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Pennsylvania: Parole Board May Expound on Court-ordered Probation Conditions

On September 7, 2012, the Pennsylvania Supreme Court held that a lower court had incorrectly reversed a probation revocation that was premised on the violation of a probation condition imposed by the Pennsylvania Board of Probation and Parole (Board), rather than by the trial court.

Robert C. Elliott, Jr. was convicted of child sex offenses and sentenced to prison followed by a 5-year term of probation. He was also adjudicated a Sexually Violent Predator under Megan’s Law. While incarcerated, Elliott was turned down for parole four times for failing to complete a sex offender treatment program. Following his release after serving his entire sentence, he met with Board officials who notified him of his probation conditions.

Several weeks later Elliott was observed watching young children in a park. He later “admitted that he regularly went to the park to watch the children and that he was sexually aroused by the girl in the red bathing suit,” though he never had any contact or direct interaction with the children. His probation was revoked and he was sentenced to 5 to 10 years in prison.

Elliott appealed, arguing that the revocation could not stand because the conditions of his probation, which included a provision prohibiting him from entering or loitering “within 1,000 feet of areas where the primary activity at such locations involve persons under the age of 18,” had been set by the Board. Only a judge, he argued, had authority to impose the terms and conditions of his probation. The Superior Court reversed the revocation on appeal, and the state sought review.

The Pennsylvania Supreme Court agreed “that the Board and its agents cannot impose any condition of supervision it wishes, carte blanche,” because doing so “would, of course, interfere with the court’s well-established sentencing authority.” As such, the Court held that Megan’s Law does not give “the Board independent authority to impose any condition of supervision it wishes upon a probationer subject to sex offender provisions merely because of his status as a sex offender.”

Nevertheless, the Supreme Court held that a trial court may impose generalized probation conditions and the Board “may impose conditions of supervision that are germane to, elaborate on, or interpret any conditions of probation that are imposed by the trial court,” provided that “those supervision conditions are in furtherance of the trial court’s conditions of probation.”

In Elliott’s case, the Supreme Court wrote, “what apparently occurred here is that the Board felt it necessary to expound upon the trial court’s no contact order.” As such, the Board did not exceed its legal authority and the Superior Court erred in concluding otherwise. Since the Superior Court had not addressed Elliott’s separate argument that there was insufficient evidence to support his probation revocation, the case was reversed and remanded for the Superior Court to examine the sufficiency of the evidence. See: Commonwealth of Pennsylvania v. Elliott, 50 A.3d 1284 (Pa. 2012).

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Related legal case

Commonwealth of Pennsylvania v. Elliott