citing Vilsaint , supra , and MacGregor , supra , this court held that only the court, and not probation officers, can impose terms and conditions of probation. The Commonwealth appealed, and our supreme court v acated this court’s order, holding that the Board merely expoun ded upon the trial court’s

no-contact order:

[W]e find that Supervision Condition 19, that Appellee should not ‘enter or loiter within 1,000 f eet of areas where the primary activity at such locatio ns involve persons under the age of 18,’ is a permissi ble condition of supervision imposed by the Board and i s derivative of the trial court’s condition of probat ion that Appellee not have unsupervised contact with minors.

Id. at 1292. The court in Elliott distinguished MacGregor where, in that case, the trial court had ordered a $25 probation a dministration fee as the sole condition of probation, without actually setti ng forth any terms and conditions of probation. Id. , n.4. The matter was remanded to this court

8 This court also found there was insufficient evide nce to support a violation of Supervision Condition 17, prohibiting the defend ant from engaging in nonverbal communication with minor children while u nsupervised such as waving, gesturing, or winking. That aspect of this court’s decision was not appealed to the Pennsylvania Supreme Court. Id. at 1288.J. S40002/15

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for a determination as to whether the evidence was in fact sufficient to sustain the defendant’s probation revocation based upon Supervision

Condition 19. Id. at 1293. The Commonwealth and the PCRA court attempt to dis tinguish MacGregor

based on the fact that in the matter sub judice , the trial court signed a “Special Field Report” from the Board spec ifically stating that appellant was being supervised as a sexually violen t predator and was not to have any contact with children under the age of 18. (Appellant’s brief, Appendix B.) Therefore, they argue that the trial court concurred with the

Board’s recommendations.

We find MacGregor to be controlling. As in MacGregor , in the instant case, the trial court did not impose any te rms and conditions of probation whatsoever, remarking that they would be set by the Probation Office or “whoever is going to do that.” Nor did t he trial court set out any terms and conditions of probation in its sentencing order. The fact that the trial court signed a field report some six years la ter, dated January 28, 2007, which contained the no-contact provision, is insuff icient to comply with Section 9754(b). The court in Elliott did not overrule Vilsaint and MacGregor

. MacGregor makes clear that only the court, not probation officers, can impose terms and conditions of probat ion. The field report was nothing more than a summary of appellant’s conditio ns of supervision, asJ. S40002/15

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contrasted with conditions of probation, which are required to be imposed by

the court.

While Elliott

did hold that the Board may impose conditions of supervision that are “germane to” any conditions of probation imposed by the trial court, in the instant case, there were no conditions of probation for the Board to elaborate upon or interpret. In Elliott , at time of sentencing,

the trial court had ordered as a condition of the d efendant’s probation that he not have unsupervised contact with children. Th e Board does not have the statutory authority to implement standards and conditions of supervision out of whole cloth; it can only administer conditio ns of supervision within the parameters established by the trial court. Here, s ince the trial court never imposed a no-contact provision, the Board could not enforce one. As such, appellant’s contact with his two nieces was not a v iolation of his probation. The Commonwealth failed to establish, as a matter o f law, that appellant’s conduct violated the terms and conditions of his pr obation. Clearly, then, prior counsel were ineffective for failing to raise this issue in the court below and on appeal. Appellant’s revocation sentence mus t be vacated and we will reverse the order dismissing appellant’s PCRA petit ion. 9 While it appears

9 As should be evident from this Memorandum, appella nt’s claims are not patently frivolous or without any support in the re cord, so as to permit appointed counsel to withdraw. Even appellant’s pr eviously waived Section 9771(c) claim cannot be characterized as pa tently meritless, where this court specifically expressed our displeasure a t the trial court’s seemingly purposeful refusal to address the Section 9771(c) f actors. Appointed counsel should have been required to file an amende d petition on appellant’sJ. S40002/15

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that appellant’s original sentence, including the s even-year probationary tail, has expired and he is entitled to immediate dischar ge without condition except for Megan’s Law registration requirements, w e will remand for the

trial court to make that determination and enter an appropriate order

forthwith. Order reversed. Judgment of sentence vacated. Ca se remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/7/2015

behalf, and an evidentiary hearing should have been conducted. That said, as appellant has retained counsel on the instant ap peal and we have already determined that he is entitled to PCRA relief, rema nd for new counsel would be pointless.