Com. v. Weiner, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL NEIL WEINER :
:
Appellant : No. 441 EDA 2019
Appeal from the Judgment of Sentence Entered January 10, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009257-2015
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 07, 2020
Appellant, Daniel Neil Weiner, appeals from the judgment of sentence
entered on January 10, 2019, in the Philadelphia County Court of Common
Pleas, following the revocation of his probation. After review, we vacate
Appellant’s judgment of sentence, reverse the order revoking Appellant’s
probation, and remand for further proceedings consistent with this
Memorandum.
The trial court set forth the relevant facts and procedural history of this
matter as follows:
On March 31, 2016, Appellant entered into a negotiated
guilty plea for retail theft as a felony of the third degree and [was]
sentenced to 3 to 23 months of incarceration with immediate
parole at the minimum, and a concurrent 3 years of reporting
probation (March 31, 2016 N.T., p. 24). After receiving this
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* Retired Senior Judge assigned to the Superior Court.
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sentence, Appellant was incarcerated at SCI Laurel Highlands and
thereafter released on July 22, 2016 (July 18, 2018 N.T., p. 6).
Subsequently, the Appellant incurred yet another new arrest for
an additional theft charge on October 28, 2017 (January 2019
N.T., p. 12). Unrelated to the October 28, 2017 arrest, a
probation warrant for the Appellant was issued on December 7,
2017, and a violation of probation hearing was scheduled for
January 18, 2018.
At said hearing, [Appellant] claimed that he “didn’t
understand that he was required to report to probation” (January
18, 2018 N.T., p. 7). Further, Appellant went on to testify as
follows:
When I came home in the past, any time that I had to
be supervised ... in the past, I was under Bucks
County supervision ... Montgomery County did the
supervision for Bucks. I was under the impression that
Montgomery County would be doing the supervision
for Philadelphia. I called Philadelphia, and I gave them
my name and said to them ‘I’m not sure what my
status is.’ ... They put me on hold ... When they came
back on they said, ‘We don’t have anything. We don’t
see anything here. We’ll forward the information to
someone and they’ll get back to you.’
(January 2018 N.T., p. 18). In response, the Commonwealth
simply relied on the written representation of Probation Officer
Jadine Brandon alleging no contact by the Appellant (January 18,
2018 N.T., p. 6), coupled with a credibility argument. Specifically,
the Commonwealth argued that the Appellant[’]s testimony
should be discounted because his criminal record suggested that
he was not a credible witness noting a conviction for theft by
deception in 1994, theft in 1998, forgery in 1999, multiple thefts
in 2002, forgery in 2005, fraud offense in 2007, theft by deception
in 2010 and retail theft(s) in 2013 (January 18, 2018 N.T., p. 25-
26). The Appellant was ultimately found in technical violation of
his probation and resentenced to a period of 3 to 23 months of
incarceration with immediate parole, followed by 3 years of
reporting probation (January 2018 N.T., p. 29). Thereafter, on
February 16, 2018, the Appellant filed an appeal alleging that said
record did not support the revocation and resentencing.
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Subsequently, the Appellant attended three (3) additional
violation of probation hearings before this [c]ourt on May 21,
2018, July 23, 2018 and September 24, 2018. At each listing, the
Appellant was specifically advised that compliance with
probation’s rules and regulations was part of his obligation to stay
in good standing with this [c]ourt. (September 24, 2018 N.T., p.
6).
Additionally, at the conclusion of the September 24, 2018 hearing,
the Appellant signed a subpoena providing him notice of the
probation status hearing then set for January 10, 2019 (Docket
0009257-2015, p. 17).
On October 7, 2018 an Order and an Opinion was issued by
the Superior Court addressing the Appellant’s February 16, 2018
appeal relating to the revocation and resentencing on January 18,
2018. [Commonwealth v. Weiner, 200 A.3d 575, 547 EDA
2018 (Pa. Super., filed October 17, 2018) (unpublished
memorandum) (“Weiner I”).] In pertinent part[,] the Superior
Court found and ordered the following:
We reverse the trial court’s order finding a probation
violation, vacate [Appellant’s] judgment of sentence,
and reinstate the original probation order.
Judgment of sentence vacated. Order of probation
reinstated.
Jurisdiction relinquished.
Judgment Entered.
(October 17, 2018 Superior Court Order and Opinion, p. 6).
On January 10, 2019, the previously scheduled violation of
probation hearing was conducted wherein the Commonwealth
presented uncontested evidence that the Appellant was arrested
on October 28, 2017, in Montgomery County and charged with
theft from a motor vehicle. Further, uncontested evidence was
presented that on July 18, 2018, the Appellant entered into a
guilty plea on said charge (January 10[,] 2019 N.T., p. 7).
Appellant was found to be in direct violation of his probation and
resentenced to back time with immediate parole, followed by four
(4) years of reporting probation. (January 10, 2019 N.T., p. 19).
Appellant filed a motion to vacate this sentence on January
14, 2019; however, this motion was heard and denied [on]
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February 6, 2019. It was after the denial of said motion that
Appellant filed the instant appeal on February 7, 2019.
Trial Court Opinion, 5/10/19, at 1-4 (footnotes omitted). Both the trial court
and Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for this Court’s
consideration:
1. Did not the lower court violate Rule 708(B) of the Pennsylvania
Rules of Criminal Procedure where the lower court’s sua sponte
revocation hearing was untimely?
2. Did not the lower court’s sua sponte revocation hearing and
resultant sentence violate [A]ppellant’s state and federal
constitutional right to due process as he was not provided
adequate notice of a revocation hearing, nor with written notice
of the alleged violation, as required by Gagnon v. Scarpelli, 411
U.S. 778 (1973), and Morrisey v. Brewer, 408 U.S. 471 (1972)?
3. Did not the lower court err as a matter of law and violate the
principles governing the discretionary aspects of sentencing when
it imposed a manifestly excessive and unreasonable sentence,
inasmuch as the lower court did not state adequate grounds for
imposing such a sentence, such a sentence lacked sufficient
support in the record and such sentence failed to give
individualized consideration to [A]ppellant’s personal history and
background, and was in excess of what was necessary to address
the gravity of the offense, the protection of the community, and
[A]ppellant’s rehabilitative needs?
Appellant’s Brief at 4-5.1
In an appeal from a sentence imposed following the revocation of
probation, we review the validity of the revocation proceedings, the legality of
the sentence imposed following revocation, and any challenge to the
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1 For ease of discussion, we have renumbered Appellant’s issues on appeal.
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discretionary aspects of the sentence imposed. Commonwealth v. Wright,
116 A.3d 133, 136 (Pa. Super. 2015) (citation omitted). Additionally:
The imposition of sentence following the revocation of probation
is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.
An abuse of discretion is more than an error in judgment—a
sentencing court has not abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014).
In his first issue, Appellant assails the validity of the revocation
proceedings. Specifically, Appellant avers that the trial court failed to hold a
timely probation revocation hearing in violation of Pa.R.Crim.P. 708. After
review, we conclude that Appellant is entitled to no relief on this claim.
Rule 708 provides, in relevant part, as follows:
(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;
(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).
The language “speedily as possible” has been interpreted to
require a hearing within a reasonable time. Rule 708 does not
establish a presumptive period in which the Commonwealth must
revoke probation; but instead, the question is whether the delay
was reasonable under the circumstances of the specific case and
whether the appellant was prejudiced by the delay. The relevant
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period of delay is calculated from the date of conviction or entry
of guilty plea to the date of the violation hearing.
In evaluating the reasonableness of a delay, the court examines
three factors: the length of the delay; the reasons for the delay;
and the prejudice resulting to the defendant from the delay. The
court must analyze the circumstances surrounding the delay to
determine if the Commonwealth acted with diligence in scheduling
the revocation hearing. Prejudice in this context compromises the
loss of essential witnesses or evidence, the absence of which
would obfuscate the determination of whether probation was
violated, or unnecessary restraint of personal liberty.
Commonwealth v. Woods, 965 A.2d 1225, 1227-1228 (Pa. Super. 2009)
(quoting Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa. Super.
2004)).
The record reveals that Appellant pled guilty to a new crime in
Montgomery County on June 18, 2018, and his violation of probation hearing
in Philadelphia County, which underlies the instant appeal, was held on
January 10, 2019. This resulted in a 206-day delay. See Clark, 847 A.2d at
124 (calculating the delay from the date of the new conviction to the date of
the probation violation hearing).
Next, we examine the reasons for the delay to determine whether the
Commonwealth acted with diligence in scheduling the revocation hearing, and
whether Appellant was prejudiced by the delay. Woods, 965 A.2d at 1228.
Here, the delay in holding the hearing was due solely to Appellant’s failure to
inform his Philadelphia County Probation Officer of his new conviction in
Montgomery County. As noted, Appellant was on probation in the underlying
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Philadelphia County case when he pled guilty to theft from a motor vehicle in
Montgomery County.
After review, we point out that Appellant has not directed this Court’s
attention to any authority that places the burden on a Pennsylvania county to
scour arrest records in other counties or contact other state or federal
agencies to determine if a probationer has committed a new crime. Rather,
the record reveals that Appellant was responsible for informing his probation
officer of any new arrests or convictions. See N.T., 2/6/19, at 5 (Appellant
agreed with the trial court’s assertion that Appellant was on notice of his
responsibility to inform his probation officer within seventy-two hours of any
new arrest).
Thus, we conclude that Appellant had notice of his duty to disclose the
Montgomery County arrest and guilty plea to his probation officer, yet he failed
to do so. We cannot conclude that a probationer who conceals a new
conviction, in direct violation of his probation, may later assert that the delay
he caused counts against the Commonwealth in a Rule 708(B)(1) “speedily as
possible” analysis. Simply stated, it was Appellant’s concealment of the new
conviction that caused the delay, not a lack of due diligence on the part of the
Commonwealth. Woods, 965 A.2d at 1228; cf. Commonwealth v. Gaus,
446 A.2d 661 (Pa. Super. 1982) (holding that revocation of probation was
proper despite a four-year and eight-month delay in holding a revocation
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hearing because four years and six months of that delay was caused by the
probationer concealing his whereabouts).
Additionally, we discern no merit to Appellant’s related argument
concerning prejudice. In his brief, Appellant avers that he was prejudiced
because, if the trial court had simply reinstated the original sentence pursuant
to Weiner I, Appellant would have completed that sentence and not suffered
“an unnecessary restraint of his personal liberty.” Appellant’s Brief at 39-40.
After review, we conclude that the delay in holding the revocation
hearing did not restrain Appellant’s personal liberty. In fact, Appellant’s liberty
was not restrained between the time of the Montgomery County guilty plea
and the revocation of his Philadelphia County probation.
Equally unavailing is Appellant’s averment that he suffered prejudice
because his probation was set to expire but-for the delay in holding the
revocation hearing. It is well settled that the trial court had the authority to
revoke Appellant’s probation even if it had expired because the violation
occurred during the probationary period. See Commonwealth v. Wright,
116 A.3d 133, 137 (Pa. Super. 2015) (holding 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
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within the probationary period).2 Thus, Appellant’s assertion of prejudice is
meritless.
For these reasons, we conclude that Appellant’s challenge to the timing
of his revocation hearing under Rule 708 is unavailing. Accordingly, Appellant
is entitled to no relief on his first issue.
In his next issue, Appellant avers that the trial court revoked his
probation without complying with the requirements of Gagnon v. Scarpelli,
411 U.S. 778 (1973), and he asserts he is entitled to termination of his
probation. Appellant’s Brief at 24; Appellant’s Reply Brief at 2. After review,
we conclude that there is merit to one aspect of Appellant’s claim of error.
Initially, we reiterate that our standard of review is for an abuse of
discretion. Colon, 102 A.3d at 1043. “Upon revocation the sentencing
alternatives available to the court shall be the same as were available at the
time of initial sentencing....” 42 Pa.C.S. § 9771(b). Our scope of review is
limited to the validity of the revocation proceedings, the legality of the
sentence imposed following revocation, and the discretionary aspects of the
sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super.
2013) (en banc).
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2 In such a scenario, probation must be revoked and the new sentence
imposed “within a reasonable time after the expiration of the probationary
period.” Wright, 116 A.3d at 137.
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When a violation of probation is alleged, a probationer is entitled to two
separate hearings. Commonwealth v. Foster, 214 A.3d 1240, 1244 n.3
(Pa. 2019) (“Foster II”) (citing Gagnon, 411 U.S. at 782). The probationer
is first entitled to a hearing to discern whether the probation violation is
supported by probable cause; this hearing is referred to as a Gagnon I
hearing. Id. However, a Gagnon I hearing is not required when the
probationer is arrested and convicted of a new crime, where that new crime
constitutes the basis of the probation violation. Commonwealth v. Davis,
336 A.2d 616, 622 (Pa. Super. 1975). If probable cause exists to support
revocation of probation, a second, more comprehensive hearing, a Gagnon
II hearing, is required before probation may be revoked. Foster II, 214
A.3d at 1244 n.3 (citing Gagnon, 411 U.S. at 782). At the Gagnon II
hearing, the “minimum requirements of due process” include:
(a) written notice of the claimed violations of (probation or)
parole; (b) disclosure to the (probationer or) parolee of evidence
against him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation); (e) a
neutral and detached hearing body such as a traditional parole
board, members of which need not be judicial officers or lawyers;
and (f) a written statement by the factfinders as to the evidence
relied on and reasons for revoking (probation or) parole.
Gagnon, 411 U.S. at 786 (quoting Morrissey v. Brewer, 408 U.S. 471, 489
(1972)) (internal quotation marks omitted); see also Commonwealth v.
Ziegler, 428 A.2d 220, 222 (Pa. Super. 1981) (explaining the requirements
of the Gagnon I and II hearings).
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Appellant argues that he was not afforded a Gagnon I hearing.
Appellant’s Brief at 26. However, as we noted above, when the probation
violation is the commission of a new crime, a Gagnon I hearing is not
mandated because the proceedings in the new crime establish that the
probation violation is supported by probable cause. Davis, 336 A.2d at 622.
Thus, no relief is due relative to a Gagnon I hearing.
Appellant also avers that at the January 10, 2019 probation status
conference, the trial court, sua sponte, transformed the conference into a
probation revocation hearing or a Gagnon II hearing, and this Gagnon II
hearing was conducted without affording Appellant notice of the alleged
probation violation. Appellant’s Brief at 26. Moreover, Appellant avers that
because of this deficiency, termination of his probation is required. Id. at 30.
The record supports Appellant’s assertion that he was not afforded
notice of his alleged probation violations. Moreover, the Commonwealth
concedes this claim in its brief. Commonwealth’s Brief at 5.
It is well settled that “the Commonwealth must strictly comply with the
requirement that notice of the alleged violations be in writing.”
Commonwealth v. DeLuca, 418 A.2d 669, 673 (Pa. Super. 1980).
Accordingly, we are constrained to vacate Appellant’s judgment of sentence,
reverse the order finding Appellant in violation of probation, and remand for
a proper Gagnon II hearing, prior to which the Commonwealth shall provide
written notice to Appellant of the alleged probation violation.
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Commonwealth v. Homoki, 605 A.2d 829, 831-832 (Pa. Super. 1992);
DeLuca, 418 A.2d at 673.
Finally, Appellant avers, pursuant to Foster II, that rather than
remanding for a proper Gagnon II hearing, he is entitled to the termination
of his probation. Appellant’s Brief at 24, 30; Appellant’s Reply Brief at 2. We
disagree.
In Foster II, the defendant was on probation when the Commonwealth
alleged that he was using social media to sell drugs. Foster II, 214 A.3d at
1243. At the defendant’s Gagnon II hearing, the Commonwealth argued that
the defendant’s social media posts were a violation of probation because the
images showed the defendant holding contraband. Id.
Other than the photographs in question, the Commonwealth
presented no evidence at either [of two violation of probation]
hearing[s] in support of its contentions. At no time did the
Commonwealth mention the conditions of [the defendant’s]
current probation, present a document, detailing the conditions,
or suggest that his conduct violated a specific condition of his
probation.
Id. at 1244.
At the conclusion of the Gagnon II hearing, the trial court found the
defendant in violation of his probation, revoked his probation, and sentenced
him to eleven and one-half to twenty-three months of incarceration. Foster,
214 A.3d at 1244-1245. The defendant filed an appeal, and this Court
affirmed the defendant’s judgment of sentence. Commonwealth v. Foster,
183 A.3d 1027, 3572 EDA 2016 (Pa. Super., filed January 3, 2018)
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(unpublished memorandum) (“Foster I”). The defendant filed a petition for
allowance of appeal that was granted on June 25, 2018. Commonwealth v.
Foster, 187 A.3d 913, 54 EAL 2018 (Pa. 2018).
After review, our Supreme Court reversed this Court and held that a
defendant may be found in violation of probation where the trial court finds,
based on a preponderance of the evidence, that the probationer “violated a
specific condition of probation or committed a new crime to be found in
violation. Absent such evidence, a violation of probation does not occur solely
because a judge believes the probationer’s conduct indicates that probation
has been ineffective to rehabilitate or to deter against antisocial conduct.”
Foster, 214 A.3d at 1243. The Supreme Court held it was not required to
remand for a new Gagnon II hearing because the only indicia of probation
violations were images on social media that the Commonwealth alleged
implicated the defendant in criminal activity. Id. at 1253. However, these
images did not establish a violation of any specific condition of probation or a
new crime. Id.
We conclude that Appellant’s case is readily distinguishable from
Foster II. In the case at bar, the trial court did not presuppose any facts or
findings; rather, Appellant was convicted of a new crime in direct violation of
his probation. Therefore, because Appellant directly violated his probation by
committing a new crime, Foster II is inapplicable and does not preclude a
remand for a proper Gagnon II hearing. Foster II, 214 A.3d at 1253 n.17.
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Accordingly, we vacate Appellant’s judgment of sentence and reverse
the order revoking Appellant’s probation. We remand for the Commonwealth
to provide Appellant written notice of the alleged probation violation and for a
proper Gagnon II hearing.3 Commonwealth v. Homoki, 605 A.2d 829,
831-832 (Pa. Super. 1992); DeLuca, 418 A.2d at 673.
Judgment of sentence vacated. Order revoking probation reversed.
Case remanded for further proceedings consistent with this Memorandum.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/20
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3In light of our disposition, we do not reach Appellant’s third issue in which
he challenges the discretionary aspects of his sentence.
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