J-S26008-23

2024 PA Super 60

COMMONWEALTH OF PENNSYLVANIA

v.

RAUL DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1919 EDA 2022

Appeal from the Judgment of Sentence Entered June 23, 2022

In the Court of Common Pleas of Philadelphia County 

Criminal Division at Nos: CP-51-CR-0710211-2004, 

CP-51-CR-1003521-2005

COMMONWEALTH OF PENNSYLVANIA

v.

RAUL DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1921 EDA 2022

Appeal from the Judgment of Sentence Entered June 23, 2022

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No: CP-51-CR-1003521-2005

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

OPINION BY STABILE, J.: FILED MARCH 27, 2024

Raul Diaz, Appellant, was charged with drug related offenses in the two 

above-captioned cases. He was most recently resentenced in both cases on 

June 23, 2022, by the Court of Common Pleas of Philadelphia County (VOP

court) after his probation was revoked. Appellant now argues that his current 

sentence is illegal because at an earlier resentencing for the same two cases
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in 2009, the VOP court had anticipatorily revoked his probation before the 

probationary term had begun. He relies primarily on Commonwealth v. 

Simmons, 262 A.3d 512 (Pa. Super. 2021) (en banc), where we held that the

anticipatory revocation of probation is inconsistent with the Sentencing Code. 

Finding no basis to conclude that Simmons affords relief, we affirm.

On October 4, 2004, in case number CP-51-CR-0710211-2004, 

Appellant pleaded guilty to one count of possession with intent to deliver 

(“PWID”), and he was sentenced to one year of intermediate punishment. 

While still serving that sentence, Appellant was charged on November 21, 

2005, with new offenses in case number CP-51-CR-1003521-2005, and he

pleaded guilty to one count each of PWID and criminal conspiracy to sell a 

controlled substance. 

On February 21, 2006, Appellant was resentenced as to the 2004 case 

and sentenced as to the 2005 case. He received concurrent sentences of 11.5 

to 23 months, followed by 3 years of probation. He was granted early parole

in both cases on August 10, 2006. Appellant’s probationary term of the 

sentence did not commence until October 7, 2007. On April 10, 2007, while 

serving parole, Appellant was arrested in connection with new drug related 

offenses. 

On April 16, 2009, the VOP court revoked Appellant’s probation from the 

2004 and 2005 cases, determining that he had violated the terms of his 

probationary sentence. This was an anticipatory revocation of probation 

because that portion of the sentence had not yet begun at the time the alleged 
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violations occurred. As to both the 2004 and 2005 cases, the VOP court 

resentenced Appellant to concurrent prison terms of 3 to 6 years, followed by 

4 years of probation. 

Several years later, in 2018, while still serving the probationary term

imposed in 2009 on his 2004 and 2005 cases, Appellant again violated the 

conditions of probation, and it was once more revoked. On March 27, 2018, 

Appellant was resentenced in both cases to 3 years of probation. 

While serving this most recent probationary term, Appellant once again 

was charged with new drug offenses. The VOP court found that the charges 

constituted a violation of Appellant’s probation, and probation was revoked. 

On June 23, 2022, the VOP court resentenced Appellant to concurrent prison 

terms of 2.5 to 5 years on the 2004 and 2005 cases. He was awarded 43

months of credit for time served as to both cases. See Sentencing Hearing 

Transcript, 6/23/2022, at 39.

Appellant timely filed a notice of appeal. He then filed a 1925(b) 

statement in which he claimed that he received an illegal sentence on June 

23, 2022, because it was derived from an anticipatory revocation of probation 

on April 16, 2009. The VOP court did not enter a 1925(a) opinion. In his 

brief, Appellant asserts the single claim raised in his 1925(b) statement.

Central to Appellant’s claim is that he is entitled to relief pursuant to this 

Court’s decision in Simmons, in which we held that a court may not 

“anticipatorily revoke an order of probation” while a defendant is still on parole 

from a prison sentence. See Simmons, 262 A.3d at 524. Based on that 
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holding, Appellant argues that since his probation was anticipatorily revoked 

in 2009, the sentence imposed in that year was illegal, rendering all his 

subsequent sentences illegal as well, including those imposed in 2018, and 

most recently on June 23, 2022.

The Commonwealth responds that the anticipatory revocation of 

Appellant’s probation in 2009 is not illegal because Simmons was decided 

over a decade after that revocation occurred. Construing the revocation in 

2009 as a legal sentence, the Commonwealth reasons that Simmons cannot 

provide Appellant relief because the opinion does not apply retroactively. 

Further, the Commonwealth argues that the intervening sentences Appellant 

received in 2018 and 2022 did not arise from an anticipatory revocation of 

probation, so even if the prior sentence from 2009 was illegal, it is not before 

this Court and cannot be the basis for appellate relief. 

“[A] court faced with a violation of probation may impose a new 

sentence so long as it is within the sentencing alternatives available at the 

time of the original sentence.” Commonwealth v. Holmes, 933 A.2d 57, 59 

n.5 (Pa. 2007). “In contrast, a court faced with a parole violation must 

recommit the parolee to serve the remainder of the original sentence of 

imprisonment[.]” Id. 

When considering “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 
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the discretionary aspects of the sentence imposed.” Commonwealth v. 

Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (citation omitted).

In the case at hand, Appellant challenges a judgment of sentence 

entered on June 23, 2022, and the alleged illegality of that sentence stems

from an anticipatory revocation of probation in a prior sentencing that 

occurred in 2009. Appellant contends that the VOP court was bound to 

recommit him to the remainder of his sentence imposed in 2006 rather than 

resentence him to the new prison term imposed in 2009. 

The opinion relied upon by Appellant – Simmons – was decided several 

years after that date. As was the more recent case, Commonwealth v. 

Rosario, 294 A.3d 338 (Pa. 2023), where our Supreme Court broke from 40 

years of precedent in approving of our holding in Simmons. 

Nevertheless, Appellant presumes that the prohibition on the 

anticipatory revocation of probation applies retroactively back to the date of 

his 2009 sentence. He argues that since Simmons and Rosario render the 

2009 sentence illegal, he now has a nonwaivable illegal sentence which can 

be challenged along with his new sentence in 2022. See Milhomme, 35 A.3d 

at 1222 (holding that where an original probation sentence is illegal, all 

subsequent revocation sentences are likewise illegal). 

We find Appellant’s argument to be flawed in several respects. To begin, 

this Court did not expressly hold in Simmons that the prohibition on 

anticipatory revocations would apply to sentences imposed before that case 
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was decided, and our Supreme Court was likewise silent in that regard in 

Rosario. In subsequent, albeit non-binding, decisions, this Court has declined 

to give Simmons and Rosario retroactive effect. See e.g., Commonwealth 

v. Frye, Nos. 493 EDA 2023, 494 EDA 2023 (Pa. Super. November 14, 2023) 

(unpublished memorandum) (“Our ruling in Simmons was not held to be 

retroactive[.]”); see also Commonwealth v. Wells, No. 2786 EDA 2022

(Pa. Super. November 20, 2023) (unpublished memorandum) (“Rosario has 

not been held to apply retroactively.”). Appellant has not acknowledged those 

decisions, much less distinguished them in his brief. 

Additionally, the only judgment of sentence now before this Court on 

direct appeal is the one entered on June 23, 2022. His prior sentences, 

including those imposed in 2009 and 2018, are of no moment because they 

long have been final. Appellant is therefore precluded from disturbing those 

prior sentences at the present juncture, when only his present sentence is 

before us. See Commonwealth v. Infante, 63 A. 3d 358, 368 (Pa. Super. 

2013)(“Appellant's failure to dispute his original sentence in a timely manner 

does not foreclose a court, including this one, from correcting the subsequent 

sentence imposed following probation revocation, if that later sentence is 

illegal and we have jurisdiction to correct it.”).

To determine the legality of the sentence imposed in 2022, this Court 

need only consider whether, by revoking Appellant’s final judgment of 

probation imposed in 2018 and resentencing him, the VOP court imposed a 
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term in accordance with the sentencing options available at the time of the 

offense dates in 2004 and 2005. See generally 42 Pa.C.S.A. § 9771(b) (upon 

revocation of probation the sentencing alternatives available to the court shall 

be the same as were available at the time of initial sentencing). At the 2022

proceedings, the VOP court revoked Appellant’s probation and resentenced 

him in both cases to concurrent terms of 2.5 to 5 years, with 43 months of 

credit time served. Appellant does not dispute that this was within the 

maximum possible sentence that could have been imposed at the time of his 

original sentences in 2004 and 2005. Thus, the current judgment of sentence 

must be upheld. 

Judgment of sentence affirmed. 

Date: 3/27/2024