When a person is on probation or parole in Pennsylvania and is faced with a revocation hearing, because so much can be stake, including a person's employment, family obligations, future prospects, and not to mention his or her freedom, there will be many questions that need to be answered.
Defendants facing a probation violation in Pennsylvania will be confronted with a violation of probation hearing, which is also known as a "VOP" hearing; the violation of probation process in Pennsylvania is further characterized by the "Gagnon I" and "Gagnon II" hearing. At a Gagnon I hearing, the court will make a "probable cause" determination to decide: 1) whether there is sufficient basis for the case to move forward; and 2) whether a defendant should be held in custody pending the Gagnon II hearing, which is the violation of probation hearing itself. At a Gagnon II hearing, the court will decide if the defendant is in violation of his or her probation, and if so, whether probation will be continued, or whether probation will be revoked with a new sentence to be ordered; such a new sentence will generally be either a new period of probation, a period of incarceration, or some combination of the two.
Defendants facing a parole violation hearing in Pennsylvania follow a similar path with some critical differences. A "First Level Hearing," also known as a "preliminary hearing," is scheduled for parolees with technical parole violations. If the Pennsylvania Board of Probation and Parole determines that there is a sufficient basis for a parolee's case to go forward, a "Second Level Hearing" will be scheduled, of which there are two different kinds. One is the "revocation hearing" which is for parolees who committed a crime while on parole or who were delinquent on parole (such parolees are known as "convicted parole violators"). The other is the "violation hearing" which is scheduled for parolees who violated either a general or specific condition of parole (a "technical parole violator").
Because the revocation process for probation and parole in Pennsylvania can be difficult to understand for a person facing such a challenge and also his or her family, the following article provides information regarding specific scenarios, including relevant Pennsylvania case law, to allow a better understanding of the path forward.
What is a "technical violation" of probation or parole in Pennsylvania?
Probation or parole may be revoked for a legitimate technical violation, such as the willful failure to maintain a job, use of drugs or alcohol, or the failure to report to the probation or parole officer. This principle is codified as 61 P.S. § 331.21a(b), and was addressed by the Pennsylvania Superior Court in the case of Commonwealth v. Johnson, 282 Pa.Super. 21, 422 A.2d 655 (1980).
Does a parolee have to sign his or her parole contract to be held in technical violation of parole in Pennsylvania?
There is no requirement that a parolee endorse his or her parole contract prior to being paroled, and therefore, a parolee who violates a condition of parole may be in violation even if he or she has not signed the contract and even if there is no evidence that the parolee knew of the condition. This principle was considered by the Pennsylvania Commonwealth Court in the case of Benefiel v. Commonwealth, Pennsylvania Board of Probation and Parole, 57 Pa.Cmwlth. 401, 426 A.2d 242 (1981).
However, special conditions imposed on a parolee cannot be so vague that persons of common intelligence must guess at their meaning. For example, a prohibition against being at a designated mall during "late" hours was found unworkably vague and violative of due process. Although the case was overruled on other grounds, this principle was addressed in by the Pennsylvania Commonwealth Court in the case of Knight v. Commonwealth, Pennsylvania Board of Probation and Parole, 98 Pa.Cmwlth. 88, 510 A.2d 402 (1986). A condition which required a parolee to "notify" parole supervision staff within 72 hours of an arrest was not clear because it did not indicate what sort of notification was required. Pettibone vs. Pennsylvania Board of Probation and Parole, 782 A.2d 605 (Pa.Cmwlth. 2001).
Can a parolee or probationer have parole or probation revoked for failure to pay in Pennsylvania?
A parolee or probationer may have parole or probation revoked for failure to pay court-imposed fines, costs, and restitution, as long as the Board or court makes a reasonable allowance for the parolee's or probationer's ability to pay. Lawson v. Commonwealth, Pennsylvania Board of Probation and Parole, 105 Pa.Cmwlth. 427, 524 A.2d 1053 (1987).
Are there are special considerations when a person who has mental health issues violates probation or parole in Pennsylvania?
For defendants found guilty but mentally ill, the requirements of 42 Pa.C.S.A. §9727(a) and by Pennsylvania case law mandate a mental health hearing upon revocation of probation and re-sentencing if no mental health hearing was held at the initial sentencing.
What is a "direct violation" of probation or parole in Pennsylvania?
As serious as a technical violation can be, a "direct violation" of probation or parole in Pennsylvania can result in more severe consequences yet for a defendant accused of new criminal conduct.
In Pennsylvania, defendants on probation are in a tenuous position. For example, probation may be revoked because of new criminal conduct occurring before the probation begins or during the probationary or parole period. In addition, when a probationer is accused of new criminal conduct, how such alleged conduct can affect a probationer can become complicated. For example, a probationer need not be convicted of the new crime for it to form a basis for revocation. Commonwealth v. Griggs, 314 Pa.Super. 407, 461 A.2d 221 (1983).
A person on state parole is even more at risk. By statute, it is a violation of state parole for any parolee to be convicted before a court of record in Pennsylvania of a crime occurring during the parole period per 61 P.S. § 331.21a(a). This could include convictions for summary offenses in the court of common pleas in the applicable county where the person is charged for example. Lewis v. Commonwealth, Board of Probation and Parole, 74 Pa. Cmwlth. 335, 459 A.2d 1339 (1983). If a conviction is on the magisterial district level, the Pennsylvania Parole Board considers the conviction to be a "technical violation" and not a "convicted violation," because the the district magistrate's court is not a court of record in Pennsylvania. If the state Parole Board wished to have a violation on such a conviction, it must give notice of that fact. If the state Parole Board wishes to have a violation hearing on such a conviction, it must give notice of this fact to the defendant. Washington v. Commonwealth, Board of Probation and Parole, 73 Pa.Cmwlth. 432, 458 A.2d 645 (1983).
Can a violation of a PFA affect a person's parole in Pennsylvania?
A parolee found in violation of parole for a violation of an order entered under the Protection from Abuse Act (a "PFA") would be considered a "convicted" violator. Dunkelberger v. Pennsylvania Board of Probation and Parole, 140 Pa.Cmwlth. 360, 593 A.2d 8 (1991).
What is the purpose of revocation hearing in Pennsylvania?
In the case of a "convicted" violation, the court's purpose in a revocation hearing is not to determine whether the defendant has committed the crime, but rather, whether probation or parole is still (or even was) "an effective vehicle to accomplish rehabilitation and a sufficient deterrent against future antisocial conduct." Commonwealth v. Kates, 452 Pa.102, 111, 305 A.2d 01, 708 (1973). Thus, when a defendant's parole was revoked on the basis of a guilty plea to criminal conduct occurring while the defendant was on parole, the fact that the guilty plea was subsequently withdrawn did not, in itself, render the revocation order illegal. Commonwealth v. Shaw, 280 Pa.Super. 575, 421 A.2d 1081 (1980).
Is double jeopardy a factor in probation and parole violations in Pennsylvania?
Violation of parole following conviction of a new crime does not violate any guarantee against double jeopardy. In contrast, a defendant whose probation violation hearing, also known as a "VOP" hearing, is deferred pending a trial for the same illegal conduct on which the alleged violation is based may not be violated if he is acquitted in the intervening trial because to do so would violate Pennsylvania constitutional guarantees against double jeopardy.
What does the Commonwealth need to prove in a violation of probation hearing in Pennsylvania?
The Commonwealth of Pennsylvania, generally represented by the District Attorney's Office of the applicable county, or the Pennsylvania Attorney General's Office, need only prove a violation of probation by a "preponderance of the evidence" at a VOP hearing; not "beyond a reasonable doubt" as is the case in a criminal trial.
What does the Board need to prove in a parole violation hearing in Pennsylvania?
The Pennsylvania Board of Probation and Parole also has the burden of proving technical parole violations by a "preponderance of the evidence." In order to prove a technical violation of a condition of parole, the Board is required to demonstrate that the parole was a least somewhat at fault for the technical violation. The intent to do wrong is not dispositive, and the appellate court is not empowered to add the element of intent to a clearly stated parole condition. However, if a parolee is not at fault, as might occur if he or she were discharged from a program for reasons beyond his or her control (this issue often arises in defendants convicted of sex offenses in Pennsylvania who are in sex offender treatment programs), or is discharged from employment at the whim of the employer, recommittment constitutes an abuse of the Board's authority.
When a technical violation of parole arises because of a failure to pay for treatment, the burden is on the parolee to demonstrate an inability to pay. Upon proof of the inability to pay, the burden shifts to the Board to prove that the parolee was somewhat at fault by failing to make sufficient bona fide efforts to acquire or save the necessary resources to pay for treatment.
When will a probation revocation hearing be held in Pennsylvania?
A probation revocation hearing may be held after arrest but before the determination of a criminal charge. However, the preferable method is to defer the revocation hearing until after the trial on the new charges to avoid the possibility of the unjust revocation of probation on the basis of charges on which a defendant is later acquitted.
When a probation revocation hearing is held after arrest but before conviction, factual evidence in addition to the fact of the arrest must be presented.
Can a parolee be recommitted as both a convicted and technical violator in Pennsylvania?
Although a revocation of parole does not violate double jeopardy guarantees, by statute, a parole may not be recommitted as both a convicted and technical violator if the technical violation is based on the same act underlying the new conviction. For example, a parolee may be ordered to serve back time for a DUI conviction and may receive additional time for the technical violation of consuming alcohol, because the latter violation occurred before the commission of the DUI offense.
Can a revocation hearing be held for a technical violation when charges were dismissed in a previous revocation hearing?
The Pennsylvania Board of Probation and Parole is barred by the doctrine of res judicata from holding a revocation hearing for a technical violation based on charges for the same conduct which have been dismissed in a previous revocation hearing. (Res judicata is the legal principle that a matter that has been adjudicated by a competent court may not be pursued further by the same parties.)
In the case of Knox v. Commonwealth, Board of Probation and Parole, at a revocation hearing based on criminal convictions for retail theft, the Board's hearing examiner found that Knox had been convicted by a district magistrate, which is not a court "of record" (as referenced above), and denied recommittment. The parole agent thereafter recharged the parolee with technical parole violations for the same conduct and the parolee was recommitted. The Pennsylvania Superior Court held that the doctrine of res judicata prevented the Board from recommitting Knox on the technical violations.
Can a parolee be in technical violation for conduct that was an element of the crime for which he or she was convicted?
The Board could not sentence a parolee as a technical parole violator for violating a deadly weapon condition when possession of a weapon was an element of the crime for which the parolee was convicted.
The Board could not recommit a parolee for a technical violation of possessing a weapon when revocation was based on a conviction for aggravated assault in which the use of a deadly weapon was a necessary element of the crime.
Can more than one technical violation be imposed for one act?
Two technical violations may not be imposed for one act.
When does a parolee's technical violation, accompanied by the commission of a crime, support an independent period of recommittment?
The Pennsylvania Commonwealth Court, en banc (which means heard before all the judges of the court, rather than by a panel of judges selected from them ), has clarified the scope of review to determine whether a parolee's technical violation, accompanied by the commission of a crime, may support an independent period of recommittment. First, the court will look to the definition of the criminal offense as it appears in the Pennsylvania Crimes Code. If the conduct comprising the technical violation is defined as an element of the offense in the Crimes Code, it cannot support independnt back time. If the conduct is not so defined, it follows, independent back time is appropriate.
Can "nolle prossed" charges or charges that were dismissed at a preliminary hearing prevent the Board from revoking parole for technical violations?
The "nolle prosequi" of criminal charges (when charges are "nolle prossed," or "no longer prosecuted") does not collaterally estop (the doctrine that prevents an issue from being re-litigated) the Pennsylvania Board of Probation and Parole from revoking parole for technical violations, nor does the dismissal of criminal charges after a preliminary hearing collaterally estop the Board from doing so.
Does an acquittal of a firearm case prevent the Board from revoking parole?
An acquittal of possession of instruments of crime generally does not collaterally estop the Board from revoking parole for the technical violation of a general parole condition requiring parolees to refrain from owning or possessing firearms or other weapons.
Pennsylvania Attorney for Probation and Parole Revocation Issues | Philadelphia Criminal Defense Attorney
One common theme among probation and parole in Pennsylvania is that when a person is sentenced to probation or is paroled, if there no issues and the person successfully completes his or her period or probation or parole, such a variation on imprisonment is obviously a favorable resolution. Understanding one's rights and responsibilities while on probation or parole is critical to avoiding issues, however, because another common theme is that the stakes are high when a probationer or parolee faces a violation of probation (VOP) hearing or a parole revocation hearing.
If you or a loved one have questions or concerns about probation or parole throughout Pennsylvania, including, but not limited to, Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, and Northampton County, contact skilled attorney Joseph D. Lento today.