A person on probation or parole has the opportunity to be home with family and go to work in lieu of being incarcerated, but while on probation or parole, a person has to walk a fine line.  Technical violations such as missing an appointment with a probation officer,providing a positive drug screen, or absconding from supervision, can cause major issues for a person on probation or parole.  Getting arrested while on probation or parole will cause more issues yet. 

There are also major differences as to how a case will proceed depending on whether a person is on county probation or parole or state probation or parole.  If a person picks up a new arrest while on county probation for example, it can be expected in most instances that the probation department will lodge a "detainer" on the person being supervised, and will take him or her into custody pending a violation of probation (VOP) hearing before the "back" judge (the judge who sentenced the person on probation).  If a person is convicted of new criminal charges while on state parole for example, her or she will be considered a convicted parole violator and will be subject to potential harsh consequences from the Pennsylvania Parole Board. 

Life can be difficult, and people make mistakes.  As such, there are many instances when people being supervised on probation or parole will be subject to probation violation or parole revocation proceedings.  Because so much is at stake, including a person's freedom, people on probation or parole often are concerned about what kind of time they may face if they violate their supervision. Understanding what can happen when probation or parole is revoked can help a person understand the prospective path ahead.

Can I be detained if I violate my county probation?

If a person is accused of violating his or her county probation, a Gagnon I hearing will be scheduled.  Defendants and their families often ask, "What is a Gagnon I hearing?"  Because a defendant will be detained (in custody) at the time of the Gagnon I hearing, the hearing itself is intended to provide due process to the defendant who is accused of violating his or her probation.  At the Gagnon I hearing, the court will hold a hearing to determine whether the person accused of violating his or her probation should be held in custody while waiting to see the defendant's (back) judge, or waiting to have a full hearing with the judge.  The subsequent hearing before the defendant's back judge is known as the Gagnon II hearing, or the violation of probation (VOP) hearing.

Whether a defendant is released from jail at the Gagnon I hearing or is ordered to remain in custody pending a Gagnon II hearing (which is usually the case unless it can be demonstrated to the court that there are sufficient reasons for  the person to be released from custody), a related question that families ask is, "What will take place at a Gagnon II hearing?"  At the Gagnon II hearing, the defendant's back judge will make a determination based on the testimony, evidence, and argument presented by both the Commonwealth of Pennsylvania and the defendant's attorney, as to whether the defendant is fact violated his or her probation. 

What can happen if my county probation is revoked?  Can I go to jail?

If the court determines that the defendant violated his or her probation, the court can revoke the defendant's probation.  When probation is revoked, a defendant can face serious consequences because the court, with several exceptions, is free to impose any sentence or to make any disposition which it could have originally imposed, including suspension of sentence, continued probation, or imprisonment.

What can happen if my county parole is revoked?  Can I go to jail?

A county parole violation permits the court to revoke parole and recommit the defendant to jail for a period of time not exceeding the maximum term under which the defendant was originally sentenced.  The court may not increase the sentence upon revocation of parole and therefore cannot make two concurrent sentences consecutive after revocation.

When can I be paroled if I violate my county parole?

When a defendant is once again committed to prison following revocation of county parole, the defendant is again eligible for parole at any time.  There are no guidelines for when a defendant on county parole may be re-paroled following a county parole revocation.

A Concurrent County Probation Sentence Must Remain a Concurrent Sentence if Probation is Violated

When a defendant pleaded guilty pursuant to a plea bargain in which the defendant was to receive a sentence concurrent with a sentence already imposed, and the defendant received a probationary sentence which he or she subsequently violated, in sentencing on the violation, the court is required to impose a concurrent sentence.

What will happen if I violate my Pennsylvania State Parole?

When the sentencing court or the Pennsylvania Parole Board revokes parole, the parolee may be, and generally is, once again committed to a state correctional institute (SCI).  The credit due for time spent on parole in addition to the manner in which the sentence is to be computed, must be recomputed, taking into account any new sentence. 

If I have multiple state parole sentences, will I have to serve them in order if I am recommitted?

When a convicted parole violator is recommitted, he must once again serve sentences which were consecutive in consecutive order.

Will I become eligible for parole again after I am recommitted by the Pennsylvania Parole Board?

A defendant who is recommitted following revocation of Pennsylvania State Parole is re-eligible for parole.  When the Pennsylvania Parole Board imposes "back time" (time remaining on an old sentence), it is establishing a new eligibility date for parole, in effect, a "recomputed" minimum term.

How is Pennsylvania State Parole back time determined?

The Pennsylvania Administrative Code provides a presumptive range of parole "back time" (time remaining on an old sentence), which a parolee who has been committed for a violation for the second time must serve before he or she is once again eligible for parole.  When the conviction occurred in another state, the Pennsylvania Parole Board will look to the Pennsylvania legislature's determination of severity.  The presumptive ranges guide the discretion of the Pennsylvania Parole Board while allowing for consideration of individual mitigating and aggravating circumstances.

Because the list of criminal offenses for which presumptive ranges are prescribed is not exhaustive, when the conviction is for a crime not listed, the Pennsylvania Parole Board will apply the presumptive range for the most closely-related crime category in terms of severity.  The Pennsylvania Parole Board may deviate from the presumptive range or decide against recommitment provided sufficient written justification is provided. 

For example, when a parolee had two prior parole failures, and the last parole lasted only six months before a new violation, the Pennsylvania Parole Board's decision to double the presumptive range was justified.  The decision of whether to "set back" a prisoner's re-parole date is an exercise of the Board's discretion not to release the prisoner on parole.

Can the Pennsylvania Parole Board recommit for each violation of a condition of parole?

The Pennsylvania Parole Board may recommit a parolee for each violation of a condition of parole, even if all violations arise out of a single criminal episode.  In addition, the Parole Board is not restricted to the highest range of those provided for by the various violations. 

The Pennsylvania Parole Board has also adopted presumptive ranges for violations of general and specific conditions of parole.  When multiple violations of general parole conditions occur, the Parole Board must use the presumptive range which has the highest back time range of those general conditions violated.

How is back time for violations of special conditions of parole determined?

Back time for a violation of a special condition must be aggregated with other back time, unless the revocation decision of the Pennsylvania Parole Board states otherwise.  When there are multiple violations of special conditions, the Parole Board should add the back time for violating those special conditions and then add the resulting aggregate presumptive range to that general condition violation which has the highest presumptive range.

For example, in applying the above formula, a Pennsylvania Parole Board order requiring a parolee to serve 24 months back time was well within the presumptive rage for the parolee's technical parole violations.  The presumptive range for the special condition, which was 3 to 18 months, was added to the presumptive range for the general condition with the highest presumptive range, which was 5 to 12 months.  This yielded a presumptive range of 8 to 30 months.

In addition, there is no double jeopardy bar to recommitment for two separate periods of time for violations of specific and general conditions of parole.

Philadelphia Probation and Parole Attorney

Facing the prospect of a probation or parole violation can be difficult.  There are major considerations regarding whether a person will be subject to the jurisdiction of the Court of Common Pleas where the case was prosecuted, or whether the Pennsylvania Parole Board will have jurisdiction over the matter.  A person's case will proceed upon a certain prospective path if his or her probation or parole is a county sentence, and will proceed upon a certain prospective path if he or she received a state sentence.  Ultimately, a person faced with the prospect of a probation or parole revocation should not face the probation department or Pennsylvania Parole Board alone. 

Whether in Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, or Northampton County, contact our Criminal Law Team today to learn how we can help minimize the potential impact of a probation or parole revocation.