probation revocation hearing in Pennsylvania

2022Commonwealth v. Beasley, 570 A.2d 1336, 1338 (Pa. Super. 1990).

2022Commonwealth v. Beasley, [ 570 A.2d 1336, 1338 (Pa.Super. 1990)].

2026See Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa. Super. 2001) (“We hold that where a new sentence is imposed at a probation revocation hearing, the revocation hearing date must be employed when assessing finality under § 9545(b)(3) to any issues directly appealable from that hearing.”).

2022Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa. Super. 2001) (“[W]here a new sentence is imposed at a probation revocation hearing, the revocation hearing date must be employed when assessing finality under § 9545(b)(3) to any issues directly appealable from that hearing.”). -6- J-S14045-22 newly-discovered facts; or (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

2019Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009).

2014Rather, at a probation revocation hearing, hearsay is admissible Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009). -8- J-S62010-14 probation revocation.

2020On September 26, 2017, the Commonwealth filed a motion to proceed with the VOP hearing pursuant to Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973) (holding that it is constitutionally permissible to hold a probation revocation hearing after arrest, but prior to trial, on a charge that constitutes ____________________________________________ 1 35 P.S. §§ 780-113(a)(30), (16), and 18 Pa.C.S. § 903(c), respectively. 235 P.S. § 780-113(a)(30), 18 Pa.C.S. § 5104, and 35 P.S. § 780-113(a)(16), respectively. 3 Gagnon v. Scarpelli, 411 U.S. 778 (1973). -2- J-A01002-20 a probation violation) (Daisy Kate

2015In its brief, the Commonwealth suggests that the purpose of a prompt revocation hearing under Pa.R.Crim.P. 708 is to “prevent the loss of essential witnesses or documentary evidence, and to avoid the continuance of unnecessary incarceration or other limitations of the personal liberty of the accused.” Commonwealth’s Brief at 3-4 (citation omitted).4 The ____________________________________________ 4 Pa.R.Crim.P. 708(B) provides: (Footnote Continued Next Page) -7- J-S10026-15 Commonwealth also makes clear that “[i]t is constitutionally permissible for a probation revocation hearing to be held a

2020On September 26, 2017, the Commonwealth filed a motion to proceed with the VOP hearing pursuant to Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973) (holding that it is constitutionally permissible to hold a probation revocation hearing after arrest, but prior to trial, on a charge that constitutes ____________________________________________ 1 35 P.S. §§ 780-113(a)(30), (16), and 18 Pa.C.S. § 903(c), respectively. 235 P.S. § 780-113(a)(30), 18 Pa.C.S. § 5104, and 35 P.S. § 780-113(a)(16), respectively. 3 Gagnon v. Scarpelli, 411 U.S. 778 (1973). -2- J-A01002-20 a probation violation) (Daisy Kate

2018“Without question, [Brown] was entitled to written notice of the revocation hearing, and adequate time to prepare for it.” Commonwealth v. King, 430 A.2d 990, 991 (Pa. Super. 1981) (citing Gagnon, supra). -9- J-S80039-17 However, a claim concerning improper notice and inadequate time to prepare may be waived if a defendant fails to raise objections during the probation revocation hearing.

2018However, [i]n Commonwealth v. Davis, 234 Pa.Super. 31 , 336 A.2d 616 (1975) (Filed: March 31, 1975), this Court thoroughly discussed the due process requirements of a probation revocation hearing as mandated by Morrissey[v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed. 2d 484 (1972)] and Gagnon.

2018However, [i]n Commonwealth v. Davis, 234 Pa.Super. 31 , 336 A.2d 616 (1975) (Filed: March 31, 1975), this Court thoroughly discussed the due process requirements of a probation revocation hearing as mandated by Morrissey[v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed. 2d 484 (1972)] and Gagnon.

2024See Cartrette, 83 A.3d at 1034-35 (stating this Court’s review of a probation revocation proceeding is limited to the validity of the proceeding, the legality of the sentence imposed, and the discretionary aspects of sentencing); see also Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007) (noting that the standards for a probation revocation hearing are different from a trial, as the revocation proceeding “takes place without a jury, ____________________________________________ Commonwealth v. Watson, --- A.3d ---, 2024 WL 316438 at *4 (Pa. Super.

2015This reasoning is also appropriate here, in a probation revocation hearing. -8- J-S36044-15 with a lower burden of proof, and with fewer due process protections.” Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007) (citation omitted).

2017It follows that probation revocation hearings are flexible, and material not admissible at trial may be considered by the court.[”] “The degree of proof necessary for probation revocation is less than that required to sustain a criminal conviction.” “Probation may be revoked on the basis of conduct which falls short of criminal conduct.” - 10 - J-A31040-16 Commonwealth v. Castro, 856 A.2d 178, 180 (Pa. Super. 2004) (citation omitted) (emphasis added).

2010See, e.g., Shrawder, 940 A.2d at 443 ; see also Castro, 856 A.2d at 181 .

2015See Infante, supra; Commonwealth v. Burrell, 497 Pa. 367, 371 (Pa. 1982) ("[I]t is not unreasonable for a probation revocation hearing to be postponed pending adjudication of criminal charges which are the basis for the revocation, even if that postponement results ... in a revocation hearing held after the expiration of the probationary sentence....

2005On the other hand, this Court has recognized that “it is not unreasonable for a probation revocation hearing to be postponed pending adjudication of criminal charges which are the basis for the revocation.” Burrell, 441 A.2d at 745-46 (may be “preferable” to defer hearing until after trial in order to avoid possibility of unjust revocation; such deferment does not violate right to speedy process).

1985In Commonwealth v. Alexander, 232 Pa.Super. 57 , 331 A.2d 836 (1974), this Court held that another requirement central to a probation revocation hearing, that of written notice of the claimed violation 2 , was not subject to waiver because “it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so.” Id., 232 Pa.Superior Ct. at 62, 331 A.2d at 839 ; see Commonwealth v. Kile, 237 Pa.Super. 72 , 346 A.2d 793 (1975); Commonwealth v. Stratton, 235 Pa.Super. 566 , 344 A

1985In Commonwealth v. Alexander, 232 Pa.Super. 57 , 331 A.2d 836 (1974), this Court held that another requirement central to a probation revocation hearing, that of written notice of the claimed violation 2 , was not subject to waiver because “it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so.” Id., 232 Pa.Superior Ct. at 62, 331 A.2d at 839 ; see Commonwealth v. Kile, 237 Pa.Super. 72 , 346 A.2d 793 (1975); Commonwealth v. Stratton, 235 Pa.Super. 566 , 344 A

2023On the other hand, this Court has recognized that it is not unreasonable for a probation revocation hearing to be postponed pending adjudication of criminal charges which are the basis for the revocation. - 12 - J-S40044-22 Commonwealth v. Infante, 585 Pa. 408, 421 , 888 A.2d 783, 791 (2005) (internal citations and quotation marks omitted), abrogated on other grounds by Commonwealth v. Foster, 654 Pa. 266 , 214 A.3d 1240 (2019).

2023On the other hand, this Court has recognized that it is not unreasonable for a probation revocation hearing to be postponed pending adjudication of criminal charges which are the basis for the revocation. - 12 - J-S40044-22 Commonwealth v. Infante, 585 Pa. 408, 421 , 888 A.2d 783, 791 (2005) (internal citations and quotation marks omitted), abrogated on other grounds by Commonwealth v. Foster, 654 Pa. 266 , 214 A.3d 1240 (2019).

2022See Trial Ct. Op. at 4 n.9 (“There was no evidence introduced to suggest that [Appellant] had completed the course.”); Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007) (“The Commonwealth establishes a probation violation meriting revocation when it shows, by a preponderance of the evidence, that the probationer’s conduct violated the terms and conditions of his probation[.]”). - 15 - J-S30024-21 “when a charge is nolle prossed, the Commonwealth is not prevented from pursuing a violation of probation if evidence is presented to demonstrate that a crime occurred.” Id. at 7 (citatio

2015Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super. 2007).

2020“The language ‘speedily as possible’ has been interpreted to require a hearing within a reasonable time.” Commonwealth v. Clark, 847 A.2d 122, 123 (Pa. Super. 2004) (citation omitted).

2017“In evaluating the reasonableness of a delay, the court examines three factors: the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay.” Commonwealth v. Clark, 847 A.2d 122, 123-24 (Pa. Super. 2004).

2019Commonwealth v. Garcia, 23 A.3d 1059 , 1062 n.3 (Pa. Super. 2011) (citations omitted); see also Fowler, 930 A.2d at 592 .

2011See Fowler, supra; Cappello, supra; Anderson, supra. However, in the case sub judice, Appellant presents an ineffective assistance claim as it relates to his original guilty plea and sentence.

2017At a probation revocation hearing, the Commonwealth must demonstrate a violation based on evidence containing “probative value.” Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super. 2001).

2003The entire transcript of the probation revocation hearing is reproduced herein, infra. Unfortunately, Appellant did not raise the issue of evidentiary sufficiency, but we are compelled nevertheless to note that the court failed to completely conduct the two-part inquiry required in a probation revocation hearing (also called a Gagnon II hearing), i.e., (1) whether Appellant had in fact violated one or more conditions of his probation; and, if so, (2) whether the violation warrants incarceration or whether " ‘other steps should be taken to protect society and improve chances of rehabilitation.'

1985In Commonwealth v. Alexander, 232 Pa.Super. 57 , 331 A.2d 836 (1974), this Court held that another requirement central to a probation revocation hearing, that of written notice of the claimed violation 2 , was not subject to waiver because “it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so.” Id., 232 Pa.Superior Ct. at 62, 331 A.2d at 839 ; see Commonwealth v. Kile, 237 Pa.Super. 72 , 346 A.2d 793 (1975); Commonwealth v. Stratton, 235 Pa.Super. 566 , 344 A

1980See Commonwealth v. Stratton, supra; Commonwealth v. Henderson, 234 Pa.Super. 498 , 340 *184 A.2d 483 (1975); Commonwealth v. Alexander, 232 Pa.Super. 57 , 331 A.2d 836 (1974).

1975The majority opinion, relying upon this Court’s recent holdings in Commonwealth v. Henderson, 234 Pa. Superior Ct. 498 , 340 A.2d 483 (1975), and Commonwealth v. Alexander, supra, would hold that the appellant does not waive the issue of the lack of written notice of the alleged probation violations by failing to object at the probation revocation hearing.

1975The majority opinion, relying upon this Court’s recent holdings in Commonwealth v. Henderson, 234 Pa. Superior Ct. 498 , 340 A.2d 483 (1975), and Commonwealth v. Alexander, supra, would hold that the appellant does not waive the issue of the lack of written notice of the alleged probation violations by failing to object at the probation revocation hearing.

2018However, [i]n Commonwealth v. Davis, 234 Pa.Super. 31 , 336 A.2d 616 (1975) (Filed: March 31, 1975), this Court thoroughly discussed the due process requirements of a probation revocation hearing as mandated by Morrissey[v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed. 2d 484 (1972)] and Gagnon.

2018However, [i]n Commonwealth v. Davis, 234 Pa.Super. 31 , 336 A.2d 616 (1975) (Filed: March 31, 1975), this Court thoroughly discussed the due process requirements of a probation revocation hearing as mandated by Morrissey[v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed. 2d 484 (1972)] and Gagnon.

1980Further, Johnson’s term of probation had not expired when the probation revocation hearing was held; hence, prejudice of the type found in Commonwealth v. White, 218 Pa.Super. 188 , 279 A.2d 768 (1971), is absent instantly.

1980Further, Johnson’s term of probation had not expired when the probation revocation hearing was held; hence, prejudice of the type found in Commonwealth v. White, 218 Pa.Super. 188 , 279 A.2d 768 (1971), is absent instantly.

2018See Mempa v. Rhay, 389 U.S. 128 (1967) (holding counsel must be afforded at a probation revocation hearing).

2009Similarly, in Mempa v. Rhay, 389 U.S. 128 , 88 S.Ct. 254 , 19 L.Ed.2d 336 (1967), which dealt with a probation revocation hearing, the United States Supreme Court held that the Sixth Amendment requires “appointment of counsel for an indigent ... at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Id. at 134 , 88 S.Ct. 254 .

2002Compare, e.g., Lucido v. Superior Court, 51 Cal.3d 335 , 272 Cal.Rptr. 767 , 795 P.2d 1223 (1990) (collateral estoppel does not apply in a criminal trial subsequent to a probation revocation hearing), with, e.g., People v. Kondo, 51 Ill.App.3d 874 , 9 Ill.Dec. 479 , 366 N.E.2d 990 (1977) (collateral estoppel precludes relitigation in prosecution of issue determined in a prior probation revocation hearing), and State v. Bradley, 51 Or.App. 569 , 626 P.2d 403 (Or.App.1981) (same), and Ex parte Tarver, 725 S.W.2d 195 (Tex.Crim.App.1986) (same). [10] We note that the United States Supreme Court ha

2002Compare, e.g., Lucido v. Superior Court, 51 Cal.3d 335 , 272 Cal.Rptr. 767 , 795 P.2d 1223 (1990) (collateral estoppel does not apply in a criminal trial subsequent to a probation revocation hearing), with, e.g., People v. Kondo, 51 Ill.App.3d 874 , 9 Ill.Dec. 479 , 366 N.E.2d 990 (1977) (collateral estoppel precludes relitigation in prosecution of issue determined in a prior probation revocation hearing), and State v. Bradley, 51 Or.App. 569 , 626 P.2d 403 (Or.App.1981) (same), and Ex parte Tarver, 725 S.W.2d 195 (Tex.Crim.App.1986) (same). [10] We note that the United States Supreme Court ha

1985In Commonwealth v. Alexander, 232 Pa.Super. 57 , 331 A.2d 836 (1974), this Court held that another requirement central to a probation revocation hearing, that of written notice of the claimed violation 2 , was not subject to waiver because “it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so.” Id., 232 Pa.Superior Ct. at 62, 331 A.2d at 839 ; see Commonwealth v. Kile, 237 Pa.Super. 72 , 346 A.2d 793 (1975); Commonwealth v. Stratton, 235 Pa.Super. 566 , 344 A

1985In Commonwealth v. Alexander, 232 Pa.Super. 57 , 331 A.2d 836 (1974), this Court held that another requirement central to a probation revocation hearing, that of written notice of the claimed violation 2 , was not subject to waiver because “it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so.” Id., 232 Pa.Superior Ct. at 62, 331 A.2d at 839 ; see Commonwealth v. Kile, 237 Pa.Super. 72 , 346 A.2d 793 (1975); Commonwealth v. Stratton, 235 Pa.Super. 566 , 344 A

1982The instant case falls in between the ten minutes notice of a probation revocation hearing we found constitutionally wanting in Commonwealth v. Williams, 254 Pa.Superior Ct. 202, 385 A.2d 979 (1978) and the five days’ notice in Ungar which was upheld.

1979In Commonwealth v. Williams, 254 Pa.Super. 202 , 385 A.2d 979 (1978), this Court held that a delay of five (5) and one-half (%) months in holding a probation revocation hearing was not unreasonable where there was no attempt by the Commonwealth to delay the hearing in order to hamper the defense, and the delay did not result in unnecessary incarceration or limitation of personal liberty.

2023In all, the court’s decision comports with the main focus of a probation revocation hearing, being “whether the conduct of the probationer indicates that the probation has proven to be an effective vehicle to accomplish rehabilitation and a sufficient deterrent against future anti-social conduct.” Colon, supra at 1042 .

2018Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014).

2018Id. at 1182 (citing Commonwealth v. A.R., 990 A.2d 1, 7 (Pa. Super. 2010) (emphasis in original)).

2017Id. at 7 .

2018The Davis Court explained that in such cases, “[t]he purpose of [the Gagnon I] hearing will have been served by the preliminary hearing.” Id. at 622-23 ; see also Commonwealth v. Del Conte, 419 A.2d 780 , 781 n.2 (Pa. Super. 1980) (“When the probation or parole violation is based on the commission of a crime, a preliminary hearing may substitute for a Gagnon I hearing.”) (citations omitted).

2003Id. ¶ 11 Unlike Del Conte, Appellant does not couch his issue in terms of insufficient evidence presented at the probation revocation hearing. 3 Instead, Appellant asserts ineffectiveness of counsel for failure to question Ms. Leone, who was present at the probation hearing.