Com. v. Carey, J. ( 2018 )

J-A14026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN CAREY :
:
Appellant : No. 3570 EDA 2016
Appeal from the Judgment of Sentence October 18, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011154-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 06, 2018
Appellant, Justin Carey, appeals from the judgment of sentence entered
following the revocation of his probation. For the reasons that follow, we
reverse and remand for further proceedings.
The notes of testimony from Appellant’s guilty plea hearing reveal that
on September 12, 2015, Appellant, who was driving his car, approached a
fourteen-year-old boy, J.D., who was walking his dog. Appellant exited the
car and asked J.D. if he would like to engage in sexual intercourse. Appellant
told J.D. that he could make a lot of money if he just got into Appellant’s car.
J.D. told Appellant he was going to go home and change, but he would meet
him later. Appellant then exposed his penis to J.D. J.D. walked home and
called police. Police officers responded to the location where J.D. informed
them that he encountered Appellant, and the officers discovered that
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* Retired Senior Judge assigned to the Superior Court.
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Appellant was still there. The police then arrested Appellant. N.T., Guilty
Plea, 2/9/16, at 7-8.
Appellant was charged with one count each of luring a child into a motor
vehicle and indecent exposure.1 On February 9, 2016, Appellant entered a
guilty plea to both charges. On that same date, the trial court sentenced
Appellant to a term of ten to twenty-three months of incarceration, followed
by three years of probation for luring a child into a motor vehicle and a
consecutive term of five years of probation for indecent exposure. The trial
court immediately paroled Appellant.2 N.T., 2/9/16, at 12.
The record reveals that on February 17, 2016, Appellant met with his
probation officer, Owen O’Connell. N.T., Sentencing, 10/18/16, at 7. Officer
O’Connell testified that he explained the rules of probation, Appellant’s
reporting requirements, the prohibitions against possessing pornography, and
the rules regarding the use of electronic devices. Id. at 8. Despite these
instructions, Appellant failed to inform Officer O’Connell about his
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1 18 Pa.C.S. §§ 2910(a) and 3127(a), respectively.
2 The basis upon which Appellant was released prior to completing his
minimum sentence is unclear from the record. However, authority for such a
release is provided in 42 Pa.C.S. § 9813, and the trial court, which retained
jurisdiction pursuant to 42 Pa.C.S. § 9762, was permitted to release Appellant
for “lawful purposes as the court shall consider necessary and appropriate.”
42 Pa.C.S. § 9813(a). Ultimately, there is no indication that Appellant was
paroled or that his parole was revoked, and trial court’s rationale for releasing
Appellant to begin his probationary sentence is not germane to our disposition
of the instant appeal.
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employment, and he was seven hours late to the appointment with Officer
O’Connell. Id. at 8-9. At his next appointment, Appellant had still failed to
register his employment information in violation of 42 Pa.C.S. §
9799.16(b)(9). Id. at 8-9. During this appointment, Officer O’Connell looked
through Appellant’s telephone and discovered text messages with photos of
Appellant’s erect penis and impermissible use of social media. Id. at 11-12.
On March 7, 2016, the Philadelphia Department of Adult Probation
requested the revocation of Appellant’s probation due to Appellant’s failure to
register his employment as required by 42 Pa.C.S. § 9799.16(b)(9) and
because of other technical violations, including the possession of the
photographs of Appellant’s erect penis and unauthorized use of electronic
devices. At a hearing on August 2, 2016, the trial court revoked Appellant’s
probation and ordered a presentence investigation report (“PSI”). N.T.,
Hearing, 8/2/16, at 4-5. On October 18, 2016, the trial court resentenced
Appellant to eighteen months to three years of incarceration for luring a child
into a motor vehicle and a consecutive term of five years of probation for
indecent exposure. Appellant filed a timely post-sentence motion; however,
the trial court did not rule on it. Pursuant to Pa.R.Crim.P. 708(E), a post-
sentence motion to modify sentence imposed following the revocation of
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probation does not toll the 30-day3 appeal period, and Appellant filed a timely
notice of appeal on November 17, 2016. On December 9, 2016, the trial court
directed Appellant to file a concise statement of errors complained of on
appeal. Appellant filed a Pa.R.A.P. 1925(b) statement on January 5, 2017,
and another on January 17, 2017. The trial court filed an opinion on July 7,
2017. On August 10, 2017, Appellant filed a motion in this Court requesting
that we remand this matter to allow Appellant to file a supplemental Pa.R.A.P.
1925(b) statement. This Court granted the motion, and Appellant filed a
supplemental Pa.R.A.P. 1925(b) statement on September 7, 2017. The trial
court filed a second opinion on September 27, 2017.
On appeal, Appellant presents the following issues for this Court’s
consideration:
1. Did not the court below violate [A]ppellant’s due process rights,
Pennsylvania case law, Pa. R. Crim. P. 708 and 42 Pa. C. S. §
9771(b) and (d) when it failed to hold a Gagnon II[4] revocation
hearing prior to finding [A]ppellant in violation and revoking his
probation?
2. Did not the sentencing court err and violate [A]ppellant’s First
and Fourteenth Amendment rights under the Federal Constitution
as well as his rights under Article 1, Sections 3 and 7, of the
Pennsylvania Constitution and violate general sentencing
principles and Pa. C. S. §9754(c)(13) by sentencing [A]ppellant
to state incarceration for alleged technical violations of his sex
offender probation where the conditions for restrictions on use of
social media were unconstitutional as applied to [A]ppellant as the
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3An appeal shall be filed within thirty days after the entry of the order from
which the appeal is taken. Pa.R.A.P. 903(a).
4 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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conditions were not rationally related to the crimes of conviction
and were unduly restrictive and incompatible of freedom of
conscience?
3. Did not the sentencing court err as a matter of law and abuse
its discretion to sentence [A]ppellant for alleged violations of his
probation where the evidence was insufficient to support those
alleged violations?
4. Did not the sentencing court err as a matter of law and abuse
its discretion by entering a manifestly excessive and unreasonable
sentence where the alleged violations were technical only, there
was no indication that [A]ppellant would commit another crime if
he was not incarcerated, incarceration was not essential to
vindicate the authority of the court and the lower court neither
stated adequate reasons on the record for so doing nor considered
the extensive mitigation presented, all in violation of 42 Pa. C. S.
§§ 9721(b) and 9771(c)?
Appellant’s Brief at 3-4.
In general, the imposition of sentence following the revocation of
probation is left to the discretion of the trial court, which, absent an abuse of
that discretion, will not be disturbed on appeal. Commonwealth v. Sierra,
752 A.2d 910, 913 (Pa. Super. 2000). Our scope of review includes the
validity of the revocation proceedings, the legality of the sentence
imposed following revocation, and any challenge to the discretionary aspects
of the sentence imposed. Commonwealth v. Cartrette, 83 A.3d 1030, 1033
(Pa. Super. 2013) (en banc) (emphasis added). Once probation has been
revoked, a sentence of total confinement may be imposed if any of the
following conditions exist: (1) the defendant has been convicted of another
crime; or (2) the conduct of the defendant indicates that it is likely that he
will commit another crime if he is not imprisoned; or, (3) such a sentence is
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essential to vindicate the authority of court. Commonwealth v. Hoover,
909 A.2d 321, 322-323 (Pa. Super. 2006) (citations omitted).
In Appellant’s first issue, he alleges that the trial court erred as a matter
of law and violated his right to due process when it failed to hold a Gagnon
II hearing prior to revoking Appellant’s probation. The Supreme Court of the
United States has held that due process requires parolees to be afforded two
separate hearings prior to the revocation of parole.5 Gagnon, 411 U.S. at
782.
[A] parolee is entitled to two hearings, one a preliminary hearing
at the time of his arrest and detention to determine whether there
is probable cause to believe that he has committed a violation of
his parole, and the other a somewhat more comprehensive
hearing prior to the making of the final revocation decision.
Id. at 781-82. “The purpose of having two hearings, a Gagnon I and a
Gagnon II, is to allow for a factual determination of whether a violation
occurred and to give each side the opportunity to present evidence in support
of its case.” Commonwealth v. Sims, 770 A.2d 346, 352 (Pa. Super. 2001)
(citation omitted). “Notably, the purpose of having a Gagnon II hearing is
to provide appellant additional due process safeguards.” Id. (citation
omitted). “Accordingly, the Commonwealth is required to meet a higher
standard of proof at the Gagnon II hearing.” Id.
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5The due process requirements established for parole revocations in Gagnon
are applicable to probation revocation proceedings. Wolff v. McDonnell, 418
U.S. 539, 559-560 (1974).
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The record reflects that the trial court held a hearing on August 2, 2016,
at which Appellant was represented by counsel. During that hearing, the trial
court summarily revoked Appellant’s probation without providing Appellant an
opportunity to present any evidence. N.T., 8/2/16, at 5. Counsel for Appellant
did not offer any objection, and as noted above, the trial court resentenced
Appellant on October 18, 2016.
On appeal, Appellant argues that the trial court erred in failing to hold a
Gagnon II hearing. Appellant’s Brief at 21. The Commonwealth points out
that Appellant did not object to the proceedings that resulted in the revocation
of his probation. Commonwealth’s Brief at 15. Thus, the Commonwealth
alleges that any challenge to the failure to hold a Gagnon II is waived. Id.
The Commonwealth also argues that because the trial court apparently
“believed” it had already conducted a Gagnon II hearing, this case is
distinguishable from a case where there is a “tacit waiver of such right
altogether.” The Commonwealth’s Brief at 21. We disagree, as we are aware
of no authority that countenances waiver of a Gagnon II hearing due to the
trial court’s subjective belief. We conclude that the trial court’s apparent
misunderstanding is immaterial in our determination as to whether Appellant
was afforded due process.
Although a defendant has the right to waive his Gagnon II hearing, for
this Court to uphold such a waiver of a constitutional right, the record must
clearly demonstrate an informed relinquishment of that right.
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Commonwealth v. Heilman, 876 A.2d 1021, 1027 (Pa. Super. 2005)
(citation omitted) (emphasis added). After review, we conclude that the
record does not demonstrate an informed relinquishment of Appellant’s right
to a Gagnon II hearing.
Because Appellant was not provided with a Gagnon II hearing and did
not waive his right to a Gagnon II hearing through an informed
relinquishment of his right to a hearing, we conclude that the revocation
proceedings were invalid. Cartrette, 83 A.3d at 1033; Heilman, 876 A.2d
at 1028. Accordingly, we are constrained to reverse Appellant’s judgment of
sentence and remand for a proper hearing.6 Heilman, 876 A.2d at 1028.
Judgment of sentence reversed. Case remanded for further
proceedings. Jurisdiction relinquished.7
P.J. Gantman joins the Memorandum.
Judge Platt concurs in the result.
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6 In light of our disposition, we do not address Appellant’s remaining issues
on appeal.
7 On June 18, 2018, Appellant filed an application seeking to supplement the
record. In light of our disposition, Appellant’s application is DENIED as moot.
Should Appellant seek to supplement the record, he may endeavor to do so in
the trial court upon remand.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/18
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