When a person receives a period of probation as part of their sentence, or is granted county parole in lieu of spending additional time incarcerated, there are obvious benefits. This will be the case whether a defendant is on probation or parole in Philadelphia or in any of Pennsylvania's 67 counties.
One issue that can arise, however, is when a defendant is alleged to be in "technical" violation of their probation or county parole by, for example, failing a drug screen, missing an appointment with their probation officer, failing to comply with other conditions of their probation, and so forth. Unfortunately, the list of potential technical violations can be exhaustive. Another issue that can arise while on probation or county parole is when a defendant incurs a new arrest. If the defendant is convicted of the new criminal charges while on probation or county parole, the defendant will be considered to be in "direct" violation of their probation or parole.
Because a person on probation or county parole will often be held in custody on a detainer while revocation proceedings take place, the question of when a violation of probation / parole hearing take place will often weigh heavily on the minds of the person accused and their families. Although revocation proceedings are characterized by the "Gagnon I" hearing, also known as the "detainer" hearing, and the "Gagnon II" hearing, the Gagnon II hearing is the actual violation of probation / parole hearing; the "VOP" hearing. Understanding what constitutes reasonable and unreasonable delay in when a probation / parole violation hearing will take place will help defendants and their families know what to expect in such an unfortunate situation arises.
What is the law in Pennsylvania that governs when a probation / parole violation hearing will be held?
Pennsylvania Rule of Criminal Procedure 708 applies to county parole sentences and all probationary sentences. It provides in part as follows:
Whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been: 1) hearing held as speedily as possible as which the defendant is present and represented by counsel; and 2) a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole. 42 Pa.C.S.A. § 9771(d).
How long will it take for a defendant's VOP to be held?
For better or worse, it depends. The timing requirements for state probation and parole revocation hearing do not apply to county probation and/or parole revocation hearings in the court of common pleas. Rather, Rule 708 requires that the hearing be held as early as speedily as possible. (In contrast, the Pennsylvania Parole Board has regulations requiring a prompt hearing on revocation matters within its jurisdiction.)
The failure to hold a hearing as speedily as possible following a violation violates due process in addition to Rule 708., and "undue delay" warrants the dismissal of a revocation petition, if some prejudice to the defendant is caused by the delay.
When the alleged violation is the commission of another crime during the defendant's probationary period, the relevant time period is the delay between conviction of the new crime and the date of the revocation hearing.
How will the court decide if the delay in holding a VOP hearing is reasonable or unreasonable?
In evaluating the reasonableness of a delay, the court must consider the length of the delay, the reasons for the delay, and the prejudice to the defendant, and when the reasons for the delay are not stated, the absence of the explanation weighs in the defendant's favor.
The Pennsylvania Supreme Court, however, has expressly refused to invoke a per se rule finding prejudice to exist whenever a revocation hearing is held after the period of probation has expired. In addition, notice of an alleged parole violation need not be issued prior to the expiration of the parole period as long as the Commonwealth of Pennsylvania, generally represented by either the District Attorney's Office of the applicable county in which the revocation proceedings are taking place or the Pennsylvania Attorney General's Office, complies with all of the required provisions for notice of the charges and the subsequent parole revocation hearings.
For better or worse, Pennsylvania law varies regarding what will be considered reasonable or unreasonable delay in the scheduling of a defendant's VOP hearing. Over the years, Pennsylvania case law has established the following guidelines:
- A 7-month delay from conviction of a new offense to the probation revocation hearing was unreasonable, and reversible error, when the delay was caused by an overcrowded court docket. Commonwealth v. Smith, 266 Pa.Super. 234, 403 A.2d 1326 (1979)
- A 5-month delay to await sentencing on a new case was not excessive when the defendant was not prejudiced by the delay. Commonwealth v. Long, 264 Pa.Super. 465, 400 A.2d 179 (1979).
- When a defendant was incarcerated on other charges, a delay of two years in scheduling did not deny the defendant's right to a speedy revocation hearing when the defendant suffered no prejudice. Commonwealth v. Bischof, 420 Pa.Super. 115, 616 A.2d 6 (1992). (Although two years would seem unreasonable and excessive on its face, there are circumstances where a defendant may in fact suffer no prejudice despite the passage of such a length of time. For example, if the defendant was serving a sentence on another case that lasted longer than how long it took the violation proceedings to be heard, such a defendant would arguably have not suffered any prejudice - other than having the violation continue to weigh on his or her mind until the matter was addressed; unfortunately, Pennsylvania courts would be unlikely to consider this suffering "prejudice" in the traditional sense.)
- The Pennsylvania Superior Court vacated a revocation of probation when there was an 8-month delay between the guilty plea for the new offense and the revocation hearing, and the defendant was eligible for parole on the probation-violating offense. The court found that prejudice followed from the mere fact of the expiration of the parole period. Commonwealth v. Darby, 244 Pa.Super. 331, 368 A.2d 746 (1976).
- An 8-month delay from conviction of new charges and parole revocation was unreasonable when no explanation was offered for the delay, even though the defendant could show no prejudice. Commonwealth v. Boykin, 270 Pa.Super. 592, 411 A.2d 1308.
- A delay of 96 days was not unreasonable per se (on its face). Commonwealth v. Dorsey, 328 Pa.Super. 241, 476 A.2d 1308 (1984).
- A delay of 4 years and 8 months between a probation violation and a revocation hearing is excessive on its face, but will not be found if excessive if due in large part to the defendant's concealment of his whereabouts. Commonwealth v. Gaus, 300 Pa.Super. 372, 446 A.2d 661 (1982).
- Delay caused by the Commonwealth of Pennsylvania's policy to wait for a certified copy of conviction before scheduling a violation hearing, the sentencing judge's involvement in a lengthy trial, and the probationer's transit in the federal penal system did not deny a probationer the right to a speedy violation hearing. Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983).
- A 10-month delay between a conviction and the violation hearing unreasonable when the delay was part of the defense attorney's strategy, the probationer was serving another sentence in jail during the delay, and the probationer's defense was not impaired by the delay. Commonwealth v. Pelzer, 319 Pa.Super. 282, 466 A2d 159 (1983).
- A 12-month delay may be unreasonable. Commonwealth v. McCain, 320 Pa.Super. 394, 467 A.2d 382 (1982).
As one can see from the above, the length of time that it takes for a VOP hearing to be held alone is not indicative of whether any delay was reasonable or unreasonable, and unfortunately, the lengths of time referenced above per prior Pennsylvania court cases are generally significant.
Are there any special considerations when a VOP hearing is delayed because the defendant is incarcerated in another county or state?
The due process rights of a parolee who is incarcerated in another jurisdiction for a crime committed while on Pennsylvania parole are not violated by the postponement of the parole revocation hearing until after the parolee has completed the sentence on the conviction constituting the violation. When two jurisdictions are involved, a detainer is a matter of comity (the principle that political entities, such as states or courts from different jurisdictions, mutually recognize each other's legislative, executive, and judicial acts).
Does a defendant have to raise a claim of an unreasonable delay of a violation of probation / parole hearing at the hearing itself?
The failure to raise the right to a speedy revocation hearing at a probation hearing waives the issue.
Can probation or parole be revoked after the probation or parole expires?
Probation or parole may be revoked after the expiration of a probationary period or of the maximum sentence. Although prejudice follows from the mere fact of the expiration, this prejudice serves to render the delay unreasonable only when it is combined with other facts, such as the lack of diligence by county officials. Therefore, a 6-month delay when a defendant was incarcerated because of a murder conviction was not unreasonable. Commonwealth v. Ruff, 272 Pa.Super. 50, 414 A.2d 663 (1979).
Can a defendant violate his or her probation before the probation starts?
A court may order the revocation of a probation order and impose a sentence of imprisonment upon a convicted violator even if the violator had not yet begun to serve his probation at the time he committed the new offense. This revocation of an order of probation and subsequent sentencing of the defendant does not unconstitutionally place the defendant twice in jeopardy for the same offense. A probationary sentence is not a right guaranteed by either federal or state constitutions. Rather, it is a "privilege" granted at the discretion of the sentencing court.
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Although the judge and the prosecutor may regard probation or county parole as a "privilege," it does not come without serious obligations for the defendant. Meeting one's requirements while on probation or parole can be burdensome, especially when a defendant has obligations related to family, work and employment, or school for example.
When a probation or parole issue arises, it is unfortunate that a defendant can find him or herself in custody on a detainer for a period of time before the Gagnon II hearing takes place; sometimes this period of time can be significant. When a person is accused of being in violation of his or her probation or parole, and regardless of whether the violation is technical in nature or direct, in many instances, it is critical that an experienced attorney is pushing the necessary parties to address the matter sooner rather than later so that a defendant does not spend an unreasonable amount of time in custody pending revocation proceedings.
In addition to having years of experience passionately fighting for clients, attorney Joseph D. Lento worked as a probation officer while attending Temple University Beasley School at night. He knows the at-times unreasonable world of probation inside and out. Whether facing revocation proceedings in Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, Northampton County, or anywhere in Pennsylvania, contact him today to learn how he can help make a difficult situation better.