Philadelphia Criminal Defense Blog
PA Superior Court: Conditions Violated Must Actually Be Part of County Probation or Parole Sentence for Defendant to Be Found in Violation of Probation
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Baldassano, 2025 PA Super 26, holding that the trial court improperly found the defendant in violation of county parole conditions which were never part of the defendant’s sentence. The Superior Court therefore vacated the defendant’s incarceration sentence and released him.
The Facts of Baldassano
The defendant was convicted of terroristic threats, stalking, and harassment after years of allegedly harassing a former college acquaintance. The charges stemmed from a pattern of anonymous phone calls, social media impersonation, and threats against the complainant and her family. Following a jury trial, he was found guilty and sentenced to a term of thirty days to four years’ incarceration with immediate parole at his minimum sentence along with certain conditions.
The parole conditions required:
A drug and alcohol evaluation and compliance with any treatment recommendations.
Continued mental health treatment.
Two years of active supervision followed by two years of inactive supervision, during which the court specifically ordered that he was only required to avoid contact with the victim and was not required to comply with any other probation department rules and regulations.
Parole Violation Allegation and Revocation
While the defendant was serving the “inactive supervision” portion of the county parole, the Lebanon County Department of Probation sought to revoke his parole, alleging:
Positive drug tests and possession of controlled substances.
A new criminal arrest.
At the defendant’s Gagnon II hearing, the defense attorney moved to dismiss the probation violation, arguing that neither condition applied to the defendant given the terms of the inactive supervision. The trial court dismissed the drug-related violation but revoked the defendant’s parole based solely on the new criminal charge. The trial court recommitted the defendant to serve the balance of his original sentence with parole eligibility after eighteen months. The defendant appealed.
The Superior Court Appeal
On appeal, the Pennsylvania Superior Court reversed the trial court’s order and found that the trial court erred in revoking parole. The Superior Court concluded that per the specific terms of the trial court’s sentencing order, the defendant was simply not subject to any conditions other than the requirement that he not have contact with the complainant. The Court found:
By the explicit terms of the sentencing order, after two years, the defendant was not subject to the normal county probation department rules and regulations, which included the requirement not to commit new offenses.
While committing a new crime typically warrants parole revocation in almost every case, it must be based on an actual parole condition to which the defendant was subject. Here, his only enforceable condition in the last two years of the sentence was to avoid contact with the complainant.
Because the Commonwealth and probation department had only pursued revocation based on new charges (and not a violation of any of the three enumerated parole conditions that applied during his sentence), the trial court lacked legal grounds to revoke his parole even though new arrests are usually the basis for probation or parole revocation.
The Superior Court therefore vacated the order sentencing the defendant to prison and remanded for further proceedings.
The Takeaway
In many cases, it is common for defense counsel to concede a probation or parole violation and focus on obtaining a light sentence such as more probation or parole or a short period of incarceration. It is important, however, to actually read the judgment of sentence and sentencing transcript in order to make sure that any alleged conditions of supervision are actually part of the sentence. If the probation or parole department has moved to hold a defendant in violation of a condition that does not exist, then the defendant should not be found in violation.
In order for there to be a probation violation, the conditions which were allegedly violated must have been explicitly stated on the record at the time of sentencing. They cannot be expanded unilaterally by probation officers beyond what the sentencing judge ordered without notice and a hearing. Notably, this rule does not always apply - defendants on state parole and state supervised probation may have fewer protections than defendants on county probation or parole because certain state statutes and regulations allow the parole board to impose some conditions of supervision.
Even serious new charges cannot justify revocation if the probation or parole sentence specifically limits the conditions of probation or parole such that it does not require the probationer to avoid getting arrested. This is an unusual case because this type of probation or parole is rare, but it is still important for the defense attorney to carefully review the record when representing someone who has been charged with a violation of probation or parole.
Facing criminal charges or appealing a criminal case in state or federal court in Pennsylvania? We can help.
Criminal Defense Attorney Zak T. Goldstein, Esquire
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Legislature Reforms Probation to Limit Jail for Technical Violations and Encourage Early Termination of Probation
The Pennsylvania legislature recently passed a probation reform bill which improves the conditions of probation and provides some protections to defendants under many circumstances. The bill did not go as far as advocates wanted, but it does implement some meaningful changes to probation in Pennsylvania. The governor signed Senate Bill 838 into law at the end of December 2023, and it is important to be familiar with the changes created by the new law. Learn more.
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.
Facing criminal charges? We can help.
Goldstein Mehta LLC Criminal Defense Lawyers
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Supreme Court: Trial Court May Not Revoke Probation Before It Begins
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rosario, holding that a trial court may not revoke a probationary sentence before it begins. This decision is extremely important as it provides a great deal of protection to individuals who are still serving the incarceration or parole portions of sentences that have a probationary tail. Previously, a judge could revoke a consecutive probationary tail and sentence a defendant up to the maximum possible sentence for the offense. With parole, however, the maximum possible sentence is the portion of the jail sentence that has not yet been served. This case upholds the Superior Court’s ruling in Commonwealth v. Simmons which prohibited a longstanding practice of judge’s finding a defendant in violation of probation which has not yet started.
The Facts of Rosario
In Rosario, the defendant pleaded guilty to carrying a firearm without a license and drug charges. He received a sentence of 2.5 - 5 years’ incarceration followed by five years’ probation. He made parole before the maximum prison sentence expired, and while on parole, he was arrested and charged with kidnapping and then shooting a man. The Commonwealth prosecuted him for attempted murder and related charges in the new case. The trial court also revoked Rosario’s parole and probation in the original gun and drug case. The trial court sentenced him to the remaining unserved sentence of his five year prison term (improperly in this case as the parole board had jurisdiction) as well as an additional 5 - 10 years’ incarceration and five years’ probation for the violation of the probation on the drug charges. Rosario’s probation, however, had not yet started at the time of the new offense. The court had run the probation consecutively to the prison sentence, so he was still on the parole portion of the sentence.
Rosario appealed to the Pennsylvania Superior Court. While his appeal was pending, the Superior Court decided the case of Commonwealth v. Simmons. In Simmons, the Superior Court held that a trial court may not find someone in violation of probation which has not yet started. In other words, the law does not allow anticipatory probation violations. Accordingly, the Superior Court applied the new rule of Simmons to Rosario’s case, vacated the prison sentences on the drug charges because the probation had not started when he committed the new crime, and remanded the case to the trial court for re-sentencing. The Commonwealth appealed to the Pennsylvania Supreme Court, and the Supreme Court accepted the case.
The Supreme Court’s Ruling
The Supreme Court affirmed and held that anticipatory probation violations are illegal. Examining the language of the statute, the Court found that a trial court may only revoke a probationary sentence which has already begun. For example, one portion of the statute specifically provides that the court may “revoke an order of probation upon proof of the violation of specified conditions of the probation.” 42 Pa.C.S. §9771(b). In other words, only a violation of the probation itself may trigger revocation, not a violation of a probation order before the probation term has started. A different section requires the court resentencing a defendant following a revocation to give “due consideration . . . to the time spent serving the order of probation.” 42 Pa.C.S. §9771(b). Obviously, if the probation had not yet started at the time of the violation or revocation, then the court could not consider how the defendant had done on probation or for how long the defendant had been on probation. Likewise, another section provides: “[t]here shall be no revocation” of probation “except after a hearing at which the court shall consider . . . evidence of the conduct of the defendant while on probation.” 42 Pa.C.S. §9771(d).
Ultimately, numerous sections of the statute direct the resentencing court to consider how the defendant did while on probation, how long the defendant was on probation, and whether the probation itself was violated. None of these things can be evaluated for someone who has not yet started their probation, suggesting that the legislature intended that only probation which has begun can be violated. The court therefore found that the statute is unambiguous and the plain language prohibits an anticipatory violation. Even if the statute were ambiguous, however, the rule of lenity would apply. The rule of lenity requires that any ambiguity in a criminal statute be construed in favor of the defendant. Therefore, the Supreme Court affirmed. A trial court may not find a defendant in violation of a consecutive period of probation when the defendant is still in custody or on parole.
There are ways around this ruling for pending and future cases, however. Previously, trial judges would often sentence a defendant to a prison sentenced followed by a period of probation on the lead charge and no further penalty on the remaining counts. For example, a defendant charged with carrying a firearm without a license and carrying a firearm on the streets of Philadelphia might receive a sentence of 11.5 - 23 months in jail followed by two years’ probation on the carrying without a license offense and no further penalty on the carrying on the streets of Philadelphia count. Now, a judge can impose 11.5 - 23 months’ incarceration on one offense and concurrent probation on the other so that the probation will start immediately. This limits the overall potential maximum penalty for a violation in that the probation is only on one offense, but it does still limit the effects of this ruling. For many defendants who are currently serving sentences of incarceration or parole, however, it provides a tremendous amount of protection against a probation violation for a probation sentence that has not started yet.
Facing criminal charges? We can help.
Goldstein Mehta LLC Criminal Defense Lawyers
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.