VOP hearing in Pennsylvania

2022Appellant concedes, however, parole “revocation is not part of a criminal prosecution and thus, the violator is not given the full panoply of rights.” Id. at 14 (citing Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (“the revocation -8- of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.”)); see also Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007) (explaining the standards for a violation of probation/parole hearing are distinctly different from a trial, as a VOP hearing “takes place w

2019But see id.

2020A detainer was issued, and the Commonwealth filed a petition seeking to proceed with a probation violation hearing prior to the trial on the new charges pursuant to Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973) (holding that, because there is no statutory or constitutional bar, a court may conduct a VOP hearing prior to trial on the criminal charges which form the basis for the alleged probation violation).

2020A detainer was issued, and the Commonwealth filed a petition seeking to proceed with a probation violation hearing prior to the trial on the new charges pursuant to Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973) (holding that, because there is no statutory or constitutional bar, a court may conduct a VOP hearing prior to trial on the criminal charges which form the basis for the alleged probation violation).

2025The court observed that the purpose of a VOP hearing is to "determine whether probation remains rehabilitative and continues to deter future antisocial conduct." Commonwealth v. Holder, 805 A.2d 499, 504 (Pa. 2002).

2025The court observed that the purpose of a VOP hearing is to "determine whether probation remains rehabilitative and continues to deter future antisocial conduct." Commonwealth v. Holder, 805 A.2d 499, 504 (Pa. 2002).

2026In determining whether a VOP hearing is held within a reasonable period, we examine ‘the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay.’” Wright, 116 A.3d at 137 (citations omitted). “[T]here is no presumptive period in which a defendant’s probation must be revoked[;] revocation hearings must be held with reasonable promptness after a probation officer is chargeable with knowing that probation has been violated.” Id. at 138 (citation omitted).

2026In determining whether a VOP hearing is held within a reasonable period, we examine ‘the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay.’” Wright, 116 A.3d at 137 (citations omitted). “[T]here is no presumptive period in which a defendant’s probation must be revoked[;] revocation hearings must be held with reasonable promptness after a probation officer is chargeable with knowing that probation has been violated.” Id. at 138 (citation omitted).

2018Commonwealth v. Castro, 856 A.2d 178, 180 (Pa.Super. 2004) (citations and internal quotations omitted); see also Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa.Super. 2010) (holding that “[t]he question before us, therefore, is not whether the evidence admitted at the VOP hearing would, if admitted at trial, suffice to convict [the appellant] beyond a reasonable doubt . . . but whether it showed by a preponderance of the evidence that probation had proven ineffective in rehabilitating [the appellant] and deterring him from antisocial behavior.”).

2018Commonwealth v. Castro, 856 A.2d 178, 180 (Pa.Super. 2004) (citations and internal quotations omitted); see also Commonwealth v. Ortega, 995 A.2d 879, 886 (Pa.Super. 2010) (holding that “[t]he question before us, therefore, is not whether the evidence admitted at the VOP hearing would, if admitted at trial, suffice to convict [the appellant] beyond a reasonable doubt . . . but whether it showed by a preponderance of the evidence that probation had proven ineffective in rehabilitating [the appellant] and deterring him from antisocial behavior.”).

2019Relying on its prior decision in Commonwealth v. Ortega, 995 A.2d 879 (Pa. Super. 2010), which, in turn, had relied upon language from this Court’s decision in Commonwealth v. Infante, 888 A.2d 783 (Pa. 2005), the Superior Court framed the question before it as “whether the evidence admitted at the VOP hearing established by a preponderance of the evidence that probation had proven ineffective at rehabilitating [Foster] and deterring him from antisocial behavior.” Commonwealth v. Foster, 3572 EDA 2016, 2018 WL 267757 , *3 (Pa. Super.

2019Relying on its prior decision in Commonwealth v. Ortega, 995 A.2d 879 (Pa. Super. 2010), which, in turn, had relied upon language from this Court’s decision in Commonwealth v. Infante, 888 A.2d 783 (Pa. 2005), the Superior Court framed the question before it as “whether the evidence admitted at the VOP hearing established by a preponderance of the evidence that probation had proven ineffective at rehabilitating [Foster] and deterring him from antisocial behavior.” Commonwealth v. Foster, 3572 EDA 2016, 2018 WL 267757 , *3 (Pa. Super.

2019Relying on its prior decision in Commonwealth v. Ortega, 995 A.2d 879 (Pa. Super. 2010), which, in turn, had relied upon language from this Court’s decision in Commonwealth v. Infante, 888 A.2d 783 (Pa. 2005), the Superior Court framed the question before it as “whether the evidence admitted at the VOP hearing established by a preponderance of the evidence that probation had proven ineffective at rehabilitating [Foster] and deterring him from antisocial behavior.” Commonwealth v. Foster, 3572 EDA 2016, 2018 WL 267757 , *3 (Pa. Super.

2019Relying on its prior decision in Commonwealth v. Ortega, 995 A.2d 879 (Pa. Super. 2010), which, in turn, had relied upon language from this Court’s decision in Commonwealth v. Infante, 888 A.2d 783 (Pa. 2005), the Superior Court framed the question before it as “whether the evidence admitted at the VOP hearing established by a preponderance of the evidence that probation had proven ineffective at rehabilitating [Foster] and deterring him from antisocial behavior.” Commonwealth v. Foster, 3572 EDA 2016, 2018 WL 267757 , *3 (Pa. Super.

2017In determining whether a VOP hearing is held within a reasonable period, we examine "the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay." Commonwealth v. Woods, 965 A.2d 1225, 1227 (Pa.Super. 2009) (quoting Commonwealth v. Clark, 2004 PA Super 97 , 847 A.2d 122, 123-24 (Pa.Super. 2004)).

2017In determining whether a VOP hearing is held within a reasonable period, we examine "the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay." Commonwealth v. Woods, 965 A.2d 1225, 1227 (Pa.Super. 2009) (quoting Commonwealth v. Clark, 2004 PA Super 97 , 847 A.2d 122, 123-24 (Pa.Super. 2004)).

2024Commonwealth v. Christmas, 995 A.2d 1259, 1262-64 (Pa.Super. 2010) (some internal citations and quotation marks omitted).

2021Bischof, supra. Commonwealth v. Christmas, 995 A.2d 1259 , 1262-64 (Pa.Super. 2010) (citations omitted).

2017In determining whether a VOP hearing is held within a reasonable period, we examine "the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay." Commonwealth v. Woods, 965 A.2d 1225, 1227 (Pa.Super. 2009) (quoting Commonwealth v. Clark, 2004 PA Super 97 , 847 A.2d 122, 123-24 (Pa.Super. 2004)).

2017In determining whether a VOP hearing is held within a reasonable period, we examine "the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay." Commonwealth v. Woods, 965 A.2d 1225, 1227 (Pa.Super. 2009) (quoting Commonwealth v. Clark, 2004 PA Super 97 , 847 A.2d 122, 123-24 (Pa.Super. 2004)).

2017In making such a determination, "the court balances the interests of society in preventing future criminal conduct by the defendant against the possibility of rehabilitating the defendant outside of prison." Commonwealth v. Del Conte, 419 A.2d 780, 783 (Pa. Super. 1980).

2017In making such a determination, "the court balances the interests of society in preventing future criminal conduct by the defendant against the possibility of rehabilitating the defendant outside of prison." Commonwealth v. Del Conte, 419 A.2d 780, 783 (Pa. Super. 1980).

2023See Gagnon v. Scarpelli, 411 U.S. 778 (1973). -3- Summary report, and another VOP hearing was held in early August to address this and the detainer.

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- a probation violation) (Daisy Kates).

2026In April 2024, APPD filed another Gagnon II Summary wherein it “requested [a] violation of probation hearing to address [Appellant’s] chronic absconder status.” Gagnon II Summary, 4/10/24, at 2 (unpaginated); see also id. (asserting that after the January 10, 2024, VOP hearing, “[Appellant] never reported to the APPD.

2023Commonwealth v. Allshouse, 969 A.2d 1236, 1240-41 (Pa. Super. 2009).

2026See … Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)) (“where the trial court is informed by a pre-sentence report, it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed.”).

2015See Commonwealth v. Devers, 519 Pa. 88 , 546 A.2d 12 (1988) (explaining that when sentencing court has benefit of PSI report, this Court can assume court was aware of relevant information regarding defendant’s character and weighed those considerations along with mitigating factors). - 11 -

2026VOP Hearing, 2/3/25, at 21. -7- reasons for imposing a sentence, . . . the record as a whole must reflect the sentencing court’s consideration of the facts of the crime and character of the offender.” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).

2015We find no abuse of discretion in sentencing"); Commonwealth v. Sierra, 752 A.2d 9101 911 (Pa. Super. 2000) (sentence affirmed where parole and probation revoked and appellant sentenced to statutory maximum for technical violations); Conunonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010) (where "court considered the testimony at the VOP hearing regarding [a]ppellant's lack of success under probation, arrest while under supervision, failure to appear on numerous occasions, and flight from a halfway house while under parole supervision", "the record as a whole reflects that the ttial court

2021See Johnson, supra at 1003 .

2020Therefore, “[r]evocation of probation and resentencing does not implicate double jeopardy precisely because ‘revocation is not a second punishment for the original conviction, but rather is an integral element of the original conditional sentence.’” Commonwealth v. Johnson, 967 A.2d 1001, 1005 (Pa. Super. 2009) (quoting Mullins, supra at 85 ).

2007But see Commonwealth v. Griggs, 314 Pa.Super. 407 , 461 A.2d 221, 225 (1983) (reversal of probation revocation and remand with instructions to reinstate original probation order because not enough evidence to justify revocation offered at VOP hearing).

2007But see Commonwealth v. Griggs, 314 Pa.Super. 407 , 461 A.2d 221, 225 (1983) (reversal of probation revocation and remand with instructions to reinstate original probation order because not enough evidence to justify revocation offered at VOP hearing).

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).

2015See id. at 297 (distinguishing Liston and Fransen as applicable to claims of ineffective assistance of counsel; where appellant was denied counsel entirely throughout post-sentence and direct appeal period when he was constitutionally entitled to counsel, reinstatement of appellate rights nunc pro tunc was not based on ineffective assistance of counsel; it was based on complete denial of counsel, so rationale underlying Liston and Fransen is inapplicable). -7- J-A05010-15 requested VOP counsel to file post-sentence motions and a direct appeal at the conclusion of the VOP hearing; VOP counsel a

2015See id. at 297 (distinguishing Liston and Fransen as applicable to claims of ineffective assistance of counsel; where appellant was denied counsel entirely throughout post-sentence and direct appeal period when he was constitutionally entitled to counsel, reinstatement of appellate rights nunc pro tunc was not based on ineffective assistance of counsel; it was based on complete denial of counsel, so rationale underlying Liston and Fransen is inapplicable). -7- J-A05010-15 requested VOP counsel to file post-sentence motions and a direct appeal at the conclusion of the VOP hearing; VOP counsel a

2010See, e.g., Shrawder, 940 A.2d at 443 ; see also Castro, 856 A.2d at 181 . ¶ 15 As discussed above, the results of Appellant’s therapeutic polygraph examination did not form the sole basis for Appellant’s probation revocation.

2010See, e.g., Shrawder, 940 A.2d at 443 ; see also Castro, 856 A.2d at 181 . ¶ 15 As discussed above, the results of Appellant’s therapeutic polygraph examination did not form the sole basis for Appellant’s probation revocation.

2010However, Mr. McHenry is not a sex offender therapist. 4.The "preponderance of the evidence” is the lowest burden of proof in the administration of justice, and it is defined as the "greater weight of the evidence, i.e., to tip a scale slightly [in one’s favor].” Raker v. Raker, 847 A.2d 720, 723 (Pa.Super.2004). .

2010However, Mr. McHenry is not a sex offender therapist. 4.The "preponderance of the evidence” is the lowest burden of proof in the administration of justice, and it is defined as the "greater weight of the evidence, i.e., to tip a scale slightly [in one’s favor].” Raker v. Raker, 847 A.2d 720, 723 (Pa.Super.2004). .

2025If Appellant’s probation is revoked and he is ____________________________________________ 4 We acknowledge that Appellant’s reply brief cites to Commonwealth v. Mullins, 918 A.2d 82 (Pa. 2007), and Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019), to suggest that a new violation hearing is not the appropriate remedy where the Commonwealth fails to present sufficient evidence of a probation violation.

2025If Appellant’s probation is revoked and he is ____________________________________________ 4 We acknowledge that Appellant’s reply brief cites to Commonwealth v. Mullins, 918 A.2d 82 (Pa. 2007), and Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019), to suggest that a new violation hearing is not the appropriate remedy where the Commonwealth fails to present sufficient evidence of a probation violation.

2020See Reaves, 923 A.2d 1119, 1132 (stating that because the trial court indicated that it “would have imposed the same sentence” even if counsel objected at the VOP hearing, the defendant could not establish “actual prejudice”).

2020See Reaves, 923 A.2d 1119, 1132 (stating that because the trial court indicated that it “would have imposed the same sentence” even if counsel objected at the VOP hearing, the defendant could not establish “actual prejudice”).

2015See also Commonwealth v. McCain, 320 Pa.Super. 394 , 467 A.2d 382 (1983) (where VOP hearing was held twelve months after defendant committed direct violation of his probation and three months after his probationary period expired, hearing was not held within a reasonable period).

2015See also Commonwealth v. McCain, 320 Pa.Super. 394 , 467 A.2d 382 (1983) (where VOP hearing was held twelve months after defendant committed direct violation of his probation and three months after his probationary period expired, hearing was not held within a reasonable period).

2010Moreover, the Commonwealth need only make this showing by a preponderance of the evidence. 3 Commonwealth v. A.R. 990 A.2d 1 (Pa.Super.2010). ¶ 21 The question before us, therefore, is not whether the evidence admitted at the VOP hearing would, if admitted at trial, suffice to convict Ortega beyond a reasonable doubt of resisting arrest and simple assault, but whether it showed by a preponderance of the evidence that probation had proven ineffective at rehabilitating Ortega and deterring him from antisocial behavior.

2010Moreover, the Commonwealth need only make this showing by a preponderance of the evidence. 3 Commonwealth v. A.R. 990 A.2d 1 (Pa.Super.2010). ¶ 21 The question before us, therefore, is not whether the evidence admitted at the VOP hearing would, if admitted at trial, suffice to convict Ortega beyond a reasonable doubt of resisting arrest and simple assault, but whether it showed by a preponderance of the evidence that probation had proven ineffective at rehabilitating Ortega and deterring him from antisocial behavior.

2026See Davis, 336 A.2d at 622-23 .

2026See Davis, 336 A.2d at 622-23 .