Com. v. Eckhart, R.

• Court: Superior Court of Pennsylvania
• Decided: December 11, 2018
• Docket: 3900 EDA 2017
• Status: Unpublished

Opinion

J-S36017-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RYAN M. ECKHART, : : Appellant : No. 3900 EDA 2017

Appeal from the Judgment of Sentence November 14, 2017 In the Court of Common Pleas of Carbon County Criminal Division at No.: CP-13-CR-0000898-2011

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 11, 2018

Appellant, Ryan M. Eckhart, appeals from the November 14, 2017

Judgment of Sentence entered in the Court of Common Pleas of Carbon

County following the revocation of his parole. We affirm on the basis of the

trial court’s January 22, 2018 Opinion.

In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the underlying

facts. See Trial Court Opinion, filed 1/22/18, at 1-5. Briefly, on January 19,

2012, Appellant entered a guilty plea to one count of Driving Under the

Influence of a Controlled Substance.1 The trial court imposed a term of ninety

days to five years’ imprisonment.

____________________________________________

1 75 Pa.C.S. § 3802(d)(1)(i). J-S36017-18

Over the next several years, the court revoked Appellant’s parole

several times for his failure to comply with a zero-tolerance policy for drug

use and possession, as well as missed drug tests.

On October 31, 2016, Carbon County Adult Probation Officer Kimberly

Cooper filed a Petition to Revoke Appellant’s parole, alleging that Appellant

(1) tested positive for amphetamines on September 14, 2016; (2) failed to

submit a scheduled urine screen on October 5, 2016; and (3) “was

unsuccessfully discharged” from drug and alcohol treatment on October 18,

2016. Petition to Revoke, 10/31/16. Officer Cooper also requested that the

court issue an arrest warrant for Appellant. Due to a breakdown in the court’s

operation, the court did not properly process and file the Petition or issue an

arrest warrant.

On August 4, 2017, the Clerk of Courts issued the arrest warrant for

Appellant.2 Officers arrested Appellant on August 8, 2017, and served him

with the revocation Petition.

On October 27, 2017, the trial court, sitting as the parole violation

(“VOP”) court, conducted a VOP hearing at which Officer Cooper and Appellant

testified. Appellant stipulated to the violations, but challenged the timeliness

of the delayed revocation hearing and the Commonwealth’s diligence pursuant

2Officer Cooper testified that she discovered the error, notified the court, and submitted an expedited request for the issuance of the arrest warrant. N.T. VOP, 10/27/17, at 18-19.

-2- J-S36017-18

to Pennsylvania Rule of Criminal Procedure 708. See N.T. VOP, 10/27/17, at

4, 9, 44-45.

After consideration of the foregoing and additional briefing by the

parties, the VOP court found that Appellant had violated his parole. On

November 14, 2017, the VOP court recommitted Appellant for 202 days’

incarceration with credit for time served.

Appellant filed a timely Notice of Appeal. Both Appellant and the VOP

court complied with Pa.R.A.P. 1925.

Appellant presents one issue for our review:

Whether the [t]rial [c]ourt erred when it found the one year delay in resolving the Commonwealth’s petition to revoke [Appellant’s] parole reasonable under Pa.R.Crim.P. 708?

Appellant’s Brief at 4.

Appellant avers that the VOP court violated his right to a speedy

revocation hearing under Pa.R.Crim.P. 708. Appellant’s Brief at 10-20. Rule

708 provides, in part, that a parole revocation hearing must be “held as

speedily as possible at which the defendant is present and represented by

counsel.” Pa.R.Crim.P. 708(B)(1) (emphasis added). “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.” Commonwealth v. Clark, 847 A.2d 122, 124 (Pa. Super.

2004). “When examining the reasons for the delay, the court looks at the

circumstances surrounding the delay to determine whether the

-3- J-S36017-18

Commonwealth acted with due diligence in scheduling the revocation

hearing.” Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa. Super.

2010) (citing Clark, 847 A.2d at 124).

After a thorough review of the certified record, the briefs of the parties,

the applicable law, and the trial court Opinion, we conclude that there is no

merit to Appellant’s challenge. The Honorable Roger N. Nanovic, sitting as

the VOP court, has authored a comprehensive, thorough, and well-reasoned

Opinion, citing the record and relevant case law in addressing Appellant’s

claim. See Trial Court Opinion, filed 1/22/18, at 5-12 (concluding that there

is no merit to Appellant’s claim because the one-year delay did not prejudice

Appellant insofar as (1) his purported loss of a mitigation argument is

speculative and does not qualify as “the loss of essential witnesses or

evidence” as contemplated by the rule and case law, particularly where

Appellant stipulated to his violations; and (2) Appellant’s contention that he

would have been released from prison upon reaching his “maximum date” had

he been arrested earlier is speculative). We, thus, affirm on the basis of the

The parties are instructed to attach a copy of the trial court’s January

22, 2018 Opinion to all future filings.

Judgment of Sentence affirmed.

-4- J-S36017-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/11/18

-5- Circulated 11/20/2018 02:38 PM

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA CRIMINAL DIVISION - LAW

COMMONWEALTH OF PENNSYLVANIA

v. No. CR-898-2011 • ........1

RYAN ECKHART, ' ----..-. Defendant

Brian B. Gazo, Esquire Assistant District Attorney Counsel for the Commonwea I tfi) .:., · -· Matthew Mottola, Esquire Counsel for the Defendant Assistant Public Defender

MEMORANDUM OPINION

Nanovic, P.J. - January 22, 2018

Under Pa.R.Crim.P. 708 (B) (1), parole and probation

revocation hearings must be held within a reasonable time. When

this does not occur and the defendant is prejudiced by the

delay, the underlying petition should be dismissed. So argues

the Defendant in opposing the petition to revoke Defendant's

parole filed by the Carbon County Adult Probation Office on

October 31, 2016.

FACTUAL AND PROCEDURAL BACKG�OUND

On January 19, 2012, Senior Judge Richard W. Webb sentenced

Ryan Eckert, the defendant in these proceedings, to serve no

less than ninety days nor more than five years in the Carbon

County Correctional Facility for his conviction of driving under

the influence of a schedule one controlled substance, heroin, as

a second offense. The sentence contained a zero-tolerance [FN-2-18) 1 provision for Defendant's use or possession of illegal

controlled substances and for missed urine screens. With credit

granted for fifty-one days, the sentence was set to expire on

November 30, 2016 (the "max date").

Unfio r t una t e Ly , Defendant was not able to comply with the

zero-tolerance provision and, as a result, his parole has been

revoked three times. (N.T., 10/27/17, p. 10). The first

revocation occurred on October 10, 2013, when Defendant was

recommitted to serve the balance of his sentence and made

eligible for re-parole after serving a minimum six-month period

of imprisonment. The second revocation occurred on October 1,

2015. Again, Defendant was recommitted to serve the balance of

his sentence, with the court conditioning Defendant's

eligibility for parole on or after May 1, 2016, upon his

admission into a long-term inpatient drug and alcohol

rehabilitation facility. (N.T., 10/27/17, p. 13).1 The third

revocation, and the revocation which is the subject of these

proceedings, began with the filing by the Carbon County Adult

Probation Office of a revocation petition on October 31, 2016.

In its petition, the Probation Office alleged that

Defendant tested positive for amphetamines on September 14, 1 Defendant was paroled on May 12, 2016, to an inpatient program at Conewego Snyder, which he successfully completed on July 29, 2016. On Defendant's discharge from this facility, it was recommended that he attend one individual and two group counseling sessions every week beginning September 6, 2016. Between September 6, 2016, and October 8, 2016, Defendant attended a total of one individual and two group sessions, resulting in his unsuccessful discharge from outpatient counseling on October 18, 2016, due to his failure to keep scheduled appointments. (N.T., 10/27/17, pp. 14, 23- 24, 35-36) . [FN-2-18] 2 2016, failed to submit to a scheduled urine screen on October 5,

2016, and was. unsuccessfully discharged from drug and alcohol

treatment on October 18, 2016. These violations were not

disputed by Defendant at the time of his revocation hearing held

on October 27, 201�. (N.T., 10/27/17, pp. 4, 44-45). Instead,

Defendant argued that the one-year delay in resolving the

Commonwealth's petition was unreasonable and required dismissal,

with prejudice, of the violations.

In its petition filed on October 31, 2016, the Probation

Office requested that an arrest warrant be issued for

Defendant's apprehension and stated that service of the petition

would be made on Defendant at the time of apprehension. (N. T.,

10/27/17, p. 16). On the same date this petition was filed, the

court entered an order directing the issuance of an arrest

warrant, however, due to an oversight in the Clerk of Courts

Office, no warrant was issued until August 4, 2017. (N. T.,

10/27/17, pp. 17-18). This breakdown in processing the arrest

warrant was discovered when the probation officer responsible

for filing the petition for revocation - Kimberly Cooper - first

learned that same day that Defendant was not in prison, but had

been visiting the prison to deposit monies in a female inmate's

account, and immediately requested the Clerk's Office to process

Defendant's arrest warrant on an expedited basis. (N. T.,

10/27/17, pp. 18-19, 28-29). Upon the issuance of the arrest

[FN-2-18] 3 warrant, Defendant was arrested four days later, on August 8,

2017. (N . T. , 10 I 2 7 I 1 7 , pp . 1 7 , 2 O) •

At the revocation hearing held on October 27, 2017,

Defendant claimed "the petition should be dismissed because the

hearing was untimely under Pa. R. Crim. P. 708 (B) (1)."

(Defendant's Brief in Support of Dismissal of Petition to Revoke

Parole, p. 1). Defendant argued the Commonweal th did not act

diligently to monitor and ensure that the Clerk of Courts Office

timely processed the petition and issued an arrest warrant, and

that the resulting delay in holding the revocation hearing was

prejudicial.

At the conclusion of the revocation hearing, we requested

counsel to brief Defendant's claim that the delay between when

the petition for revocation was filed and the hearing was held

was unreasonable and required dismissal of the petition.

Defendant's brief was filed on October 30, 2017, and the

Commonwealth's brief was filed on November· 3, 2017. By Order

dated November 14, 2017, we granted the Commonwealth's request

for revocation and recommitted the Defendant to prison for 202

days, less credit for Defendant's confinement in the Carbon

County Correctional Facility since his arrest on August 8, 2017,

and an additional seventy-eight days for Defendant's successful

completion of inpatient treatment at Conewego Snyder for the

period from May 12, 2016, through July 29, 2016. The order

[FN-2-18) 4 contained an extensive annotation explaining the reasons for our

decision.

On November 22, 2017, Defendant filed his appeal to the

Pennsylvania Superior Court from the November 14, 2017, order

' granting revocation. In his appeal, Defend.ant raises one issue:

Whether "[t] he Trial Court erred when it found the one-year

delay in reso.lving the Commonwealth's petition to revoke

(Defendant's] parole reasonable under Pa. R. Crim. P. 708." See

Defendant's Concise Statement of Errors Complained of on Appeal

filed on December 11, 2017. In his concise statement, Defendant

further states that "[d]espite finding that this delay was

intrinsically unreasonable and that the Commonwealth did not act

diligently in resolving this petition, the Trial Court. erred

when it found this delay reasonable because it concluded that

[Defendant] was not prejudiced by this delay".

DISCUSSION

A revocation hearing must be held within a "reasonable

time" from when a petition seeking revocation on technical

grounds is filed. Commonweal th v. Christmas, 995 A. 2d 1259,

1262 (Pa.Super. 2010) (interpreting Rule 708's language

requiring a hearing to be held "as speedily as possible" to mean

within a reasonable time), appeal denied, 53 A.3d 756 (Pa.

2012) .2 The primary purpose of this prompt hearing requirement

2 Pennsylvania Rule of Civil Procedure 708(8) provides, in relevant part: [FN-2-18] 5 is to prevent the loss of essential witnesses or evidence that

would adversely af feet the fairness of the revocation process

and to prevent unnecessary detention or other limitations on the

offender's personal liberty. Commonwealth v. Marchesano, 544

A.2d 1333, 1336 (Pa. 1988).

"[T] he reasonableness of the delay in the holding of a

revocation hearing is to be determined by an inquiry into the

circumstances of the individual case. Three of the

circumstances into which the court inquires are the length of

the delay, the reasons which do or do not justify it, and

whether the Defendant was prejudiced by the delay."

Commonwealth v. Marchesano, 544 A.2d at 1336. There is no

presumptive or per se rule finding prejudice to exist after a

certain defined period of time or "whenever a revocation hearing

is held after the period that probation [or parole] has

expired." Id. at 1336. Rather, courts must consider whether

the delay was reasonable under the circumstances of the specific

case and whether actual prejudice to the defendant resulted.

Rule 708. Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition

(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(8).

[FN-2-18] 6 Marchesano, 54 4 A. 2d at 1336-37. Lt is Defendant's burden to

prove prejudice. Commonwealth v. Christmas, 995 A.2d at 1263.

With respect · to the three f act or s identified in Marchesano

for evaluating the reasonableness of a delay, the length of the

delay in the case sub j udice was approximately one year: from

October 31, 2016 (the date the revocation petition was filed)

until October 27, 2017 (the date the revocation hearing was

held). The reason for this delay was primarily due to a

breakdown in the Clerk of Courts Office in issuing the arrest

warrant (from October 31, 2016 until August 4, 2017) and

thereafter due to delay inherent in revocation proceedings. A

Gagnon I hearing was held on August 28, 2017, one month after

Defendant's arrest, and a Gagnon II hearing was held on October

27, 2017, two months later.

Here, both the period of the delay (i.e., twelve months)

and reason for the delay (i.e., the delay in issuing the arrest

warrant) favor dismissal of the petition. See Commonwealth v.

Bischof, 616 A.2d 6, 8-10 (Pa.Super. 1992) (citing delay periods

of 12, 22 � and 9 � months as unreasonable; finding the

Commonwealth not to have proceeded with due diligence in

scheduling the revocation hearing where the reason given for

fifteen months of the delay was the need to obtain a certified

copy of defendant's conviction (the underlying basis for the

revocation), which the parole department took no affirmative

[FN-2-18) 7 steps · to track during this fifteen-month period, and an

additional seven months thereafter until the hearing was held,

which the Commonwealth took no steps to expedite).

Notwithstanding this predisposition, the period of delay here is

significantly less than the twenty-two month delay in Bischof,

and while we have concluded that the Parole Off ice failed to

exercise due diligence in making inquiry of the Clerk's office

during the nine-month period it took for the arrest warrant to

be issued, we find no fault with the Commonweal th as to the

ensuing three month delay before the hearing was held, much of

which we consider to be intrinsic in the two-step revocation

process. (N.T., 10/27/17, pp. 32-33). See Morrissey v. Brewer,

408 U.S. 471, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (finding

that a period of two months between the preliminary hearing and

the final revocation hearing was "not unreasonable").

Moreover, the period and cause of the delay are not

dispositi ve factors in and of themselves and do not entitle an

offender to dismissal of the petition absent a finding of

pr�judice. See Commonwealth v. Bischof, 616 A.2d at 9.

Prejudice in this context has been interpreted as being something which would detract from the probative value and reliability of the facts considered, vitiating the reliability of the outcome itself. One specific purpose of our rule in requiring a prompt revocation hearing is to avoid such prejudice by preventing the loss of essential witnesses or evidence, the absence of which would contribute adversely to the determination. Another is to prevent unnecessary restraint of personal liberty. [FN-2-18) 8 Commonwealth v. Dickens, 327 Pa.Super. 147, 475 A.2d 141 (1984); ������������� Corrunonwealth v. Ballard, 292 Pa.Super. 129, 436 A.2d 1039 (1981).

Conunonwealth v. Marchesano, 544 A.2d at 1336.

Defendant claims prejudice in two respects. First, that

had the hearing been held shortly after the�revocation petition

was filed, he would have had a viable argument for mitigation

given his recent .successful completion of inpatient treatment at

Conewego Snyder and second, had he been arrested before the max

date, he would have been released from prison on this date,

pending resolution of the petition, a necessarily shorter period

of time than the eighty-one days he spent in prison prior to the

October 27, 2017, revocation hearing. (N.T., 10/27/17, p. 30).

Both, we conclude, are unavailing to Defendant.

As to the first, such is not prejudice as defined by the

Pennsylvania Supreme Court. Defendant suffered no harm

attributable to "the loss of essential witnesses or evidence,

the absence of which would contribute adversely to the

determination" because of the delay. The violations were

stipulated to and, therefore, not in dispute. All indicated

that notwithstanding Defendant's discharge from Conewego Snyder

on July 29, 2016, he was still using illegal drugs and not

complying with the zero-tolerance provision of his sentence.

That this was further confirmed by his subsequent possession and

use of illegal drugs after November 30, 2016, was conduct within

[FN-2-18] 9 Defendant's control and constituted new evidence for which he

bears the risk, not a loss of evidence by which Defendant was

prejudiced. (N.T. 10/27/17, pp. 19-20, 43, 49-50, 52).

As to Defendant's second claim of prejudice, that he was

unnecessarily imprisoned for longer than he would have' been if

he had been arrested before November 30, 2016, this is both

speculative and unlikely. The petition to revoke Defendant's

parole was filed thirty days before Defendant's max date.

Whether it can fairly be said that had the warrant been issued

immediately, Defendant would have been located and arrested

within this thirty-day period is uncertain. But even if this

were the case, Officer Cooper testified that given Defendant's

past history of drug use, his prior two revocations, and the

current violations, the Probation Office's recommendation to

revoke Defendant's parole and recommit him for 202 days would

have been unchanged. (N.T., 10/27/17, pp. 21-24, 33-34) .3

3 This period of 202 days represents the pEriod between May 12, 2016, when Defendant

was previously released on parole and admitted into the inpatient program at Conewego Snyder, and Defendant's max date of November 30, 2016. (N.T., 10/27/17, pp. 21, 31). While we accepted this time span for recommitting Defendant to prison in our November 14, 2017, order revoking Defendant's parole, we also gave Defendant full credit for the seventy-eight days he spent in inpatient treatment at Conewego Snyder. Taking into account this seventy-eight day period Defendant was in inpatient treatment at Conewego Snyder, and considering Defendant was arrested and incarcerated on August 8, 2017, Defendant will have fully served the 202 days for which he was recommitted as of December 10, 2017. This notwithstanding, and although Defendant has not challenged his conviction or the legality of his sentence, the case is not moot since the fact of Defendant's revocations from parole could have future consequences for any future convictions for which Defendant may be sentenced: Defendant's revocations from parole signal Defendant is a poor candidate for parole or probation, and would likely appear in a presentence report and be given consideration in sentencing Defendant for any new offenses. See Commonwealth v. Carter, 523 A.2d 779, 781 (Pa.Super. 1987). [FN-2-18) 10 In add i t i on , "[iJn evaluating [the prejudice} component of

the test we must bear in mind the nature of the proceeding.

Parole, as well as probation, is primarily concerned with the

rehabilitation and restoration of the individual to a useful

life. It is a discretionary penological measure to which a

defendant has no absolute right. Thus, the controlling

consideration at a revocation hearing is whether the facts

presented to the court are probative and reliable and not

whether traditional rules of procedure have been strictly

observed." Commonwealth v. Marchesano, 544 A.2d at 1336

( citations omitted) . Further, a parole revocation, unlike a

probation revocation, "does not involve the imposition of a new

sentence. Indeed, there is no authority for a parole-revocation

court to impose a new penalty. Rather, the only option for a

court that decides to revoke parole is to recommit the Defendant

to serve the already-imposed, original sentence." Commonwealth

v. Kalichak, 943 A.2d 285, 290 (Pa.Super 2008).

Here, Defendant's violations and his past record justified

revocation of parole and recommi tment for the balance of his

sentence effective May 12, 2016. While we suspect there is no

good time to be in prison from a defendant's perspective,

whether Defendant's period of incarceration began, as it did

here, on August 8, 201 7, when he was arrested; on October 27,

2017, when the revocation hearing was held; or on some later

[E'N-2-18) 11 date appears to be of no consequence und�r the circumstances of

this case. Defendant argues that he was prejudiced by being in

prison,· not by when he was in prison. {N.T., 10/27/17, pp. 8-

9) . Given that Defendant has not challenged the violations

which form the basis of his revocation or the Court's exercise

of discretion in revoking parole and recommitting the Defendant

to serve the balance of his sentence, Defendant has not been

prejudiced by an "unnecessary restraint of personal liberty" due

to the delay.

CONCLUSION

The probative value and reliability of the facts

surrounding and underlying the revocation of Defendant's parole

are not in dispute. The facts and the context in which they

occurred were fairly and accurately presented to the court.

Nor has Defendant, who was recommitted to serve the balance of

his sentence and given credit for all time spent in prison

pending his revocation hearing, been prejudiced by any

unnecessary restraint of his freedom. Consequently, Defendant

is entitled to no relief based upon a claimed viola��,on of his . .. ., c..·.

--.. . ;. _,, .:-- ' {

right to a speedy hearing. �-:��:� . :;..>::'.'::: ;.._ , � ... ....,..... �-) -;:i:� (:) ;-...) �--7 -�c;,::� r-o BY THE COURT: C')-�1 c-, ::..,cicJ r---�.., ;. � . ���?::-�. u r--4 '--J --:.. - -· 8 fP•::..1-� 0 P-:-J.

[FN-2-18) 12