Com. v. Vennero, G.

J-S32001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GLENN CHRISTOPHER VENNERO,
Appellant No. 1446 WDA 2013
Appeal from the Judgment of Sentence August 5, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005761-2011,
CP-02-CR-0012866-2009
BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 13, 2015
Appellant, Glenn Christopher Vennero, appeals from the judgment of
sentence entered August 5, 2013, following the revocation of his probation.
After careful review, we vacate the judgment of sentence and remand for
further proceedings.
On April 14, 2010, at trial court docket number CP-02-CR-0012866-
2009, Appellant entered a guilty plea to one count each of burglary, criminal
trespass, and theft by unlawful taking. The trial court sentenced Appellant
to three years of probation on the burglary charge and no further penalty on
the other counts. N.T., 4/14/10, at 7. On May 21, 2012, at trial court
docket number CP-02-CR-0005761-2011, Appellant pled guilty to one count
each of burglary, criminal trespass, theft by unlawful taking, possessing an
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instrument of crime, and possession of drug paraphernalia. The trial court
sentenced Appellant to a term of eleven and one-half to twenty-three
months of incarceration followed by three years of probation on the burglary
charge and no further penalty on the other counts. N.T., 5/21/12, at 13. As
part of his probation at both CP-02-CR-0012866-2009 and CP-02-CR-
0005761-2011, Appellant was required to continue with his drug, alcohol,
and mental health treatment, and abstain from using drugs and alcohol. Id.
at 13-16.
While Appellant was serving his terms of probation, the trial court held
regular review hearings. During a review hearing on January 14, 2013, the
trial court informed Appellant that if he failed to comply with the conditions
of probation at both CP-02-CR-0012866-2009 and CP-02-CR-0005761-2011,
he may face incarceration in a state correctional institution. N.T., 1/14/13,
at 3. Appellant subsequently failed to comply with the terms of his
probation, and following a hearing on April 15, 2013, Appellant’s probation
at CP-02-CR-0012866-2009 was revoked, and he was resentenced to a new
term of three years of probation. N.T., 4/15/13, at 11. Thereafter,
Appellant started serving his new term of probation at CP-02-CR-0012866-
2009, continued his probation at CP-02-CR-0005761-2011, and started a
mental health and substance abuse treatment program at Alpha House. Id.
at 6-11.
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On August 5, 2013, the trial court held a hearing regarding allegations
that Appellant had violated his probation at both CP-02-CR-0012866-2009
and CP-02-CR-0005761-2011 based upon his behavior at Alpha House. At
the conclusion of the hearing, the trial court revoked Appellant’s probation at
CP-02-CR-0012866-2009 and sentenced him to a term of one to two years
of incarceration followed by five years of probation. N.T., 8/5/13, at 29.
The trial court also revoked Appellant’s probation at CP-02-CR-0005761-
2011 and sentenced Appellant to a term of three and one-half to seven
years of incarceration followed by five years of probation. Id. at 30. Post-
sentence motions were filed and denied, and Appellant filed a timely appeal.
On appeal, Appellant raises the following issues for this Court’s
consideration:
1. Did the Probation Court act improperly, and violate
Appellant’s state and federal due process rights, when it held
that Appellant had violated the conditions of his probationary
sentences imposed on Allegheny County Criminal Complaint (CC)
Nos. 2009-12866 and 2011-05761 without either (A) holding a
Gagnon II evidentiary hearing into the allegations that he had
violated one or more of those conditions, or, alternatively, (B)
requiring the Commonwealth to bear the burden of proving, at
the Gagnon II hearing, that Appellant had violated the
conditions of those probationary sentences, and instead put the
burden upon Appellant to prove that he had complied with those
conditions?
2. Did the Probation Court act improperly, and violate
Appellant’s state and federal due process rights, when it held
that Appellant had violated the conditions of his probationary
sentences imposed on CC Nos. 2009-12866 and 2011-05761
based upon unsubstantiated averments made by an Allegheny
County Probation Department Agent at the Gagnon II hearing
(thereby foregoing Appellant’s due process-based confrontation
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and cross-examination rights) without either (A) an express
finding that “good cause” existed to do so, or, alternatively, (B)
without the actual existence of the requisite “good cause” for
doing so?
Appellant’s Brief at 4.
When we consider an appeal from a sentence imposed following the
revocation of probation, our standard of review is well settled:
Our review is limited to determining the validity of the probation
revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the
time of the initial sentencing. 42 Pa.C.S. § 9771(b). See also
Commonwealth v. Gheen, 455 Pa. Super. 299, 688 A.2d
1206, 1207 (1997) (the scope of review in an appeal following a
sentence imposed after probation revocation is limited to the
validity of the revocation proceedings and the legality of the
judgment of sentence). Also, upon sentencing following a
revocation of probation, the trial court is limited only by the
maximum sentence that it could have imposed originally at the
time of the probationary sentence. Id., 688 A.2d at 1207-1208.
Accord Commonwealth v. Ware, 737 A.2d 251, 254 (Pa.
Super. 1999).
Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)
(citing Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000)). It
is also well settled that the revocation of a probationary sentence is a matter
committed to the sound discretion of the trial court and that court’s decision
will not be disturbed on appeal in the absence of an error of law or an abuse
of discretion. MacGregor, 912 A.2d at 317. “[A]n abuse of discretion is
more than a mere error of judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-
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will.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (internal
quotation marks omitted).
In his first issue on appeal, Appellant asserts that the trial court erred
when it failed to hold a proper Gagnon II hearing concerning allegations
that he violated his probation and that the trial court erred by shifting the
burden of proof to Appellant. Appellant’s Brief at 4.
Initially, we note that the United States Supreme Court has held that
due process requires probationers be given two separate hearings prior to
revoking probation. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973).
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. Morrissey [v. Brewer, 408
U.S. 471, 484 (1972)]. Notably, the purpose of having a
Gagnon II hearing is to provide appellant additional due
process safeguards. Gagnon, supra. Accordingly, the
Commonwealth is required to meet a higher standard of proof at
the Gagnon II hearing. Those additional due process
safeguards, particularly with regard to the higher standard of
proof required in establishing a violation, would be rendered
meaningless if we found that by waiving the Gagnon I hearing,
that appellant conceded his guilt with regard to having
committed a probation violation. Similarly, a defendant who
waives his preliminary hearing does not concede that he is guilty
of the charges against him. Rather, he agrees to be bound over
for trial where evidence is presented before a finding of guilt is
rendered. We do not allow for the defendant to be found guilty
by waiver of his preliminary hearing. Likewise, in this case, we
cannot allow appellant’s probation to be permanently revoked
simply because he waived his Gagnon I hearing.
Commonwealth v. Sims, 770 A.2d 346, 352 (Pa. Super. 2001).
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The Sims Court explained that “[w]hen a parolee or probationer is
detained pending a revocation hearing, due process requires a determination
at a pre-revocation hearing, a Gagnon I hearing, that probable cause exists
to believe that a violation has been committed.” Sims, 770 A.2d at 349(citations omitted). “Where a finding of probable cause is made, a second,
more comprehensive hearing, a Gagnon II hearing, is required before a
final revocation decision can be made. Id. (citation omitted). At a Gagnon
II hearing, the trial court must first determine whether the facts warrant
revocation. Id. (citation omitted). “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.” Id. (citations omitted). If the
trial court determines that the parolee or probationer violated the conditions
of his parole or probation, then the trial court must decide whether the
parolee or probationer should be recommitted to prison or whether other
steps should be taken to protect society and improve chances of
rehabilitation. Id.Thus, the Gagnon II hearing is more complete than the
Gagnon I hearing in affording the probationer additional due
process safeguards, specifically: (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
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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.
Sims, 770 A.2d at 349-350 (internal quotation marks omitted).
Here, the record reflects that the trial court dutifully held review
hearings concerning Appellant’s progress, or lack thereof, while on
probation. However, we are constrained to agree with Appellant that in this
instance, there was not a proper Gagnon II hearing. As noted above, at
the April 15, 2013 hearing, Appellant’s probation was revoked and he was
resentenced. N.T., 4/15/13, at 11. Then, on August 5, 2013, Appellant was
informed of the allegations against him concerning technical violations of his
probation, his probation was revoked, and he was re-sentenced all at one
hearing. N.T., 8/5/13, at 29-30. This combining of Gagnon I and Gagnon
II hearings is not permitted. See Commonwealth v. Homoki, 605 A.2d
829, 831 (Pa. Super. 1992) (stating that 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 in
Gagnon. … We cannot accept that “two parts” to “one hearing” constitute
two separate hearings.”). For this reason, we vacate Appellant’s judgment
of sentence and remand for a proper Gagnon II hearing.1
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1
In light of our disposition, we need not reach Appellant’s remaining claims
of error. However, we note with concern Appellant’s challenges to the
admission of hearsay and allegation of burden shifting that occurred at the
(Footnote Continued Next Page)
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Judgment of sentence vacated. Case remanded for a Gagnon II
hearing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2015
_______________________
(Footnote Continued)
August 5, 2013 hearing. Appellant’s Brief at 34; N.T., 8/5/13, at 18; Trial
Court Opinion, 12/2/14, at 6. It is not the responsibility of the probationer
to prove that he did not violate probation; rather, the Commonwealth bears
the burden of proving the probationer violated his probation. See
Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009)
(stating that the Commonwealth bears the burden of proving a violation of
probation by a preponderance of the evidence and that hearsay is not
admissible at a Gagnon II hearing absent a finding of good cause for not
allowing confrontation).
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