Commonwealth v. Wright ( 2015 )

J-S12014-15
2015 PA Super 116COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHELLE WRIGHT,
Appellant No. 85 EDA 2014
Appeal from the Judgment of Sentence December 2, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0510561-2005
BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.
OPINION BY BOWES, J: FILED MAY 08, 2015
Michelle Wright appeals from the judgment of sentence of eleven and
one-half to twenty-three months imprisonment followed by five years
probation that the trial court imposed after she was found to be in violation
of the terms of her probation. We find that Appellant had concluded serving
her probationary term when the probation was revoked and that her
violation of probation (“VOP”) proceeding was not held within a reasonable
period after her probation violations. We therefore vacate the judgment of
sentence.
On November 14, 2005, Appellant entered a negotiated guilty plea to
one count of welfare fraud in return for a sentence of three years of
reporting probation and restitution in the amount of $13,967. No petition to
revoke the probation appears in the record nor does the docket indicate that
*
Former Justice specially assigned to the Superior Court.
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one was filed. A violation of probation (“VOP”) hearing was conducted on
December 2, 2013. At that time, the following occurred. Appellant objected
to the court’s jurisdiction to conduct a VOP hearing and claimed that her
probationary period expired years before the hearing was conducted. The
Commonwealth countered that Appellant absconded from probation during
the probationary period so that Appellant remained subject to probation.
To establish Appellant’s status as absconder, Probation Officer Brian
Brown testified as follows. According to Appellant’s probation records,
Appellant reported to her probation officer until June 25, 2007, and paid
$22.50 in restitution. Mr. Brown then testified that Appellant re-initiated
contact with the probation office on December 2, 2009. N.T. VOP, 12/2/13,
at 8 (“THE PROBATION OFFICER: It was noted that there was contact June
25, 2007, and then not until December 2, 2009.”); Id. at 18 (“I wrote down
that she had contact on June 25, 2007, and didn’t have contact again until
December 2, 2009.”). Officer Brown could not testify personally as to these
events, his testimony being premised upon notations in Appellant’s probation
records by her previous probation officer. Officer Brown testified that,
“According to the last probation officer’s notes, from 6/25/07 she absconded
until December 2, 2009.” Id. at 7-8.
The Commonwealth also reported to the trial court that Appellant had
a direct violation of the terms of her probation in the form of 2013 federal
convictions for bank fraud and conspiracy. Appellant objected to the
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Commonwealth’s characterization of those convictions as probation
violations and maintained that her probationary period had expired by 2013.
The Commonwealth responded that Appellant was a probation absconder
and that her probationary period had not expired. Based upon the 2013
federal convictions, the Commonwealth sought a term of incarceration.
Appellant then objected to the timeliness of the revocation
proceedings. She also claimed that she could not be found to be a probation
absconder because such a finding would be premised solely upon hearsay in
her probation records consisting of the notations that she did not report from
June 25, 2007, to December 2, 2009. The trial court concluded that
Appellant violated her probation based upon technical violations as well as a
direct violation, the federal convictions. It imposed “11 and a half to 23
months incarceration with immediate parole to be followed by five years of
reporting probation.” Id. at 26.
Appellant filed a motion for reconsideration of the revocation decision
and the sentence, that motion was promptly denied, and this timely appeal
followed. She raises the following issues for our review:
1. Did not the trial court lack jurisdiction or authority to
revoke appellant's probation, where that probation had naturally
expired approximately five years prior to the revocation hearing
and where the court's conclusion that appellant had absconded
from supervision was not justified by the evidence?
2. Did not the trial court violate appellant's right to a
speedy revocation hearing, where no allegations of technical
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violations were brought and no hearing was held until five years
after the natural expiration of her supervision?
Appellant’s brief at 3.
Initially, we note that, in an appeal from a sentence imposed after the
court has revoked probation, we can review 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). In this case, Appellant’s position pertains to the validity of the
proceedings. Commonwealth v. Ortega, 995 A.2d 879 (Pa.Super. 2010).
“In a revocation hearing the Commonwealth has the obligation of
establishing its case by a preponderance of the evidence.” Commonwealth
v. Brown, 469 A.2d 1371, 1374 n.2 (Pa. 1983).
We also observe that the hearing was extremely disjointed, with the
Commonwealth maintaining that Appellant was an absconder and thus still
subject to probation, that she violated probation by failing to report, and
that she violated probation by committing the 2013 federal offenses.
Appellant continually interjected that she was no longer on probation, that
the VOP hearing was not held in a timely manner, and that the
Commonwealth did not prove that she was an absconder since that finding
could not be premised upon the hearsay proof submitted being the notations
made by the prior probation officer.
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We first discuss the issue of whether Appellant was a probation
absconder since that finding impacts the remaining issues. Appellant
maintains that it was impermissible for the trial court to determine that she
was a probation absconder based upon inadmissible hearsay consisting of
the notations made by the prior probation officer, who failed to testify. We
conclude that we need not address the hearsay issue since, even if the
notations were improper hearsay admitted to establish that Appellant was an
absconder, those same hearsay notations likewise proved that Appellant had
finished serving her probationary term when the direct violations occurred
and that the VOP hearing was not conducted within a reasonable period after
the 2007 – 2009 reporting violations.
In Ortega, supra, at 885, we held that a defendant’s probation will be
“extended by his ongoing delinquency.” Herein, the notations in Appellant’s
file indicated that she was on probation from November 14, 2005 to June 25,
2007, nineteen months, and that she re-initiated contact with her probation
officer on December 2, 2009. Officer Brown stated unequivocally that
Appellant was no longer an absconder as of December 2, 2009. N.T. VOP
Hearing, 12/2/13 at 7-8 (emphasis added) (“According to the last probation
officer’s notes, from 6/25/07 she absconded until December 2, 2009.”)1
1
Appellant informed the court that she moved from the Philadelphia area
and that after 2009, she was given permission to report by telephone. At
the time of the VOP hearing, she was employed and the sole caretaker of
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As of December 2, 2009, Appellant had to serve an additional seventeen
months probation. Thus, Appellant’s probationary term, according to the
Commonwealth’s own proof, expired on May 2, 2011, seventeen months
after she reinstituted contact with her probation officer.
In rendering this finding, we observe the following. The
Commonwealth, as noted, has the burden of proof in a probation revocation
setting. Thus, it had to establish that Appellant was a probation absconder.
Under Ortega, the probationary term is extended only by the period of
delinquency. Although the Commonwealth presented evidence that
Appellant resumed contact with her probation officer on December 2, 2009,
it presented not a scintilla of evidence that Appellant was an absconder after
that date. Instead, her probation officer admitted that she was no longer
considered an absconder on December 2, 2009. Thus, Appellant’s absconder
status ceased at that time.
Assuming, arguendo, that Appellant’s delinquency began on June 25,
2007, and expired on December 2, 2009, her probation, as extended by
Appellant’s period of delinquency, ended on May 2, 2011. Her probation was
not revoked until December 2, 2013, which was thirty-one months after
expiration of her probationary period, and four years after she committed
her two minor children. She agreed to resume making payments on the
restitution.
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the 2007-2009 probation violations consisting of the failure to report and
pay restitution.
We are aware that a sentence for a violation of the terms of probation
can be imposed after the expiration of the probationary period if the
revocation is based on a violation which occurred within the probationary
period. Commonwealth v. Lipton, 52 A.2d 521 (Pa.Super. 1975).
However, in that circumstance, the probation must be revoked and the
sentence must be imposed within a reasonable time after the expiration of
the probationary period. Id. at 522 (“When a sentence is imposed after the
expiration of a probationary period, based upon a violation which occurred
within the period (the situation in the case before us), the probation must be
revoked and the sentence imposed within a reasonable time after the
expiration of that period.”).
Similarly, Pa.R.Crim.P. 708, which pertains, inter alia, to a violation of
probation, provides, in relevant part:
(B) 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) a hearing held as speedily as possible at 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.
Pa.R.Crim.P. 708(B) (emphasis added).
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The bolded language has been interpreted as requiring a probation
violation hearing within a reasonable time. In determining whether a VOP
hearing is held within a reasonable period, we examine “the length of the
delay; the reasons for the delay; and the prejudice resulting to the
defendant from the delay.” Commonwealth v. Woods, 965 A.2d 1225,
1227 (Pa.Super. 2009) (quoting Commonwealth v. Clark, 847 A.2d 122,
123–24 (Pa.Super. 2004)).
We now examine both aspects of the trial court’s finding that Appellant
violated her probation. It found a direct violation due to the 2013 federal
convictions as well as technical violations consisting of the failure to report
and pay restitution from 2007-2009. As noted, when a violation of
probation occurs within the probationary period, but the VOP hearing occurs
after probation expires, probation can be revoked if the VOP hearing is held
within a reasonable period. Herein, the Commonwealth reported that
Appellant was convicted of federal bank fraud and conspiracy charges in
2013. N.T. VOP, 12/2/13, at 10 (Commonwealth informed the court that
Appellant’s convictions occurred in 2013), after the probation was over.
Additionally, Appellant’s probation officer admitted that the federal charges
occurred after Appellant’s probationary sentence was served in this case:
THE COURT: Why are we here?
THE PROBATION OFFICER: For a direct violation.
THE COURT: That occurred after my probation ended?
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THE PROBATION OFFICER: It did, correct.
THE COURT: Why did you schedule a hearing?
THE PROBATION OFFICER: I just took the case about a month
ago. The direct violation happened – but these cases tend to not
naturally expire because it’s financial, so they get really clouded.
N.T. VOP, 12/2/13, at 5. Since Appellant’s probation was over as of May 2,
2011, a conviction occurring in 2013 cannot serve as a basis for revoking
that probation.
We stress that, at the probation revocation hearing, the
Commonwealth provided no proof as to when these federal crimes were
committed. It reported only that the conviction was in 2013. In its brief,
the Commonwealth suggests that the crime occurred while Appellant was
still on probation herein. Commonwealth’s brief at 3. It cites to pages ten
and twenty-one of the VOP hearing in support of this factual assertion. The
transcript provides no support for this position. At page ten, the district
attorney stated that the federal “conviction occurred this year,” which was
2013. N.T. VOP Hearing, 12/2/13, at 10. Page twenty-one does not
mention the federal crimes. Thus, the record cannot sustain a finding that
Appellant was charged in the federal case before her probation expired in
2011. Moreover, Appellant was no longer a fugitive from justice as of
December 2, 2009. Thus, we reject the Commonwealth’s assertion that,
while she was “a fugitive, defendant defrauded a federal bank, and was
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convicted in federal court of bank fraud and criminal conspiracy.”
Commonwealth’s brief at 2.
We now examine whether probation was properly revoked due to
Appellant’s alleged failure to report and pay restitution from June 25, 2007
to December 2, 2009. We conclude that the VOP hearing for those violations
was not held within a reasonable period after the violations occurred.
Herein, the length of the delay was significant, four years after the violations
occurred and thirty-one months after probation expired. We believe this
delay was unreasonable. Commonwealth v. Stancil, 524 A.2d 505(Pa.Super. 1987), is instructive. Therein, we held that the defendant’s
counsel was ineffective for failing to object to an unexplained and lengthy
delay in conducting a VOP hearing. The defendant failed to make required
restitution, and, three years after the end of his probationary term, his
probation was revoked based on that default.
We observed that, even though “there is no presumptive period in
which a defendant's probation must be revoked, revocation hearings must
be held with reasonable promptness after a probation officer is chargeable
with knowing that probation has been violated.” Id. at 506-07. We noted
that the Commonwealth did not offer any reason for the delay and that it
was a long one. We specifically indicated, “Although Appellant does not
allege any prejudice from this delay, we have held that in cases where
probation revocation hearings are not held until after the expiration of the
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probationary term, a certain amount of prejudice necessarily follows from
the fact of the expiration of that probation.” Id. at 507. We thus held that
the defendant was prejudiced by the delay. See also Commonwealth v.
McCain, 467 A.2d 382 (Pa.Super. 1983) (where VOP hearing was held
twelve months after defendant committed direct violation of his probation
and three months after his probationary period expired, hearing was not
held within a reasonable period).
In this case, the Commonwealth knew about the 2007-2009 reporting
violations when Appellant reinitiated contact with her probation officer on
December 2, 2009. See Commonwealth v. Bomberger, 257 A.2d 630,
632 (Pa.Super. 1969) (the probation “department which is charged with the
duty to investigate whether appellant obeyed the terms of his probation
certainly should have known of his failure to make restitution” and
defendant’s VOP hearing was not held within a reasonable period after he
defaulted on restitution payments). It offered absolutely no reason for
failing to conduct VOP proceedings until December 2, 2013, four years after
Appellant violated her probation by failing to report, which weighs in favor of
Appellant herein. McCain, supra at 384 (“absence of adequate explanation
for the delay must be weighed” against Commonwealth). In this connection,
we note that, since there was no evidence that Appellant committed the
federal crimes before May 2, 2011, the Commonwealth cannot contend that
the delay resulted from its decision to await the outcome of the federal trial.
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Finally, Appellant was presumptively prejudiced by this delay since it
occurred two and one-half years after her probation was over. Additionally,
we find prejudice because the trial court’s decision to sentence her to jail
was affected by the 2013 convictions, which would not have been a
consideration had the VOP hearing been held promptly after Appellant began
reporting to her probation officer on December 2, 2009, when the reporting
violations ceased. Specifically, we find that the trial court elected to
sentence Appellant to incarceration based solely upon the 2013 offenses due
to the following. The Commonwealth requested a term of imprisonment
because Appellant committed the 2013 federal crimes, which, as noted, it
claimed were direct probation violations. The trial court agreed that a jail
sentence was appropriate based upon these direct violations. N.T. VOP,
12/2/13, at 13 (where the trial court indicated that Appellant should serve a
period of incarceration given that she “has a direct violation”).
In conclusion, we find the following. The Commonwealth established
that Appellant’s period of delinquency extended her probation to May 2,
2011, the 2013 federal crimes cannot serve as a basis for a revocation of
Appellant’s probation, and Appellant’s December 2, 2013 VOP hearing was
untimely as to her alleged reporting violations, which occurred from 2007 to
2009.
Judgment of sentence vacated. Jurisdiction relinquished.
Judge Shogan joins the Opinion.
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Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2015
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