Com. v. Thompson, S.

J-S25007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHATEERA LEANN THOMPSON,
Appellant No. 2472 EDA 2016
Appeal from the Judgment of Sentence July 6, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001738-2016
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHATEERA LEANN THOMPSON,
Appellant No. 2475 EDA 2016
Appeal from the Judgment of Sentence July 6, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003712-2015
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 05, 2017
Shateera Leann Thompson (Appellant) appeals from the judgment of
sentence imposed on July 6, 2016, that resulted in an aggregate sentence of
four to eight years’ imprisonment after revocation of her probation in a 2015
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case and revocation of her parole in a 2016 case.1 After review, we reverse
the judgment of sentence and remand for further proceedings.
In April of 2015, Appellant was arrested and charged with aggravated
assault on law enforcement, 18 Pa.C.S. § 2702(a)(3). Although she agreed
to plead guilty to two counts of aggravated assault, Appellant’s guilty plea
was held in abeyance by the court, which instead ordered her admission for
24 months into the mental health court program. Then, in March of 2016,
Appellant was again arrested and pled guilty to simple assault, 18 Pa.C.S. §
2701(a)(1), for which she received a sentence of time-served to 23 months’
incarceration. After a hearing was held on May 10, 2016, and as a result of
the 2016 simple assault conviction, Appellant was found to have violated the
terms of her commitment to the mental health court program in connection
with the 2015 aggravated assault case and was sentenced to three years’
probation to be served under the supervision of the mental health unit.
While still incarcerated, the probation department sought housing for
Appellant in a Carelink facility, due to the fact that she was homeless.
Shortly after Appellant’s release, allegations were made that she had
committed technical violations of both her probation relating to the 2015
case and her parole related to the 2016 case.
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1
This Court issued a per curiam order on October 4, 2016, consolidating
Appellant’s two appeals.
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A hearing was scheduled for July 6, 2016, at which both the 2015 and
2016 cases were at issue. Appellant’s counsel stipulated that notice was
received; however, she contested the violations. Following arguments
presented by the Commonwealth and Appellant’s counsel, the court imposed
the four to eight year aggregate sentence. Appellant filed post-sentence
motions and an appeal to this Court. She also filed a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In her
brief, she sets forth the following two issues for our review:
1. Did the trial court abuse its discretion and/or commit an error
of law by finding Appellant in violation of her probation, where
the evidence was gravely insufficient to support the violations
alleged, and where Appellant was effectively denied the ability to
participate in her own defense[?]
2. Did the trial court abuse its discretion by entering a
manifestly excessive sentence, which consisted of total
confinement, which was inappropriate to meet Appellant’s
rehabilitative needs, and which was not essential to vindicate the
authority of the court[?]
Appellant’s brief at 3. In its opinion in response to Appellant’s appeal to this
Court, the trial court discussed factual matters relating to the alleged
violations, which it relied upon to support the imposition of the aggregate
sentence of four to eight years in prison.
Rather than specifically discuss the issues Appellant has raised, most
notably that there is insufficient evidence to support the alleged violations of
her probation and parole, we recognize that the Commonwealth has
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requested remand for a proper Gagnon II2 hearing. Following our review of
the record, we agree that Appellant’s sentence must be reversed and a
remand is necessary. No evidence at all was presented at the Gagnon II
hearing; the entire “hearing” consisted of argument by counsel for the
Commonwealth and for Appellant and minimal statements made by a
representative from the Adult Probation and Parole Department, who was
not under oath.
Initially, we note that “[w]hen reviewing the results of a revocation
hearing, this Court is limited to determining the validity of those
proceedings, and the legality of the judgment of sentence imposed.”
Commonwealth v. Heilman, 876 A.2d 1021, 1026 (Pa. Super. 2005)
(quoting Commonwth v. Williams, 801 A.2d 584, 585 (Pa. Super. 2002)).
Moreover, this Court has explained:
The Gagnon II hearing entails two decisions: first, a
consideration of whether the facts determined warrant
revocation. 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? 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
____________________________________________
2
See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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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.
Commonwealth v. Sims, 770 A.2d 346 (Pa. Super. 2001) (quotation
marks and citations omitted).
Simply stated, the “hearing” held on July 6, 2016, did not satisfy the
requirements of Gagnon II. No testimony or documentation was presented
that could in any way support the trial court’s decision. See Heilman, 876
A.2d at 1028 (concluding that insufficient evidence appeared in the record of
the hearing providing a basis for a finding that the appellant willfully
disregarded the terms of his probation). Therefore, we are compelled to
remand for a new violation hearing. See Commonwealth v. Mullins, 918
A.2d 82, 85-86 (Pa. 2007) (holding that, when vacating a probation
revocation sentence due to insufficient evidence, the matter is to be
remanded for a new revocation hearing). Accordingly, under the
circumstances here, we reverse the judgment of sentence and remand for a
new revocation hearing.
Judgment of sentence reversed. Case remanded for proceedings
consistent with this memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2017
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