People from all walks of life make mistakes. Unfortunately, some mistakes result in consequences that can be severe. Whether someone is a professional with licensing issues to be concerned about, a college student with future academic and professional goals at risk, a working man or woman who has to be concerned about losing his or her job and supporting his or her family, or any other person, the most immediate concern will be whether or not jail or prison will be a potential consequence.
Can I get probation instead of a jail or prison sentence in Pennsylvania?
For reasons explained below, at times, a judge may be lenient and will sentence a person to a period of probation rather than jail or prison. At other times, a person may be sentenced to a period of time in jail, but will be placed on probation for time that could have otherwise been spent in custody. I served as a probation officer while I went to law school at night. I helped many people turn their lives around, and I continue to do the same with my work as an attorney. Unfortunately, not all probation officers have the same perspective as I did, and many are not concerned with helping a person who may be struggling. There are consequences to actions, but the general philosophy of most probation departments throughout Pennsylvania can overemphasize punishing a person who has violated their probation instead of providing resources that may otherwise allow someone to get back on track in life.
Having vast experience with the world of probation (and parole) both as a probation officer and also as an attorney, I know that when a person is placed on probation, it can be both an arguable "blessing" (compared to the alternative of incarceration) and a "curse." For defendants and their families, it is important to understand what probation is in a general sense, what kinds of criminal cases are more likely to be resolved with a sentence of probation rather than jail or prison, and what principles guide how a defendant's probation will be supervised.
What is probation in Pennsylvania?
Probation was not historically a sentence. A sentence in a criminal case was an original imposition of punishment for a crime, while probation was an order in lieu of a sentence. However, probation is now considered a sentence in Pennsylvania. For example, probation is considered a sentence for purposes of appeal or for purposes of double jeopardy. In addition, consecutive sentences of probation are authorized by Pennsylvania statute.
How will the court decide whether I should be placed on probation or sentenced to jail or prison?
Section 9722 of the Pennsylvania Sentencing Code provides that the following grounds, while not limits on the discretion of the court, must weigh in favor of probation:
- The criminal conduct of the defendant neither caused nor threatened serious harm.
- The defendant did not contemplate that his conduct would cause or threaten serious harm.
- The defendant acted under a strong provocation.
- There were substantial ground tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.
- The victim of the criminal conduct of the defendant induced or facilitated its commission.
- The defendant has compensated or will compensate the victim of the criminal conduct for the damage or injury that the victim sustained.
- The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.
- The criminal conduct of the defendant was the result of circumstances unlikely to recur.
- The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
- The defendant is particularly likely to respond affirmatively to probationary treatment.
- The confinement of the defendant would entail excessive hardship to him or his dependents.
- Such other grounds indicate the desirability of probation.
Re-sentencing is required if the court fails to consider the provision of Section 9722, but once the court finds one or more factors which argue against probation, the court may impose a jail term.
Will I know how long my probation will be when sentenced?
In imposing an order of probation, the court must specify at the time of sentencing the length of any term during which the defendant is to be on probation. The term may not exceed the maximum term for which the defendant could be confined.
Who will supervise my probation in Pennsylvania?
The court must also specify the authority, if any, that is to conduct the supervision of the probation; for example, whether the county probation department, the Pennsylvania Board of Probation and Parole, or some other authority is to supervise the probation.
A county jail sentence will generally be supervised by the probation department of the county in which the case was prosecuted; unless the defendant's probation is transferred to another Pennsylvania county in which case the probation department of the county where the defendant's probation was transferred would supervise the probation. A state prison sentence, often followed by a period of state parole and possible standard probation, will generally be supervised by the Pennsylvania Board of Probation and Parole. It should be noted that depending on the circumstances of the defendant's case, there are exceptions to these general rules.
How long can my probation be in Pennsylvania?
A defendant may be sentenced to incarceration plus a consecutive probationary period on one charge, but the total period for which the sentence runs may not exceed the statutory limit allowed for a sentence of incarceration.
What can my probation officer make me do while on probation in Pennsylvania?
The judge who orders probation is the authority who determines the conditions of a defendant's probation, but this authority is generally exercised through the county probation department in which the defendant's case was prosecuted; unless the defendant's case was transferred to another Pennsylvania county as noted above, or if the defendant's case was transferred to another state through the Interstate Compact Agreement in which case the state that assumes supervision of the defendant's probation will exercise this authority (any violations of probation will generally require that the defendant's probation supervision be returned, or "sent back," to the originating county or state.
The court may, as a condition of its order, and generally through the probation officer who is supervising the defendant's probation, require the defendant:
- To meet family responsibilities.
- To devote him or herself to a specific occupation or employment.
- The undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose.
- To pursue a prescribed secular course of study or vocational training.
- The attend or reside in a facility established for the instruction, recreation, or residence of persons on probation.
- The refrain from frequenting unlawful or disreputable places or consorting with disreputable persons.
- To have in his or her possession no firearm or other dangerous weapon unless granted written permission.
- To make restitution of the fruits of his or her crime or to make reparations, in an amount he or she can afford to pay, for the loss of damage caused thereby.
- To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his or her address or employment.
- To report as directed to the court or the probation officer and the permit the probation officer to visit his or her home.
- To pay such fine as has been imposed.
- To participate in drug or alcohol treatment programs.
- To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his or her liberty or incompatible with his or her freedom of conscience.
- To remain within the premises of his or her residence during the hours designated by the court.
Compared to the average citizen, do have I less rights while on probation in Pennsylvania?
A person on probation does not enjoy the full array of constitutional rights otherwise enjoyed by those who have not broken the law. A probation order with conditions placed on it will to some extent always restrict a person's freedom.
For example, a condition which prohibited a defendant from having contact with individuals who were named targets of the defendant's threats was deemed reasonable by Pennsylvania courts. A condition prohibiting contact with the defendant's congressman and local newspaper was deemed by Pennsylvania courts to not unduly restrict his freedom of speech.
Although it may be unwelcome to hear, a probation officer in Pennsylvania can search a person's person, house, car, cell phone, and so forth, without a warrant. A probation officer can order a person being supervised to report at the probation officer's discretion; this is the unfortunate reality even if doing so interferes with a person's work, school, or family obligations for example. People will often inquire if anything can be done to address the reporting requirements imposed by their probation officers. The short answer is that attempts should be made to have the probation officer reconsider through diplomatic means and by documenting how the probation officer's requirements are overly burdensome.
Although there are potential concerns in doing so because the probation officer may not appreciate the defendant going over his or her head by bringing such concerns to the sentencing judge, this may be the only possible recourse if a probation officer's required supervision is legitimately interfering with a person otherwise being productive in life. The judge can override a probation officer's requirements of a person being supervised, but the person being supervised has to also bear in mind that if he or she takes this step, the person will have to continue being supervised by the same probation officer in almost all instances. An experienced attorney may be able to help in both instances. An attorney can try to negotiate on a person's behalf with the probation officer directly, or as a last resort, can bring any concerns to the attention of the sentencing judge to ask the judge to intervene.
After being sentenced to probation, can my probation be changed? Can the conditions of my probation be changed?
The court may at any time terminate supervision or lessen or increase the conditions of the order of probation. However, the conditions of the order of probation generally may not be increased absent a hearing or waiver of a hearing by the defendant.
What happens if my probation is revoked in Pennsylvania? Can I go to jail or prison?
If probation is revoked, the court generally has available the same sentencing alternatives which were available at the defendant's initial sentencing.
For example, when a defendant was sentenced to 11 1/2 to 23 months plus 8 years consecutive probation, had completed parole, and was serving his probationary time when he committed another crime, the court was acting within its authority when it revoked probation and sentenced the defendant to a 4 to 8 year sentence.
However, when a sentence is originally imposed pursuant to a negotiated plea agreement and probation is subsequently revoked, the sentencing court is bound by the original negotiated sentencing recommendation.
For example, when a defendant pleaded guilty in return for a sentence of probation which was to run concurrently with a prior sentence, the sentence imposed after revocation likewise had to be concurrent.
When being sentenced, can the judge tell me what specific penalties I will face if I violate my probation?
The sentence to be imposed upon a defendant in the event of a probation violation should not be established prior to a finding that the violation occurred. If, however, the court does impose a sentence, then suspends that sentence and places the defendant on probation, in the event of a probation violation, the suspended sentence does not attach as a term of the imprisonment. The suspended sentence is only an indication of the sentencing judge's views. The maximum sentence imposed following a violation may not be higher than the suspended term, because such an increase would constitute double jeopardy.
Can the judge vacate a jail or prison sentence and impose probation instead?
If the court "vacates" a sentence of imprisonment and imposes probation, the vacated sentence is null and does not necessarily prohibit the sentencing court from imposing a higher sentence should probation later be revoked and the defendant be subject to re-sentencing. However, the new sentence may not exceed the original "vacated" sentence unless the reasons for the increase are stated by the sentencing court.
If I violate my probation and my probation is revoked, can the judge sentence me to jail?
If a defendant is found to have violated his or her probation at a violation of probation (VOP) hearing, also known as a Gagnon II hearing, and the defendant's probation is thereafter revoked by the court (generally, the defendant's "back" judge), according to Pennsylvania statute, the court may not impose a sentence of total confinement upon revocation of a defendant's probation unless it finds that: 1) the defendant has been convicted of another crime; 2) the conduct of the defendant indicates that it is likely that he or she will commit another crime if he or she is not imprisoned; or 3) such a sentence is essential to the authority of the court.
A related consideration is that the propriety of a sentence of total confinement imposed after probation or parole is revoked for a technical violation constitutes a substantial question for purposes of appeal.
What is a Gagnon I hearing? What is a Gagnon II hearing?
A detainer hearing, also known as a Gagnon I hearing, will be held after a defendant is detained in custody for an alleged probation violation. At the Gagnon I hearing, the court will make a determination whether or not to "lift" the detainer. If the detainer is lifted, the defendant will be released from custody pending the VOP (Gagnon II) hearing. If the detainer remains "in place," the defendant will remain in custody pending the VOP hearing. In most instances, the judge who sentenced the defendant, known as the defendant's "back" judge, will preside over the defendant's VOP hearing. A defendant faces the prospect of his or her "back time" when he or she is subject to a VOP hearing. That is the reason why the defendant's sentencing judge is known as his or her "back" judge during violation of probation proceedings.
What can happen if my probation is revoked in Pennsylvania?
When probation is revoked, the trial court which revoked the original probation may reinstate probation and then change the probationary period by lengthening it and/or adding reasonable conditions to the order of probation. However, the sentencing court must still adhere to Pennsylvania sentencing guidelines. The sentencing court may not impose a sentence of total confinement unless it finds that requisite conditions for total confinement are present. Even when a sentence of total confinement is suspended and the defendant is placed on probation, the original sentence cannot be imposed in the absence of compliance with the sentencing guidelines.
A final consideration is that an indefinitely suspended sentence is not equivalent to a probation sentence, and cannot be modified following a defendant's further misconduct.
Philadelphia Attorney for Probation Violation | Lawyer for Pennsylvania Probation Case
When a defendant is sentenced to probation, if there no issues and the person successfully completes his or her period or probation, such a variation on imprisonment is obviously a favorable outcome. In such an instance, a sentence of probation will be an arguable "blessing." Understanding one's rights and responsibilities while on probation is critical to avoiding issues, however, because the stakes are high when issues arise and a probationer is faced with the prospect of a violation of probation (VOP) hearing. When a defendant is found to be in violation of his or her probation, and is faced with being sent back to jail, or sentenced to jail if his or her initial sentence was for probation only, the fact that the defendant was ever placed on probation can be an arguable "curse" because of now subject to further consequences. Such concerns must be properly handled by an effective defense attorney.
If you or a loved one have questions or concerns about probation 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.
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