Commonwealth v. Ball

363 A.2d 1322, 242 Pa. Super. 379, 1976 Pa. Super. LEXIS 2034
Superior Court of Pennsylvania·Decided September 27, 1976·No. No. 589·Published·Cited by 3 cases

Opinion

CERCONE, Judge.

This is an appeal from the lower court’s order revoking appellant’s probationary status and imposing several terms of imprisonment. Appellant argues that his probation revocation hearing was deficient because he was not afforded the due process safeguards mandated by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 2d 656 (1973) and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Specifically, appellant contends that due process was violated because he did not receive written notice of the alleged probation violations. In addition, appellant challenges the legality of the prison sentences imposed following the revocation hearing.

On January 8,1974, and April 26,1974, appellant pleaded guilty to several offenses and was sentenced to four years probation on a burglary charge, two years proba[381] tion for theft of moveable property, and two years probation on a charge of receiving stolen property, all three sentences to run concurrently. While serving probation, however, appellant was arrested twice on new criminal charges: On June 17, 1974, for burglary, larceny, receiving stolen property, and conspiracy; and on June 19, 1974, for criminal attempt and conspiracy. On August 23, 1974, following a preliminary hearing on the new charges, but prior to trial, a probation revocation hearing 1 was conducted. This hearing was continued in part until September 3, 1974, at which time appellant’s probation was revoked and he was sentenced to prison for two to four years on the burglary conviction. On the other two convictions, prison sentences of one to two years- — to run concurrently with the other sentence — were imposed.

An appeal was then taken to this court and we vacated the judgment of sentence and remanded for further probation revocation proceedings because the lower court had not specifically found good cause for not allowing appellant to confront an adverse witness at the hearing. Commonwealth v. Ball, 235 Pa.Super. 581, 344 A.2d 675 (1975). Accordingly, the lower court conducted a second Gagnon II hearing on November 14, 1975. In the meantime, however, appellant pleaded guilty to the new criminal charges which had precipitated the probation revocation proceedings, i. e., the arrests of June 17 and 19 of 1974. At the conclusion of appellant’s second Gagnon II hearing, the lower court revoked probation and appellant was again sentenced to not less than two nor more than four years imprisonment on the burglary charge. Likewise a concurrent sentence of one to two years imprisonment was imposed on the charge of receiving stolen property. On the charge of theft of moveable property, however, appellant received a prison sentence of one to two [382] years consecutive with the sentence imposed on the burglary charge. This appeal followed.

We turn first to appellant’s contention that his probation was improperly revoked because he did not receive written notice of his alleged probation violations. In Morrissey v. Brewer, supra, 408 U.S. at 488-89, 92 S. Ct. at 2604, the Supreme Court held that minimum due process requires that an alleged parole violator be provided, inter alia, “written notice, of the claimed violations of parole.” These same due process requirements, including the right to receive written notice of the alleged violations, were subsequently extended to probation revocation proceedings. Gagon v. Scarpelli, supra. Moreover, in a series of cases this court has held that defendants are not only entitled to written notice of alleged violations, but that this issue of notice will not be deemed waived even though the defendant does not object to the lack of written notice at the probation revocation hearing. Commonwealth v. Kile, 237 Pa.Super. 72, 346 A.2d 793 (1975); Commonwealth v. Stratton, 235 Pa.Super. 566, 344 A.2d 636 (1975); Commonwealth v. Henderson, 234 Pa.Super. 498, 340 A.2d 483 (1975); Commonwealth v. Alexander, 232 Pa.Super. 57, 331 A.2d 836 (1975).

In the case at'bar we agree with appellant that the record does not presently contain the written notices of the alleged violations. The record does reflect, however, that appellant was well aware of the charges against him and in no wise hampered in his preparation for the second Gagnon II hearing. Indeed, our examination of the record discloses several reasons why appellant’s argument regarding lack of notice is frivolous.

Initially, it appears from the record that appellant was provided with notice of the alleged violations prior to his first Gagnon II hearing, but that notice was not again given before the second Gagnon II hearing was conducted.[383] 2 In this regard, the following discussion, which transpired at appellant’s second Gagnon II hearing, is revealing:

“By Mr. Huganir (counsel for the appellant):
Excuse me. I’d like to know if this was part of the notification. I realize the change of address was absent, but is this part of the notification that he had broken the terms of his probation by the fact of the test showing positive? I realize that was brought out in hearing, but I wonder if that was.....
By the Court:
Well this is the second one now. He had it the first time, now he’s at the second one.
********
By Mr. Huganir:
I was talking in terms of the specific allegations of the violations, not just in terms of the time of the hearing. And since no subsequent notice was received other than the one which Your Honor — other than the one which related to the hearing before. So I assume the same violations would apply, and that since the defendant has subsequently pleaded guilty there is really no — not any controversy so far as the violations are concerned.” [Emphasis added.]

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Commonwealth v. Ball, 363 A.2d 1322, 242 Pa. Super. 379, 1976 Pa. Super. LEXIS 2034 (Pa. Ct. App. 1976).

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