Commonwealth v. Waters

PRICE, Judge:

This is an appeal from the lower court’s order revoking parole. Appellant contends that he is entitled to discharge because the revocation hearing was not held as speedily as possible as required by Pa.R.Crim.P. 1409. We disagree and affirm the lower court.

On October 9, 1973, appellant William Waters entered a guilty plea to burglary and larceny and was sentenced to time served to twenty-three months imprisonment for burglary and a concurrent three year term of probation for larceny. Appellant would then have completed the sentence for burglary on July 12, 1975, and larceny on August 12, 1976. Appellant was paroled on the burglary conviction on February 12, 1974.

Appellant was arrested on April 9, 1975, for theft. On October 27, 1975, he was convicted of theft and sentenced to eleven and one-half to twenty-three months imprisonment. This conviction provided the basis for the parole violation proceeding which is the subject of the instant appeal.

On March 24, 1976, and April 8, 1976, a revocation hearing was held. Parole was revoked and appellant was ordered to prison for the time remaining, approximately seventeen months, on the October 9, 1973, burglary conviction. Appellant contends that the delay of four months and twenty-six days from the date of conviction until the date of the revocation hearing, March 24, was unreasonable.

At the time of the revocation hearing, appellant was serving his sentence on the October 27, 1975, conviction. In Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), the Supreme Court held that postponing a parole revocation hearing until after the parolee has completed the sentence for the conviction which constituted the parole violation does not offend the principles of due process set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). See also Commonwealth v. Holmes, 248 Pa.Super. 552, 375 A.2d 379 (1977). It is therefore clear that appellant has not been deprived of any federally mandated due process.

This, however, does not end our inquiry. Pa.R.Crim.P. 1409 provides as follows:

“Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole.” (emphasis added).

“The requirement of a speedy revocation hearing embodied in the Rule is nothing more than a restatement of the doctrine developed by our courts that a revocation hearing must be held with ‘reasonable promptness’ after probation officials know or reasonably should have known of the violation.” Commonwealth v. Lipton, 238 Pa.Super. 124, 135-36, 352 A.2d 521, 526 (1975) (dissenting opinion by Hoffman, J.); see also Commonwealth v. Holmes, supra; Commonwealth v. Parker, 244 Pa.Super. 113, 366 A.2d 941 (1976). “Where the alleged violation consists of the commission of another crime during the original period of probation or parole, ‘[i]t is sufficient that the court which imposed the probation [or parole] should act promptly after the [conviction] . . . Commonwealth v. Holmes, supra 248 Pa. at 557, 375 A.2d at 381, quoting Commonwealth v. Duff, 201 Pa.Super. 387, 395, 192 A.2d 258, 262 (1964).

The sole question in every case of this type is whether the delay from the date of conviction to the date of revocation was reasonable. Commonwealth v. Parker, supra. In assessing reasonableness, we must consider the length of the delay, the reasons for the delay and the prejudice to the defendant. Commonwealth v. Holmes, supra; Commonwealth v. Lipton, supra; Commonwealth v. Duff, supra.

In Commonwealth v. White, 218 Pa.Super. 188, 279 A.2d 768 (1971), a delay of five and one-half months was held unreasonable. It is clear, however, that neither Rule 1409 nor Commonwealth v. White, supra, intended to establish a prophylactic five month rule. Commonwealth v. Parker, supra.

In the instant case, appellant contends that the delay of four months and twenty-six days was unreasonable. The Commonwealth, on the other hand, contends that, because of various continuances, it should not be charged with any delay after March 2, 1976. We need not decide this issue,¹ however, because we find that appellant was not prejudiced by any delay.

Appellant does not contend either that he was actually prejudiced in that he could not defend the charge or that the Commonwealth intentionally delayed the revocation process in order to harass him or to gain some tactical advantage. See Commonwealth v. Parker, supra. Our cases have indicated that some minimal prejudice normally follows from the mere fact that the original period of parole has expired. In the instant case, however, appellant was originally sentenced to a concurrent three-year term of probation which, as previously noted, did not expire until August 12, 1976. Appellant cannot contend that he was prejudiced by the Commonwealth’s actions which subjected him to a maximum period of confinement of seventeen months since he would have been subject to at least two years and six months imprisonment if the Commonwealth had elected to proceed on the original larceny conviction.

Because of the minimal delay and the absence of prejudice, we find that, under the circumstances, the revocation proceedings in the instant case were held within a reasonable time following the theft conviction.

The judgment of sentence is affirmed.

SPAETH, J., files a dissenting opinion in which HOFFMAN, J., joins.

1 . According to the testimony at the revocation hearing, appellant did not receive notice of the scheduled hearing until March 15, 1976. Absent other facts, appellant could not be charged with delay prior to this date.