Com. v. Moriarty, P.

J-S70012-17
2018 PA Super 51COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PHILIP LAWRENCE MORIARTY :
:
Appellant : No. 780 MDA 2017
Appeal from the PCRA Order April 25, 2017
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000492-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
OPINION BY GANTMAN, P.J.: MARCH 08, 2018
Appellant, Philip Lawrence Moriarty, appeals from the order entered in
the Adams County Court of Common Pleas, which denied his first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We reverse
the order denying PCRA relief and vacate Appellant’s revocation sentence.
The relevant facts and procedural history of this case are as follows.
On July 21, 2014, Appellant entered a negotiated guilty plea to recklessly
endangering another person (“REAP”) and resisting arrest. The court
sentenced Appellant that day in accordance with the plea agreement to one
to twenty-three months and twenty-nine days’ imprisonment for REAP and a
consecutive term of twelve months’ probation for resisting arrest. The court
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1 42 Pa.C.S.A. §§ 9541-9546.
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immediately paroled Appellant. The terms of Appellant’s parole/probation
prohibited Appellant from committing any violation of the law.
While Appellant was on parole, the Commonwealth charged him at
docket No. CP-01-CR-0000521-2016 (“docket 521-2016”), with aggravated
assault, terroristic threats, simple assault, and harassment. On March 7,
2016, the Commonwealth filed a motion for revocation of parole/probation
regarding Appellant’s REAP and resisting arrest convictions, based on the
new charges. The Commonwealth claimed the new charges constituted a
“Rule 1 violation” (prohibition against committing any violation of the law).
The court appointed counsel to represent Appellant for the revocation
proceedings as well as the new charges. Regarding the original REAP and
resisting arrest convictions, on March 15, 2016, Appellant waived his
Gagnon I hearing.2 Regarding the new charges at docket 521-2016,
Appellant waived a preliminary hearing on April 20, 2016.
Appellant proceeded to a Gagnon II hearing3 on April 28, 2016,
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2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656(1973). See also Commonwealth v. Ferguson, 761 A.2d 613 (Pa.Super.
2000) (explaining that when parolee or probationer is detained pending
revocation hearing, due process requires determination at pre-revocation
hearing (Gagnon I hearing) of probable cause to believe violation was
committed; upon finding of probable cause, second, more comprehensive
hearing (Gagnon II hearing) follows before court makes final revocation
decision).
3 Where the court holds a revocation hearing, based on new criminal
charges, before the defendant’s trial on the new charges, the proceeding is
(Footnote Continued Next Page)
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regarding his 2014 REAP and resisting arrest convictions, before his trial on
the new charges. The court had the following exchange with Appellant and
defense counsel:
[THE COURT]: Counsel, anything to say at this
time?
[DEFENSE COUNSEL]: No, Your Honor. I have
discussed this matter both with [Appellant] as well as the
Probation Department. We concur with the action taken
today.
[THE COURT]: [Appellant], have you had a
chance to see the motion for revocation, sir?
[APPELLANT]: Yes, Your Honor.
[THE COURT]: The motion is dated March 7th of
this year. It alleges a Rule 1 violation pertaining to
aggravated assault, terroristic threats charges brought by
the Pennsylvania State Police; do you understand that?
[APPELLANT]: Yes, Your Honor.
[THE COURT]: You have the right to a hearing
in this matter. If you acknowledge the violations, you are
giving up your right to have that hearing; do you
understand that?
[APPELLANT]: Yes, Your Honor.
[THE COURT]: [Then] if you acknowledge the
violations on the parole revocation, the [back] time is 22
months 28 days. You would be recommitted to that
subject to future re-parole. On Count 3 [resisting arrest],
(Footnote Continued) _______________________
commonly known as a “Daisey-Kates hearing.” See Commonwealth v.
Kates, 452 Pa. 102, 305 A.2d 701 (1973). Here, the parties and PCRA
court refer to Appellant’s revocation hearing as a Gagnon II hearing, so we
will use that terminology as well.
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that’s a misdemeanor of the second degree. You could be
sentenced up to two years in jail on that count; do you
understand that?
[APPELLANT]: Yes, Your Honor.
[THE COURT]: Has anyone promised you
anything or threatened you in any way to cause you to
acknowledge the violations?
[APPELLANT]: No, Your Honor.
[THE COURT]: Are you on any medication or
under the influence of any substance that affects your
ability to think clearly?
[APPELLANT]: No, Your Honor.
[THE COURT]: Are you acknowledging the
violations because you did in fact commit those
violations?
[DEFENSE COUNSEL]: Because you got arrested on
new charges.
[APPELLANT]: Yes, Your Honor.
[THE COURT]: I’ll accept the
acknowledgement.
(N.T. Gagnon II Hearing, 4/28/16, at 2-3) (emphasis added). The court
subsequently revoked Appellant’s parole for the REAP conviction and
recommitted Appellant to serve the time remaining on that sentence, which
was twenty-two months and twenty-eight days’ imprisonment, with credit
for the time served. Regarding the resisting arrest conviction, the court
revoked probation and resentenced Appellant to twelve months’ consecutive
probation. Appellant did not file a direct appeal. On December 6, 2016, a
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jury acquitted Appellant of all the new charges at docket 521-2016.
On December 19, 2016, Appellant timely filed a pro se PCRA petition,
raising claims of revocation counsel’s ineffectiveness. Appellant also filed,
on December 29, 2016, a pro se “motion to withdraw plea nunc pro tunc and
to vacate sentence, or alternatively, to modify the sentence of 4/28/16, or
release Appellant on immediate parole.” The court ultimately ordered
Appellant paroled directly to an inpatient facility but denied the December
29, 2016 motion in all other respects. Regarding Appellant’s pro se PCRA
petition, the court appointed counsel.
The court held a PCRA hearing on April 20, 2017, centered on
Appellant’s claim that revocation counsel was ineffective for advising
Appellant to acknowledge his new charges at the Gagnon II hearing, which
led to the revocation of his parole and probation, before proceeding to trial
on the new charges. Appellant testified at the PCRA hearing, inter alia: (1)
Appellant told counsel he was innocent of the new charges at docket 521-
2016; (2) counsel did not inform Appellant that he could defer the Gagnon
II hearing until after trial on his new charges; (3) counsel told Appellant to
acknowledge his arrest on the new charges so he could get work release; (4)
Appellant believed he was confirming at the Gagnon II hearing only that he
had been arrested on new charges; and (5) counsel did not inform Appellant
that an arrest on new charges alone was insufficient to justify revocation of
his parole/probation. (N.T. PCRA Hearing, 4/20/17, at 12-26).
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Revocation counsel testified at the PCRA hearing, inter alia: (1) the
court appointed him to represent Appellant for the revocation proceedings as
well as the new charges at docket 521-2016; (2) counsel spent roughly one
hour talking with Appellant about his revocation proceedings and the new
charges; (3) Appellant was very concerned about his employment and
stressed that he wanted work release; (4) counsel told Appellant that if he
deferred the Gagnon II hearing he would be ineligible for work release, but
if he went ahead with the revocation proceedings and then made bail on the
new charges, he could be eligible for work release; and (5) Appellant
acknowledged his arrest on new charges at the Gagnon II hearing which
was sufficient to revoke his parole/probation when coupled with Appellant’s
waiver of the preliminary hearing on the new charges. (Id. at 27-37).
At the conclusion of the PCRA hearing, the court took the matter under
advisement. On April 25, 2017, the court denied relief. Appellant timely
filed a notice of appeal on May 11, 2017. The next day, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on June 2, 2017.
Appellant raises the following issues for our review:
WHETHER THE COURT’S DENIAL OF [APPELLANT’S] PCRA
PETITION WAS SUPPORTED BY THE EVIDENCE AND FREE
FROM LEGAL ERROR WHEN:
1. COUNSEL WAS INEFFECTIVE IN FAILNG TO ADVISE
[APPELLANT] OF HIS RIGHT TO A FULL HEARING ON APRIL
28, 2016…AND/OR TO DEFER A HEARING ON THE PAROLE
REVOCATION UNTIL AFTER A TRIAL ON THE NEW
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CHARGES WHEN [APPELLANT] INSISTED ON HIS
INNOCENCE RELATED TO THE NEW CHARGES.
2. COUNSEL WAS INEFFECTIVE IN FAILING TO KNOW THE
EVIDENTIARY STANDARD FOR A PAROLE REVOCATION
AND ADVISING [APPELLANT] TO ACKNOWLEDGE THE
VIOLATION BASED SOLELY ON THE FILING OF NEW
CHARGES AND [APPELLANT’S] WAIVER OF HIS
PRELIMINARY HEARING.
3. COUNSEL WAS INEFFECTIVE IN ADVISING
[APPELLANT] TO ADMIT A PAROLE VIOLATION WHEN
[APPELLANT] INSISTED HE WAS INNOCENT OF THE NEW
CHARGES, [APPELLANT] ONLY ACKNOWLEDGED HE HAD
BEEN ARRESTED AND CHARGED WITH A CRIME, AND
THERE WAS NO EVIDENCE PRESENTED AT THE PAROLE
REVOCATION HEARING THAT WOULD MEET THE
STANDARD OF PROOF OF A VIOLATION BY A
PREPONDERANCE OF THE EVIDENCE REQUIRED FOR
REVOCATION.
4. THERE WAS NO REASONABLE BASIS FOR COUNSEL TO
ADVISE [APPELLANT] TO ACKNOWLEDGE THE VIOLATION,
BE RECOMMITTED TO THE BALANCE OF HIS ORIGINAL
SENTENCE, AND LOSE ALL OF HIS STREET TIME SO THAT
HE COULD BE ELIGIBLE FOR WORK RELEASE, WHEN
[APPELLANT] WAS NOT ELIGIBLE FOR WORK RELEASE
DUE TO THE PENDING AGGRAVATED ASSAULT CHARGE
AND OTHER CHARGES.
(Appellant’s Brief at 4-5).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959
A.2d 319 (2008). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
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Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). If the record
supports a post-conviction court’s credibility determination, it is binding on
the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297(2011). “A PCRA court’s legal conclusions, however, are reviewed de novo.”
Commonwealth v. Green, 168 A.3d 173, 175 (Pa.Super. 2017).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues revocation counsel did not inform Appellant that he could defer the
revocation hearing until after trial on the new charges at docket 521-2016.
Appellant asserts counsel also failed to tell Appellant he was entitled to a full
Gagnon II hearing on April 28, 2016, at which time the Commonwealth was
required to prove by a preponderance of the evidence that Appellant had
violated his parole and that parole was no longer an effective rehabilitation
tool for Appellant. Appellant maintains he relied on revocation counsel’s
interjection to “acknowledge the violation” to mean Appellant was “arrested”
on new charges. Appellant claims counsel’s interpretation and advice was
erroneous because an arrest alone is insufficient to warrant revocation of
parole/probation. Appellant insists his arrest on the new charges, without
more, does not satisfy the “preponderance of the evidence” burden of proof
required at a revocation proceeding. Appellant contends the fact that he
also waived a preliminary hearing on the new charges is irrelevant to the
burden of proof required at a revocation proceeding because a preliminary
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hearing decides only whether the Commonwealth has established a prima
facie case, which is a lower burden than preponderance of the evidence.
Appellant highlights that he did not actually acknowledge violating the
law at the revocation hearing; he acknowledged only his arrest on new
charges. Appellant states counsel lacked a reasonable basis for instructing
Appellant to proceed to the revocation hearing before trial on the new
charges, so Appellant could be eligible for work release, because the Adams
County Department of Probation Services Community Reentry Program
policy generally prohibits work release under these circumstances. Appellant
emphasizes a jury ultimately acquitted him of the new charges. Appellant
submits he suffered prejudice due to counsel’s faulty advice, where the court
revoked Appellant’s parole/probation, resentenced him, and denied him
credit for all of his street time, based on what turned out to be nonexistent
violations. Appellant concludes revocation counsel was ineffective, and this
Court must reverse the order denying PCRA relief, vacate the revocation
sentence, and remand for the court to give him appropriate credit for time
served on the original sentence. We agree Appellant is entitled to relief.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is
required to plead and prove: (1) the underlying claim has arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; and
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(3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).
Pennsylvania Rule of Criminal Procedure 708 governs violations of
parole/probation, in pertinent part, as follows:
Rule 708. Violation of Probation, Intermediate
Punishment, or Parole; Hearing and Disposition
(A) A written request for revocation shall be filed with
the clerk of courts.
(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(A)-(B). Additionally, with respect to revocation of
probation, Section 9771 of the Sentencing Code provides:
§ 9771. Modification or revocation of order of
probation
(a) General rule.—The court may at any time
terminate continued supervision or lessen or increase the
conditions upon which an order of probation has been
imposed.
(b) Revocation.—The court may revoke an order of
probation upon proof of the violation of specified conditions
of the probation. Upon revocation the sentencing
alternatives available to the court shall be the same as
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were available at the time of initial sentencing, due
consideration being given to the time spent serving the
order of probation.
(c) Limitation on sentence of total
confinement.—The court shall not impose a sentence of
total confinement upon revocation unless it finds that:
(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 essential to vindicate the
authority of the court.
(d) Hearing required.—There shall be no revocation
or increase of conditions of sentence under this section
except after a hearing at which the court shall consider the
record of the sentencing proceeding together with
evidence of the conduct of the defendant while on
probation. Probation may be eliminated or the term
decreased without a hearing.
42 Pa.C.S.A. § 9771.
Regarding Gagnon II hearings:
The first step in a Gagnon II revocation decision…involves
a wholly retrospective factual question: whether the
parolee or probationer has in fact acted in violation of one
or more conditions of his parole or probation. It is this fact
that must be demonstrated by evidence containing
probative value. Only if it is determined that the parolee
or probationer did violate the conditions does the second
question arise: should the parolee or probationer be
recommitted to prison or should other steps be taken to
protect society and improve chances of rehabilitation?
Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.Super. 2001) (internal
citations and quotation marks omitted). “Unlike a criminal trial where the
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burden is upon the Commonwealth to establish all of the requisite elements
of the offenses charged beyond a reasonable doubt, at a revocation hearing
the Commonwealth need only prove a violation of [parole or] probation by a
preponderance of the evidence.” Id. at 350 (internal quotation marks
omitted).
“The threat of revocation may be executed on the basis of an arrest
and evidence of some facts in addition.” Id. (emphasis added).
Significantly, an arrest on new charges coupled with the waiver of a
preliminary hearing on the new charges is insufficient, absent more, to
revoke parole or probation. Id. (explaining arrest alone, without facts to
support arrest, is insufficient to revoke probation or parole; waiver of
Gagnon I hearing establishes only prima facie show of probable cause to
believe violation occurred; waiver of Gagnon I hearing does not concede
that Commonwealth proved alleged violation by preponderance of evidence;
similarly, defendant who waives preliminary hearing does not concede he is
guilty of new charges; rather, he agrees to be bound over for trial for
presentation of evidence and rendering of verdict). See also
Commonwealth v. Allshouse, 969 A.2d 1236 (Pa.Super. 2009)
(reiterating well-settled law that probation cannot be revoked solely on basis
of arrest); Commonwealth v. Fleeger, 437 A.2d 60 (Pa.Super. 1981)
(explaining before court revokes probation, Commonwealth must offer more
facts than just defendant’s arrest).
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Further, our Supreme Court has stated:
[W]hen the basis for revocation arises from the advent of
intervening criminal conduct, a [revocation] hearing may
be held prior to any trial arising from such criminal
conduct. On the other hand, this Court has recognized
that it is not unreasonable for a probation revocation
hearing to be postponed pending adjudication of criminal
charges which are the basis for the revocation.
Commonwealth v. Infante, 585 Pa. 408, 421, 888 A.2d 783, 791 (2005)
(internal citations and quotation marks omitted). The rationale and
preference for deferring revocation proceedings is to “avoid the possibly
unjust result of revoking probation, only to find later that the probationer
has been acquitted of the charges that prompted the revocation hearing.”
Id. at 422, 888 A.2d at 792. See also Commonwealth v. Royster, 524
Pa. 333, 572 A.2d 683 (1990) (reversing and vacating revocation sentence
where new charges, which had formed sole basis for revocation of probation,
were ultimately dismissed).
Instantly, while Appellant was on parole, the Commonwealth brought
new charges of aggravated assault, terroristic threats, simple assault, and
harassment against him at docket 521-2016, On March 7, 2016, the
Commonwealth filed a motion for revocation of parole/probation, claiming
the new charges constituted a “Rule 1 violation” (prohibition against
committing any violation of the law). The new charges formed the sole basis
for revocation; the Commonwealth cited no technical violations of
parole/probation. The court appointed counsel to represent Appellant for the
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revocation proceedings as well as the new charges. Appellant waived his
Gagnon I hearing on March 15, 2016. Appellant also waived a preliminary
hearing on April 20, 2016, regarding the new charges.
On the advice of revocation counsel, Appellant proceeded to a Gagnon
II hearing on April 28, 2016, instead of deferring the revocation hearing
until after trial on the new charges. The notes of testimony from the
Gagnon II hearing make clear the Commonwealth did not present any
factual evidence of Appellant’s parole/probation violation, other than his
arrest on the new charges. The court revoked Appellant’s parole/probation
because Appellant purportedly “acknowledged the violation.” (See N.T.,
4/28/16, at 2-3.) Nevertheless, the record shows Appellant confirmed only
the fact of his arrest on new charges. (See id.) Nothing in the record
indicates Appellant stipulated to or otherwise agreed that he had actually
violated a term of his parole/probation. Rather, the court accepted the mere
acknowledgment of Appellant’s arrest as the basis for revocation.
Importantly, Appellant’s waiver of a Gagnon I hearing, his arrest on
new charges, and/or his waiver of a preliminary hearing on the new charges,
are individually and cumulatively insufficient to warrant revocation of
parole/probation, under the circumstances of this case. See Allshouse,
supra; Sims, supra. Therefore, Appellant’s ineffectiveness of counsel claim
has arguable merit.
Revocation counsel testified at the PCRA hearing that he advised
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Appellant to proceed to the Gagnon II hearing before trial on the new
charges because Appellant would have a better chance at eligibility for work
release, so long as he also made bail on the new charges. According to the
record entries for Appellant’s new charges at docket 521-2016, counsel did
not file a motion for modification of bail until July 25, 2016, nearly three
months later, which the court subsequently denied on August 25, 2016.
Revocation counsel also failed to explain the basis for his belief that
Appellant would have been eligible for work release under the Adams County
work release policy. Notably, the record does not contain the work release
eligibility requirements for Adams County.4 Likewise, the Commonwealth
does not even attempt to refute Appellant’s contention that he was ineligible
for work release due to the new charges. Thus, the reasonableness of
revocation counsel’s advice on this topic is dubious.
Further, a jury ultimately acquitted Appellant of all the new charges at
docket 521-2016. Appellant suffered prejudice due to counsel’s faulty
advice, where the court revoked Appellant’s parole/probation, resentenced
him following that revocation, and denied him credit for all of his street time,
based on what turned out to be nonexistent violations. Appellant’s
revocation sentence was due to counsel’s flawed advice. If counsel had
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4The Pennsylvania Administrative Code requires each county to implement
policies specifying the criteria for eligibility for work release. See 37
Pa.Code § 451.124(b)(1).
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advised Appellant to defer his revocation hearing until after trial on the new
charges, Appellant would not have been subject to a revocation sentence.5
See Infante, supra; Royster, supra. Based on the foregoing, we hold
Appellant has sufficiently demonstrated each prong of the test for ineffective
assistance of counsel. See Kimball, supra. Accordingly, we reverse the
order denying PCRA relief, vacate Appellant’s revocation sentence, and
remand for the trial court to recalculate Appellant’s credit for time served on
his original sentence.
Order reversed; revocation sentence vacated; case remanded for
further proceedings. Jurisdiction is relinquished.
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5 The Commonwealth and trial court opinion state Appellant raises for the
first time on appeal his claims that counsel was ineffective for failing to
advise Appellant that he could defer his revocation hearing until after trial on
the new charges and that counsel gave faulty advice regarding Appellant’s
eligibility for work release. Nevertheless, the record confirms Appellant
adequately pursued and preserved these claims during the PCRA hearing.
(See N.T., 4/20/17, at 13-15; 17-18; 29-31.) In any event, Appellant’s
revocation sentence is infirm, and we can correct the error sua sponte. See
generally Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003)
(en banc) (explaining illegal sentence is subject to sua sponte review and
correction, assuming proper jurisdiction).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/08/2018
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