For the Defense - Vol. 6, Issue 4 - 7

Raising a Simmons Issue
Now in Old Cases
O
n August 18, 2021, in Commonwealth v.
Simmons,1
the Pennsylvania Superior Court
overruled decades of its own precedent.
The en banc court addressed the situation where
a defendant receives a " split sentence " of county
imprisonment with a consecutive period of probation
and then engages in violative conduct while still on
parole. In Simmons, the defendant was sentenced to
6-23 months followed by 3 years of probation.
The Pennsylvania Superior Court held that a
consecutive term of probation does not begin until
after the expiration of the maximum of the prison
sentence (here 23 months), and that the governing
statutes prohibit a probation revocation for conduct
committed before the term of probation commenced.
Thus, if the defendant commits a violation while
on parole, whether it be a murder or a technical
violation, a judge is limited to revoking the parole and
imposing backtime. She has no authority to revoke
the probation tail and impose a new sentence.2
The Simmons court held that this issue constitutes
an illegal sentence claim.3
That opens the door to
raising this issue on direct appeal and in timely PCRA
proceedings, even though it was not preserved in the
lower court.
As a general matter, a timely filed PCRA is one
If no direct appeal was filed in the
Vol. 6, Issue 4 l For The Defense 7
brought " within one year of the date the judgment
becomes final.... " 6
The issue in Simmons not only was unpreserved
in the lower court, it also was not raised in the
statement of errors or the brief to the Superior
Court. Simmons lost his case before a panel of the
Superior Court and raised the issue for the first time
in a re-argument petition, leading to his historic
victory. " Although appellant did not raise his claims
before the trial court, we may consider these claims
on appeal, as 'challenges to an illegal sentence can
never be waived and may be raised sua sponte by
this Court'. " 4
PCRA Proceedings
1. Timely Filed Petitions
If an illegal sentencing claim has not been raised
at any point in the direct appeal process, the
Pennsylvania Supreme Court has generally held that
such a claim can be brought for the first time in
proceedings involving a timely filed PCRA petition.5
Direct Appeal
Leonard Sosnov

For the Defense - Vol. 6, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 4

Contents
For the Defense - Vol. 6, Issue 4 - 1
For the Defense - Vol. 6, Issue 4 - 2
For the Defense - Vol. 6, Issue 4 - Contents
For the Defense - Vol. 6, Issue 4 - 4
For the Defense - Vol. 6, Issue 4 - 5
For the Defense - Vol. 6, Issue 4 - 6
For the Defense - Vol. 6, Issue 4 - 7
For the Defense - Vol. 6, Issue 4 - 8
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For the Defense - Vol. 6, Issue 4 - 54
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