Com. v. Larkins, D. ( 2018 )

J-S11021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DARLYMIR LARKINS
Appellant No. 1652 EDA 2017
Appeal from the Judgment of Sentence Entered April 28, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0007172-2013
BEFORE: OTT, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 21, 2018
Appellant Darlymir Larkins appeals from the April 28, 2017 judgment of
sentence entered in the Court of Common Pleas of Montgomery County,
following the revocation of his parole after a Gagnon I1 hearing. Upon review,
we vacate and remand for a Gagnon II hearing.
The facts and procedural history underlying this case are undisputed.
On July 16, 2014, Appellant pleaded guilty to driving under the influence of
alcohol (“DUI”) (75 Pa.C.S.A. § 3802(a)(1)) and unauthorized use of an
automobile (18 Pa.C.S.A. § 3928(a)). For his DUI conviction, the trial court
sentenced Appellant to time served to six months’ imprisonment, and for his
unauthorized use of an automobile conviction, he received a sentence of time
served to twenty-three months’ imprisonment. Following sentencing,
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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973)
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Appellant immediately was paroled. Appellant eventually violated his parole.
On October 9, 2015, following a Gagnon II hearing, Appellant was
recommitted to serve seventeen months and 23 days in prison. After serving
seven months, Appellant once again was paroled.
On January 24, 2017, Appellant received letters from the Adult
Probation and Parole Department of Montgomery County (“Probation
Department”), informing him that he was charged with the following seven
parole violations:
1. Failed to abstain from the unlawful possession, use, and/or sale
of narcotics or other dangerous drugs and drugs paraphernalia.
To wit: On or about August 31, 2016, September 21, 2016 and
October 21, 2016, you submitted a urine sample to the
Philadelphia County Adult Probation and Parole Department[2]
that tested positive for the presence of marijuana. (Violation
of Rule #8)
2. The subject failed to report to the [Probation Department] as
directed on or about October 3, 2016, and October 20, 2016.
(Violation of Rule #1)
3. Absconded from supervision on or about October 20, 2016
(Violation of Rule #3)
4. Failed to obtain and/or maintain a legal and verifiable address
as directed (Violation of Rule #3)
5. Failed to undergo a Probation and Parole Intervention (PPI)
Evaluation as directed the [trial court]. (Violation of Special
Condition)
6. Failed to enter, cooperate and participate in, and/or completed
an evaluation, test and/or treatment as directed. To wit: The
subject failed to complete a CRN Evaluation and Alcohol High
Safety School. (Violation [of] Special Condition)
7. Failed to pay fines, costs and/or restitution as directed by [the
trial court] (Violation of Rule #6). Docket #: (CP-46-
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2 At some point, Appellant’s parole was transferred to Philadelphia.
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Cr.0007172-2013); Balance Due: $2,444.38; Overdue
Amount: $2,444.38
Violation Letters, 1/24/17. On April 28, 2017, the trial court held a Gagnon
I hearing, at which both sides presented evidence. Following the hearing, the
trial court found that Appellant had violated the conditions of his parole. As a
result, it revoked his parole and, among other things, recommitted him to
serve the remainder of his sentence, i.e., ten months and twenty-four days,
in prison. Appellant timely appealed.
Following Appellant’s filing a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, the trial court issued a detailed Pa.R.A.P. 1925(a)
opinion. The trial court concluded that Appellant was not entitled to relief.
On appeal, in addition to challenging the sufficiency of the evidence
underlying the revocation of his parole, Appellant directs our attention to the
fact that the trial court did not follow the mandates of Gagnon by failing to
hold a Gagnon II hearing. Moreover, Appellant points out in his brief that
the trial court failed to apply the standards applicable to a Gagnon II hearing
to the April 28, 2017 Gagnon I hearing, and, as a result, urges this Court to
remand the matter to the trial court for a proper Gagnon II hearing.
Appellant’s Brief at 34.
As noted earlier, the trial court here did not hold a Gagnon II hearing,
but instead held a Gagnon I hearing, which was contested, before revoking
Appellant’s parole and recommitting him to serve the remainder of his
sentence.
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It is settled, as determined by the United States Supreme Court, that
due process requires parolees be afforded two separate hearings prior to
revoking parole. 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.2 346, 352 (Pa. Super. 2001)
(citation omitted). Importantly, the purpose of a Gagnon II hearing is “to
provide appellant additional due process safeguards,” and, as a result, the
Commonwealth is “required to meet a higher standard of proof at the Gagnon
II hearing.” Id. A parolee, however, may waive his Gagnon II hearing.
“[F]or this Court to uphold such a waiver [of a constitutional right], the record
must clearly demonstrate an informed relinquishment of a known right.”
Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa. Super. 2004) (citations
omitted).
We have determined that the combining of Gagnon I and Gagnon II
hearings is not permitted. In Commonwealth v. Homoki, 605 A.2d 829,
831 (Pa. Super. 1992), we explained “that the case law clearly requires two
independent hearings. Running them together or holding them on the
same day does not meet the constitutional due process requirements set forth
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in Gagnon. . . . We cannot accept that ‘two parts’ to ‘one hearing’ constitute
two separate hearings.” Homoki, 605 A.2d at 831 (emphasis added).
Here, our review of the record reveals—and trial court concedes—that
the trial court failed to hold a Gagnon II hearing. Instead, as noted, it held
a Gagnon I hearing, following which it revoked Appellant’s parole and
recommitted him to prison. Even if we viewed the April 28, 2017 Gagnon I
hearing as a combined Gagnon I and Gagnon II hearing, it still would fall
short of the requirements of Gagnon to hold two independent hearings. See
Homoki, supra. Finally, the record is bereft of any indication that Appellant
voluntarily waived his right to a Gagnon II hearing. Because the trial court
failed to follow the two-hearing requirements of Gagnon and otherwise failed
to colloquy Appellant on the waiver of those rights, we are constrained to
vacate the judgment of sentence and remand this matter to the trial court for
a proper Gagnon II hearing.3
Judgment of sentence vacated. Case remanded for further proceedings.
Jurisdiction relinquished.
Judge Musmanno joins the memorandum.
Judge Ott concurs in the result.
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3 In light of our disposition here, we need not address the merits of this appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/18
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