Gagnon II hearing in Pennsylvania

2026Appellant was released from ____________________________________________ 2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Ferguson, 761 A.2d 613 (Pa. Super. 2000) (explaining that, when a parolee or probationer is detained pending a revocation hearing, due process requires a determination at the pre-revocation hearing (Gagnon I hearing) of probable cause to believe a violation was committed, and upon finding of probable cause, a second, more comprehensive hearing (Gagnon II hearing) follows before the trial court makes its final revocation decision). -2- J-S35011-25 con

2026See Commonwealth v. Ferguson 761 A.2d 613, 617 (Pa. Super. 2000). 4 If the trial court finds probable cause at the Gagnon I hearing, a second, more comprehensive Gagnon II hearing is required before a final revocation decision can be made.

2026See id. ____________________________________________ 3 See Gagnon v. Scarpelli, 411 U.S. 778 (1973). -2- J-A12018-26 Nevertheless, the trial court conducted a Gagnon II hearing at which both Thomas and the Commonwealth were in agreement that there was no pending violation because his firearm charges had been withdrawn.

2026Appellant was released from ____________________________________________ 2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Ferguson, 761 A.2d 613 (Pa. Super. 2000) (explaining that, when a parolee or probationer is detained pending a revocation hearing, due process requires a determination at the pre-revocation hearing (Gagnon I hearing) of probable cause to believe a violation was committed, and upon finding of probable cause, a second, more comprehensive hearing (Gagnon II hearing) follows before the trial court makes its final revocation decision). -2- J-S35011-25 con

2022See Allshouse, 969 A.2d at 1242-43 (finding evidence presented to support revocation at Gagnon II hearing insufficient where trial court had relied on inadmissible hearsay testimony and activity that had not been prohibited as a condition of probation); Sims, 770 A.2d at 352 (holding mere waiver of probable cause showing at Gagnon I hearing did not provide basis for finding -6- J-A07029-22 violation of probation by a preponderance of the evidence at Gagnon II hearing).

2019Where a finding of probable cause is made, a second, more comprehensive hearing, a Gagnon II hearing, is required before a final revocation decision can be made." Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.Super. 2001) (internal citations omitted).

2026“Where a finding of probable cause is made, a second, more comprehensive hearing, a Gagnon II hearing, is required before a final revocation decision can be made.” Id. (citation omitted).

2026“Where a finding of probable cause is made, a second, more comprehensive hearing, a Gagnon II hearing, is required before a final revocation decision can be made.” Id. (citation omitted).

2026He argues that probationers are afforded due process, including the right to have evidence presented of record and the right to a Gagnon II hearing, and while probationers may waive such rights, “the record must clearly demonstrate informed relinquishment of a known right.” Id. at 45 (quoting Commonwealth v. Heilman, 876 A.2d 1021 (Pa. Super. 2005)).

2026Although distinct, we have “acknowledge[d] that one violation hearing may satisfy the requirements of both a Gagnon I and Gagnon II hearing.” Id. at 1027 .

2020Accordingly, we are constrained to vacate Appellant’s judgment of sentence, reverse the order finding Appellant in violation of probation, and remand for a proper Gagnon II hearing, prior to which the Commonwealth shall provide written notice to Appellant of the alleged probation violation. - 11 - J-A27017-19 Commonwealth v. Homoki, 605 A.2d 829, 831-832 (Pa. Super. 1992); DeLuca, 418 A.2d at 673 .

2020Accordingly, we are constrained to vacate Appellant’s judgment of sentence, reverse the order finding Appellant in violation of probation, and remand for a proper Gagnon II hearing, prior to which the Commonwealth shall provide written notice to Appellant of the alleged probation violation. - 11 - J-A27017-19 Commonwealth v. Homoki, 605 A.2d 829, 831-832 (Pa. Super. 1992); DeLuca, 418 A.2d at 673 .

2018See also Commonwealth v. Ferguson , 761 A.2d 613 (Pa.Super. 2000) (explaining that when parolee or probationer is detained pending revocation hearing, due process requires determination at pre-revocation hearing ( Gagnon I hearing) of probable cause to believe violation was committed; upon finding of probable cause, second, more comprehensive hearing ( Gagnon II hearing) follows before court makes final revocation decision). 3 Where the court holds a revocation hearing, based on new criminal charges, before the defendant's trial on the new charges, the proceeding is commonly known as a " Daise

2018See also Commonwealth v. Ferguson , 761 A.2d 613 (Pa.Super. 2000) (explaining that when parolee or probationer is detained pending revocation hearing, due process requires determination at pre-revocation hearing ( Gagnon I hearing) of probable cause to believe violation was committed; upon finding of probable cause, second, more comprehensive hearing ( Gagnon II hearing) follows before court makes final revocation decision). 3 Where the court holds a revocation hearing, based on new criminal charges, before the defendant's trial on the new charges, the proceeding is commonly known as a " Daise

2020In reviewing the revocation of probation, we are cognizant that [t]he Gagnon II hearing entails, or may entail, two decisions: first, a “consideration of whether the facts determined warrant revocation.” Morrissey v. Brewer, [ 408 U.S. 471 ,] 488 [1972].

2018The Gagnon II hearing entails two decisions: first, a “consideration of whether the facts determined warrant revocation.” Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972).

2022See Commonwealth v. Price, 876 A.2d 988, 996 (Pa. Super. 2005). -9- J-S14023-22 procedural safeguards than required of a Gagnon I proceeding.10 See Perry, 385 A.2d at 520 .

2018Where, as here, a probationer is accused of technically violating his probation, i.e., by violating a condition of his probation, courts are required to conduct both a Gagnon I and Gagnon II hearing.9 “The purpose of the ____________________________________________ 9 Where a probationer is convicted of a crime, and that conviction is the basis of the VOP hearing, a court need not conduct a Gagnon I hearing because the conviction establishes the probable cause necessary to proceed (Footnote Continued Next Page) - 10 - J-S73023-17 requirement of a Gagnon I hearing is … to ensure against detentio

2018The court also notes that "there is no requirement that the Gagnon II hearing be held before the probationer's trial[.] Indeed it may in many cases be preferable to defer that hearing until after the trial, thus avoiding the possibly unjust result of revoking probation, only to find later that the probationer has been acquitted of the charges that prompted the revocation hearing." Commonwealth v. Davis, 336 A.2d 616, 623 (Pa.. Super. 1975).

2018The court also notes that "there is no requirement that the Gagnon II hearing be held before the probationer's trial[.] Indeed it may in many cases be preferable to defer that hearing until after the trial, thus avoiding the possibly unjust result of revoking probation, only to find later that the probationer has been acquitted of the charges that prompted the revocation hearing." Commonwealth v. Davis, 336 A.2d 616, 623 (Pa.. Super. 1975).

2018Commonwealth v. Kavanaugh, [] 482 A.2d 1128 , 1130–31 ([Pa. Super.] 1984).

2018Commonwealth v. Kavanaugh, [] 482 A.2d 1128 , 1130–31 ([Pa. Super.] 1984).

2021As the trial court ____________________________________________ 3 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Starr, 234 A.3d 755, 762 (Pa. Super. 2020) (explaining when probationer is detained based on an alleged probation violation, due process requires a Gagnon I hearing to determine if there is probable cause that probationer committed a violation of his probation, followed by a second more comprehensive Gagnon II hearing wherein trial court determines whether to revoke probation). -6- J-A22029-20 noted, counsel confirmed at Appellant’s Gagnon II hearing that she was

2021Commonwealth v. Powell, [] 956 A.2d 406, 423 ([Pa.] 2008); Tindall v. Friedman, 970 A.2d 1159, 1174 (Pa. Super. 2009) (“On appeal, we will not consider assignments ____________________________________________ 2 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Starr, 234 A.3d 755, 762 (Pa. Super. 2020) (explaining when probationer is detained based on an alleged probation violation, due process requires a Gagnon I hearing to determine if there is probable cause that probationer committed a violation of his probation, followed by a second more comprehensive Gagnon II hearing wh

2025See Mullins, 918 A.2d at 86 ; see also Heilman, 876 A.2d at 1027 - 28 (remanding for a proper Gagnon II hearing because the Commonwealth presented no witnesses and relied upon the defendant’s testimony and unsworn comments of the prosecutor and probation officer); Jeffries, 317 A.3d at *614 (“Under these circumstances, the best resolution of this case is to vacate the revocation sentence and to remand for a new Gagnon II hearing where the Commonwealth can develop the record adequately concerning Appellant’s alleged violations of probation.”). - 15 - J-S14028-25 Judgment of sentence vacated.

2025See Mullins, 918 A.2d at 86 ; see also Heilman, 876 A.2d at 1027 - 28 (remanding for a proper Gagnon II hearing because the Commonwealth presented no witnesses and relied upon the defendant’s testimony and unsworn comments of the prosecutor and probation officer); Jeffries, 317 A.3d at *614 (“Under these circumstances, the best resolution of this case is to vacate the revocation sentence and to remand for a new Gagnon II hearing where the Commonwealth can develop the record adequately concerning Appellant’s alleged violations of probation.”). - 15 - J-S14028-25 Judgment of sentence vacated.

2020On May 11, 2017, Appellant entered a negotiated stipulated trial regarding the simple possession drug charge and was sentenced to a period of nine (9) months of probation [at trial court docket number CP-51-CR-0002638-2017]. ____________________________________________ 1 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Moriarty, 180 A.3d 1279 , 1282 n.2 (Pa. Super. 2018) (explaining that when a probationer or parolee is detained pending a revocation hearing, due process requires a pre-revocation hearing (a Gagnon I hearing) to determine if there is probable cause to support a

2020On May 11, 2017, Appellant entered a negotiated stipulated trial regarding the simple possession drug charge and was sentenced to a period of nine (9) months of probation [at trial court docket number CP-51-CR-0002638-2017]. ____________________________________________ 1 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v. Moriarty, 180 A.3d 1279 , 1282 n.2 (Pa. Super. 2018) (explaining that when a probationer or parolee is detained pending a revocation hearing, due process requires a pre-revocation hearing (a Gagnon I hearing) to determine if there is probable cause to support a

2020Accordingly, we are constrained to vacate Appellant’s judgment of sentence, reverse the order finding Appellant in violation of probation, and remand for a proper Gagnon II hearing, prior to which the Commonwealth shall provide written notice to Appellant of the alleged probation violation. - 11 - J-A27017-19 Commonwealth v. Homoki, 605 A.2d 829, 831-832 (Pa. Super. 1992); DeLuca, 418 A.2d at 673 .

2020Accordingly, we are constrained to vacate Appellant’s judgment of sentence, reverse the order finding Appellant in violation of probation, and remand for a proper Gagnon II hearing, prior to which the Commonwealth shall provide written notice to Appellant of the alleged probation violation. - 11 - J-A27017-19 Commonwealth v. Homoki, 605 A.2d 829, 831-832 (Pa. Super. 1992); DeLuca, 418 A.2d at 673 .

2018See Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super. 2009) (stating that “[i]ssues challenging the discretionary aspects of a sentence must be raised in a post- sentence motion or by presenting the claim to the trial court during the ____________________________________________ 2 McKenzie did not file a pro se appellate brief, nor did he retain alternate counsel for this appeal. -4- J-S11044-18 sentencing proceedings.

2018See Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa. Super. 2009) (stating that “[i]ssues challenging the discretionary aspects of a sentence must be raised in a post- sentence motion or by presenting the claim to the trial court during the ____________________________________________ 2 McKenzie did not file a pro se appellate brief, nor did he retain alternate counsel for this appeal. -4- J-S11044-18 sentencing proceedings.

2018A parolee, however, may waive his Gagnon II hearing. “[F]or this Court to uphold such a waiver [of a constitutional right], the record must clearly demonstrate an informed relinquishment of a known right.” Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa. Super. 2004) (citations omitted).

2018A parolee, however, may waive his Gagnon II hearing. “[F]or this Court to uphold such a waiver [of a constitutional right], the record must clearly demonstrate an informed relinquishment of a known right.” Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa. Super. 2004) (citations omitted).

2005Because Appellant’s July 9, 2004, Notice of Appeal was timely filed within 30 days of his June 14, 2004, sentencing, we find that Appellant preserved his challenge to the revocation order. ¶ 14 In his first substantive claim, Appellant argues that the trial court erred in failing to provide him with a proper Gagnon II hearing. 5 “When reviewing the results of a revocation hearing, this Court is limited to determining the validity of those proceedings, and the legality of the judgment of sentence imposed.” Commonwealth v. Williams, 801 A.2d 584, 585 (Pa.Super.2002), appeal denied,. 572 Pa. 756,

2005Because Appellant’s July 9, 2004, Notice of Appeal was timely filed within 30 days of his June 14, 2004, sentencing, we find that Appellant preserved his challenge to the revocation order. ¶ 14 In his first substantive claim, Appellant argues that the trial court erred in failing to provide him with a proper Gagnon II hearing. 5 “When reviewing the results of a revocation hearing, this Court is limited to determining the validity of those proceedings, and the legality of the judgment of sentence imposed.” Commonwealth v. Williams, 801 A.2d 584, 585 (Pa.Super.2002), appeal denied,. 572 Pa. 756,

2024After this determination is made, a Gagnon II hearing is conducted where the Commonwealth is required to establish that the defendant did violate his parole/probation.” Commonwealth v. Stafford, 29 A.3d 800 , 802 n.1 (Pa.Super. 2011) (citation omitted).

2024After this determination is made, a Gagnon II hearing is conducted where the Commonwealth is required to establish that the defendant did violate his parole/probation.” Commonwealth v. Stafford, 29 A.3d 800 , 802 n.1 (Pa.Super. 2011) (citation omitted).

1978SPAETH, Judge, concurring: I concur, but note that until Commonwealth v. Stratton, 235 Pa.Super. 566 , 344 A.2d 636 (1975) (JACOBS, J., filed a dissenting opinion in which WATKINS, P. J., joined), is overruled, issues based on defects in (or, as here, the non-existence of) a Gagnon II hearing are not waived by failing to object at the probation revocation hearing.

1978SPAETH, Judge, concurring: I concur, but note that until Commonwealth v. Stratton, 235 Pa.Super. 566 , 344 A.2d 636 (1975) (JACOBS, J., filed a dissenting opinion in which WATKINS, P. J., joined), is overruled, issues based on defects in (or, as here, the non-existence of) a Gagnon II hearing are not waived by failing to object at the probation revocation hearing.

2026Accord Baumann, 307 A.3d at 1239-40 (holding trial court erred in relying upon revocation bases stated for the first time in its Rule 1925(a) opinion); Commonwealth v. Ayala, 344 A.3d 1136 , 2025 WL 2092851 , at *5 (Pa.Super. 2025) (non-precedential decision) (vacating and remanding for a new Gagnon II hearing where the Gagnon II summary reports were not offered into evidence at the hearing, even though they were filed of record; the existence of the bench warrants suggested that Ayala had absconded, but “the Commonwealth neglected to establish the basic facts and to specify which probationary

2026Accord Baumann, 307 A.3d at 1239-40 (holding trial court erred in relying upon revocation bases stated for the first time in its Rule 1925(a) opinion); Commonwealth v. Ayala, 344 A.3d 1136 , 2025 WL 2092851 , at *5 (Pa.Super. 2025) (non-precedential decision) (vacating and remanding for a new Gagnon II hearing where the Gagnon II summary reports were not offered into evidence at the hearing, even though they were filed of record; the existence of the bench warrants suggested that Ayala had absconded, but “the Commonwealth neglected to establish the basic facts and to specify which probationary

2025“To determine the validity of [a revocation] sentence, we initially must consider why the court found [the probationer] in violation.” Giliam, 233 A.3d at 867 . -7- J-S26019-25 Here, at the start of his Gagnon II hearing, Appellant pled guilty to retail theft, a new crime committed while on probation and the trial court accepted the plea.

2022We have renumbered each of Appellant’s issues for ease of disposition. -3- J-A03026-22 Legal Analysis Our review of Appellant’s new sentence imposed after the Gagnon II hearing is “limited to determining the validity of the . . . revocation proceedings and the authority of the sentencing court to consider the same sentencing alternatives that it had at the time of the initial proceeding.” Commonwealth v. Giliam, 233 A.3d 863 , 866 (Pa. Super 2020) (citation omitted).

2025Commonwealth v. Ortega, 995 A.2d 879, 885 (Pa. Super. 2010), abrogated on other grounds by Foster, 214 A.3d at 1251.

2017Thus, upon revoking probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence, although once probation has been revoked, the court shall not impose a sentence of total confinement unless it finds that: (1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or (3) such a sentence is essential to vindicate the authority of the court. 42 Pa.C.S. § 9771(c). -6- J-S32039-17 Commonwealth v. P

2018Cartrette, 83 A.3d at 1033 ; Heilman, 876 A.2d at 1028 .

2018Cartrette, 83 A.3d at 1033 ; Heilman, 876 A.2d at 1028 .

1981In Commonwealth v. Parker, 244 Pa.Super. 113, 116-117 , 366 A.2d 941 (1976), we held in the parole context: First, we have held that so long as a parolee has received a probable cause (i. e. Gagnon I hearing, it is permissible to postpone the Gagnon II hearing pending *317 the trial of the charges upon which the parole revocation is based.

1981In Commonwealth v. Parker, 244 Pa.Super. 113, 116-117 , 366 A.2d 941 (1976), we held in the parole context: First, we have held that so long as a parolee has received a probable cause (i. e. Gagnon I hearing, it is permissible to postpone the Gagnon II hearing pending *317 the trial of the charges upon which the parole revocation is based.