Recently in the case of Commonwealth v. Simmons the Pennsylvania Superior Court ruled that criminal defendants facing violation of parole of proceedings cannot be resentenced on probationary sentences that haven’t begun. While this may sound confusing, the end result is that there could be hundreds, if not thousands, of incarcerated individuals in Pennsylvania who are serving illegal sentences.
The Pennsylvania Sentencing Code can be very difficult for the average person (and attorney) to understand so perhaps the following example is useful: let’s say that someone is convicted of a misdemeanor of the first degree that has a maximum possible sentence of five years. The judge hands down a sentence of 6-23 months to be served in a county jail but also imposes a three year probationary sentence to run consecutive, or after, the 6-23 months in jail. Our hypothetical defendant serves his or her six months and is paroled. This period of parole should last 17 months (23 minus 6). But, let’s say that when on parole, before the three year period of probation begun, new charges are filed or he otherwise messes up. Before Simmons, parole would be revoked and his period of probation could be anticipatorily revoked as well. In many cases, that defendant could be resentenced to a state sentence anywhere up to the maximum sentence initially allowed.
The Simmons case changes that; probation cannot be violated if it hasn’t begun! In the hypothetical above, the defendant would be recommitted to the original sentence of 6-23 months with 6 months of credit and would be subject to the normal parole procedures in the county of incarceration with the three year period of probation to be served when he or she is done. What’s more, since this case deals with the legality of sentences, it’s dealing with issues that cannot be waived and always raised on appeal despite how long it has been since someone has been revoked and resentenced.
While Commonwealth v. Simmons may mean very good news for you or a loved one so be sure to speak with an attorney who knows the law in Pennsylvania.
If you facing criminal charges, take it seriously. Call Mooney Law at 717-200-HELP or 833-MOONEYLAW. We represent clients in criminal defense throughout Central Pennsylvania.
